786 P.2d 1305 (Or.App. 1990), CA A49327, State v. Cheek

Docket Nº87C-22077; CA A49327.
Citation786 P.2d 1305, 100 Or.App. 501
Opinion JudgeGRABER, P. J.,
Party NameSTATE of Oregon, Respondent, v. Troy Estel CHEEK, Sr., Appellant.
AttorneySteven V. Humber, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem. Rives Kistler, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Soli...
Case DateFebruary 14, 1990
CourtCourt of Appeals of Oregon

Page 1305

786 P.2d 1305 (Or.App. 1990)

100 Or.App. 501

STATE of Oregon, Respondent,

v.

Troy Estel CHEEK, Sr., Appellant.

87C-22077; CA A49327.

Court of Appeals of Oregon.

February 14, 1990

Argued and Submitted Sept. 29, 1989.

Page 1306

[100 Or.App. 502] Steven V. Humber, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before GRABER, P.J., and RIGGS and EDMONDS, JJ.

[100 Or.App. 503] EDMONDS, Judge.

Defendant appeals his conviction for violating the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO). ORS 166.715 et seq. He assigns as errors failure to grant his motion for judgment of acquittal, failure to instruct the jury as he requested and denial of his motion for a new trial. We affirm.

The indictment charged that, between 1982 and 1987, defendant committed a number of predicate acts that together constituted a pattern of racketeering activity. The allegations included thefts of tractors from dealers, thefts from insurance companies by false claims of loss, perjury related to the false claims, burglaries, arson of property owned by defendant to collect insurance and conspiracies to commit some of the crimes. The indictment alleged that defendant engaged in a pattern of racketeering activity while

"[b]eing employed by and associated with an enterprise, to-wit [sic ]: an association between and among the defendant individually and as the 'Circle Bar "D" and Beach Loop Horse Rental,' and [six named individuals], and others unknown to the Grand Jury[.]"

The state offered evidence that defendant committed each of the charged predicate acts, either with the assistance or through one or more men named in the indictment. Defendant's defense was that he had not conducted the alleged pattern of racketeering activity through an "enterprise." The issue is what constitutes an enterprise under ORICO when the alleged enterprise is carried on by an individual.

Defendant was charged with violating ORS 166.720(3), which provides:

"It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt."

ORS 166.715 provides definitions:

"(2) 'Enterprise' includes any individual, sole proprietorship, partnership, corporation, business trust or other profit or nonprofit legal entity, and includes any union, association or group of individuals associated in fact although not [100 Or.App. 504] a legal entity, and both illicit and licit enterprises and governmental and nongovernmental entities."

" * * * * *

"(4) 'Pattern of racketeering activity' means engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents, provided at least one of such incidents occurred after November 1, 1981, and that the last of such incidents occurred within five years after a prior incident of racketeering activity." (Emphasis supplied.)

Defendant argues that an enterprise must have an ascertainable structure apart

Page 1307

from an individual conducting unlawful activities with various associates. Otherwise, any person who commits multiple crimes is guilty of racketeering. He points out that under ORS 166.720(3), the state must prove an enterprise through a pattern of racketeering activity. He asserts that, if the same evidence establishes both an enterprise and a "pattern of racketeering activity," ORS 166.720(3) "becomes nothing more than a recidivist statute and the intent of the legislature to afford special protections against racketeering and corrupt organization is thwarted." He urges us to hold that, to establish an enterprise, the state must prove that the defendant and his associates had a common or shared purpose, functioned as a continuing unit and had an ascertainable structure distinct from the pattern of racketeering. He concludes by arguing that "[t]he evidence established only that he was involved with a number of separate individuals in a number of separate crimes."

The state argues that the evidence was sufficient to submit the charges to the jury. It points out that, although an enterprise and a pattern of racketeering are separate elements and proof of one does not necessarily establish the other, the same evidence can be used to establish both elements. Finally, it argues that defendant's requested instruction was erroneous, because it told the jury that the state must prove that "the various associates of the enterprise functioned as a continuing unit."

[100 Or.App. 505] ORS 166.720(3) requires the state to prove both a pattern of racketeering activity and an enterprise. We agree with the state that the same evidence might be probative of both elements. However, when the legislature included an individual within the definition of "enterprise," it must have meant to require proof of more than evidence of an individual committing multiple crimes with others. Because ORICO is directed against organized criminal activity, some connection between an individual and an organization must have been contemplated. See Frohnmayer, Arnold and Hamilton, "RICO: Oregon's Message to Organized Crime," 18 Will...

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