State v. Sappenfield, 34A02-8603-CR-74
Decision Date | 31 March 1987 |
Docket Number | No. 34A02-8603-CR-74,34A02-8603-CR-74 |
Citation | 505 N.E.2d 504 |
Parties | STATE of Indiana, Plaintiff-Appellant, v. Ronald W. SAPPENFIELD, Connie Sappenfield, Fantasy One, Inc. and Fantasy Two, Inc., Defendants-Appellees. |
Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., William E. Daily, Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.
Richard Kammen, Susan W. Brooks, McClure, McClure & Kammen, Indianapolis, for defendants-appellees.
The State of Indiana appeals the dismissal of two informations charging the Sappenfields with violation of Indiana Code section 35-45-6-2, Indiana's RICO statute. We reverse.
As a result of an investigation into adult bookstores in Howard County, law enforcement officers purchased several magazines at two stores allegedly owned or operated by Ronald and Connie Sappenfield. The magazines contained graphic photographs of heterosexual and homosexual activity. The Sappenfields were charged with violating Indiana's obscenity statute, Indiana Code section 35-49-1-1 et seq. Several Howard County residents examined the magazines and gave verified statements to the effect that the magazines were obscene. The Sappenfields have not been tried or convicted on any of the six allegations On June 4, 1985, the Sappenfields moved to dismiss the two counts based on Indiana's RICO statute arguing RICO was unconstitutionally vague and violative of the 14th Amendment. On September 18, 1985, the trial court found that RICO could not be constitutionally applied to violations of Indiana's obscenity statute. Thereafter, the state perfected this appeal.
of distributing obscene matter. The prosecuting attorney also alleged a pattern of criminal activity arising out of the distribution of the same obscene matter pursuant to the Indiana Corrupt Business Influence statute (RICO), Indiana Code section 35-45-6-2.
Whether the trial court erred in granting the Sappenfields' motion to dismiss in ruling that Indiana's RICO statute, I.C. Sec. 35-45-6-2, as it applies to a violation of Indiana's obscenity statute, I.C. Sec. 35-49-1-1 et seq., is unconstitutionally vague and violative of the Due Process Clause of the Fourteenth Amendment.
The Indiana RICO statute, as enacted by the legislature in 1980, is essentially patterned after the federal anti-racketeering laws. See Alvers v. State (1986), Ind.App., 489 N.E.2d 83, trans. denied; 18 U.S.C.A. sections 1961-1968 (West 1984). Indiana Code section 35-45-6-2(a) states:
"A person:
(1) Who has knowingly or intentionally received any proceeds directly or indirectly derived from a pattern of racketeering activity, and who uses or invests those proceeds or the proceeds derived from them to acquire an interest in real property or to establish or to operate an enterprise;
(2) Who through a pattern of racketeering activity, knowingly or intentionally acquires or maintains, either directly or indirectly, an interest in or control of real property or an enterprise; or
(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."
" 'Racketeering activity' means to commit, to attempt to commit, or to conspire to commit a violation, or aiding and abetting in a violation" of any of several enumerated predicate offenses, including violation of the obscenity statute. Indiana Code section 35-45-6-1. A "pattern of racketeering activity" means "engaging in at least two incidents of racketeering activity that have the same or similar intent, result, accomplice, victim, or method of commission...." I.C. Sec. 35-45-6-1. The purpose of the federal RICO statute, after which the Indiana statute is patterned, is "to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots." Russello v. United States (1983), 464 U.S. 16, 26, 104 S.Ct. 296, 302, 78 L.Ed.2d 17, 26.
Recently, in a factually similar case, the Indiana Supreme Court addressed the very issue before us today:
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