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Ohio Revised Statutes 102.01, 102.06, 177.01, 177.02, 177.03, 2923.01, 2923.03, 2923.31, 2923.32

Sec. 102.01. Definitions.

As used in Chapter 102. of the Revised Code:

(A) "Compensation" means money, thing of value, or financial benefit. "Compensation" does not include reimbursement for actual and necessary expenses incurred in the performance of official duties.

(B) "Public official or employee" means any person who is elected or appointed to an office or is an employee of any public agency. "Public official or employee" does not include a person elected or appointed to the office of precinct, ward, or district committee member under section 3517.03 of the Revised Code, any presidential elector, or any delegate to a national convention. "Public official or employee" does not include a person who is a teacher, instructor, professor, or any other kind of educator whose position does not involve the performance of, or authority to perform, administrative or supervisory functions.

(C) "Public agency" means the general assembly, all courts, any department, division, institution, board, commission, authority, bureau or other instrumentality of the state, a county, city, village, township, and the five state retirement systems, or any other governmental entity. "Public agency" does not include a department, division, institution, board, commission, authority, or other instrumentality of the state or a county, municipal corporation, township, or other governmental entity that functions exclusively for cultural, educational, historical, humanitarian, advisory, or research purposes; does not expend more than ten thousand dollars per calendar year, excluding salaries and wages of employees; and whose members are uncompensated.

(D) "Immediate family" means a spouse residing in the person's household and any dependent child.

(E) "Income" includes gross income as defined and used in the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended, interest and dividends on obligations or securities of any state or of any political subdivision or authority of any state or political subdivision, and interest or dividends on obligations of any authority, commission, or instrumentality of the United States.

(F) Except as otherwise provided in division (A) of section 102.08 of the Revised Code, "appropriate ethics commission" means:

(G) "Anything of value" has the same meaning as provided in section 1.03 of the Revised Code and includes, but is not limited to, a contribution as defined in section 3517.01 of the Revised Code.

(H) "Honorarium" means any payment made in consideration for any speech given, article published, or attendance at any public or private conference, convention, meeting, social event, meal, or similar gathering. "Honorarium" does not include ceremonial gifts or awards that have insignificant monetary value; unsolicited gifts of nominal value or trivial items of informational value; or earned income from any person, other than a legislative agent, for personal services that are customarily provided in connection with the practice of a bona fide business, if that business initially began before the public official or employee conducting that business was elected or appointed to his office or position of employment.

HISTORY: 135 v H 55 (Eff 1-1-74); 136 v H 268 (Eff 8-20-76); 136 v H 1040 (Eff 8-27-76); 137 v H 1 (Eff 8-26-77); 139 v H 694 (Eff 11-15-81); 141 v H 300 (Eff 9-17-86); 145 v H 492 (Eff 5-12-94); 145 v H 285. Eff 3-2-94.

Ohio Administrative Code

Definitions -

Ethics commission. OAC 102-1-01; OAC 102-5-01.

Joint legislative ethics committee. OAC 101-1-01; OAC 101-7-01; OAC 101-9-01; OAC 101-11-01.

Sec. 102.06. Complaints; investigation, disposition; reports; compromise or settlement.

(A) The appropriate ethics commission shall receive and may initiate complaints against persons subject to Chapter 102. of the Revised Code concerning conduct alleged to be in violation of this chapter or section 2921.42 or 2921.43 of the Revised Code. All complaints except those by the commission shall be by affidavit made on personal knowledge, subject to the penalties of perjury. Complaints by the commission shall be by affidavit, based upon reasonable cause to believe that a violation has occurred.

(B) The commission shall investigate complaints, may investigate charges presented to it, and may request further information, including the specific amount of income from a source, from any person filing with the commission a statement required by section 102.02 of the Revised Code, if the information sought is directly relevant to a complaint or charges received by the commission pursuant to this section. This information is confidential, except that the commission, at its discretion, may share information gathered in the course of any investigation with, or disclose the information to, the inspector general, any appropriate prosecuting authority, any law enforcement agency, or any other appropriate ethics commission. If the accused person is a member of the public employees retirement board, state teachers retirement board, school employees retirement board, board of trustees of the Ohio police and fire pension fund, or state highway patrol retirement board, the commission, at its discretion, also may share information gathered in the course of an investigation with, or disclose the information to, the attorney general and the auditor of state. The person so requested shall furnish the information to the commission, unless within fifteen days from the date of the request the person files an action for declaratory judgment challenging the legitimacy of the request in the court of common pleas of the county of the person's residence, the person's place of employment, or Franklin county. The requested information need not be furnished to the commission during the pendency of the judicial proceedings. Proceedings of the commission in connection with the declaratory judgment action shall be kept confidential except as otherwise provided by this section. Before the commission proceeds to take any formal action against a person who is the subject of an investigation based on charges presented to the commission, a complaint shall be filed against the person. If the commission finds that a complaint is not frivolous, and there is reasonable cause to believe that the facts alleged in a complaint constitute a violation of section 102.02, 102.03, 102.04, 102.07, 2921.42, or 2921.43 of the Revised Code, it shall hold a hearing. If the commission does not so find, it shall dismiss the complaint and notify the accused person in writing of the dismissal of the complaint. The commission shall not make a report of its finding unless the accused person requests a report. Upon the request of the accused person, the commission shall make a public report of its finding. The person against whom the complaint is directed shall be given reasonable notice by certified mail of the date, time, and place of the hearing and a statement of the charges and the law directly involved and shall be given the opportunity to be represented by counsel, to have counsel appointed for the person if the person is unable to afford counsel without undue hardship, to examine the evidence against the person, to produce evidence and to call and subpoena witnesses in the person's defense, to confront the person's accusers, and to cross-examine witnesses. The commission shall have a stenographic record made of the hearing. The hearing shall be closed to the public.

(C) (1) (a) If upon the basis of the hearing, the commission finds by a preponderance of the evidence that the facts alleged in the complaint are true and constitute a violation of section 102.02, 102.03, 102.04, 102.07, 2921.42, or 2921.43 of the Revised Code, it shall report its findings to the appropriate prosecuting authority for proceedings in prosecution of the violation and to the appointing or employing authority of the accused. If the accused person is a member of the public employees retirement board, state teachers retirement board, school employees retirement board, board of trustees of the Ohio police and fire pension fund, or state highway patrol retirement board, the commission also shall report its findings to the Ohio retirement study council.

(D) The commission, or a member of the commission, may administer oaths, and the commission may issue subpoenas to any person in the state compelling the attendance of witnesses and the production of relevant papers, books, accounts, and records. The commission shall issue subpoenas to compel the attendance of witnesses and the production of documents upon the request of an accused person. Section 101.42 of the Revised Code shall govern the issuance of these subpoenas insofar as applicable. Upon the refusal of any person to obey a subpoena or to be sworn or to answer as a witness, the commission may apply to the court of common pleas of Franklin county under section 2705.03 of the Revised Code. The court shall hold proceedings in accordance with Chapter 2705. of the Revised Code. The commission or the accused person may take the depositions of witnesses residing within or without the state in the same manner as prescribed by law for the taking of depositions in civil actions in the court of common pleas.

(E) At least once each year, the Ohio ethics commission shall report on its activities of the immediately preceding year to the majority and minority leaders of the senate and house of representatives of the general assembly. The report shall indicate the total number of complaints received, initiated, and investigated by the commission, the total number of complaints for which formal hearings were held, and the total number of complaints for which formal prosecution was recommended or requested by the commission. The report also shall indicate the nature of the inappropriate conduct alleged in each complaint and the governmental entity with which any employee or official that is the subject of a complaint was employed at the time of the alleged inappropriate conduct.

(F) All papers, records, affidavits, and documents upon any complaint, inquiry, or investigation relating to the proceedings of the appropriate commission shall be sealed and are private and confidential, except as otherwise provided in this section and section 102.07 of the Revised Code.

(G) (1) When a complaint or charge is before it, the Ohio ethics commission or the appropriate prosecuting authority, in consultation with the person filing the complaint or charge, the accused, and any other person the commission or prosecuting authority considers necessary, may compromise or settle the complaint or charge with the agreement of the accused. The compromise or settlement may include mediation, restitution, rescission of affected contracts, forfeiture of any benefits resulting from a violation or potential violation of law, resignation of a public official or employee, or any other relief that is agreed upon between the commission or prosecuting authority and the accused.

HISTORY: 135 v H 55 (Eff 1-1-74); 136 v H 1040 (Eff 8-27-76); 138 v S 425 (Eff 10-20-80); 140 v H 291 (Eff 7-1-83); 141 v H 300 (Eff 9-17-86); 145 v H 492 (Eff 5-12-94); 145 v H 285 (Eff 3-2-94); 149 v H 94. Eff 9-5-2001; 150 v S 133, Sec. 1, eff. 9-15-04.

See provisions, Sec. 6 of S.B. 133 (150 v - ), following RC Sec. 102.02.

The effective date is set by section 204 of HB 94.

The provisions of Sec. 232 of HB 94 (149 v - ) read as follows:

SECTION 232. Section 102.06 of the Revised Code is presented in this act as a composite of the section amended by both Am. Sub. H.B. 285 and Am. Sub. H.B. 492 of the 120th General Assembly. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the composite is the resulting version of the section in effect prior to the effective date of the section as presented in this act.

Effect of Amendments

Section 1, 150 v S 133, effective September 15, 2004, in (B), inserted the third sentence; added the last sentence to (C)(1)(a); and substituted "authority's" for "attorney's" in (G)(2).

Ohio Adminstrative Code

Hearing procedures -

Ethics commission. OAC ch. 102-9.

Joint legislative ethics committee. OAC 101-7-06 et seq.

Investigation; complaints -

Ethics commission. OAC ch. 102-7.

Joint legislative ethics commission. OAC 101-7-04 et seq.

CHAPTER 177

INVESTIGATION AND PROSECUTION OF ORGANIZED CRIMINAL ACTIVITY

Section 177.01. Organized crime investigations commission created.

[177.01.1] 177.011.Organized crime commission fund.

177.02. Complaint alleging organized criminal activity; task force; investigatory staff; confidentiality.

177.03. Authority and powers of task force; notice to local law enforcement agency; action on results of investigation; special prosecutor.

Sec. 177.01. Organized crime investigations commission created.

(A) The organized crime investigations commission, consisting of seven members, is hereby established in the office of the attorney general. One of the members shall be the attorney general. Of the remaining members, each of whom shall be appointed by the governor with the advice and consent of the senate, two shall be prosecuting attorneys, two shall be county sheriffs, and two shall be chief municipal law enforcement officers. No more than four members of the commission shall be members of the same political party.

Of the initial appointments to the commission, one member who is a prosecuting attorney and one who is a county sheriff each shall be appointed for terms ending September 3, 1987, one member who is a prosecuting attorney and one who is a chief municipal law enforcement officer each shall be appointed for terms ending September 3, 1988, and one member who is a county sheriff and one who is a chief municipal law enforcement officer each shall be appointed for terms ending September 3, 1989. Thereafter, terms of office of persons appointed to the commission shall be for three years, with each term ending on the same day of the same month of the year as did the term that it succeeds. Members may be reappointed. Each appointed member shall hold office from the date of the member's appointment until the end of the term for which the member was appointed, except that an appointed member who ceases to hold the office or position of prosecuting attorney, county sheriff, or chief municipal law enforcement officer prior to the expiration of the member's term of office on the commission shall cease to be a member of the commission on the date that the member ceases to hold the office or position. Vacancies shall be filled in the manner provided for original appointments. Any member appointed to fill a vacancy occurring prior to the expiration of the term for which the member's predecessor was appointed shall take office on the commission when the member is confirmed by the senate and shall hold office for the remainder of such term. Any member shall continue in office subsequent to the expiration date of the member's term until the member's successor takes office, or until a period of sixty days has elapsed, whichever occurs first.

The attorney general shall become a member of the commission on September 3, 1986. Successors in office to that attorney general shall become members of the commission on the day they assume the office of attorney general. An attorney general's term of office as a member of the commission shall continue for as long as the person in question holds the office of attorney general.

Each member of the commission may designate, in writing, another person to represent the member on the commission. If a member makes such a designation, either the member or the designee may perform the member's duties and exercise the member's authority on the commission. If a member makes such a designation, the member may revoke the designation by sending written notice of the revocation to the commission. Upon such a revocation, the member may designate a different person to represent the member on the commission by sending written notice of the designation to the commission at least two weeks prior to the date on which the new designation is to take effect.

The attorney general or a person the attorney general designates pursuant to this division to represent the attorney general on the commission shall serve as chairperson of the commission. The commission shall meet within two weeks after all appointed members have been appointed, at a time and place determined by the governor. The commission shall organize by selecting a vice-chairperson and other officers who are necessary and shall adopt rules to govern its procedures. Thereafter, the commission shall meet at least once every six months, or more often upon the call of the chairperson or the written request of two or more members. Each member of the commission shall have one vote. Four members constitute a quorum, and four votes are required to validate an action of the commission.

The members of the commission shall serve without compensation, but each member shall be reimbursed for actual and necessary expenses incurred in the performance of official duties. In the absence of the chairperson, the vice-chairperson shall perform the duties of the chairperson.

(B) The commission shall coordinate investigations of organized criminal activity and perform all of the functions and duties relative to the investigations that are set forth in section 177.02 of the Revised Code, and it shall cooperate with departments and officers of the government of the United States in the suppression of organized criminal activity.

(C) The commission shall appoint and fix the compensation of a director and such technical and clerical employees who are necessary to exercise the powers and carry out the duties of the commission, may enter into contracts with one or more consultants to assist in exercising those powers and carrying out those duties, and may enter into contracts and purchase any equipment necessary to the performance of its duties. The director and employees of the commission shall be members of the unclassified service as defined in section 124.11 of the Revised Code. The commission shall require the director and each employee, prior to commencing employment with the commission, to undergo an investigation for the purpose of obtaining a security clearance and, after the initial investigation, may require the director and each employee to undergo an investigation for that purpose at any time during the director's or employee's employment with the commission. The commission may require any consultant with whom it contracts to undergo an investigation for the purpose of obtaining a security clearance. An investigation under this division may include, but is not limited to, a polygraph examination and shall be conducted by an organization designated by the commission.

(D) An appointed commission member may be removed from office as a member of the commission by the vote of four members of the commission or by the governor for any of the following reasons:

(1) Neglect of duty, misconduct, incompetence, or malfeasance in office;

(2) Conviction of or a plea of guilty to a felony or an offense of moral turpitude;

(3) Being mentally ill or mentally incompetent;

(4) Being the subject of an investigation by a task force established by the commission or another law enforcement agency, where the proof of criminal activity is evident or the presumption great;

(5) Engaging in any activity or associating with any persons or organization inappropriate to the member's position as a member of the commission.

(E) As used in sections 177.01 to 177.03 of the Revised Code:

HISTORY: 141 v S 74 (Eff 9-3-86); 142 v H 708 (Eff 4-19-88); 143 v H 215 (Eff 4-11-90); 144 v H 298 (Eff 7-26-91); 146 v S 2 (Eff 7-1-96); 147 v H 2. Eff 1-1-99.

The effective date is set by section 4 of HB 2.

The provisions of Sec. 3 of H.B. 548 (148 v - ), amending Sec. 27 of H.B. 670 (146 v - ), as most recently amended by H.B. 95 of the 125th General Assembly, read in part as follows:

SECTION 3. That Section 27 of Sub. H.B. 670 of the 121st General Assembly be amended to read as follows:

"Sec. 27. The following agencies shall be retained pursuant to division (D) of section 101.83 of the Revised Code and shall expire on December 31, 2004:

REVISED CODE OR

UNCODIFIED

AGENCY NAME SECTION

Organized Crime

Investigations Commission 177.01

Sec. 177.02. Complaint alleging organized criminal activity; task force; investigatory staff; confidentiality.

(A) Any person may file with the organized crime investigations commission a complaint that alleges that organized criminal activity has occurred in a county. A person who files a complaint under this division also may file with the commission information relative to the complaint.

(B) Upon the filing of a complaint under division (A) of this section or upon its own initiative, the commission may establish an organized crime task force to investigate organized criminal activity in a single county or in two or more counties if it determines, based upon the complaint filed and the information relative to it or based upon any information that it may have received, that there is reason to believe that organized criminal activity has occurred and continues to occur in that county or in each of those counties. The commission shall not establish an organized crime task force to investigate organized criminal activity in any single county unless it makes the determination required under this division relative to that county and shall not establish an organized crime task force to investigate organized criminal activity in two or more counties unless it makes the determination required under this division relative to each of those counties. The commission, at any time, may terminate an organized crime task force it has established under this section.

(C) (1) If the commission establishes an organized crime task force to investigate organized criminal activity in a single county or in two or more counties pursuant to division (B) of this section, the commission initially shall appoint a task force director to directly supervise the investigation. The task force director shall be either the sheriff or a deputy sheriff of any county in the state, the chief law enforcement officer or a member of a law enforcement agency of any municipal corporation or township in the state, or an agent of the bureau of criminal identification and investigation. No person shall be appointed as task force director without the person's consent and, if applicable, the consent of the person's employing sheriff or law enforcement agency or of the superintendent of the bureau of criminal identification and investigation if the person is an employee of the bureau. Upon appointment of a task force director, the commission shall meet with the director and establish the scope and limits of the investigation to be conducted by the task force and the size of the task force investigatory staff to be appointed by the task force director. The commission, at any time, may remove a task force director appointed under this division and may replace any director so removed according to the guidelines for the initial appointment of a director.

(2) A task force director appointed under this section shall assemble a task force investigatory staff, of a size determined by the commission and the director, to conduct the investigation. Unless it appears to the commission and the director, based upon the complaint filed and any information relative to it or based upon any information that the commission may have received, that there is reason to believe that the office of the prosecuting attorney of the county or one of the counties served by the task force is implicated in the organized criminal activity to be investigated, one member of the investigatory staff shall be the prosecuting attorney or an assistant prosecuting attorney of the county or one of the counties served by the task force. If a prosecuting attorney or assistant prosecuting attorney is not a participating member of the task force, the office of the attorney general shall provide legal assistance to the task force upon request. Each of the other members of the investigatory staff shall be either the sheriff or a deputy sheriff of any county in the state, the chief law enforcement officer or a member of a law enforcement agency of any municipal corporation or township in the state, or an agent of the bureau of criminal identification and investigation. No person shall be appointed to the investigatory staff without the person's consent and, if applicable, the consent of the person's employing sheriff or law enforcement agency or the superintendent of the bureau of criminal identification and investigation if the person is an employee of the bureau. To the extent possible, the investigatory staff shall be composed of persons familiar with investigatory techniques that generally would be utilized in an investigation of organized criminal activity. To the extent practicable, the investigatory staff shall be assembled in such a manner that numerous law enforcement agencies within the county or the counties served by the task force are represented on the investigatory staff. The investigatory staff shall be assembled in such a manner that at least one sheriff, deputy sheriff, municipal corporation law enforcement officer, or township law enforcement officer from each of the counties served by the task force is represented on the investigatory staff. A task force director, at any time, may remove any member of the investigatory staff the task force director has assembled under this division and may replace any member so removed according to the guidelines for the initial assembly of the investigatory staff.

(3) The commission may provide an organized crime task force established under this section with technical and clerical employees and with equipment necessary to efficiently conduct its investigation into organized criminal activity.

(4) Upon the establishment of a task force, the commission shall issue to the task force director and each member of the task force investigatory staff appropriate credentials stating the person's identity, position, and authority.

(D) A task force investigatory staff, during the period of the investigation for which it is assembled, is responsible only to the task force director and shall operate under the direction and control of the task force director. Any necessary and actual expenses incurred by a task force director or investigatory staff, including any such expenses incurred for food, lodging, or travel, and any other necessary and actual expenses of an investigation into organized criminal activity conducted by a task force, shall be paid by the commission. For purposes of workers' compensation and the allocation of liability for any death, injury, or damage they may cause in the performance of their duties, a task force director and investigatory staff, during the period of the investigation for which the task force is assembled, shall be considered to be employees of the commission and of the state. However, for purposes of compensation, pension or indemnity fund rights, and other rights and benefits to which they may be entitled, a task force director and investigatory staff, during the period of the performance of their duties as director and investigatory staff, shall be considered to be performing their duties in their normal capacity as prosecuting attorney, assistant prosecuting attorney, sheriff, deputy sheriff, chief law enforcement officer or member of a law enforcement agency of a municipal corporation or township, or agent of the bureau of criminal identification and investigation.

(E) Except as provided in this division, upon the establishment of a task force, the commission shall provide the prosecuting attorney of each of the counties served by the task force with written notice that the task force has been established to investigate organized criminal activity in that county. Such notice shall not be provided to a prosecuting attorney if it appears to the commission, based upon the complaint filed and any information relative to it or based upon any information that the commission may have received, that there is reason to believe that the office of that prosecuting attorney is implicated in the organized criminal activity to be investigated.

(F) The filing of a complaint alleging organized criminal activity, the establishment of an organized crime task force, the appointment of a task force director and the identity of the task force director, the assembly of an investigatory staff and the identity of its members, the conduct of an investigation into organized criminal activity, and the identity of any person who is being or is expected to be investigated by the task force shall be kept confidential by the commission and its director and employees, and by the task force and its director, investigatory staff, and employees until an indictment is returned or a criminal action or proceeding is initiated in a court of proper jurisdiction.

(G) For purposes of divisions (C) and (E) of this section, the office of a prosecuting attorney shall be considered as being implicated in organized criminal activity only if the prosecuting attorney, one or more of the prosecuting attorney's assistants, or one or more of the prosecuting attorney's employees has committed or attempted or conspired to commit, is committing or attempting or conspiring to commit, or has engaged in or is engaging in complicity in the commission of, organized criminal activity.

HISTORY: 141 v S 74 (Eff 9-3-86); 147 v H 2. Eff 1-1-99.

The effective date is set by section 4 of HB 2.

Sec. 177.03. Authority and powers of task force; notice to local law enforcement agency; action on results of investigation; special prosecutor.

(A) An organized crime task force established under section 177.02 of the Revised Code to investigate organized criminal activity in a single county or in two or more counties shall investigate organized criminal activity within the county or counties in accordance with the scope and limits established by the organized crime investigations commission and the task force director. For purposes of the investigation, the task force director and investigatory staff shall have the powers of a peace officer throughout the county or counties in which the investigation is to be undertaken. However, the authority and powers granted to the director and investigatory staff under this section do not supplant or diminish the authority and power provided by the Revised Code to other law enforcement agencies or their officers or investigators.

An organized crime task force, in the conduct of its investigation, may issue subpoenas and subpoenas duces tecum. The task force may compel the attendance of witnesses and the production of records and papers of all kinds and description that are relevant to the investigation, including, but not limited to, any books, accounts, documents, and memoranda pertaining to the subject of the investigation. Upon the failure of any person to comply with any lawful order of the task force, the task force may apply to the court of common pleas of the proper county for a contempt order, as in the case of disobedience of the requirements of a subpoena issued from the court of common pleas, or a refusal to testify thereon.

(B) This section and section 177.02 of the Revised Code do not prevent an organized crime task force from cooperating with other law enforcement agencies of this state, a political subdivision of this state, another state, a political subdivision of another state, or the United States, or their officers or investigators in the investigation and prosecution of any offenses comprising organized criminal activity.

(C) (1) If an organized crime task force, either prior to the commencement of or during the course of its investigation of organized criminal activity in a single county or in two or more counties, has reason to believe that the investigation will require it to engage in substantial investigative activities in a particular municipal corporation or township in the county or any of the counties, the task force director shall notify the commission chairperson of that belief and the reasons for that belief. The chairperson shall present that belief and those reasons to the commission, and, if the commission determines that there is a compelling reason to notify a local law enforcement agency that has jurisdiction within that municipal corporation or township that the task force will be engaging in investigative activities in the municipal corporation or township, the commission, subject to division (C)(2) of this section, shall provide written notice of that fact as follows:

(2) The notice described in division (C)(1) of this section shall not be provided to a sheriff or chief law enforcement officer if it appears to the commission, based upon the complaint filed and any information relative to it or based upon any information that the commission may have received, that there is reason to believe that the office of that sheriff or chief law enforcement officer is implicated in the organized criminal activity being investigated.

(D) (1) If an organized crime task force determines, pursuant to its investigation of organized criminal activity in a single county or in two or more counties, that there is not reasonable cause to believe that organized criminal activity has occurred or is occurring in the county or in any of the counties, it shall report its determination to the commission, terminate its task force activities, and disband.

(2) (a) If a task force determines, pursuant to its investigation of organized criminal activity in a single county or in two or more counties, that there is reasonable cause to believe that organized criminal activity has occurred or is occurring in the county or in any of the counties, it shall report its determination to the commission and, except as provided in division (D)(3) of this section, shall refer a copy of all of the information gathered during the course of the investigation to the prosecuting attorney who has jurisdiction over the matter and inform the prosecuting attorney that the prosecuting attorney has thirty days to decide whether the prosecuting attorney should present the information to a grand jury and that, if the prosecuting attorney intends to make a presentation of the information to the grand jury, the prosecuting attorney has to give the commission written notice of that intention. If the organized criminal activity occurred or is occurring in two or more counties, the referral of the information shall be to the prosecuting attorney of the county in which the most significant portion of the activity occurred or is occurring or, if it is not possible to determine that county, the county with the largest population.

If a prosecuting attorney who has been referred information under this division fails to notify the commission in writing, within thirty days after the referral, that the prosecuting attorney will present the information to the grand jury of the prosecuting attorney's county, the task force, except as provided in division (D)(2)(b) of this section, shall refer a copy of all of the information to the attorney general, who shall proceed according to division (B) of section 109.83 of the Revised Code. If the prosecuting attorney fails to notify the commission in writing within that time that the prosecuting attorney will present the information to the grand jury, the prosecuting attorney promptly shall return all of the information that the task force referred to the prosecuting attorney under this division.

If a prosecuting attorney who has been referred information under this division notifies the commission in writing, within thirty days after the referral, of the prosecuting attorney's intention to present the information referred to the prosecuting attorney to the grand jury of the prosecuting attorney's county, the prosecuting attorney shall proceed promptly to present the information as evidence to the grand jury and shall notify the commission of the grand jury's final actions, findings of indictments, or reports. The prosecuting attorney may disclose to the attorney general any matters occurring before the grand jury that are disclosed to the prosecuting attorney for use in the performance of the prosecuting attorney's duties. The prosecuting attorney shall present the information as evidence to the grand jury prior to the discharge of the next regular grand jury. If the prosecuting attorney fails to present the information as evidence within that time, the commission, except as provided in division (D)(2)(b) of this section, shall notify the attorney general, the task force shall refer a copy of all of the information to the attorney general, and the attorney general may proceed as if the prosecuting attorney had declined under this division to accept the matter. If the prosecuting attorney fails to present the information as evidence within that time, the prosecuting attorney promptly shall return to the task force all of the information that the task force had referred to the prosecuting attorney under this division.

(3) If a task force determines, pursuant to its investigation of organized criminal activity in a single county or in two or more counties, that there is reasonable cause to believe that organized criminal activity has occurred or is occurring in the county or in any of the counties, and that the office of a prosecuting attorney who normally would be referred the information gathered during the course of the investigation pursuant to division (D)(2) of this section is implicated by the information in organized criminal activity, the task force shall not contact or refer any information to the prosecuting attorney. Instead it shall report its determinations and refer all of the information gathered during the course of the investigation to the commission. The commission shall review the information, and if a majority of the members of the commission determine that the office of the prosecuting attorney is implicated in organized criminal activity, the chairperson of the commission shall appear before the presiding judge of the court of common pleas or of the court of appeals for the county in which that prosecuting attorney serves and request the appointment of a special prosecutor to handle the matter. If the presiding judge finds that there is reasonable cause to believe that organized criminal activity has occurred or is occurring in the county or in any of the counties served by the task force and that the office of the prosecuting attorney in question is implicated in organized criminal activity, the judge shall appoint a special prosecutor to perform the functions of prosecuting attorney of the county in relation to the matter, and the commission shall refer a copy of all of the information gathered during the course of the investigation to the special prosecutor. It shall inform the special prosecutor that the special prosecutor has thirty days to decide whether the special prosecutor should present the information to a grand jury and that if the special prosecutor intends to make a presentation of the information to the grand jury, the special prosecutor has to give the commission written notice of that intention. A special prosecutor appointed under this division shall not inform the implicated prosecuting attorney of the investigation or referral of information and shall not cooperate with the prosecutor on the matter.

If a special prosecutor who has been referred information under this division fails to notify the commission in writing, within thirty days after the referral, that the special prosecutor will present the information to the grand jury of the county, or if the presiding judge is requested pursuant to this division to appoint a special prosecutor but the judge does not do so, the commission shall refer a copy of all of the information to the attorney general, who shall proceed according to division (B) of section 109.83 of the Revised Code. Upon such a failure of a special prosecutor to notify the commission, the special prosecutor promptly shall return to the commission all of the information that the commission had referred to the special prosecutor under this division.

If a special prosecutor who has been referred information under this division notifies the commission in writing, within thirty days after the referral, of the special prosecutor's intention to present the information referred to the special prosecutor to the grand jury of the county, the special prosecutor shall proceed promptly to present the information as evidence to the grand jury and shall notify the commission of the grand jury's final actions, findings of indictments, or reports. The special prosecutor may disclose to the attorney general any matters occurring before the grand jury that are disclosed to the special prosecutor for use in the performance of the special prosecutor's duties. The information shall be presented as evidence to the grand jury prior to the discharge of the next regular grand jury. If the special prosecutor fails to present the information as evidence within that time, the commission shall notify the attorney general and refer a copy of all of the information to the attorney general, the attorney general may proceed as if the special prosecutor had declined under this division to accept the matter, and the special prosecutor promptly shall return to the commission all of the information that the commission had referred to the special prosecutor under this division.

(4) The referral of information by a task force to a prosecuting attorney, to the attorney general, to the commission, or to a special prosecutor under this division, the content, scope, and subject of any information so referred, and the identity of any person who was investigated by the task force shall be kept confidential by the task force and its director, investigatory staff, and employees, by the commission and its director, employees, and consultants, by the prosecuting attorney and the prosecuting attorney's assistants and employees, by the special prosecutor and the special prosecutor's assistants and employees, and by the attorney general and the attorney general's assistants and employees until an indictment is returned or a criminal action or proceeding is initiated in a court of proper jurisdiction.

(5) Any information gathered by a task force during the course of its investigation that is in the possession of the task force, a prosecuting attorney, the attorney general, the commission, or a special prosecutor, and any record that pertains to any such information and that is maintained by the task force, a prosecuting attorney, the attorney general, the commission, or a special prosecutor is a confidential law enforcement investigatory record for purposes of section 149.43 of the Revised Code. However, no provision contained in this division or that section affects or limits or shall be construed as affecting or limiting any right of discovery granted to any person under the Revised Code, the Rules of Criminal Procedure, or the Rules of Juvenile Procedure.

(6) In no case shall the commission, a task force, a prosecuting attorney, a special prosecutor, or the attorney general publicly issue a report or summary that identifies or enables the identification of any person who has been or is being investigated under sections 177.01 to 177.03 of the Revised Code unless an indictment is returned against the person or a criminal action or proceeding is initiated against the person in a court of proper jurisdiction.

(7) For purposes of divisions (C) and (D) of this section, the office of a prosecuting attorney, the attorney general, a sheriff, or a chief law enforcement officer shall be considered as being implicated in organized criminal activity only if the prosecuting attorney, attorney general, sheriff, or chief law enforcement officer, one or more of the assistants, deputies, or officers thereof, or one or more of the employees thereof has committed or attempted or conspired to commit, is committing or attempting or conspiring to commit, or has engaged in or is engaging in complicity in the commission of, organized criminal activity.

(8) For purposes of this section, notification by a prosecuting attorney or special prosecutor may be accomplished by certified mail or any other documentation that is agreed upon by the prosecuting attorney or special prosecutor and the commission or their representatives. Notice by certified mail is complete upon mailing.

(E) If an organized crime task force has probable cause to believe, pursuant to its investigation of organized criminal activity in a single county or in two or more counties, that a law of another state or the United States has been or is being violated, the task force director shall notify the commission chairperson of that belief and the reasons for that belief. The chairperson shall present that belief and those reasons to the commission and, if the commission determines that there is probable cause to believe that such a law has been or is being violated, the commission may refer the matter to the attorney general of the other state or to the appropriate United States attorney, whichever is applicable, and provide that attorney general or United States attorney with a copy of relevant information.

HISTORY: 141 v S 74 (Eff 9-3-86); 147 v H 2. Eff 1-1-99.

The effective date is set by section 4 of HB 2.

Sec. 2923.01. Conspiracy.

(A) No person, with purpose to commit or to promote or facilitate the commission of aggravated murder, murder, kidnapping, compelling prostitution, promoting prostitution, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, engaging in a pattern of corrupt activity, corrupting another with drugs, a felony drug trafficking, manufacturing, processing, or possession offense, theft of drugs, or illegal processing of drug documents, the commission of a felony offense of unauthorized use of a vehicle, or the commission of a violation of any provision of Chapter 3734. of the Revised Code, other than section 3734.18 of the Revised Code, that relates to hazardous wastes, shall do either of the following:

(B) No person shall be convicted of conspiracy unless a substantial overt act in furtherance of the conspiracy is alleged and proved to have been done by the accused or a person with whom the accused conspired, subsequent to the accused's entrance into the conspiracy. For purposes of this section, an overt act is substantial when it is of a character that manifests a purpose on the part of the actor that the object of the conspiracy should be completed.

(C) When the offender knows or has reasonable cause to believe that a person with whom the offender conspires also has conspired or is conspiring with another to commit the same offense, the offender is guilty of conspiring with that other person, even though the other person's identity may be unknown to the offender.

(D) It is no defense to a charge under this section that, in retrospect, commission of the offense that was the object of the conspiracy was impossible under the circumstances.

(E) A conspiracy terminates when the offense or offenses that are its objects are committed or when it is abandoned by all conspirators. In the absence of abandonment, it is no defense to a charge under this section that no offense that was the object of the conspiracy was committed.

(F) A person who conspires to commit more than one offense is guilty of only one conspiracy, when the offenses are the object of the same agreement or continuous conspiratorial relationship.

(G) When a person is convicted of committing or attempting to commit a specific offense or of complicity in the commission of or attempt to commit the specific offense, the person shall not be convicted of conspiracy involving the same offense.

(H) (1) No person shall be convicted of conspiracy upon the testimony of a person with whom the defendant conspired, unsupported by other evidence.

(I) The following are affirmative defenses to a charge of conspiracy:

(1) After conspiring to commit an offense, the actor thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of the actor's criminal purpose.

(2) After conspiring to commit an offense, the actor abandoned the conspiracy prior to the commission of or attempt to commit any offense that was the object of the conspiracy, either by advising all other conspirators of the actor's abandonment, or by informing any law enforcement authority of the existence of the conspiracy and of the actor's participation in the conspiracy.

(J) Whoever violates this section is guilty of conspiracy, which is one of the following:

(1) A felony of the first degree, when one of the objects of the conspiracy is aggravated murder, murder, or an offense for which the maximum penalty is imprisonment for life;

(2) A felony of the next lesser degree than the most serious offense that is the object of the conspiracy, when the most serious offense that is the object of the conspiracy is a felony of the first, second, third, or fourth degree;

(3) A felony punishable by a fine of not more than twenty-five thousand dollars or imprisonment for not more than eighteen months, or both, when the offense that is the object of the conspiracy is a violation of any provision of Chapter 3734. of the Revised Code, other than section 3734.18 of the Revised Code, that relates to hazardous wastes;

(4) A misdemeanor of the first degree, when the most serious offense that is the object of the conspiracy is a felony of the fifth degree.

(K) This section does not define a separate conspiracy offense or penalty where conspiracy is defined as an offense by one or more sections of the Revised Code, other than this section. In such a case, however:

(1) With respect to the offense specified as the object of the conspiracy in the other section or sections, division (A) of this section defines the voluntary act or acts and culpable mental state necessary to constitute the conspiracy;

(2) Divisions (B) to (I) of this section are incorporated by reference in the conspiracy offense defined by the other section or sections of the Revised Code.

(L) (1) In addition to the penalties that otherwise are imposed for conspiracy, a person who is found guilty of conspiracy to engage in a pattern of corrupt activity is subject to divisions (B) (2), (3), (4), and (5) of section 2923.32 of the Revised Code.

(2) If a person is convicted of or pleads guilty to conspiracy and if the most serious offense that is the object of the conspiracy is a felony drug trafficking, manufacturing, processing, or possession offense, in addition to the penalties or sanctions that may be imposed for the conspiracy under division (J) (2) or (4) of this section and Chapter 2929. of the Revised Code, both of the following apply:

(M) As used in this section:

(1) "Felony drug trafficking, manufacturing, processing, or possession offense" means any of the following that is a felony:

(2) "Minor drug possession offense" has the same meaning as in section 2925.01 of the Revised Code.

HISTORY: 134 v H 511 (Eff 1-1-74); 136 v H 300 (Eff 7-1-76); 139 v H 108 (Eff 6-23-82); 139 v S 199 (Eff 7-1-83); 140 v S 210 (Eff 7-1-83); 140 v H 651 (Eff 10-1-84); 141 v H 5 (Eff 1-1-86); 141 v H 338 (Eff 9-17-86); 141 v H 428 (Eff 12-23-86); 146 v S 2 (Eff 7-1-96); 146 v H 125 (Eff 7-1-96); 146 v S 269. Eff 7-1-96; 149 v S 123, Sec. 1, eff. 1-1-04.

The effective date is set by section 4 of S.B. 123.

The provisions of Sec. 5 of S.B. 123 (149 v - ), as amended by Sec. 3 of H.B. 163 (150 v - ), read as follows:

SECTION 5. (A) Notwithstanding division (B) of section 1.58 of the Revised Code, the provisions of the Revised Code amended or enacted in Sections 1 and 2 of Am. Sub. S.B. 123 of the 124th General Assembly shall apply only in relation to conduct and offenses committed on or after January 1, 2004. Conduct and offenses committed prior to January 1, 2004, shall be governed by the law in effect on the date the conduct or offense was committed. * * *

The provisions of Sec. 8 of S.B. 123 read as follows:

SECTION 8. Section 2923.01 of the Revised Code is presented in this act as a composite of the section as amended by both Sub. H.B. 125 and Am. Sub. S.B. 269 of the 121st General Assembly. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the composites are the resulting versions of the sections in effect prior to the effective date of the sections as presented in this act.

Effect of Amendments

S.B. 123, Acts 2002, effective January 1, 2004, in (L)(2)(a), deleted "revocations or" preceding "suspensions" and "or persons who have been admitted to the bar by order of the supreme court" following "professionally licensed persons"; deleted "defined" preceding "in section 2925.01"; and made minor stylistic changes.

19xx Committee Report or Comment.

1974 Committee Comment to H 511

This section defines the offense of conspiracy to commit specific crimes, including murder, certain prostitution offenses, arson, robbery, burglary, and a felony offense of unauthorized use of a vehicle. The section also details various rules, exceptions, and defenses, and makes these applicable to other conspiracy offenses defined in the Revised Code.

The elements of an offense under this section are a plan or agreement to commit one of the specified crimes, coupled with an overt act substantial enough to show an intention to carry the conspiracy through to completion.

Conspirators often take pains to mask their identity from all but a few co-conspirators, and the section provides that when a conspirator knows of the participation of others in the scheme, he is guilty of conspiring with them whether he knows of their identity or not. Also, if hindsight shows that under the circumstances the crime which was the object of the conspiracy could not have been committed, this does not relieve the conspirators of liability for planning and acting to execute the crime.

By its nature, a conspiracy is a course of conduct rather than a single act or omission, and the section spells out that a conspiracy terminates when its object is accomplished or when it is abandoned by all conspirators. If there is no abandonment, a conspirator cannot defend on the ground that no offense which was the object of the conspiracy was actually committed.

The section also states that even though a conspiracy may include plans to commit more than one offense, it is still one conspiracy when these offenses are part of the same plan, agreement, or continuous conspiratorial relationship. The section prohibits conviction of conspiracy to commit an offense, when the offender is convicted of committing or attempting to commit, or of complicity in committing or attempting to commit the same offense. Also, the section provides that a person may not be convicted of conspiracy upon the uncorroborated evidence of a co-conspirator.

Defenses to conspiracy include: (1) that a conspirator prevented the success of the conspiracy under circumstances showing that he had completely and voluntarily renounced his criminal plan; or (2) that the conspirator divorced himself from the plan prior to an attempt to commit, or commission of any crime which was the object of the conspiracy, either by telling all the conspirators of his abandonment or by informing law enforcement authorities of the plan and his part in it.

Although this section does not replace any other conspiracy offenses defined in the Revised Code, the rules, exceptions, and defenses defined in this section are expressly made applicable to such other offenses.

Conspiracy is: a felony of the first degree if its object is aggravated murder or murder; a felony of the next lesser degree if its object is a felony of the first, second, or third degree; and a first degree misdemeanor if its object was a fourth degree felony.

Forms

Conspiracy. 4 OJI Form 523.01

Testimony of accomplice. 4 OJI Form 405.41

Sec. 2923.03. Complicity.

(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

(1) Solicit or procure another to commit the offense;

(2) Aid or abet another in committing the offense;

(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;

(4) Cause an innocent or irresponsible person to commit the offense.

(B) It is no defense to a charge under this section that no person with whom the accused was in complicity has been convicted as a principal offender.

(C) No person shall be convicted of complicity under this section unless an offense is actually committed, but a person may be convicted of complicity in an attempt to commit an offense in violation of section 2923.02 of the Revised Code.

(D) If an alleged accomplice of the defendant testifies against the defendant in a case in which the defendant is charged with complicity in the commission of or an attempt to commit an offense, an attempt to commit an offense, or an offense, the court, when it charges the jury, shall state substantially the following:

"The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution.

It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth."

(E) It is an affirmative defense to a charge under this section that, prior to the commission of or attempt to commit the offense, the actor terminated his complicity, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

(F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense.

HISTORY: 134 v H 511 (Eff 1-1-74); 141 v H 338. Eff 9-17-86.

Not analogous to former RC Sec. 2923.03 (GC Sec. 12819-3; 115 v 189; Bureau of Code Revision, 10-1-53; 129 v 420), repealed 134 v H 511, Sec. 2, eff 1-1-74.

19xx Committee Report or Comment.

1974 Committee Comment to H 511

In essence, this section codifies existing case law with respect to "aiding and abetting." Under the section, an accomplice is one who solicits, procures, or conspires with another to commit an offense, aids or abets its commission, or causes an innocent or irresponsible person to commit the offense.

It is unnecessary that the principal offender be convicted before an accomplice can be convicted. An offense must actually be committed, however, before a person may be convicted as an accomplice. The single exception to this rule permits conviction as an accomplice in an attempt to commit an offense. A person accused of complicity may defend on the ground that prior to an attempt or the commission of the offense, he quit his part in it, under circumstances showing that he completely and voluntarily gave up his criminal purpose.

Accomplices are liable to prosecution and punishment as principal offenders. For example, an accomplice to aggravated murder is liable to the death penalty the same as the actual murderer.

In charging complicity, the accused may be charged specifically as an accomplice under this section, or he may be charged simple as a joint offender in the offense committed.

Forms

Complicity. 4 OJI Form 523.03

Testimony of accomplice. 4 OJI Form 405.41

Sec. 2923.31. Definitions.

As used in sections 2923.31 to 2923.36 of the Revised Code:

(A) "Beneficial interest" means any of the following:

(1) The interest of a person as a beneficiary under a trust in which the trustee holds title to personal or real property;

(2) The interest of a person as a beneficiary under any other trust arrangement under which any other person holds title to personal or real property for the benefit of such person;

(3) The interest of a person under any other form of express fiduciary arrangement under which any other person holds title to personal or real property for the benefit of such person.

"Beneficial interest" does not include the interest of a stockholder in a corporation or the interest of a partner in either a general or limited partnership.

(B) "Costs of investigation and prosecution" and "costs of investigation and litigation" mean all of the costs incurred by the state or a county or municipal corporation under sections 2923.31 to 2923.36 of the Revised Code in the prosecution and investigation of any criminal action or in the litigation and investigation of any civil action, and includes, but is not limited to, the costs of resources and personnel.

(C) "Enterprise" includes 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.

(D) "Innocent person" includes any bona fide purchaser of property that is allegedly involved in a violation of section 2923.32 of the Revised Code, including any person who establishes a valid claim to or interest in the property in accordance with division (E) of section 2923.32 of the Revised Code, and any victim of an alleged violation of that section or of any underlying offense involved in an alleged violation of that section.

(E) "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.

At least one of the incidents forming the pattern shall occur on or after January 1, 1986. Unless any incident was an aggravated murder or murder, the last of the incidents forming the pattern shall occur within six years after the commission of any prior incident forming the pattern, excluding any period of imprisonment served by any person engaging in the corrupt activity.

For the purposes of the criminal penalties that may be imposed pursuant to section 2923.32 of the Revised Code, at least one of the incidents forming the pattern shall constitute a felony under the laws of this state in existence at the time it was committed or, if committed in violation of the laws of the United States or of any other state, shall constitute a felony under the law of the United States or the other state and would be a criminal offense under the law of this state if committed in this state.

(F) "Pecuniary value" means money, a negotiable instrument, a commercial interest, or anything of value, as defined in section 1.03 of the Revised Code, or any other property or service that has a value in excess of one hundred dollars.

(G) "Person" means any person, as defined in section 1.59 of the Revised Code, and any governmental officer, employee, or entity.

(H) "Personal property" means any personal property, any interest in personal property, or any right, including, but not limited to, bank accounts, debts, corporate stocks, patents, or copyrights. Personal property and any beneficial interest in personal property are deemed to be located where the trustee of the property, the personal property, or the instrument evidencing the right is located.

(I) "Corrupt activity" means engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in any of the following:

(1) Conduct defined as "racketeering activity" under the "Organized Crime Control Act of 1970," 84 Stat. 941, 18 U.S.C. 1961(1)(B), (1)(C), (1)(D), and (1)(E), as amended;

(2) Conduct constituting any of the following:

(3) Conduct constituting a violation of any law of any state other than this state that is substantially similar to the conduct described in division (I)(2) of this section, provided the defendant was convicted of the conduct in a criminal proceeding in the other state.

(J) "Real property" means any real property or any interest in real property, including, but not limited to, any lease of, or mortgage upon, real property. Real property and any beneficial interest in it is deemed to be located where the real property is located.

(K) "Trustee" means any of the following:

(1) Any person acting as trustee under a trust in which the trustee holds title to personal or real property;

(2) Any person who holds title to personal or real property for which any other person has a beneficial interest;

(3) Any successor trustee.

"Trustee" does not include an assignee or trustee for an insolvent debtor or an executor, administrator, administrator with the will annexed, testamentary trustee, guardian, or committee, appointed by, under the control of, or accountable to a court.

(L) "Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in this state in whole or in part because the debt was incurred or contracted in violation of any federal or state law relating to the business of gambling activity or relating to the business of lending money at an usurious rate unless the creditor proves, by a preponderance of the evidence, that the usurious rate was not intentionally set and that it resulted from a good faith error by the creditor, notwithstanding the maintenance of procedures that were adopted by the creditor to avoid an error of that nature.

HISTORY: 141 v H 5 (Eff 1-1-86); 141 v S 74 (Eff 9-3-86); 142 v H 708 (Eff 4-19-88); 142 v H 624 (Eff 3-17-89); 143 v H 347 (Eff 7-18-90); 144 v S 323 (Eff 4-16-93); 146 v S 2 (Eff 7-1-96); 146 v S 269 (Eff 7-1-96); 146 v H 333 (Eff 9-19-96); 146 v S 214, Sec. 1 (Eff 12-5-96); 146 v S 214, Sec. 3 (Eff 12-5-96); 146 v S 277 (Eff 3-31-97); 147 v H 565 (Eff 3-30-99); 149 v S 184. Eff 5-15-2002.

Not analogous to former RC Sec. 2923.31 (RS Sec. 6983-1; 92 v 122; GC Sec. 13411; Bureau of Code Revision, 10-1-53), repealed 134 v H 511, Sec. 2, eff 1-1-74.

Sec. 2923.32. Engaging in pattern of corrupt activity; forfeiture.

(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.

(2) No person, through a pattern of corrupt activity or the collection of an unlawful debt, shall acquire or maintain, directly or indirectly, any interest in, or control of, any enterprise or real property.

(3) No person, who knowingly has received any proceeds derived, directly or indirectly, from a pattern of corrupt activity or the collection of any unlawful debt, shall use or invest, directly or indirectly, any part of those proceeds, or any proceeds derived from the use or investment of any of those proceeds, in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise.

A purchase of securities on the open market with intent to make an investment, without intent to control or participate in the control of the issuer, and without intent to assist another to do so is not a violation of this division, if the securities of the issuer held after the purchase by the purchaser, the members of the purchaser's immediate family, and the purchaser's or the immediate family members' accomplices in any pattern of corrupt activity or the collection of an unlawful debt do not aggregate one per cent of the outstanding securities of any one class of the issuer and do not confer, in law or in fact, the power to elect one or more directors of the issuer.

(B) (1) Whoever violates this section is guilty of engaging in a pattern of corrupt activity. Except as otherwise provided in this division, engaging in corrupt activity is a felony of the second degree. If at least one of the incidents of corrupt activity is a felony of the first, second, or third degree, aggravated murder, or murder, if at least one of the incidents was a felony under the law of this state that was committed prior to the effective date of this amendment and that would constitute a felony of the first, second, or third degree, aggravated murder, or murder if committed on or after the effective date of this amendment, or if at least one of the incidents of corrupt activity is a felony under the law of the United States or of another state that, if committed in this state on or after the effective date of this amendment, would constitute a felony of the first, second, or third degree, aggravated murder, or murder under the law of this state, engaging in a pattern of corrupt activity is a felony of the first degree. Notwithstanding any other provision of law, a person may be convicted of violating the provisions of this section as well as of a conspiracy to violate one or more of those provisions under section 2923.01 of the Revised Code.

(2) Notwithstanding the financial sanctions authorized by section 2929.18 of the Revised Code, the court may do all of the following with respect to any person who derives pecuniary value or causes property damage, personal injury other than pain and suffering, or other loss through or by the violation of this section:

(3) In addition to any other penalty or disposition authorized or required by law, the court shall order any person who is convicted of or pleads guilty to a violation of this section or who is adjudicated delinquent by reason of a violation of this section to criminally forfeit to the state any personal or real property in which the person has an interest and that was used in the course of or intended for use in the course of a violation of this section, or that was derived from or realized through conduct in violation of this section, including any property constituting an interest in, means of control over, or influence over the enterprise involved in the violation and any property constituting proceeds derived from the violation, including all of the following:

(4) (a) A sentence or disposition of criminal forfeiture pursuant to division (B)(3) of this section shall not be entered unless either of the following applies:

(5) If any property included in a special verdict of forfeiture returned pursuant to division (B)(4) of this section cannot be located, has been sold to a bona fide purchaser for value, placed beyond the jurisdiction of the court, substantially diminished in value by the conduct of the defendant or adjudicated delinquent child, or commingled with other property that cannot be divided without difficulty or undue injury to innocent persons, or otherwise is unreachable without undue injury to innocent persons, the court shall order forfeiture of any other reachable property of the defendant or adjudicated delinquent child up to the value of the property that is unreachable.

(6) All property ordered forfeited pursuant to this section shall be held by the law enforcement agency that seized it for distribution or disposal pursuant to section 2923.35 of the Revised Code. The agency shall maintain an accurate record of each item of property so seized and held, which record shall include the date on which each item was seized, the manner and date of disposition by the agency, and if applicable, the name of the person who received the item; however, the record shall not identify or enable the identification of the individual officer who seized the property. The record is a public record open for inspection under section 149.43 of the Revised Code. Each law enforcement agency that seizes and holds in any calendar year any item of property that is ordered forfeited pursuant to this section shall prepare a report covering the calendar year that cumulates all of the information contained in all of the records kept by the agency pursuant to this division for that calendar year, and shall send the cumulative report, no later than the first day of March in the calendar year following the calendar year covered by the report, to the attorney general. Each such report so received by the attorney general is a public record open for inspection under section 149.43 of the Revised Code. Not later than the fifteenth day of April in the calendar year in which the reports were received, the attorney general shall send to the president of the senate and the speaker of the house of representatives a written notification that does all of the following:

(C) Notwithstanding the notice and procedure prescribed by division (E) of this section, an order of criminal forfeiture entered under division (B)(3) of this section shall authorize an appropriate law enforcement agency to seize the property declared forfeited under this section upon the terms and conditions, relating to the time and manner of seizure, that the court determines proper.

(D) Criminal penalties under this section are not mutually exclusive, unless otherwise provided, and do not preclude the application of any other criminal or civil remedy under this or any other section of the Revised Code. A disposition of criminal forfeiture ordered pursuant to division (B)(3) of this section in relation to a child who was adjudicated delinquent by reason of a violation of this section does not preclude the application of any other order of disposition under Chapter 2152. of the Revised Code or any other civil remedy under this or any other section of the Revised Code.

(E) (1) Upon the entry of a judgment of forfeiture pursuant to division (B)(3) of this section, the court shall cause notice of the judgment to be sent by certified mail, return receipt requested, to all persons known to have, or appearing to have, an interest in the property that was acquired prior to the filing of a corrupt activity lien notice or a lis pendens as authorized by section 2923.36 of the Revised Code. If the notices cannot be given to those persons in that manner, the court shall cause publication of the notice of the judgment of forfeiture pursuant to the Rules of Civil Procedure.

(2) Within thirty days after receipt of a notice or after the date of publication of a notice under division (E)(1) of this section, any person, other than the defendant or the adjudicated delinquent child, who claims an interest in the property that is subject to forfeiture may petition the court for a hearing to determine the validity of the claim. The petition shall be signed and sworn to by the petitioner and shall set forth the nature and extent of the petitioner's interest in the property, the date and circumstances of the petitioner's acquisition of the interest, any additional allegations supporting the claim, and the relief sought. The petitioner shall furnish the prosecuting attorney with a copy of the petition.

(3) The court, to the extent practicable and consistent with the interests of justice, shall hold the hearing described under division (E)(2) of this section within thirty days from the filing of the petition. The court may consolidate the hearings on all petitions filed by third party claimants under this section. At the hearing, the petitioner may testify and present evidence on the petitioner's own behalf and cross-examine witnesses. The prosecuting attorney may present evidence and witnesses in rebuttal and in defense of the claim of the state to the property and cross-examine witnesses. The court, in making its determination, shall consider the testimony and evidence presented at the hearing and the relevant portions of the record of the criminal proceeding that resulted in the judgment of forfeiture.

(4) If at a hearing held under division (E)(3) of this section, the court, by a preponderance of the evidence, determines either that the petitioner has a legal right, title, or interest in the property that, at the time of the commission of the acts giving rise to the forfeiture of the property, was vested in the petitioner and not in the defendant or the adjudicated delinquent child or was superior to the right, title, or interest of the defendant or the adjudicated delinquent child, or that the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of the purchase reasonably without cause to believe that the property was subject to forfeiture under this section, it shall amend, in accordance with its determination, the judgment of forfeiture to protect the rights of innocent persons.

(F) Except as provided in division (E) of this section, no person claiming an interest in property that is subject to forfeiture under this section shall do either of the following:

(G) As used in this section, "law enforcement agency" includes, but is not limited to, the state board of pharmacy.

HISTORY: 141 v H 5 (Eff 1-1-86); 141 v S 74 (Eff 9-3-86); 142 v H 708 (Eff 4-19-88); 143 v H 215 (Eff 4-11-90); 143 v H 266 (Eff 9-6-90); 146 v S 2 (Eff 7-1-96); 147 v S 164 (Eff 1-15-98); 148 v S 179, Sec. 3. Eff 1-1-2002.

Not analogous to former RC Sec. 2923.32 (GC Sec. 12674; 114 v 143; Bureau of Code Revision, 10-1-53), repealed 134 v H 511, Sec. 2, eff 1-1-74.

The effective date is set by section 5 of SB 179.

© 2005 A Peoples' Counsel presents: Effort at information - Contact Mauricem_brahier "at" hotmail.com

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