State v. Rael, 19-105

• Citation: 981 P.2d 280
• Decision Date: 06 April 1999
• Docket Number: 19-105
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. ANDY RAEL, Defendant-Appellant.Opinion Number: 1999-Certiorari denied,,
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee v ANDY RAEL, Defendant-Appellant

Docket No. 19,105

Opinion Number: 1999-NMCA-068

Certiorari denied, No. 25,717, May 25, 1999

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Filing Date: April 6, 1999

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

James A. Hall, District Judge

PATRICIA A. MADRID, Attorney General, RALPH E. TRUJILLO, Assistant Attorney General, Santa Fe, NM, for Appellee

PHYLLIS H. SUBIN, Chief Public Defender, LAUREL A. KNOWLES, Assistant Appellate Defender, Santa Fe, NM, for Appellant

OPINION

BUSTAMANTE, Judge.

{1} Defendant appeals his conviction of five counts of trafficking in a controlled substance and one count of racketeering. He was sentenced to nine years on each count, but because he was found to be a habitual offender with two prior felony convictions, each sentence was enhanced by four years for a total of thirteen years per count. Four of the counts were to be served consecutively, with the remaining two to be served concurrently, for a total period of incarceration of fifty-two years.

{2} Defendant raises the following issues on appeal: (1) the State failed to prove all of the elements of racketeering; (2) the admission of evidence of Defendant's assets and lifestyle was error; (3) the State endeavored to manipulate Defendant's sentence by engaging in a series of drug transactions with Defendant; and (4) there was insufficient evidence to support the five separate charges of trafficking. We reverse Defendant's conviction for racketeering but affirm on all remaining counts. We remand for resentencing.

FACTS

{3} Following an undercover investigation in late 1996, Defendant was arrested and charged with four counts of trafficking in cocaine, one count of trafficking in heroin, and one count of racketeering. The investigation involved a confidential informant (Clint Grant) introducing an undercover officer (Agent Cortez) to Defendant, who then sold narcotics to the undercover officer on four separate occasions. The sales were of progressively larger quantities of drugs, or involved arrangements for the sale of larger quantities of drugs: On August 22 Agent Cortez purchased one-sixteenth of an ounce of cocaine; on August 27 he purchased one-eighth of an ounce of cocaine; on August 29 he traded an automobile engine for one-half ounce of cocaine and one-half gram of heroin; and on October 10 he purchased one-eighth of an ounce of cocaine and asked Defendant if he could purchase an ounce of cocaine. Defendant said he could not sell an ounce of cocaine until he received another shipment of drugs, which he expected later that same week. After the initial introduction (the second trip to the Rael compound by both Grant and Cortez), Grant no longer accompanied Agent Cortez when Agent Cortez went to purchase drugs, although Grant did help to arrange the engine-for-narcotics exchange of August 29.

{4} There was additional evidence that Defendant was selling drugs, as well, both direct and indirect. According to Agent Cortez, Defendant said he paid heroin rather than cash to laborers who worked on his home. Grant testified that after he helped install a hot tub at Defendant's home Defendant paid him with cocaine, and that on numerous other occasions he purchased drugs from Defendant. Agent Cortez testified about the size of the house Defendant was building and about the furnishings in the house. Prosecutors corroborated this testimony by showing the jury a videotape investigators took of Defendant's home in March 1997. Finally, Agent Cortez also testified that state motor vehicle registration records indicated that ten vehicles were registered to Defendant, and that each time he purchased drugs from Defendant, Defendant was in possession of a large amount of cash.

DISCUSSION

A. The State Failed to Prove All Elements of Racketeering.

{5} At the close of the State's case, Defendant moved for a directed verdict on the racketeering charge claiming that the State failed to prove the existence of an enterprise. The trial court denied the motion. "The question presented by a directed verdict motion is whether there was substantial evidence to support the charge." State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct. App. 1993) (citation omitted).

In reviewing for the sufficiency of the evidence, the question is whether substantial evidence exists of either a direct or circumstantial nature to support a verdict of guilty beyond a reasonable doubt with respect to each element of the crime. The evidence is viewed in the light most favorable to the verdict and all conflicts are resolved in favor of the verdict.

State v. Armijo, 1997-NMCA-080, ¶ 16, 123 N.M. 690, 944 P.2d 919 (citation omitted). However, whether Defendant's association with others constituted an enterprise under the Racketeering Act is a matter of statutory interpretation, which is a question of law, not subject to the substantial evidence standard of review. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). We review questions of law de novo. See State v. Werner, 117 N.M. 315, 317, 871 P.2d 971, 973 (1994).

{6} "The purpose of the Racketeering Act [NMSA 1978, §§ 30-42-1 to 30-42-6 (1980, as amended through 1998)] is to eliminate the infiltration and illegal acquisition of legitimate economic enterprise by racketeering practices and the use of legal and illegal enterprises to further criminal activities." Section 30-42-2. It is unlawful for a person to invest proceeds derived from a pattern of racketeering activity in the acquisition, establishment, or operation of an enterprise. See § 30-42-4(A). It is also unlawful to engage in a pattern of racketeering activity in order to acquire an enterprise. See Section 30-42-4(B). "It is unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs by engaging in a pattern of racketeering activity." Section 30-42-4(C). And "[i]t is unlawful for any person to conspire to violate any of the provisions of Subsections A through C of this section." Section 30-42-4(D).

{7} "Racketeering" is "any act that is chargeable or indictable under the laws of New Mexico and punishable by imprisonment for more than one year," involving any of several enumerated offenses, including trafficking in controlled substances. Section 30-42-3(A). A "'pattern of racketeering activity' means engaging in at least two incidents of racketeering with the intent of accomplishing any of the prohibited activities set forth in Subsections A through D of Section 30-42-4 NMSA 1978." Section 30-42-3(D). An "'enterprise' means a sole proprietorship, partnership, corporation, business, labor union, association or other legal entity or a group of individuals associated in fact although not a legal entity and includes illicit as well as licit entities." Section 30-42-3(C).

{8} There are presently no Uniform Jury Instructions applicable to this State's Racketeering Act. The jury instruction given at trial was adapted from Sections 30-42-3 and -4.

{9} At trial, the State argued that Defendant was engaged in an enterprise by selling drugs in order to finance the construction of his house, by trading drugs for work on his house, and by advising Agent Cortez that he could make money by cutting the cocaine he obtained from Defendant and selling it himself. In denying Defendant's motion for directed verdict, the trial court agreed that Defendant's activities constituted an enterprise, saying:

Clearly there is no legal entity. . . . [T]he question is whether this fits under any group of individuals associated in fact although not through a legal entity, and I think there is adequate evidence of a group of individuals involved. The group including [Defendant] and the others that appeared purchased controlled substances either for cash or, as was testified to, obtained controlled substances in exchange for work performed. It seems to me in some of the [racketeering] cases . . . that [an] enterprise may exist where there is no association above and beyond the acts which form the pattern of racketeering activity. The purpose of the association may be as simple as earning money from repeated illegal acts. In my view that could fit this criteria at least as to [Defendant]. Or the purpose may be to obtain drugs for consumption in my view.

On appeal, the State argues that there was evidence that a defense witness was either acting as a courier or selling drugs for Defendant, which the State contends is further proof of an enterprise. We are not persuaded.

{10} We have previously indicated that the State must prove the following elements in order to establish the existence of an enterprise:

(1) a common purpose among the participants, (2) organization, and (3) continuity. Sporadic, temporary criminal alliances do not constitute an enterprise within the meaning of the act.

We believe the factors to be considered in determining the existence of an enterprise include the identity of the individuals involved, their knowledge of the relevant activities, the amount of planning required to carry out the predicate acts, the frequency of the acts, the time span between each act, and the existence of an identifiable structure within the association or entity. . . .

We agree that proof of an organization is essential to establishing the elements of an enterprise.

State v. Hughes, 108 N.M. 143, 150, 767 P.2d 382, 389 (Ct. App. 1988) (citations omitted). An enterprise may exist "solely for the purpose of engaging in the two or more crimes constituting the pattern of racketeering [activity]." State v. Wynne, 108 N.M. 134, 137, 767 P.2d 373, 376 (Ct. App. 1988). And the evidence used to prove the existence of an enterprise may overlap with evidence of a pattern of racketeering activity. See Hughes, 108 N.M. at 150, 767 P.2d at 389. But "[t]he existence of an...