State v. Baker

[Cite as State v. Baker, 2013-Ohio-2398.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-12-127

: OPINION
- vs - 6/10/2013
:

JUSTIN BAKER, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 12CR28427

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Ginger S. Bock, P.O. Box 31122, Cincinnati, Ohio 45231, for defendant-appellant

PIPER, J.

{¶ 1} Defendant-appellant, Justin Baker, appeals his convictions and sentence in the

Warren County Court of Common Pleas for multiple counts of trafficking in, cultivation of, and

possession of marijuana, as well as possession of criminal tools, and engaging in a pattern of

corrupt activity.

{¶ 2} In late 2011, police began investigating Tyler Pagenstecher on suspicion of

drug trafficking. Pagenstecher, who was a juvenile at the time of the initial police
 Warren CA2012-12-127

investigation, sold marijuana to his customers, which included other juveniles in the Mason,

Ohio area. As part of their investigation, the Warren County Drug Task Force determined

that Pagenstecher's supplier was Michael Lopez, who purchased marijuana from a married

couple, Cody and Stacy Lampe. The Lampes grew their own marijuana for distribution, and

also purchased marijuana grown by Baker. Baker, along with his associate, grew substantial

amounts of marijuana in two "grow houses," and later expanded the business and cultivated

over 350 marijuana plants in the back portion of a large warehouse.

{¶ 3} The Warren County Drug Task Force apprehended Pagenstecher, and he

agreed to assist the task force by arranging a buy from Lopez of his normal purchase of four

ounces of marijuana. On January 13, 2012, Pagenstecher, at the behest of the task force,

told Lopez to meet him at a Walmart in Warren County, even though the two usually met at a

different location outside of Warren County. Members of the task force were waiting for

Lopez, and detained him in the Walmart parking lot. Lopez also agreed to assist law

enforcement by arranging a buy of one pound of marijuana from the Lampes. As a result of

the arranged buy, the Lampes were also apprehended. The Lampes also agreed to assist

law enforcement by allowing a conversation with Baker to be recorded wherein Cody Lampe

discussed with Baker previous marijuana purchases and the cultivation of marijuana. The

task force followed Baker after his conversation with Lampe occurred and observed Baker

entering the warehouse where he grew the marijuana, which was located in Blue Ash, Ohio.

{¶ 4} The task force placed the warehouse under surveillance. The task force also

found a trailer on the warehouse property that was identified as belonging to Baker. Police

then requested and were granted search warrants for the two houses in which Baker grew

marijuana, as well as the warehouse. The task force executed the warrants, and recovered

38,000 grams of marijuana from the warehouse and over 9,000 grams of marijuana from one

of the homes Baker used as a grow house.

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{¶ 5} Police arrested Baker, and he was indicted on three counts of trafficking in

marijuana, two counts of possession of marijuana, two counts of cultivation of marijuana, two

counts of possession of criminal tools, and one count of engaging in a pattern of corrupt

activity. Baker pled not guilty to the charges, waived his right to a jury trial, and elected to

have the trial court hear his case. The bench trial occurred over two days, and the trial court

found Baker guilty of every charge. The trial court sentenced Baker to serve an aggregate

mandatory sentence of eight years. Baker now appeals his convictions and sentence, raising

three assignments of error. Because Baker's first and third assignments of error are

somewhat interrelated, we will address them together for ease of discussion.

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE TRIAL COURT ERRED BY CONVICTING BAKER IN AN IMPROPER

VENUE.

{¶ 8} Assignment of Error No. 3:

{¶ 9} THE TRIAL COURT ERRED BY REFUSING TO APPLY LAW EMPLOYED BY

MAJORITY OF OHIO APPELLATE DISTRICTS. [sic]

{¶ 10} Baker argues that the trial court erred by finding him guilty of all of the charges

against him when the state failed to prove that the charges were brought in the proper venue

because no element of his pattern of corrupt activity occurred in Warren County.

{¶ 11} The Ohio Constitution, Article I, Section 10 establishes a defendant's right to "a

speedy public trial by an impartial jury of the county in which the offense is alleged to have

been committed." According to the Ohio Supreme Court, "Section 10, Article I of the Ohio

Constitution fixes venue, or the proper place to try a criminal matter * * *." State v. Hampton,

134 Ohio St.3d 447, 2012-Ohio-5688, ¶ 19, citing State v. Headley, 6 Ohio St.3d 475,

477(1983). Establishing the correct venue is imperative in order to "give the defendant the

right to be tried in the vicinity of his alleged criminal activity; the need to have venue is to limit
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the state from indiscriminately seeking a favorable location for trial or selecting a site that

might be an inconvenience or disadvantage for the defendant." State v. Meridy, Clermont

App. No. CA2003-11-091, 2005-Ohio-241, ¶ 12. (Emphasis in original.)

{¶ 12} The standard to establish venue is whether appellant has a "significant nexus"

with the county where the trial was held, as determined by whether one or more of the

elements of an offense occurred in the county in which the charge is brought. State v. Stone,

12th Dist. No. CA2007-11-132, 2008-Ohio-5671, ¶ 16. For that reason, and pursuant to R.C.

2901.12(A), "the trial of a criminal case in this state shall be held in a court having jurisdiction

of the subject matter, and in the territory of which the offense or any element of the offense

was committed."

{¶ 13} While venue is not a material element of any offense charged, the state must

nonetheless prove beyond a reasonable doubt that the crime charged was committed in the

county where the indictment was returned and the trial held, unless the issue of venue is

waived by the defendant. Meridy at ¶ 12. As stated by the Ohio Supreme Court, "a

conviction may not be had in a criminal case where the proof fails to show that the crime

alleged in the indictment occurred in the county where the indictment was returned."

Hampton at ¶ 19.

{¶ 14} The venue statute provides that when an offender commits offenses in different

jurisdictions as part of a course of criminal conduct, venue lies for all the offenses in any

jurisdiction in which the offender committed one of the offenses or any element thereof. R.C.

2901.12(H). Offenses "committed as part of the same transaction or chain of events, or in

furtherance of the same purpose or objective" serve as prima facie evidence of a course of

criminal conduct. R.C. 2901.12(H)(3).

{¶ 15} As pertinent to this case, the state alleged that Warren County was the proper

venue because Baker engaged in a pattern of corrupt activity within Warren County.
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According to R.C. 2923.32(A)(1), "no person employed by, or associated with, any enterprise

shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a

pattern of corrupt activity or the collection of an unlawful debt." R.C. 2923.31(C) defines

enterprise as "any individual, sole proprietorship, partnership, limited partnership,

corporation, trust, union, government agency, or other legal entity, or any organization,

association, or group of persons associated in fact although not a legal entity. 'Enterprise'

includes illicit as well as licit enterprises." "'Pattern of corrupt activity' means two or more

incidents of corrupt activity, whether or not there has been a prior conviction, that are related

to the affairs of the same enterprise, are not isolated, and are not so closely related to each

other and connected in time and place that they constitute a single event." R.C. 2923.31(E).

{¶ 16} Baker argues in his third assignment of error that this court should depart from

our precedent in which this court rejected using a three-part test established in United States

v. Riccobene, 709 F.2d 214 (3rd Cir.1983), when analyzing Ohio's engaging in a pattern of

corrupt activity statute. State v. Dodson, 12th Dist. No. CA2010-08-191, 2011-Ohio-6222;

and State v. Baker, 12th Dist. No. CA2011-08-088, 2012-Ohio-887. We decline Baker's

request to overrule these cases and adopt the three-part test suggested in Riccobene, as

well as some Ohio appellate districts. To the extent that Baker has assigned as error the trial

court's use of our case precedent, we overrule his third assignment of error.

{¶ 17} We will therefore discuss whether Baker engaged in a pattern of corrupt activity

in Warren County using the law established and followed in this district. After reviewing the

record, and applying the law of this district, we find that Warren County was not the proper

venue to bring charges against Baker, as he did not cultivate/traffic/possess marijuana there,

nor did he possess criminal tools or engage in a pattern of corrupt activity in Warren County.

The evidence does not establish Baker knew of, conspired with, or had any associate of his

engage in conduct involving Baker's enterprise in Warren County.
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{¶ 18} By virtue of its indictment of Baker for engaging in a pattern of corrupt activity,

the state was alleging that Baker directly or indirectly conducted or participated in corrupt

activity with a group of persons associated-in-fact to traffic marijuana in Warren County. To

support this claim, the state produced evidence that Baker sold marijuana to the Lampes,

that the Lampes sold marijuana to Lopez, that Lopez sold marijuana to Pagenstecher, and

that Pagenstecher sold marijuana in Warren County. According to the state, therefore, an

element of engaging in a pattern of corrupt activity occurred when Pagenstecher sold

marijuana in Warren County thereby providing venue in Warren County. However, the state

failed to prove beyond a reasonable doubt that Baker was a direct or indirect participant in

the corrupt activity of a group of persons associated-in-fact conducting the affairs of an

enterprise in Warren County. Illustrating the point even further, the state did not prove that

the marijuana that Baker sold to the Lampes was the same marijuana that was eventually

sold in Warren County by Pagenstecher.

{¶ 19} When determining whether a group of people are associated-in-fact, a court will

look to whether the group is a "continuing unit that functions with a common purpose."

Baker, 2012-Ohio-887 at ¶ 10, quoting Boyle v. United States, 556 U.S. 938, 939, 129 S.Ct
1
2237 (2009). The court in Boyle was asked to determine whether an association-in-fact

must have "an ascertainable structure beyond that inherent in the pattern of racketeering

activity in which it engages."2 556 U.S. at syllabus. In analyzing the issue, the court noted

1. Because the Ohio statute is based upon the federal RICO statute, Ohio courts have relied upon federal case
law when analyzing issues pertinent to engaging in a pattern of corrupt activity. State v. Schlosser, 79 Ohio St.3d
329, 332 (1997).

2. The question presented to the United States Supreme Court in Boyle makes reference to the third component
in the three-part test adopted by the court in Riccobene, which required the prosecution to prove that the entity
was separate and apart from the pattern of activity in which it engages. As this court stated in Dodson and
Baker, the Boyle court rejected the argument that an association-in-fact must contain "an ascertainable structure
beyond that inherent in the pattern of racketeering activity in which it engages." 556 U.S. at 938. Instead, the
court reiterated that "proof of a pattern of racketeering activity may be sufficient in a particular case to permit a
jury to infer the existence of an association-in-fact enterprise." Id. at 951.

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that "first, the enterprise must have a 'structure' that * * * has at least three features: a

purpose, relationships among the associates, and longevity sufficient to permit the

associates to pursue the enterprise's purpose." Id. at 939.

{¶ 20} When discussing the structure requirement, the Boyle court stated, "the term

'structure' means 'the way in which parts are arranged or put together to form a whole and

the interrelation or arrangement of parts in a complex entity." Id. at 945-946, citing American

Heritage Dictionary 1718 (4th Ed.2000). (Emphasis added.) The court went on to state that

an "association-in-fact enterprise is 'a group of persons associated together for a common

purpose of engaging in a course of conduct'" and that "the concept of 'association' requires

both interpersonal relationships and a common interest." Id. at 946 citing United States v.

Turkette, 452 U.S. 576, 101 S.Ct. 2524 (1981). Moreover, the "defendants must have

'conducted or participated in the conduct of the enterprise's affairs, not just their own affairs.'"

Ouwinga v. Benistar 419 Plan Services, Inc., 694 F.3d 783 (6th Cir.2012), quoting Reves v.

Ernst & Young, 507 U.S. 170, 185, 113 S.Ct. 1163 (1993). (Emphasis in original.)

{¶ 21} Even when broadly construing the language of R.C. 2923.32, the record

demonstrates that the state failed to prove that there was a structure that revealed Baker
3
acting together with others for the sale of marijuana in Warren County. While longevity is

not at issue here, the case lacks the other indicia of "structure" in that there was neither a

common purpose established nor relationships among associates to form a whole as

contemplated by the Boyle court. Nor was there any indication that Pagenstecher or Lopez

conducted or participated in conduct that pertained to Baker's enterprise rather than their

own affairs. The state urges us to determine that Baker's conduct was part of a "continuing

unit that functions with a common purpose" because each of the individuals involved made

3. The Boyle court stated that the RICO statute should be "liberally construed" to effectuate its remedial
purposes. 556 U.S. at 944.

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money selling marijuana and are guilty of associating with others who sell or buy marijuana.

Such an application of law would transcend the remedial purpose of R.C. 2923.32.

{¶ 22} While the state argued that the group's purpose was to make money, the state

did not present evidence that Baker, the Lampes, Lopez, and Pagenstecher formed an entity

to earn money as an enterprise. Instead, the testimony revealed that that each individual

had his own separate and distinct "business" venture when selling marijuana and that each

individual participated in his own affairs. There is no evidence on record that any of the

individuals were involved in each other's business affairs, such as setting prices or being

assigned to certain "customers" or territories, nor is there any other indication that the parties

joined together to make money for the same enterprise. There is no conduct, conspiracy, or

element of control attributed to Baker placing his enterprise or his associates in Warren

County.

{¶ 23} Lopez testified that the Lampes' "business" was "separate" from his own and

that he never took directions from the Lampes or Baker on how to "run" his drug sales.

Lopez also confirmed that "whatever [his] business was, was [his] business and had nothing

to do" with the Lampes or Baker. Nor is there any evidence on the record that Lopez

controlled or had any involvement in Pagenstecher's business of selling marijuana. Instead,

Lopez testified that he believed that Pagenstecher was a college student at Miami University,

and was not even involved in Pagenstecher's drug dealings enough to know that

Pagenstecher was actually a high school student who sold to other juveniles.

{¶ 24} Stacy Lampe testified that neither she nor her husband had any control or

direction over Lopez's business, and that they sold their marijuana to other people besides

Lopez. Cody Lampe testified that his marijuana cultivation could yield approximately five to

eight pounds of marijuana, depending on the grow cycle, of which Lopez purchased only a

fraction. The Lampes clearly relied on selling marijuana to other clients besides Lopez, and
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there is no indication that the Lampes were interested in any enterprise but their own. Nor is

there evidence on the record that Baker had involvement in Lopez's business, or that Lopez

had a common purpose with Baker in Baker's cultivation and harvesting of marijuana. The

state failed to prove that the parties acted jointly for the same enterprise with a common

purpose attendant to that enterprise.

{¶ 25} The record also demonstrates that the state failed to establish that the parties

had relationships with one another sufficient to establish an enterprise. Baker did not have

any relationship with Lopez or Pagenstecher, the supposed participants in his enterprise.

Nor did Pagenstecher have a relationship with the Lampes. Instead, the testimony elicited at

trial revealed that only the Lampes were associated with Baker, and that neither Lopez nor

Pagenstecher knew that Baker, or Baker's enterprise, existed. Pagenstecher testified that he

had never heard of, met, seen, talked to, or purchased any marijuana from Baker, and that

his only contact was with Lopez. Pagenstecher testified that he did not know where Lopez

got the marijuana that Lopez sold. Additionally, there is no indication in the record that

Pagenstecher was aware of the Lampes, or had any dealings with them.

{¶ 26} Lopez testified that he purchased marijuana from the Lampes and sold it to

Pagenstecher, and that he never had any knowledge where the Lampes procured the

marijuana they sold him. Although the state asked Lopez no less than three times and in

three different ways whether Lopez was aware of where the Lampes got the marijuana they

sold him, Lopez testified each time that he was never aware of the source of the Lampes'

marijuana. Lopez also expressly testified that he had no contact with or knowledge of
4
Baker.

4. The state argues, and we agree, that members of an enterprise "need not know the identity, or even the
number, of his confederates." State v. Siferd, 151 Ohio App.3d 103, 2002-Ohio-6801 ¶ 43 (3d Dist.) Even so,
the state has to prove that the members were "voluntarily connected to the pattern of corrupt activity comprising
the enterprise." Id. (Emphasis in original.) The fact that neither Lopez nor Pagenstecher knew of Baker's

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{¶ 27} The Lampes both testified that they sold marijuana to Lopez, anywhere from a

fourth of a pound to a pound at a time. Lopez would pick up the marijuana from the Lampes'

home, which is located in Hamilton County. However, and as will be discussed in greater

detail later, there was no indication that the Lampes ever sold Lopez the marijuana that they

purchased from Baker. Instead, if the Lampes were out of their own supply, they would tell

Lopez that they could not fill his order, rather than getting marijuana from Baker to fill Lopez's

request. Simply stated, the state did not prove that the parties functioned as separate parts

to form a whole, with a shared, common purpose, that Baker engage in the sale of marijuana

in Warren County. Thus, there was no association-in-fact as contemplated by Ohio's

organized crime statutes.

{¶ 28} Several cases prove helpful when determining whether an association-in-fact

exists for purposes of engaging in a pattern of corrupt activity. The Ohio Supreme Court held

that engaging in a pattern of corrupt activity is a strict liability offense. State v. Schlosser, 79

Ohio St.3d 329 (1997). In so doing, the court noted that the legislature intended to "enhance

the government's ability to quell organized crime by imposing strict liability for such acts." Id.

at 333. Even though the crime is a strict liability offense, the court emphasized that "merely

committing successive or related crimes is not sufficient to rise to the level of a RICO
5
violation. Both the federal and Ohio RICO statutes require an 'enterprise.'" Id. The court

noted that instead of setting forth a mens rea requirement, the legislature promulgated the

statute to require that the state prove "an enterprise" existed. Id. at 334. In addressing

existence is but one factor we considered when determining whether their participation in the alleged enterprise
was a voluntary connection to or association with Baker. In Siferd, there was no need to know the exact
identities of the participants because evidence in that case established a conspiracy to carry out the entity's
criminal purpose.

5. The pattern of corrupt activity must reveal an organization or an association-in-fact, which demonstrates the
existence of individuals acting on behalf of, or in furtherance of, the same enterprise.

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"enterprise," the court quoted United States v. Palmer, 630 F.2d 192, 203 (3rd Cir.1980),

which stated, "'to obtain convictions, [the state] had to prove that each defendant was

voluntarily connected to that pattern and performed at least two acts in furtherance of it.'"6 Id.

{¶ 29} The record in the case sub judice indicates that Baker, the Lampes, Lopez, and

Pagenstecher each committed crimes by selling marijuana at some given point in time.

There is little doubt that the parties engaged in a series of drug transactions, which could be

described as a "chain." However, the finding of "enterprise" demands more than merely

grouping related or successive crimes together. The state did not prove that Lopez or

Pagenstecher voluntarily participated in, or were in fact, associated with organized conduct

for the purposes or goals of an enterprise existing between Baker and the Lampes.7 Neither

Lopez nor Pagenstecher did anything to further Baker's enterprise, and to the contrary, they

sold marijuana to further only their own personal gain.

{¶ 30} This court recently discussed how venue relates to engaging in a pattern of

corrupt activity, and found that venue was properly established where elements of an illegal

steroid operation were carried out in Warren County. State v. Mielke, 12th Dist. No. CA2012-

08-079, 2013-Ohio-1612.

{¶ 31} In Mielke, the appellant was indicted on several counts of trafficking in steroids,

as well as engaging in a pattern of corrupt activity. Although Mielke was not directly involved

in the sale of steroids in Warren County, this court found that "his association with the steroid

enterprise extended into those areas where the tentacles of the criminal enterprise touched"

6. The remedial target of federal and Ohio RICO statutes, being "organized crime" or "racketeering" requires
more than individual criminals coming into contact.

7. There seems to be little doubt that Baker and the Lampes participated in each other's enterprises, as the
state presented evidence [among other evidence] that Cody Lampe and Baker exchanged tips on cultivating and
harvesting marijuana, and that Cody would "clone" his marijuana plants and sell them to Baker. The continuing
unit of parts, however, must function as a whole, which, in Baker's enterprise, does not include Pagenstecher or
Lopez. See Boyle.

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Warren County. Id. at ¶ 22. In deciding such, this court considered the fact that Matthew

Geraci had an enterprise whereby he sold steroids out of his home located in Hamilton

County and also sold steroids in Warren County. Geraci had between 15-20 associates, who

aided him in distributing steroids. Geraci moved his steroid operation to Blue Ash, also in

Hamilton County, and continued to supply steroids by leaving steroids in a locker along with

an invoice. His associates would then retrieve the steroids and leave payment in the same

locker. Geraci testified that he sold Mielke large quantities of steroids and that Mielke sold 75

percent of those steroids to customers. Agents from the Bureau of Alcohol, Tobacco,

Firearms, and Explosives began investigating Geraci's operation, and made undercover buys

of Geraci's steroids in Warren County from Geraci and a confidential informant working with

the agents. This court determined that Warren County held proper jurisdiction to try Mielke

for engaging in a pattern of corrupt activity because Mielke "worked with Geraci's enterprise"

with a common purpose and acted as one of the tentacles of Geraci's enterprise. Id. at ¶ 21.

However, the facts of Mielke are readily distinguishable from the facts of the case at bar.

{¶ 32} Despite the state's argument, Mielke does not stand for the proposition that an

enterprise structure can be established by merely showing that criminals associate with one

another or that the criminals have a similar proclivity or ambition. Instead, there must be

conduct or participation in a structure designed to promote the purpose of a single enterprise.

{¶ 33} Unlike Mielke where Geraci specifically sold steroids in Warren County in

furtherance of the enterprise, Baker never sold marijuana in Warren County. Also, unlike

Mielke, neither Lopez nor Pagenstecher were performing activities for Baker's enterprise. In

Mielke, the appellant only purchased steroids that came from Geraci, which Geraci sold to

Mielke in furtherance of his enterprise, an enterprise that explicitly engaged in a pattern of

corrupt activity by selling steroids in Warren County. Here, however, neither Pagenstecher

nor Lopez purchased marijuana from Baker in order to further Baker's enterprise, nor did they
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associate with Baker.

{¶ 34} During the bench trial, as well as on appeal, the state relied upon State v.

Koval, 12th Dist. No. CA2005-06-083, 2006-Ohio-5377, for the proposition that venue is

proper where at least one element of engaging in a pattern of corrupt activity occurred in

Warren County. In Koval, Adam Danner (who lived in Warren County) sold marijuana and

cocaine. As part of his business, Danner received shipments of the drugs from other states

and the shipments were made to various drop-off locations in Warren County. Danner would

then take the shipments to Koval's home in Butler County for storage, preparation, and sale.

Once the drugs were processed, Danner would sell the drugs in Butler and Warren Counties.

This court found that venue was proper in Warren County because Koval engaged in a

pattern of corrupt activity where part of the drug enterprise did business in Warren County.

{¶ 35} Unlike Koval, where Danner and Koval participated in an enterprise together as

partners to further their drug enterprise by accepting drug shipments and later selling drugs in

Warren County, Baker's enterprise never touched Warren County. Instead, all of Baker's

cultivation, preparation, and sales of his marijuana occurred at locations in Hamilton and

Butler Counties. Baker only sold his product to the Lampes, which also occurred in either

Butler or Hamilton Counties. Baker never accepted drug shipments or sold his product in

Warren County. Baker never directed or steered his associates to further his enterprise in

Warren County. Further highlighting that lack of Baker's enterprise in Warren County is the

trial court's finding that no marijuana that Baker grew ever entered Warren County. The trial

court, who is in the best position to judge the credibility of the witnesses, stated, "I do not find

that there was evidence that showed that the marijuana that was grown by Mr. Baker ever
8
made it to Warren County." (Emphasis added.) Instead, the evidence demonstrated that

8. We note that the Supreme Court has recently stressed the importance of appellate review adhering to a trial
court's findings. State v. Graham, Slip Opinion No. 2013-Ohio-2114, ¶ 26.

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the Lampes had an extensive grow operation that yielded five pounds of marijuana on one

grow cycle and two to three pounds on the other grow cycle, for approximately eight pounds

of total marijuana production. However, Lopez only purchased a fraction of that, as he

purchased on average a quarter pound, or at most, one pound every few weeks. Neither

Stacy nor Cody Lampe testified that they specifically purchased marijuana from Baker to sell

directly to Lopez, and Cody Lampe testified that he did not call Baker if they did not have

marijuana on hand to sell to Lopez. During Cody's cross-examination, the following

exchange occurred.

[Q] And isn't it true that on a number of occasions if [sic] Mr.
Lopez has testified that on a number of occasions he might
contact your wife to purchase some marijuana, but you or she
informed him you were out and didn't have any available?

[A] It would happen from time to time.

[Q] Okay. And certainly you didn't say to him, hey, just wait
about an hour and I'm going to call [Justin] Baker and bring over
some marijuana to sell to you. You didn't do that, you just
couldn't sell to him at that point, right?

[A] That's correct.

{¶ 37} There was also evidence that when Baker did sell the Lampes marijuana, the

marijuana was packaged in large zip-lock bags and delivered in a five-gallon bucket.

However, on the day that Lopez purchased marijuana from the Lampes during the controlled

buy, Stacy Lampe sold Lopez marijuana that was located on a dresser in the Lampes'

basement, rather than from the bucket that Baker provided. During Cody Lampe's cross-

examination, the following exchange occurred.

[Q] If I tell you that I've got photographs and I'll show them to
you in just a moment, of your house after the raid, after they had
arrested or at least come there and busted your operation, this
was sitting in the basement of your house, the very bucket, that's
where it was retrieved from. Does it sound to you like this
marijuana is what you bought from [Baker] and is sitting in your
house?

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[A] Yes.

[Q] All right. And so one thing that we know for sure is that this
marijuana, the only date you have specific in mind, January 28th,
on February 1st when Michael Lopez bought a pound of
marijuana from your wife, it didn't come from the supply or,
excuse me, didn't come from the bucket that [Justin] Baker sold
you, correct?

[A] That's correct.

[Q] And you had your own grow operation, true?

[A] That is correct.

The bucket, which was photographed and inventoried, contained all of the marijuana that the

Lampes had purchased from Baker, therefore indicating that the marijuana sold to Lopez did

not come from Baker's grow. The trial court's finding that none of Baker's marijuana made it

to Warren County was supported by the record.

{¶ 38} The state failed to prove that Baker engaged in a pattern of corrupt activity

because there was no evidence that Baker was involved in an association-in-fact with Lopez

or Pagenstecher. While it is abundantly clear that Baker engaged in a pattern of corrupt

activity in Butler and Hamilton Counties, no element of his offenses occurred in Warren

County. Therefore, the state failed to prove venue beyond a reasonable doubt and an

acquittal must be entered upon the record. State v. Hampton, 134 Ohio St.3d 447, 2012-

Ohio-5688.

{¶ 39} While our decision today results in a distasteful outcome, the state made the

choice to bring these charges in Warren County despite having at least two clearly

established venues (Hamilton and Butler Counties), and instead chose a venue with no

"significant nexus" to Baker's crimes. We are aware that by sustaining Baker's first

assignment of error, Baker's convictions are reversed and vacated and that double jeopardy

attaches to bar the State of Ohio from prosecuting these charges. While the record
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demonstrates that Baker blatantly broke the law by growing, possessing, and trafficking

marijuana, his crimes did not have a significant nexus with Warren County, thus venue was

not proper there. As an appellate court, we are bound to apply the rule of law and reach a

decision based upon constitutional and statutory precepts, rather than orchestrate a futile

attempt to make the facts fit legal standards in an effort to reach a conclusion that may be

just, but nevertheless, contrary to law.

{¶ 40} The Ohio Supreme Court, in a four to three decision, held that a judgment of

acquittal is to be entered when the state fails to prove venue, and that such acquittal was a

"final verdict" as that term is used in R.C. 2945.67(A). Hampton, 2012-Ohio-5688. The

dissenting opinion in Hampton suggested that a defendant who has charges brought against

him in an improper venue should be tried for his crimes in the proper venue instead of

receiving a total reprieve. "[I]f the state fails to prove venue in a criminal case or if it is

established that a crime occurred in a county different from where the trial is held, the trial

court should dismiss the indictment or transfer the case for prosecution to the county where

the offense occurred without any double-jeopardy concerns." Id. at ¶ 48. While this

approach to venue may be appealing, we are bound to follow established precedent. State

v. Skatzes, 2d Dist. No. 15848, 2003-Ohio-516, ¶ 392.

{¶ 41} Having found that the state failed to prove that Warren County was the proper

venue, Baker's first assignment of error is sustained.

{¶ 42} Assignment of Error No. 2:

{¶ 43} THE TRIAL COURT ERRED BY CONVICTING BAKER OF CULTIVATING

MORE THAN 20,000 GRAMS OF MARIJUANA.

{¶ 44} Baker argues in his second assignment of error that the trial court erred by

convicting him of cultivating 20,000 grams of marijuana because the state did not weigh the

marijuana once it was dried and separated from the stalk. However, given our disposition of
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 Warren CA2012-12-127

the first assignment of error, this assignment of error is moot.

{¶ 45} Judgment reversed, Baker's convictions are vacated, and Baker is hereby

discharged.

RINGLAND, P.J., and M. POWELL, J., concur.

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