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State v. Kelly

Court of Appeals of Oregon

June 4, 2014

STATE OF OREGON, Plaintiff-Respondent,
JIMMY RAY KELLY, JR., Defendant-Appellant

Argued and Submitted February 22, 2013

Page 758

Clackamas County Circuit Court. CR1000472. Jeffrey S. Jones, Judge.

Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jimmy R. Kelly, Jr., filed the supplemental brief Pro se.

Janet A. Klapstein, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.


Page 759

[263 Or.App. 363] NAKAMOTO, J.

Defendant, owner and president of a construction company, challenges a judgment of conviction for racketeering, ORS 166.720(3), under an indictment that alleged multiple theft- and fraud-related predicate offenses stemming from defendant's procurement and misuse of home-improvement loans. Defendant raises four assignments of error on appeal. He contends, first, that the trial court erred in denying his demurrer on the ground that the indictment was not sufficiently definite and certain; second, that the court erred in denying his motion for judgment of acquittal because there was insufficient evidence of the required intent; third, that the court impermissibly ranked his conviction as a " level-9" offense for purposes of sentencing; and fourth, that the court committed plain error by empanelling an anonymous jury. We reject defendant's second assignment of error without discussion and, as we explain below, otherwise affirm.[1]

Because the jury found defendant guilty, we review the evidence in the light most favorable to the state. State v. Hale, 335 Or. 612, 614, 75 P.3d 448 (2003), cert den, 541 U.S. 942, 124 S.Ct. 1667, 158 L.Ed.2d 366 (2004). Defendant was the owner and president of Jemm Corporation, doing business as Northwest Home Source (NHS). NHS focused on home-remodeling projects. In 2004, defendant hired Gary Remer to head NHS's sales and marketing.

In August 2005, NHS entered into a Merchant Origination Loan Agreement with First Security Bank. That agreement permitted First Security to purchase Retail Installment Contracts (construction contracts) from NHS after NHS delivered the original contract forms to First Security and First Security authenticated them. The required forms included a completion certificate that was to [263 Or.App. 364] be signed by both NHS and the homeowner after the job was substantially completed.

Between December 2005 and May 2006, NHS entered into construction contracts with five homeowners. In each instance, defendant or an NHS sales representative had the homeowner sign a series of documents that were represented to be a credit-financing application, but which also included a completion certificate. Each homeowner signed the completion certificate when completing the initial paperwork to contract with NHS. Defendant signed two of those completion certificates on behalf of NHS, and Remer signed the remaining three. Remer later testified that defendant instructed Remer and others to sign the completion certificates before the jobs were completed. NHS then submitted the completion certificates to First Security.

First Security transferred funds into a bank account belonging to NHS shortly thereafter. NHS did not use those funds for the remodeling projects for which they were issued. As a result of defendant's conduct, the homeowners and the bank suffered financial losses.


We first consider the trial court's denial of defendant's demurrer to the indictment

Page 760

on the ground that it did not adequately allege the enterprise element of the racketeering charge under the Oregon Racketeer Influenced and Corrupt Organizations Act (ORICO), ORS 166.715 to 166.735. We review a trial court's ruling on a demurrer to a charging instrument for legal error. State v. Magana, 212 Or.App. 553, 556, 159 P.3d 1163, rev den, 343 Or. 363, 169 P.3d 1268 (2007).

The state charged defendant with one count of racketeering in violation of ORS 166.720(3), under an indictment that alleged 25 predicate offenses including theft, bank fraud, and wire fraud. The indictment charged, in relevant part:

" Defendant Jimmy Ray Kelly Jr. between December 8, 2005 and June 26, 2009, being associated with an enterprise, to wit: Jemm Corporation, doing [263 Or.App. 365] business as Northwest Home Source, and/or an association in fact including but not limited to: Jimmy Ray Kelly, Jemm Corporation, doing business as Northwest Home Source, and Gary Remer and others, did unlawfully and knowingly conduct and participate, directly or indirectly, in such enterprise through a pattern of racketeering activity * * *[.]"

(Emphasis added.)

Defendant demurred to the indictment, arguing that it was impermissibly indefinite and uncertain because it did not " list who 'the others' are nor [did] discovery narrow the focus." The state responded that the identities of the unnamed members of the alleged association-in-fact did not constitute an element that must be pleaded and that discovery identified the " names, dates of birth, addresses, telephone numbers, statements, and other identifying information of individuals and entities who were associated with the named enterprise components during the racketeering activity." The trial court denied the demurrer, agreeing with the state that the identities of the unnamed " others" were not material and therefore need not be pleaded.

On appeal, defendant assigns error to the trial court's denial of his demurrer, renewing his argument that the state's reference to unnamed " others" rendered the indictment deficient both formally and functionally: formally, in that, as a matter of law, the state was required to allege the identities of the unnamed " others" ; functionally, in that the state's failure to so allege deprived defendant of notice of the charge against him and hindered his ability to adequately prepare a defense, because it enabled the state to shift theories of the case during trial as needed. According to defendant, in other words, the indictment is both insufficiently specific and impermissibly expansive.

The state counters that the trial court correctly held that the indictment need not name the unknown individuals associated with the illegal enterprise because their identity was not a material element of the racketeering charge. The state adds that any potential harm from lack of specificity was adequately offset by the availability of additional information through discovery. We agree with the state.

" A demurrer to an indictment on the ground that it is not sufficiently definite or certain is properly raised under [263 Or.App. 366] ORS 135.630(2), which, by express reference, requires that the indictment conform to ORS 132.550(7)." State v. Morgan, 151 Or.App. 750, 753 n 4, 951 P.2d 187 (1997), rev den, 327 Or. 82, 961 P.2d 216 (1998) (emphasis omitted). Under ORS 132.550(7), an indictment must contain a " statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended[.]" [2]

We begin with defendant's argument that the indictment was insufficiently specific because it failed to specifically identify the unnamed " others." " [A]s this court so many times has held, an indictment generally is sufficient if it charges an offense in the

Page 761

words of the statute." Hale, 335 Or. at 621; see also State v. Fitzpatrick, 149 Or.App. 246, 249, 942 P.2d 819 (1997) (holding that an indictment phrased in the statutory language was sufficient to satisfy ORS 132.550(7)). Additionally, " as a matter of law, the identity of persons connected with a criminal offense need not be stated in an indictment unless such identity is an essential element of the crime charged." State v. Shadley/Spencer/Rowe, 16 Or.App. 113, 121, 517 P.2d 324 (1973).

To assess whether the identity of such persons is a material element that must be alleged in an indictment, we look to the plain language of the statute defining the crime charged. The Supreme Court explained the nature of that examination in State v. Nussbaum, 261 Or. 87, 491 P.2d 1013 (1971). In that case, the trial court had sustained demurrers by several defendants to indictments charging them with rioting, because the indictments failed to allege the names of co-offenders. 261 Or. at 88-89. [3] We affirmed the trial court, and the Supreme Court reversed. The Supreme Court first [263 Or.App. 367] noted that " [i]t has always been the general rule in Oregon that an indictment in the language of a statute is good on demurrer." Id. at 91. The court then explained that, " unless a statute required it, the name of a third person whose identity is not an essential element of an ...

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