State v. Brown

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Brown, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 

             THE STATE OF OHIO, APPELLEE, v. BROWN, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Brown, Slip Opinion No. 

.]
Criminal law—Venue—R.C. 2923.32—Venue for prosecution of defendant for
        engaging in a pattern of corrupt activity in violation of R.C. 2923.32 proper
        in county where any member of drug-selling enterprise conducted activity
        on behalf of the enterprise, even if defendant did not himself conduct activity
        on behalf of the enterprise in that county—Court of appeals’ judgment
        affirmed.
     (No. 2024-0474—Submitted May 14, 2025—Decided August 12, 2025.)
        APPEAL from the Court of Appeals for Henry County, No. 7-23-05,
                                       

.
                                   __________________
        KENNEDY, C.J., authored the opinion of the court, which DEWINE,
BRUNNER, DETERS, HAWKINS, and SHANAHAN, JJ., joined. FISCHER, J., concurred
in judgment only.
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       KENNEDY, C.J.
       {¶ 1} In this discretionary appeal from the Third District Court of Appeals,
we consider whether venue in Henry County was appropriate for appellee the State
of Ohio’s prosecution of appellant, Kenneth Brown, for engaging in a pattern of
corrupt activity in violation of R.C. 2923.32 as a member of a criminal enterprise.
To answer that question, we must determine whether another member of the
enterprise participated in the affairs of the enterprise in Henry County.
       {¶ 2} We conclude that because Alexandria Armijo participated in the
affairs of an enterprise of which Brown was also a member by selling cocaine in
Henry County, venue in Brown’s criminal case was proper there. Accordingly, we
affirm the court of appeals’ judgment.
                          Facts and Procedural History
       {¶ 3} The Southside Gangster Disciples is a violent gang in the City of
Toledo in Lucas County. Its members have committed murder, robbery, assaults,
and other crimes. Brown, a Lucas County resident, along with his nephews
Anthony and Michael Lawrence, are members of the Tecumseh Street Gang. The
Tecumseh Street Gang is a subset of the Southside Gangster Disciples, whose
members primarily sell cocaine on the 800 block of Tecumseh Street in Lucas
County. They also had other sellers on Tecumseh who sold cocaine for them.
       {¶ 4} The Tecumseh Street Gang’s drug activity eventually caught the
attention of law enforcement. A confidential informant had relayed to Special
Agent Brad Doolittle, an agent with the Ohio Bureau of Criminal Investigation who
is assigned to the Drug Enforcement Agency’s task force in Toledo, that Armijo
was a cocaine distributor based out of Lucas County and was dealing drugs for the
Tecumseh Street Gang.
       {¶ 5} As part of its investigation, law enforcement set up a controlled buy
between the confidential informant and Armijo, during which the informant would




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purchase cocaine from Armijo at her residence in Lucas County. After that first
controlled buy, Armijo offered to drive to the City of Napoleon in Henry County,
where the confidential informant lived, to sell the informant more cocaine.
       {¶ 6} Part of the investigation leading to the second controlled buy included
surveilling Armijo. Law enforcement observed Armijo drive from her home to the
800 block of Tecumseh Street, where she purchased cocaine from Anthony. She
then drove to Henry County where she resold the cocaine to the confidential
informant before returning to Lucas County. Law enforcement repeated the same
operation for a third time a few weeks later.
       {¶ 7} For the fourth controlled buy, law enforcement had an undercover
agent purchase an increased quantity of cocaine from Armijo in Henry County.
After completing the sale, she began driving back to Lucas County.             Law
enforcement coordinated with the Ohio State Highway Patrol to pull Armijo over
for a traffic stop in Henry County, during which they found the “buy money” from
the transaction with the undercover agent and arrested her. During Armijo’s
interview with law enforcement, she explained that each time she sold cocaine in
Henry County, Anthony had sold it to her. She also explained that Anthony would
“front” her the cocaine, meaning that he sold it to her on credit: under that
arrangement, Armijo would keep a $500 profit from the sale after paying Anthony
the purchase price.
       {¶ 8} Law enforcement requested Armijo’s cooperation in its investigation,
and she agreed to participate in a controlled buy from Anthony. After Armijo
agreed to cooperate, she drove from Henry County to Lucas County where she met
Anthony in a parking lot and paid him for the fronted drugs with money that law
enforcement had marked.        Anthony returned to 807 Tecumseh Street and
surveillance for that day ended.
       {¶ 9} Law enforcement then installed surveillance cameras on the 800 block
of Tecumseh Street. Surveillance revealed Brown participating in many “hand-to-




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hand” exchanges of cocaine on Tecumseh Street with Anthony and Michael, as well
as others. Brown and his nephews started selling cocaine on the 800 block of
Tecumseh Street every day at 8 or 9 o’clock in the morning and stayed there until
7 to 10 o’clock at night.
       {¶ 10} Ultimately, Brown was arrested and charged in the Henry County
Court of Common Pleas with one count of engaging in a pattern of corrupt activity
in violation of R.C. 2923.32(A)(1) and (B)(1).
       {¶ 11} At trial, Brown argued that the State had not established venue in
Henry County, because Armijo was not part of the Tecumseh Street Gang enterprise
in Lucas County. The trial court disagreed and denied Brown’s Crim.R. 29 motion
for acquittal. The jury found Brown guilty of engaging in a pattern of corrupt
activity and found that venue was proper in Henry County. Brown appealed.
       {¶ 12} Before the Third District, Brown raised two assignments of error
concerning venue: he argued that the State’s evidence was insufficient to establish
that he was part of an enterprise engaging in a pattern of corrupt activities in Henry
County and that the jury’s venue finding was against the manifest weight of the
evidence because the acts that took place in Henry County were not part of an
enterprise to which Brown belonged. See 

, ¶ 16 (3d Dist.).
       {¶ 13} The Third District disagreed, concluding that a reasonable juror
could find (1) that Brown was involved with Anthony and Michael in a drug-
dealing enterprise operating on the 800 block of Tecumseh Street in Lucas County,
id. at ¶ 30, (2) that the evidence at trial regarding Anthony’s fronting drugs to
Armijo that she then resold in Henry County brought her into the enterprise, id. at
¶ 31-34, and (3) that “[b]y fronting to Armijo, the enterprise came to have a direct
interest in the proceeds from the drugs sold to the buyer in [Henry County] and was,
therefore invested in the outcome of the transaction in Henry County,” id. at ¶ 34.
According to the Third District, venue was thus proper in Henry County.




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       {¶ 14} Brown appealed to this court, and we accepted jurisdiction over his
sole proposition of law:


               When the state shows that a wholesaler sold drugs to a
       retailer who controlled her own work, the state has not met its
       burden to prove that the retailer was part of the wholesaler’s
       “enterprise” as defined by R.C. 2923.31 and 2923.32. As a result,
       when venue is based solely on the county to which the retailer chose
       to travel, the evidence of venue in that county is insufficient and a
       guilty verdict against the wholesaler is against the manifest weight
       of the evidence.


See 

.
                                Law and Analysis
       {¶ 15} On appeal, Brown challenges the jury’s finding that venue was
proper in Henry County, arguing that the State presented insufficient evidence to
link Armijo’s drug-dealing activity in Henry County to the Tecumseh Street Gang’s
enterprise in Lucas County. He also argues that the jury’s decision was against the
manifest weight of the evidence.
                              Sufficiency of Evidence
       {¶ 16} Whether the evidence is legally sufficient to sustain a conviction is
a question of law that this court reviews de novo. State v. Groce, 

. The court views the evidence in the light most favorable to the prosecution and
asks whether “‘any rational trier of fact could have found the essential elements of
the crime proved beyond a reasonable doubt.’ ” State v. Dean, 

, quoting State v. Jenks, 

 (1991), paragraph two of the
syllabus, superseded by state constitutional amendment on other grounds as stated
in State v. Smith, 

, ¶ 49, fn. 4.




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          {¶ 17} The appropriate standard of review for a sufficiency-of-the-evidence
challenge is “whether, if believed, the evidence can sustain the verdict as a matter
of law.” State v. Richardson, 

. When reviewing whether the
State met its burden of production, “an appellate court does not ask whether the
evidence should be believed but, rather, whether the evidence, ‘if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt.’”
State v. Pountney, 

, quoting Jenks at paragraph two of the
syllabus.
          {¶ 18} Brown does not contest that he was part of the Tecumseh Street
Gang’s drug-selling enterprise in Lucas County, but he disputes that the State
presented sufficient evidence establishing that Armijo’s sale of cocaine in Henry
County was part of that enterprise. If Armijo and Brown were part of the same
enterprise, then venue was proper in Henry County. See United States v. Crozier,

 (6th Cir. 2001).
          {¶ 19} R.C. 2923.32(A)(1) provides that “[n]o 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.” (Emphasis
added.)     The definition of “[e]nterprise,” which is “remarkably open-ended,”
includes “‘any organization, association, or group of persons associated in fact
although not a legal entity.’” State v. Beverly, 

, ¶ 8, quoting R.C.
2923.31(C)(1).
          {¶ 20} The General Assembly modeled R.C. 2923.32 after a federal law,
the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. 1961
et seq. See State v. Schlosser, 

 (1997).
          {¶ 21} One way the State can show that a person was employed by or
associated with an enterprise is by showing that the person entered into a conspiracy
with another person who was a member of that enterprise. See United States v.
Godwin, 

 (11th Cir. 2014), citing United States. v. Browne,




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                                January Term, 2025

 (11th Cir. 2007). That is because an associated-in-fact
enterprise “shares important characteristics with the traditional conspiracy of
criminal law.” United States v. Griffin, 

 (4th Cir. 1981). A person
who merely agrees “to participate in the conduct of the affairs of the enterprise
through a pattern of racketeering activity brings [him or her] within the conspiracy.”
United States v. Gonzalez, 

 (11th Cir. 1991).
       {¶ 22} Of course, not all drug sales involve a conspiracy. See United States
v. Bostick, 

 (D.C.Cir. 2015). Someone who buys drugs from
another person but does not have an agreement with that person to resell the drugs
has not formed a conspiracy with the seller. See United States v. Brown, 

 (7th Cir. 2013).
       {¶ 23} But when a buyer agrees with the seller to distribute the drugs that
the buyer purchased, a conspiracy forms because “there is an agreement beyond the
mere sale for personal consumption.” United States v. Kozinski, 

(7th Cir. 1994).
       {¶ 24} The Sixth Circuit Court of Appeals has recognized that the trust
involved in selling drugs on credit (i.e., “fronting” drugs) “suggests more than a
buyer-seller arrangement” between the parties to the transaction. United States v.
Nesbitt, 

 (6th Cir. 1996). Ultimately, “evidence of fronting
coupled with evidence of repeat drug purchases is sufficient ‘to distinguish a
conspiracy from a nonconspiratorial buyer-seller relationship.’” United States v.
Gallegos, 

 (10th Cir. 2015), quoting United States v. Johnson,

 (7th Cir. 2010).
       {¶ 25} We now turn to the question whether Armijo was associated with the
same drug-sale enterprise as Brown.             The State presented ample evidence
demonstrating that Armijo (1) had knowledge of the Tecumseh Street Gang’s drug-
selling enterprise, (2) knew and interacted with multiple members of the gang,
(3) had an agreement with Anthony and the enterprise to resell drugs on behalf of




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the enterprise, and (4) had purchased drugs from a member of the enterprise on
credit for resale purposes, meaning that she participated in the enterprise’s affairs
through a pattern of corrupt activity.
       {¶ 26} Under the agreement Armijo had with Anthony, she purchased drugs
on credit from him to resell: she made several drug purchases from Anthony for the
purpose of resale, and at least once she purchased cocaine from him on credit,
making a $500 profit when she sold the cocaine to another party—that alone was
enough to form a conspiracy. See 

. Armijo testified that she
purchased and resold drugs under that agreement between three and eight times.
And when Anthony was unavailable, she purchased drugs from other people in the
Tecumseh Street Gang.
       {¶ 27} This evidence is sufficient to show that Armijo was associated with
the Tecumseh Street Gang’s drug-selling enterprise. Therefore, because Armijo
associated with the same enterprise as Brown, and because her conduct extended to
Henry County, venue for Brown’s trial was proper there.
                          Manifest Weight of the Evidence
       {¶ 28} Within Brown’s single proposition of law, he also argues that his
conviction is against the manifest weight of the evidence because the State failed
to establish venue. This court does not ordinarily consider challenges to the
manifest weight of the evidence in noncapital cases. See State v. Tenace, 2006-
Ohio-2417, ¶ 36; State v. Were, 

, ¶ 131; State v. Sanders, 2001-
Ohio-189, ¶ 56; State v. Stewart, 

, 160 (1964). And we ordinarily
expect a proposition of law to be limited to a discrete legal issue that “could serve
as a syllabus for the case if the appellant prevails,” Rule 16.02(B)(4).
       {¶ 29} Nonetheless, despite the irregular manner by which Brown’s
manifest-weight argument has reached us, we will—in this instance—address the
argument. But we caution future litigants that we expect such arguments to be
raised separately and that we do not ordinarily consider manifest-weight arguments




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in noncapital cases.
           {¶ 30} In a manifest-weight-of-the-evidence challenge, sitting as the
“thirteenth juror,” this court looks at the entire record and ‘“weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered,’” State v. Thompkins, 

, ¶ 25, quoting State v.
Martin, 

 (1st Dist. 1983).
           {¶ 31} We will vacate a jury’s verdict and order a new trial “‘only in the
exceptional case in which the evidence weighs heavily against the conviction,’”

, quoting 

. Accordingly, we review the record to
determine whether the “jury clearly lost its way,” 

. Brown argues
that Armijo’s testimony that she was not a member of the Tecumseh Street Gang,
that she retained the profits from her drug sales, and that the Tecumseh Street Gang
did not tell her who to sell to demonstrate that the jury’s finding that Armijo was
part of the Tecumseh Street Gang’s enterprise was against the manifest weight of
the evidence.
           {¶ 32} But Armijo did not need to be an official member of the Tecumseh
Street Gang to join its drug-selling enterprise. Like the federal act, R.C. 2923.32 is
designed “broadly enough to encompass a wide range of criminal activity, taking
many different forms and likely to attract a broad array of perpetrators operating in
many different ways,” H.J. Inc. v. Northwestern Bell Telephone Co., 

 (1989). A reasonable juror could conclude from the evidence presented,
including the fact that Armijo purchased cocaine from Anthony on credit, that
Armijo was associated with the Tecumseh Street Gang’s drug-selling enterprise and
that she participated in its affairs through a pattern of corrupt activity. We therefore
conclude that the jury did not “clearly los[e] its way,” Thompkins, 

,
at ¶ 25.




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                                   Conclusion
       {¶ 33} Construing the evidence in the light most favorable to the State, we
hold that there was legally sufficient evidence for the jury to conclude that Armijo
participated in the affairs of the Tecumseh Street Gang’s enterprise, of which
Brown was a member. As for Brown’s manifest-weight-of-the-evidence challenge,
a review of the record gives us no reason to believe that the jury mistakenly found
that venue was proper in Henry County. Therefore, we affirm the judgment of the
Third District Court of Appeals.
                                                                Judgment affirmed.
                              __________________
       Gwendolyn Howes-Gebers, Henry County Prosecuting Attorney, for
appellee.
       Elizabeth R. Miller, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for appellant.
       Steven L. Taylor, urging affirmance for amicus curiae Ohio Prosecuting
Attorneys Association.
       Dave Yost, Attorney General, Mathura J. Sridharan, Solicitor General, and
Samuel C. Peterson, Deputy Solicitor General, urging affirmance for amicus curiae
Ohio Attorney General Dave Yost.
                              __________________




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