Argued and Submitted November 7, 2013
On review from the Court of Appeals CC 091089;
CA A142712.. [*]
Erica Herb, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender.
Pamela Johnstone Walsh, Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the brief were Anna M. Joyce, Solicitor General, and Ellen F. Rosenblum, Attorney General.
[356 Or. 6] LINDER, J.
The issue in this case is what constitutes an " enterprise" within the meaning of the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO), ORS 166.715 - 166.735. Defendant was charged in Clatsop County with one count of racketeering, ORS 166.720(3), and one count of theft in the first degree, ORS 164.055. The racketeering count, which required proof that defendant participated in an " enterprise" through a pattern of racketeering, was based on the charged theft offense and two uncharged offenses of theft in the second degree allegedly committed in another county. A jury found defendant guilty of both the racketeering and the first degree theft offenses. Defendant appealed his conviction for racketeering, arguing that there was insufficient evidence that he had participated in an enterprise and that the trial court therefore had erred in denying his motion for a judgment of acquittal on the that count. A divided panel of the Court of Appeals affirmed the conviction. State v. Walker, 252 Or.App. 1, 285 P.3d 751 (2012). We granted review to determine the correct interpretation of ORS 166.720(3). For the reasons explained below, we affirm.
The facts, as recounted by the witnesses at the trial, were not significantly disputed. In several significant respects, however, the parties did dispute what inferences could be drawn from the facts. Below, consistently with the familiar standard that we use in reviewing a denial of a motion for judgment of acquittal, we describe the facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994) (identifying applicable standard of review). More particularly, however, we draw all reasonable inferences in the state's favor as well. Id. (on denial of motion for judgment of acquittal, court gives state the benefit of all reasonable inferences that can be drawn from evidence).
On March 26, 2009, defendant and another person, Williams, traveled together--probably from the Portland [356 Or. 7] area--to Seaside. Once in Seaside, they went to the local Safeway store. Each selected a grocery cart, and each then began to shop independently. Price, a loss prevention officer, noticed them as they entered and began following them. Price worked in plain clothes and typically walked around the store to detect and monitor shoplifting activity. He particularly looked for the selection of " high-dollar, high-theft items," which in the grocery store business include disposable diapers, infant formula, meat, seafood, and beer.
Because defendant and Williams went separate directions in the store, Price watched defendant while another security officer followed Williams. Price saw defendant go to the seafood section and select nine large bags of frozen shrimp. Defendant then proceeded to another aisle, where he pulled Safeway plastic bags from his pocket--the kind used to bag groceries at the register--and put the bags of shrimp into them. At one point,
defendant noticed Price watching him, so Price moved to a position where he would be less visible to defendant. Meanwhile, Williams had gone through the store and had placed several boxes of Huggies diapers, Tide laundry detergent, beer, and several bags of frozen shrimp into his cart, as well.
Defendant then took his cart out of the store without paying. Price followed defendant into the parking lot and saw defendant put the shopping bags filled with shrimp into the backseat of a car. Price yelled out to defendant, identifying himself as a security officer, and defendant fled on foot. By then, Williams had approached the store exit with his own cart. He likewise had not paid for the items in his cart. Williams abandoned his cart full of merchandise and also left the scene.
The Safeway security officers called the Seaside police, who arrived as the security officers were recovering merchandise from the backseat of the car and putting it into grocery carts. Defendant had thrown the bags of shrimp atop disposable diapers, Tide laundry detergent, cold beer, more frozen shrimp, and beef jerky that were already in the backseat. The recovered merchandise filled two and a half grocery carts. The merchandise was returned to the [356 Or. 8] store, where it was run through a register to determine its total value, which was $804.11. The police then impounded the car. Shortly after that, the police located and arrested Williams, who was the registered owner of the vehicle. After Williams consented to a search of the car, the police opened the trunk and found more boxes of Huggies diapers, cases of beer, and bags of shrimp. The beer was still cold; the shrimp was still frozen. Those items, too, were returned to the Safeway store and run through the cash register. They were valued at $329.06.
At some point while the police were impounding the car and interviewing Williams, defendant called 9-1-1 to inquire about Williams's whereabouts. Defendant claimed that he was calling from Portland, but the call was traced back to a hotel in Seaside, where police officers apprehended him soon afterwards. During the ensuing police interview, defendant admitted that he and Williams had traveled together to Seaside for the day. Defendant admitted, however, to taking " only eight bags of frozen shrimp," which he told the interviewing officer that he had intended to " consume * * * on the beach." He denied knowing whether Williams had taken anything from the Seaside Safeway. When the police told defendant that the items returned to the Safeway from the car totaled, in combination, more than $1,000, defendant insisted that the total could not be more $750, stating that " he wasn't stupid" and more than $750 " would be a felony." Defendant did, however, admit to police that he and [356 Or. 9] Williams had " been involved in these types of thefts in the Portland area" during " the last two months."
At trial, the state established two such prior thefts, which it presented for purposes of establishing a pattern of criminal activity as relevant to the racketeering charge. Those thefts were described by Glen Moule, an " organized retail crime investigator for Safeway stores in Oregon and southwest Washington." Moule investigates thefts committed by " professional theft groups," ones that " primarily * * * steal large amounts of high dollar merchandise from
Safeway stores for the purposes of resale." Safeway stores that experience such thefts provide Moule with reports and video surveillance recordings of the activity for his investigation and analysis.
At some point before the trial of this case, and as part of his investigative responsibilities, Moule had reviewed video and still photos that showed defendant and Williams twice stealing similar items from a Safeway store in Sandy, Oregon, on dates several weeks before the Seaside theft. The first of those thefts occurred February 8, 2009. On that date, defendant and Williams entered the Sandy Safeway store, and each selected an empty shopping cart. Defendant went to the back aisle to the display of frozen seafood and put six bags of frozen shrimp into his cart. As defendant finished doing that, Walker moved into the same area and also took bags of shrimp from the display. Defendant then moved to other aisles, where he put several boxes of Huggies diapers into his cart and four cases of beer onto the cart's lower shelf. Defendant then walked to yet another area of the store, took plastic bags from his pocket, and put the bags of frozen shrimp in them. Williams, who entered several of the same areas after defendant, likewise loaded his cart with boxes of Huggies diapers, Tide detergent, and beer. Defendant exited the doors near the Safeway deli without paying for the items; soon afterwards, Williams exited through the same doors, likewise without paying for the items. Based on the time notation on the video, the two were in the store for a total of about six minutes.
A second video recording showed defendant and Williams commit a substantially identical theft from the [356 Or. 10] same Safeway store in Sandy about two weeks later, on February 23, 2009. Again, each entered the store, each selected an empty cart, and each moved through the store filling his individual cart with Huggies diapers, Tide laundry detergent, and cases of beer. Each then left the store through the door near the deli section without paying for the items.
B. Procedural Posture
As noted, defendant was charged with first-degree theft, based on the Seaside Safeway theft, and with racketeering, based on that theft and the two previous thefts at the Sandy Safeway. Also as noted, defendant moved for a judgment of acquittal on the racketeering charge, arguing that the evidence was insufficient to prove that, in committing the predicate thefts, he had participated in an " enterprise" within the meaning of ORS 166.720(3).
Both the trial court and the parties considered State v. Cheek, 100 Or.App. 501, 786 P.2d 1305, rev den, 310 Or. 121, 794 P.2d 793 (1990), to be controlling on the scope and meaning of the term " enterprise" . In that case, the court held that an enterprise could be established by " proof of an on-going organization, however loose, that is distinct from the commission of separate criminal acts by an individual." Cheek, 100 Or.App. at 505. Relying on Cheek, defendant argued in this case that the state's evidence established, at most, that defendant and Williams " committed multiple crimes together." Defendant emphasized that the state's evidence showed only that the two entered the stores at about the same time; once inside, they did not interact or communicate. Moreover, no evidence showed that the items stolen were later sold or disposed of in any kind of systematic manner.
The state argued in response that defendant and Williams were " basically in the business of going out and stealing items together" ; that they had a particular modus operandi in that they were stealing the same types of items every time and even stealing from the same store chain every time; and that they had been engaging in that conduct for at least two months. The state conceded that there [356 Or. 11] was no direct evidence that the items were being resold, but urged that a jury could infer that they were. The state summed up, arguing that this was not " just average Joes going out and committing a few crimes together" ; defendant and Williams " knew how to work the system," had a " specific deal * * * between the two of them" to do that, and went out and committed multiple thefts from multiple Safeways in pursuit of that objective.
The trial court began its ruling on the motion by noting that, at the outset of the trial, the court had " qualms" about the case and did not think that defendant's conduct amounted to racketeering. But by the conclusion of the state's evidence, the court saw the evidence as establishing " more than what average Joes do in the commission of two or more crimes." This case involved, in the trial court's view, two people who were targeting Safeway stores and taking merchandise for at least a couple of months on a regular basis, as evidenced by the circumstances of the proven thefts, along with defendant's own admission that he and Williams were committing other similar thefts in the Portland area during the two months preceding the Seaside Safeway theft. The trial court denied the motion for judgment of acquittal, reasoning that, under the " broad reading" given to the term " enterprise" in Cheek, the state's evidence " gets there." The case was submitted to the jury, which found defendant guilty of racketeering.
Defendant appealed, again arguing that the evidence was insufficient to show the existence of an enterprise as required for the charge of racketeering. On appeal, the parties essentially renewed the arguments that they had made to the trial court. Both parties relied significantly on the meaning of " enterprise" articulated in Cheek. Both parties also relied on federal cases interpreting and applying the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § § 1961-1968 (RICO), on which Oregon's statute (as we later discuss) was modeled. See David B. Frohnmayer, Donald C. Arnold and H. Robert Hamilton, " RICO: Oregon's Message to Organized Crime," 18 Will L Rev 1n 2 (1982).
As noted, a divided panel of the Court of Appeals affirmed. The majority first explained that it did not aim to [356 Or. 12] revisit the meaning of the term " enterprise" that the court previously had announced in Cheek--viz., for the purposes of ORICO, an entity must " partake of 'an ongoing organization, however loose, that is distinct from the commission of separate criminal acts' by the defendant." Walker, 252 Or.App. at 9-10 (quoting Cheek, 100 Or.App. at 505). Rather, the majority considered only whether the evidence in this case was sufficient to permit a jury to infer the existence of an enterprise as so defined. Id. at 10. The majority highlighted four " concerns" that were relevant to that inquiry: First, by referring to an " organization, however loose," the Cheek formulation is " very broad" ; second, the " transcendent consideration" is ORICO's focus on " criminal activity that originates from a sense of organization" ; third, there is often a symbiotic relationship between proof of an " enterprise" ...