This court in State v. Haddix (1994), 92 Ohio App.3d 221,634 N.E.2d 690, considered the issue of the constitutionality of R.C. 2923.32(A)(1), since it does not set forth a specific degree of mental culpability. In finding the statute meets constitutional muster, we held that the mens rea necessary to establish the offense of engaging in a pattern of corrupt activity was the same as that of the underlying predicate offenses with which a defendant is charged. We relied upon Statev. Thrower (1989), 62 Ohio App.3d 359, 575 N.E.2d 863. The state argues this position in this cause. Here, the trial court did not instruct the jury as to the culpable mental state necessary with regard to the RICO charge.
R.C. 2901.21 provides in part:
"(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense." *Page 483
This interpretation was followed by the majority of the Second District Court of Appeals in Hughes, supra. The court inHughes concluded that since R.C. 2923.32 does not plainly indicate a purpose to impose strict liability, recklessness must be found to convict on a RICO violation. The majority herein in an innovative approach determines a legislative intent different from that adopted by the Second District in Hughes. Following Judge Grady's concurring opinion in Hughes, but on a different theory, the majority has determined that this court's opinion inHaddix I must be reversed.
The majority's rationale is not supported by persuasive authority from other state and federal courts. While this theory may ultimately be adopted by a higher court, I am not prepared to find the RICO statute is constitutionally valid on this new theory.
It would appear appellant is being convicted of a violation of the RICO statute by the application of differing culpable mental states. I believe the same culpable mental state should be applicable to appellant's conviction in Preble County as in Butler County. Therefore, I dissent on the second assignment of error as determined by the majority. I concur with the majority in finding the first, third, fourth, and fifth assignments of error to be without merit.