People v. Pollard

• Decision Date: 03 February 2000
• Docket Number: No. 97CA1981.,97CA1981.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roy J. POLLARD, Defendant-Appellant.
• Court: Colorado Court of Appeals

3 P.3d 473

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roy J. POLLARD, Defendant-Appellant.

No. 97CA1981.

Colorado Court of Appeals, Div. IV.

February 3, 2000.

Certiorari Denied July 3, 2000.

Ken Salazar, Attorney General, Miles Madorin, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Janet Fullmer Youtz, Lakewood, Colorado, for Defendant-Appellant.

Opinion by Judge MARQUEZ.

Defendant, Roy J. Pollard, appeals the judgment of conviction entered on jury verdicts finding him guilty of four counts of theft, criminal impersonation, and a violation of the Colorado Organized Crime Control Act (COCCA). We affirm.

Acting through corporations in which he was the sole shareholder, defendant held himself out to be a financial consultant and promised at least thirteen individuals that he could secure loans for them. To obtain the loans, defendant entered into contracts on behalf of certain corporate entities with the victims pursuant to which the victims were charged a fee and were to be provided a portfolio business plan and every reasonable effort to obtain the required financing. However, no loans were obtained for any of the victims.

I.

Asserting that the People failed to prove that he was part of an enterprise which had an existence and purpose distinct from him, defendant contends that he was improperly charged with violating COCCA and that the evidence was insufficient to sustain his conviction. We disagree.

To determine a claim of insufficient evidence, we review the evidence presented in the light most favorable to the prosecution to ascertain whether a reasonable juror could conclude that the prosecution proved all elements of the charged offense beyond a reasonable doubt. An appellate court may not substitute its judgment for that of the jury and reweigh the evidence or the credibility of witnesses. People v. Webster, 987 P.2d 836 (Colo.App.1998).

The provisions regarding COCCA are set forth in § 18-17-101, et seq., C.R.S.1999. Section 18-17-104(3), C.R.S.1999, provides that it is unlawful for any person employed by, or associated with, any enterprise to knowingly conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt. The "enterprise" and the "person" engaged in the racketeering activity must be different entities. Ferris v. Bakery, Confectionery and Tobacco Union, Local 26, 867 P.2d 38 (Colo.App.1993).

"Enterprise" means any individual, sole proprietorship, partnership, corporation, trust, or other legal entity or any charged union, association or group of individuals, associated in fact, although not a legal entity. Section 18-17-103(2), C.R.S.1999.

"Person" means any individual or entity holding or capable of holding a legal or beneficial interest in property. See § 18-17-103(4), C.R.S.1999.

Here, the sixth count of the information provides that defendant:

[w]as employed by and associated with an enterprise; to wit; Roy Jack Pollard as an individual ...

The enterprise referred to in this count is an individual ROY JACK POLLARD, and the same individual d/b/a LEISURE INTERNATIONAL, INC., WALKING STICK, INC., BLACK MAGPIE, INC., AND OKANE FINANCIAL.

Evidence was presented distinguishing defendant from the enterprise including that defendant was an individual and conducted his business through four corporations of which he was the incorporator and sole shareholder: Leisure International; Walking Stick, Inc.; Black Magpie, Inc.; and Okane Financial Consultants, Inc. The contracts with the victims were made and prepared in the names of these corporations. Defendant also accepted checks and wire transfers made out to the corporations and opened bank accounts in their names.

The business plans or portfolios that were prepared for certain individuals were signed by him as president of Okane Financial Associates Consultants, Inc. In a letter printed on Okane Financial Associates Consultants, Inc. letterhead, defendant wrote to one of the victims and signed the letter as its president.

At trial, defendant testified that he did not make any commissions on the loans that were made, but the corporations did. He also admitted that in 1992 and 1993, he did not have any assets, but Okane Financial Consultants, Inc. did. Defendant further testified that he had six or eight employees and that, although he never made any portfolios, he oversaw them and did the final review. He also admitted that he was the sole stockholder of Okane Financial Consultants, Inc.

Incorporation results in the creation of a new legal entity with an identity separate and apart from the shareholders. Micciche v. Billings, 727 P.2d 367 (Colo.1986).

Because COCCA is patterned after the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961, et seq. (1994), federal decisions construing RICO may be instructive upon similar issues arising under the state statute. Floyd v. Coors Brewing Co., 952 P.2d 797 (Colo.App.1997), rev'd on other grounds, 978 P.2d 663 (Colo.1999).

When, as here, a separate entity is formed by the act of incorporation, the corporation constitutes an enterprise within the meaning of § 18-17-104(3), separate from the person engaged in the pattern of racketeering activity. See Sever v. Alaska Pulp Corp., 978 F.2d 1529 (9th Cir.1992)

(the only important thing is that the enterprise be either formally (as when there is a corporation), or practically (as when there are other people working in the organization) separable from the individual); McCullough v. Suter, 757 F.2d 142 (7th Cir.1985) (a corporation constitutes an enterprise).

Further, we reject defendant's contention that COCCA was intended to apply to organized crime, not to individuals. See People v. Chaussee, 880 P.2d 749 (Colo.1994)

(both COCCA and RICO impose criminal liability on persons who engage in certain prohibited activities).

Consequently, we conclude that defendant was properly charged under COCCA and that there is sufficient evidence in the record to support his conviction.

II.

Defendant next contends that the trial court erred in not dismissing the charge under COCCA because the charge failed to allege a theft or any other crime. The charge, he asserts, is insufficient because it does not state that defendant took the money "without authorization, or by threat or deception" and does not allege any of the acts in the theft statute. We are not persuaded.

An information serves two vital purposes: 1) it provides the defendant with notice of the offense charged, as well as the factual circumstances surrounding the offense, so that the defendant can adequately defend himself or herself and 2) it protects the defendant from further prosecution for the same offense. The essential element requirement is satisfied if the language in the information tracks the statutory language. People v. Williams, 984 P.2d 56 (Colo.1999).

According to § 18-4-401(1), C.R.S.1999, a person can commit theft in a number of ways. These include when a person knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and:

(a)Intends to deprive the other person permanently of the use or benefit of the thing of value ....

Here, the amended information provided that:

The acts of racketeering activity referred to above include but are not limited to the commission and attempted commission of the following;

. . . .

B. THEFT

On or about March 6, 1994, to March 17, 1994, did feloniously, unlawfully and knowingly take a thing of value, to wit; UNITED STATES CURRENCY of the value of Fifteen Thousand Dollars ($15,000.00) or more from [a person]....

The information delineates twelve other incidents of theft in a similar fashion.

We conclude that the amended information properly alleges theft. It complies with § 18-4-401(6), C.R.S.1999, which, as pertinent here, provides that:

In every indictment or information charging a violation of this section, it shall be sufficient to allege that, on or about a day certain, the defendant committed the crime of theft by unlawfully taking a thing or things of value of a person or persons named in the indictment or information.

Further, defendant has failed to demonstrate and does not contend, that the information prevented him from defending against the COCCA charge or prejudiced him in any way. See People v. Williams, supra

(defects in the form of an information do not require reversal unless the substantial rights of the defendant are prejudiced).

Thus, we conclude that the trial court did not err by not dismissing the COCCA charge.

III.

Defendant next contends that the trial court denied him his right to a fair trial before a fully and properly instructed jury when it denied his request for an instruction defining the element of deception. We disagree.

The decision to provide a jury with additional written instructions, which properly state the law, is a matter within the trial court's sound discretion, and will not constitute reversible error absent manifest prejudice or a clear showing of abuse of discretion. People v. Bielecki, 964 P.2d 598 (Colo.App. 1998).

As pertinent here, the jury was instructed that, in order to find defendant guilty of theft, it had to find that defendant knowingly obtained or exercised control over anything of value, by deception, with intent to permanently deprive the other person of the use or benefit of the thing of value.

Defendant tendered an instruction which provided that the crime of theft by deception requires proof that, in reliance upon misrepresentations by the defendant, the victim parted with something of value.

The trial court, however, refused the instruction reasoning that:

It appears it's just a restatement of the element. You can argue it, but I don't believe that it tells the jury anything in addition to what [it's] already been told, and there is not

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