Koger v. State

• Decision Date: 14 October 1987
• Docket Number: No. 18A02-8704-CR-150,18A02-8704-CR-150
• Citation: 513 N.E.2d 1250
• Parties: RICO Bus.Disp.Guide 6839 Charles KOGER, et al., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1250

513 N.E.2d 1250

RICO Bus.Disp.Guide 6839

Charles KOGER, et al., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 18A02-8704-CR-150.

Court of Appeals of Indiana First District.

Oct. 14, 1987.

Darrel K. Peckinpaugh, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Charles Koger appeals his conviction for Corrupt Business Influence, a class C felony. We affirm.

FACTS

From January through October of 1984, Rodney Collins and others engaged in stealing and reselling agricultural chemicals. Collins directed the others to burglarize chemical plants, stores, and warehouses and steal the chemicals. After taking delivery of the chemicals, Collins would sell them to another person. Collins paid the others from his proceeds of the sales.

On April 22, 1984, Boyd Wright picked up Charles Koger at Koger's house in Muncie. Wright asked Koger to break into an agricultural supply outlet in Ohio to steal chemicals. Koger consented. Koger was a last minute replacement since Wright had planned on taking another person. Koger and Wright then picked up Oliver Burke. The three men went to Hardin County in Ohio and burglarized the farm supply outlet. The three loaded their rented truck with agricultural chemicals valued at about $35,000. Wright, Koger, and Burke returned to Muncie where Collins took the truck and sold the chemicals to another person. Although the evidence is unclear, Collins returned to Wright's house that same day and paid Wright $1,200. Wright then paid $400 each to Koger and Burke.

Koger was indicted along with eleven (11) other defendants for violating Indiana's Racketeer Influenced and Corrupt Organization (RICO) statute, Indiana Code section 35-45-6-2. The pertinent provisions of the indictment are as follows:

"The Grand Jury of the County of Delaware for the 1985 Term, being duly sworn, empaneled and charged in the name and upon the authority of the State of Indiana, upon their oath charge and present that Rodney E. Collins, Boyd A. Wright (a.k.a. Anthony Boyd Wright), Paul Steven Reeder, Eugene Oliver Burke, Charles Koger, Michael Koger, Joseph Reeder, Charles Plumb, Curtis Hicks, Bobby Garrett, Vince Garrett, and Jimmy Swingley from on or about January, 1984 to on or about October 1st, 1984, at and in the County of Delaware, State of Indiana, did knowingly associate with and participate in the activities of an enterprise, to-wit: a group of the said persons aforenamed, and unknown others, an association of persons in fact, for the purpose of planning and conspiracy to commit crimes and committing crimes including burglaries, thefts, and dealing in stolen property and drugs, to-wit: ...

"3. On or about April 22nd, 1984, the said Rodney Collins, Boyd Wright, Eugene Oliver Burke, Charles Koger and Jimmy Swingley, with intent to commit burglary, did conspire, each with the others, to burglarize Landmark Ag Supplies, a commercial business building, Hardin County, Ohio, and Boyd Wright, Eugene Oliver Burke, Charles Koger, and Jimmy Swingley did perform an overt act in "10. That Rodney E. Collins, Boyd A. Wright (a.k.a Anthony Boyd Wright), Paul Steven Reeder, Eugene Oliver Burke, Charles Koger, Michael Koger, Joseph Reeder, Charles Plumb, Curtis Hicks, Bobby Garrett, Vince Garrett, and Jimmy Swingley from on or about January, 1984 to on or about October 1st, 1984, at and in the County of Delaware, State of Indiana, did conspire, each with the others, to exert unauthorized control over property of another, to-wit: fertilizer, prescription drugs, radios, and other property of the aforesaid businesses, with the intent to deprive the owners of the use and value thereof, and that said persons did perform an overt act in furtherance of said conspiracy by stealing said property during commission of said burglaries, by transporting said property to places within Delaware County, Indiana, and by transporting said property to other places and selling said property to persons unknown;

furtherance of said conspiracy, to-wit: the burglary of said business; ...

all while said persons were associated with the aforesaid enterprise, all of which is contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana."

Record at 32-35 (emphasis added).

Koger was tried alone for the RICO violation. After the jury returned a guilty verdict, Koger was sentenced to three years. Koger now brings this appeal.

ISSUES

1. Whether there is sufficient evidence to sustain Koger's conviction for violating Indiana's RICO statute.

2. Whether the trial court erred in allowing State witnesses to testify when the State failed to disclose them pursuant to a discovery order.

3. Whether the trial court erred in refusing two of the defendant's tendered jury instructions.

DISCUSSION AND DECISION

Issue One

Koger argues that the State failed to prove two (2) or more incidents of racketeering activity to support the RICO conviction. He argues that he participated in only one criminal event, i.e., by going to Ohio, committing a burglary, stealing chemicals, returning to Muncie, and being paid $400. The State counters this argument by citing United States v. Starnes (7th Cir.1981), 644 F.2d 673, cert. denied, 454 U.S. 826, 102 S.Ct. 116, 70 L.Ed.2d 101.

In Starnes, the defendants were charged with violating the federal RICO provisions by conspiring to engage in a pattern of racketeering. Under the federal statute, a "pattern of racketeering activity" is defined as "at least two acts of racketeering activity...." 18 U.S.C. Sec. 1961(5). In that case, the defendants conspired to set fire to a building and defraud the insurance company by accepting the insurance proceeds. To accomplish the task, the defendants traveled from Indiana to Illinois, set the building afire in Illinois to defraud the insurer, and then used the mails to collect from the insurance company. On appeal, the defendants argued that they could not be convicted under the federal RICO statute since the offense charged involved only a single instance of arson. The Seventh Circuit disagreed:

"Acts of racketeering under RICO include arsons punishable under state law by imprisonment for more than one year, 18 U.S.C. Sec. 1961(1)(A), and crimes indictable under federal mail fraud laws or federal laws that prohibit interstate travel with intent to commit arson, 18 U.S.C. Sec. 1961(1)(B). Each of those acts is a separate instance of racketeering activity under RICO. When two or more of those acts are connected to each other in some logical manner so as to effect an unlawful end, a pattern of racketeering exists. 18 U.S.C. Sec. 1961(5), 1962(d)....

"Defendants' argument that RICO cannot apply to a conspiracy to commit a single arson ignores the statutory scheme just described. While there may indeed have been a single scheme or objective of the conspiracy--the arson--it turned out that several acts of racketeering were contemplated to achieve that objective. Under RICO, the conspiratorial objective is a matter different than the acts contemplated by the conspirators."

Starnes, at 677-78 (emphasis in original). The court concluded by saying, "the fact that there is but one objective underlying the separate acts does not diminish the applicability of RICO to those acts." Id. at 678 (emphasis added). For other cases applying this analysis, see United States v. Neapolitan (7th Cir.1986), 791 F.2d 489, 499 n. 5 ("the fact that the goal of the conspiracy is the ultimate commission of one criminal act does not preclude that objective from constituting a RICO violation where two predicated acts are required or actually agreed to as part of the conspiracy"), cert. denied, --- U.S. ----, 107 S.Ct. 422, 93 L.Ed.2d 372; United States v. Pepe (11th Cir.1984), 747 F.2d 632, 661; United States v. Phillips (5th Cir.1981), 664 F.2d 971, 1039, cert. denied sub nom., Meinster v. United States, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354. Although we agree with the State that the Starnes analysis would apply under Indiana's RICO statute, especially since we liberally construe our RICO prohibitions, see 4447 Corp. v. Goldsmith (1987), Ind., 504 N.E.2d 559, 564, we first must address the difference between the federal RICO statute and our counterpart.

The State contends, and we agree, that Koger was convicted under Indiana Code section 35-45-6-2(a)(3). That provision states:

"Corrupt business influence--Penalty.--

(a) A person:

* * *

(3) Who is employed by or associated with an enterprise, and who knowingly or intentionally conducts or otherwise participates in the activities of that enterprise through a pattern of racketeering activity; commits corrupt business influence, a Class C felony."

Indiana Code section 35-45-6-1 defines "racketeering activity" as meaning "to commit, to attempt to commit, or to conspire to commit a violation, or aiding and abetting in a violation" of numerous statutory crimes, including theft and burglary. A "pattern of racketeering activity" is defined by Ind.Code Sec. 35-45-6-1 as "engaging in at least two incidents of racketeering activity that have the same or similar intent, result, accomplice, victim, or method of commission, or that are otherwise interrelated by distinguishing characteristics that are not isolated incidents...."

The federal RICO statute has a provision substantially similar to Ind.Code Sec. 35-45-6-2(a)(3), the provision under which Koger was convicted. 18 U.S.C. Sec. 1962(c) states:

"It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt."

Congress...