State v. Cheek, C-22077

• Decision Date: 14 February 1990
• Docket Number: C-22077
• Citation: 786 P.2d 1305,100 Or.App. 501
• Court: Oregon Court of Appeals
• Parties: , RICO Bus.Disp.Guide 7435 STATE of Oregon, Respondent, v. Troy Estel CHEEK, Sr., Appellant. 87; CA A49327.

Page 1305

786 P.2d 1305

100 Or.App. 501, RICO Bus.Disp.Guide 7435

STATE of Oregon, Respondent, v. Troy Estel CHEEK, Sr., Appellant.

87C-22077; CA A49327.

Court of Appeals of Oregon.

Argued and Submitted Sept. 29, 1989.

Decided Feb. 14, 1990.

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.

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 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 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."

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 L Rev 1, 2-3 (1982). ¹

It is apparent that the legislature wanted to include every kind of enterprise within the definition of ORS 166.715(2). It is not unusual for an individual to act through an organization, group or structure that is separate from the individual to facilitate the commission of crimes. Because the statute requires proof of both an enterprise and a pattern of racketeering and is aimed at criminal activity that originates from a sense of organization, we hold that proof 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.

We apply that criterion to the evidence in this case to determine if the trial court erred in denying defendant's motion for judgment of acquittal. Defendant directed a group of young men from broken families over a four-year period to commit 28 different crimes. He chose the site of the crimes, planned their commission, instructed the others on how to commit them and provided them with the means necessary for the commission. The jury was entitled to infer that defendant acted through an organization in accomplishing his criminal objectives and thus functioned as an "enterprise." For the same reason, the trial court did not err in denying defendant's motion for a new trial.

Defendant requested that the trial court instruct the jury: "To prove an 'enterprise' under the statute, the State must prove an on-going organization, formal or informal, and that the various associates of the enterprise functioned as a continuing unit." Defendant offered evidence that the young men that he recruited at various times were unaware of other crimes that defendant was committing with other associates. In most instances, one associate was not acquainted with the another associate. Defendant assigns error to the court's failure to give the instruction. The trial court did not err, because the instruction is not a correct statement of law. Although the state had to prove an on-going organization, the associates in that organization might come and go. The proffered instruction would erroneously have told the jury that the associates must have continued to function as a unit, i.e., that every associate has to be involved in some manner with each predicate offense.

The dissent argues that we err by defining the issue as to what constitutes an enterprise when the enterprise is an individual. It points out that the enterprise that was charged was "an association between and among the defendant individually and as the Circle Bar 'D' and Beach Loop Horse Rental * * *." Although the evidence showed that defendant operated under those assumed business names, for the most part, his criminal activities were unrelated to the operation of those businesses. When the evidence is compared with the language of the indictment, we reject the dissent's premise that the enterprise that was charged was not an individual.

The dissent also takes us to task for not mentioning the underlying federal analysis of defendant's proferred instruction and points to United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981), as the source of the instruction. We read Turkette to stand for the proposition that the existence of an enterprise is a separate element that the government must prove in addition to proving a pattern of racketeering activity. Defendant offered his instruction for a different purpose, i.e., to impose a requirement that every associate in committing each offense be shown to be involved in some manner with each predicate offense. In explaining his theory, defense counsel told the trial court:

"All seven names [listed in the indictment] have to be involved in some manner with the predicate offenses. They don't have to have directly participated in the crime, the predicate offense itself, but each predicate offense there has to be a nexus between the predicate offense and Zimmerman, Tweaton, Schaeffer, Backes, Ruby, Cheek, et cetera, et cetera. So that if you show there were three of them or two of them or whatever, that certainly would fail."

Had the trial court done as requested, defendant would have had a vehicle with which to argue to the jury an improper principle of law.

Affirmed.

RIGGS, Judge, specially concurring.

I agree with the majority's result in affirming defendant's...