State v. Kincaid
Jurisdiction | Oregon |
Parties | , RICO Bus.Disp.Guide 6249 STATE of Oregon, Respondent, v. Dale R. KINCAID, Appellant. C 83-05-32440; CA A34510. |
Citation | 714 P.2d 624,78 Or.App. 23 |
Court | Oregon Court of Appeals |
Decision Date | 26 February 1986 |
Timothy P. Alexander, Beaverton, argued the cause for appellant. With him on brief was Myatt, Bell & Alexander, P.C., Beaverton.
Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Before RICHARDSON, P.J., JOSEPH, C.J., and WARDEN, J.
Defendant appeals his conviction for unlawful racketeering activity in violation of ORS 166.720(3), a section of the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO). ORS 166.720(3) provides, as relevant:
under myriad statutes, including those proscribing theft. ORS 166.715(5)(a). The crimes underlying the pattern of racketeering activity are commonly referred to as "predicate offenses," and at least two such offenses, as well as the racketeering elements defined in the statute, must be proven by the state to convict a defendant under ORS 166.720(3).
The essence of the state's case here is that defendant and others operated a mobile home business and committed numerous first degree thefts by deception in connection with customer funds. See ORS 164.055, 164.085. At trial, the state put on evidence of more than 30 thefts. Defendant's first assignment is that the trial court erred by denying his demurrer to the indictment, which alleged in material part:
UNLAWFUL RACKETEERING ACTIVITY
committed as follows:
"The said defendant, between May 25, 1980 and May 25, 1983, in the County of Multnomah, State of Oregon, did unlawfully and knowingly, while employed by and associated with an enterprise, conduct and participate, directly and indirectly, in such enterprise through a pattern of racketeering activity, to-wit: thefts in the first degree, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon." 1
Defendant argues that, although the indictment tracked the language of the ORICO statute and identified theft as the kind of predicate offense, it was defective because it failed to describe the incidents of theft which the state intended to prove. Therefore, according to defendant, the indictment failed, inter alia, to give him sufficient information to enable him to prepare a defense.
We have had one previous occasion to consider the sufficiency of an ORICO indictment. In State v. Romig, 73 Or.App. 780, 700 P.2d 293, rev. den. 299 Or. 663, 704 P.2d 514 (1985), the defendant was charged with racketeering by virtue of his involvement in six predicate offenses. We rejected the defendant's challenge to the indictment and stated:
73 Or.App. at 789, 700 P.2d 293. (Footnote omitted.)
Because it precisely alleged the nature of each of the predicate offenses, the indictment in Romig was specific in exactly the way that defendant contends the indictment here should have been and is not. The state notes, correctly, that in Romig we upheld an indictment "that pleaded the predicate offenses as if they were a substantive count," but that we did not decide "whether less pleading also would have sufficed." That undecided question is the one before us here.
The state makes three basic arguments why the indictment is sufficient. First, it argues that the "essence of a RICO violation rests not in its predicate offenses but rather in its pattern and its enterprise aspects," that the "predicate offenses, although elements of the crime, are not * * * the gravamen of RICO, any more than an intended specific theft on burglarized premises forms the gravamen of a burglary," and, therefore, "if a RICO pleading sets forth the basic nature of the racketeering activity and denominates the type of predicate offenses involved, it succeeds in performing the basic function of a criminal pleading, i.e., notice." (Emphasis the state's.)
The state's second argument is that recent cases have held that the pretrial discovery available to criminal defendants has reduced the need for particularity in charging instruments. See, e.g., State v. Shadley/Spencer/Rowe, 16 Or.App. 113, 517 P.2d 324 (1973). Here, the state gave defendant access to several volumes of data pertaining to the activities alleged against him and the other participants in the enterprise, and it made it clear that it intended to call as witnesses all of the complainants identified in the discovery material. Finally, the state argues that there is no reason why traditional principles, e.g., that indictments which follow the language of the inculpating statute are sufficient, should be inapplicable here. Putting its arguments together, the state concludes that the indictment satisfied the requirement of ORS 132.550(7) of stating the
Although no previous Oregon case is completely apposite, the case that provides the most guidance is State v. Sanders, 280 Or. 685, 572 P.2d 1307 (1977), where the defendant demurred to a burglary indictment because it did not specify the crime the defendant intended to commit when he made his unlawful entry. The Supreme Court reversed the trial court's overruling of the demurrer and explained:
280 Or. at 688-90, 572 P.2d 1307. (Footnote omitted.)
In response to Sanders, the state contends in its brief:
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