People v. McDonald, Court of Appeals No. 17CA1096

Docket NºCourt of Appeals No. 17CA1096
Citation490 P.3d 730
Case DateApril 09, 2020
CourtCourt of Appeals of Colorado

490 P.3d 730

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Marquis DeShawn MCDONALD, Defendant-Appellant.

Court of Appeals No. 17CA1096

Colorado Court of Appeals, Division VI.

Announced April 9, 2020


Philip J. Weiser, Attorney General, Brittany Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for Defendant-Appellant

Opinion by JUDGE WELLING

¶1 Defendant, Marquis DeShawn McDonald, appeals his conviction for violation of the Colorado Organized Crime Control Act (COCCA). McDonald contends that the prosecution failed to present sufficient evidence to prove the existence of, and his participation in, an "enterprise associated in fact" under COCCA because the prosecution did not present evidence to satisfy the additional three factors required in prosecution of federal Racketeer Influenced and Corrupt Organizations Act (RICO) offenses.

¶2 McDonald asks us to reexamine, for the first time since People v. James , 40 P.3d 36 (Colo. App. 2001), whether the definition of "enterprise" under COCCA, § 18-17-103(2), C.R.S. 2019, should be construed in the same way that federal courts construe "enterprise" under RICO, 18 U.S.C. § 1961(4) (2018). Under the federal RICO scheme, both Boyle v. United States , 556 U.S. 938, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009), and United States v. Turkette , 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), require the prosecution to demonstrate three factors to prove that there was an enterprise "associated in fact." The division in James , however, rejected Turkette , concluding that the definition of "enterprise" under COCCA is complete and, therefore, doesn't require the prosecution to demonstrate the three factors required under federal RICO precedent. See 40 P.3d at 47-48.

¶3 We decline to depart from James . In so declining, we do not interpret "enterprise" under COCCA in the same manner as the federal RICO scheme. Although James hangs the distinction between "enterprise" under COCCA and "enterprise" under RICO on a thin reed, we conclude that the General Assembly has acquiesced to the James division's interpretation of "enterprise" because, while it has amended the definitions section

490 P.3d 734

of COCCA several times since James , the definition of "enterprise" has remained untouched. Compare § 18-17-103(2), with Ch. 229, sec. 1, § 18-17-103(2), 1981 Colo. Sess. Laws 1016. Accordingly, we affirm.

I. Background

¶4 McDonald confessed that he and three other men drove from Michigan to Colorado to steal Rolex watches from a retail jeweler in an Arapahoe County shopping mall. The plan was to have three men enter the jewelry store and steal watches, and have a fourth man wait in a getaway vehicle outside the mall.

¶5 On the morning of the heist, the men stole a minivan to use as their getaway vehicle. Video surveillance from the jewelry store shows that, later that day, McDonald and another man entered the jewelry store, smashed open display cases containing Rolex watches, and then fled on foot with some of the watches. The police apprehended all four men shortly thereafter at various locations near the mall.

¶6 A jury convicted McDonald of theft, criminal mischief, aggravated motor vehicle theft, conspiracy to commit theft, and engaging in a pattern of racketeering in violation of COCCA. Further, the trial court adjudicated McDonald a habitual offender under section 18-1.3-801, C.R.S. 2019. This resulted in the quadrupling of McDonald's twenty-four-year COCCA sentence to ninety-six years.

II. Analysis

¶7 McDonald appeals only his COCCA conviction. To secure a COCCA conviction, the prosecution must prove beyond a reasonable doubt that the defendant "associated with[ ] any enterprise to knowingly conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity." § 18-17-104(3), C.R.S. 2019. To be convicted, the defendant must have participated in "at least two acts of racketeering activity which are related to the conduct of the enterprise"; acts of racketeering include, but are not limited to, offenses such as burglary or theft. § 18-17-103(3), (5)(b)(II). And, central to this appeal, the defendant must have been part of an "enterprise," which is defined as "any individual, sole proprietorship, partnership, corporation, trust, or other legal entity or any chartered union, association, or group of individuals, associated in fact although not a legal entity , and shall include illicit as well as licit enterprises and governmental as well as other entities." § 18-17-103(2) (emphasis added). An enterprise consists of "at least one other person or entity besides the defendant." James , 40 P.3d at 46 (first citing People v. Pollard , 3 P.3d 473 (Colo. App. 2000) ; then citing Ferris v. Bakery, Confectionery & Tobacco Union, Local 26 , 867 P.2d 38 (Colo. App. 1993) ).

¶8 McDonald was charged and tried for his participation in an "associated-in-fact enterprise." He raises two contentions on appeal, both of which rest on the meaning of an "associated-in-fact enterprise." First, McDonald contends that the evidence was insufficient to convict him under COCCA. In this regard, he asserts that the trial court should have imported the RICO requirements to prove he participated in an "enterprise associated in fact," and that, applying the RICO standard for such an enterprise, the evidence was insufficient to support his COCCA conviction. See 18 U.S.C. § 1961(4). Second, McDonald contends that the jury instructions should have included additional requirements for establishing an "associated-in-fact enterprise" —that is, additional requirements that track those required under RICO. Because both of McDonald's contentions rest on our construction of "associated-in-fact enterprise" under COCCA, we turn to this overarching issue of statutory construction first; then we address the two specific contentions McDonald raises on appeal.

A. Statutory Construction

1. Legal Principles

¶9 We review issues of statutory interpretation de novo. McCoy v. People , 2019 CO 44, ¶ 37, 442 P.3d 379 ; see also Doubleday v. People , 2016 CO 3, ¶ 19, 364 P.3d 193. Our primary purpose in construing a statute is to "ascertain and give effect to the legislature's intent." McCoy , ¶ 37. First, we look to the language of the statute, giving words and phrases their plain meanings, reading them

490 P.3d 735

in context, and construing "them according to the rules of grammar and common usage." Doubleday , ¶ 19. Next, we look to the purpose of the legislative scheme, reading the entirety of the statute to give consistent meaning to all its parts and avoiding constructions that would create illogical results. Id. at ¶ 20. Only if the statute is ambiguous may we look to other aids of construction like legislative history or canons of statutory construction. Id.

¶10 COCCA is modeled after — but not identical to — RICO. People v. Chaussee , 880 P.2d 749, 753 (Colo. 1994) (citing Benson v. People , 703 P.2d 1274, 1276 n.1 (Colo. 1985) ). Because of their similarities, COCCA and RICO are "generally construed according to similar principles." L-3 Commc'ns Corp. v. Jaxon Eng'g & Maint., Inc. , 863 F. Supp. 2d 1066, 1076 (D. Colo. 2012). Indeed, "[a]bsent a prior interpretation by our state courts , federal case law construing [RICO] is instructive because COCCA was modeled after the federal act." Ferris , 867 P.2d at 46 (emphasis added) (citation omitted).

¶11 But Colorado courts have declined to extend federal interpretations of RICO to the construction of COCCA where there are differences — even slight differences — in statutory language. See, e.g. , Chaussee , 880 P.2d at 759 (declining to follow federal interpretation of the definition of "pattern of racketeering," focusing on the use of the word "requires" in RICO versus the word "means" in COCCA, because "for purposes of COCCA, we are persuaded that the construction adopted by the federal cases is not correct"); James , 40 P.3d at 47-48 (declining to follow the interpretation of "enterprise" under RICO); Tallitsch v. Child Support Servs., Inc. , 926 P.2d 143, 147 (Colo. App. 1996) (departing from RICO's attorney fees regime because "there exists appropriate Colorado authority on this issue, and that authority is controlling"); cf. Nicholas v. N. Colo. Med. Ctr., Inc. , 902 P.2d 462 (Colo. App. 1995) (noting that the court is not bound to follow federal law in construing the state statutory scheme for anticompetitive conduct), aff'd , 914 P.2d 902 (Colo. 1996). And where another division of this court has construed COCCA, we should accord deference to that earlier interpretation. See People v. Smoots , 2013 COA 152, ¶ 20, 396 P.3d 53 ("We are not obligated to follow the precedent established by another division, even though we give such decisions considerable deference."), aff'd sub nom. Reyna-Abarca v. People , 2017 CO 15, 390 P.3d 816.

¶12 With these principles in mind, we turn to the construction of "associated-in-fact enterprise" under COCCA.

2. Meaning of Enterprise Associated in Fact Under COCCA

¶13 As alluded to earlier, McDonald contends that we should follow the lead of federal courts interpreting RICO when we construe "associated-in-fact enterprise" under COCCA. Specifically,...

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3 practice notes
  • McDonald v. People, Supreme Court Case No. 20SC354
    • United States
    • Colorado Supreme Court of Colorado
    • September 13, 2021
    ...enterprise under COCCA requires the same structural features necessary under RICO. People v. McDonald , 2020 COA 65, ¶ 2, 490 P.3d 730, 733. So, the prosecution's evidence was insufficient to support his conviction, and the jury instructions should've included those structural requirements.......
  • McDonald v. People, 20SC354
    • United States
    • Colorado Supreme Court of Colorado
    • September 13, 2021
    ...enterprise under COCCA requires the same structural features necessary under RICO. People v. McDonald, 2020 COA 65, ¶ 2, 490 P.3d 730, 733. So, the prosecution's evidence was insufficient to support his conviction, and the jury instructions should've included those structural requirements. ......
  • People v. Ornelas-Licano, Court of Appeals No. 16CA0244
    • United States
    • Colorado Court of Appeals of Colorado
    • April 9, 2020
    ...stated in the previous section, the experiment results and resulting testimony could have been helpful to the jury and were not misleading.490 P.3d 730 ¶104 On these facts, the trial court did not abuse its discretion by admitting the windshield experiment results and the expert testimony r......
3 cases
  • McDonald v. People, Supreme Court Case No. 20SC354
    • United States
    • Colorado Supreme Court of Colorado
    • September 13, 2021
    ...enterprise under COCCA requires the same structural features necessary under RICO. People v. McDonald , 2020 COA 65, ¶ 2, 490 P.3d 730, 733. So, the prosecution's evidence was insufficient to support his conviction, and the jury instructions should've included those structural requirements.......
  • McDonald v. People, 20SC354
    • United States
    • Colorado Supreme Court of Colorado
    • September 13, 2021
    ...enterprise under COCCA requires the same structural features necessary under RICO. People v. McDonald, 2020 COA 65, ¶ 2, 490 P.3d 730, 733. So, the prosecution's evidence was insufficient to support his conviction, and the jury instructions should've included those structural requirements. ......
  • People v. Ornelas-Licano, Court of Appeals No. 16CA0244
    • United States
    • Colorado Court of Appeals of Colorado
    • April 9, 2020
    ...stated in the previous section, the experiment results and resulting testimony could have been helpful to the jury and were not misleading.490 P.3d 730 ¶104 On these facts, the trial court did not abuse its discretion by admitting the windshield experiment results and the expert testimony r......

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