285 P.3d 751 (Or.App. 2012), A142712, State v. Walker

Docket Nº091089; A142712.
Citation285 P.3d 751, 252 Or.App. 1
Opinion JudgeHASELTON, C.J.
Party NameSTATE of Oregon, Plaintiff-Respondent, v. Steven Bradley WALKER, Defendant-Appellant.
AttorneyErica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Justice J. Rillera, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney Gene...
Judge PanelBefore ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and EDMONDS, Senior Judge. EDMONDS, S.J., dissenting.
Case DateAugust 29, 2012
CourtCourt of Appeals of Oregon

Page 751

285 P.3d 751 (Or.App. 2012)

252 Or.App. 1

STATE of Oregon, Plaintiff-Respondent,

v.

Steven Bradley WALKER, Defendant-Appellant.

091089; A142712.

Court of Appeals of Oregon.

August 29, 2012

Argued and Submitted April 29, 2011.

Page 752

Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Justice J. Rillera, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and EDMONDS, Senior Judge.

HASELTON, C.J.

[252 Or.App. 3] After a jury trial, defendant was convicted of racketeering, ORS 166.720(3),1 based on three incidents in which defendant and another man stole various items from two Safeway grocery stores, and theft in the first degree, ORS 164.055, based on one of those incidents. Defendant appeals only the conviction for racketeering, assigning error to the trial court's denial of his motion for judgment of acquittal (MJOA). Defendant argues that the state failed to adduce sufficient evidence that, in committing the series of thefts, he participated in an " enterprise," as defined in the Oregon Racketeering Influenced and Corrupt Organizations Act (ORICO), ORS 166.715-166.735. We affirm for reasons explained below.

In reviewing the denial of an MJOA, we determine whether, viewing the evidence and reasonably derived inferences from that evidence in the light most favorable to the state, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. State v. Hall, 327 Or. 568, 570, 966 P.2d 208 (1998).

The uncontroverted historical facts are as follows. On February 8, 2009, defendant and another man, Williams, entered a Safeway store in Sandy. A security camera recording revealed that both men placed various items into their shopping carts— including disposable

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diapers, Tide laundry detergent, beer, and frozen shrimp— and then left the store without paying for the items. Approximately two weeks later, on February 23, 2009, defendant and Williams returned together to the same Safeway store in Sandy and again each stole disposable diapers, Tide laundry detergent, and beer.

On March 26, 2009, defendant and Williams traveled together to a Safeway store in Seaside. A store security guard observed Williams pushing a shopping cart that contained [252 Or.App. 4] diapers, Tide laundry detergent, beer, and several bags of frozen shrimp. The guard also watched as defendant selected nine bags of frozen shrimp from the seafood freezer and then walked to a different aisle where he placed the freezer bags into plastic Safeway shopping bags. Defendant then walked out of the store without paying. The guard followed defendant into the parking lot and saw defendant put the shopping bags into a car. The guard yelled out to defendant, and defendant fled on foot. During that time, Williams had abandoned his cart full of merchandise at the front of the store and had also left the scene.

The Seaside police arrived and searched the unlocked car, where they discovered that defendant had thrown the bags of shrimp atop a stash of diapers, Tide laundry detergent, beer, and beef jerky. The items were returned to the store, and the police impounded the car. Shortly thereafter, the police located and arrested Williams, who was the registered owner of the vehicle. After Williams consented to a search of the car, the police opened the trunk and found more diapers, beer, and frozen shrimp. Williams denied stealing most of the items but admitted to taking " only eight bags of frozen shrimp," which he told the interviewing officer that he had intended to " consume * * * on the beach."

Meanwhile, defendant called 9-1-1 to inquire about the status of the car and its owner. Defendant claimed that he was calling from Portland, but the call was automatically traced back to a hotel in Seaside, where police officers subsequently apprehended him. During the ensuing police interview, defendant confessed that he and Williams had traveled together to Seaside for the day and that the men had taken items from the Seaside Safeway. However, defendant denied stealing items worth more than $750 total, because, he said, " that would be a felony." Defendant also admitted that he and Williams had " been involved in these types of thefts in the Portland area" during " the last two months."

The state charged defendant with racketeering, ORS 166.720(3), based on the Seaside Safeway theft and the two previous Sandy Safeway thefts. At trial, defendant moved for a judgment of acquittal, arguing that the state had failed to establish that, in committing the thefts, he had participated [252 Or.App. 5] in an " enterprise" in violation of ORICO. In that regard, defendant framed and phrased his challenges to the sufficiency of the state's proof explicitly and exclusively by reference to the formulation pronounced in the lead opinion in State v. Cheek, 100 Or.App. 501, 505, 786 P.2d 1305, rev. den., 310 Or. 121, 794 P.2d 793 (1990) (" [P]roof of an enterprise, as defined by ORS 166.715(2), must include proof of an on-going organization, however loose, that is distinct from the commission of separate criminal acts by an individual." ). 2 Specifically, defendant argued:

" [I]t's actually the Cheek case in which they say the State has to prove simply beyond co-defendants committing multiple crimes together in order to establish an enterprise.

" * * * * *

" The evidence * * * is that they enter stores at approximately the same time, but at no time did they interact with one another in the store, at no time did they seem to be, you know, passing information

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off to one another, those kinds of things. So even if the State has established that they're co-defendants, I'm not sure that the State has established that this is an enterprise as that term is defined by the racketeering cases.

" I think at the very best they've established that these are codefendants who committed multiple crimes together[.]

" * * * * *

" What we've got is two individuals who are shoplifters, that's what this case boils down to. And so I think that the Court should find that under Cheek, the State has not met its burden with regard to an enterprise[.]"

The state, in responding, also invoked the Cheek formulation:

" [S]tarting with the enterprise, I'd also point out that Cheek says that it's a level of organization, however loose, that these two people are committing crimes together. In this [252 Or.App. 6] situation we don't have a— we don't have two defendants who are committing random crimes together, we have two defendants who are basically in the business of going out and stealing items together; they have a certain MO, they're stealing the same type[s] of items every single time, they're actually stealing from the same store chain every single time.

" We also have the fact that defendant told the officers that he and Mr. Williams had been involved in these thefts for about two months and that they had committed [such crimes] in the Portland area as well. So [defendant was] definitely involved in this enterprise for this purpose of racketeering activity."

The court denied the MJOA, reasoning as follows:

" The problem is I don't think State v. Cheek is really helpful to defendant because it seems to me that [the lead opinion] seems to have a pretty loose definition, saying you need an enterprise, which would be the two people involved or allegedly [defendant] and Mr. Williams, kind of going around in a loose organization or an enterprise or whatever you want to call it, and committing different crimes at the same— or at least at the Safeway stores, not the...

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