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10/14/87 CHARLES KOGER v. STATE INDIANA

Filed: October 14, 1987.

CHARLES KOGER, ET AL. DEFENDANT-APPELLANT,
v.
STATE OF INDIANA, PLAINTIFF-APPELLEE



APPEAL FROM THE DELAWARE SUPERIOR COURT, NO. 1,1 The Honorable Robert L. Barnet, Judge, Cause No. CS-85/10.

Ratliff, C.j.; Neal, J., concurs; Sullivan, J., Dissents with separate opinion.

Author: Ratliff

RATLIFF, C.J.

STATEMENT OF THE CASE

Charles Koger appeals his conviction for Corrupt Business Influence, a class C felony. We affirm.

FACTS

From January through October of 1984, Rodney Collins and others engaged in stealing and reselling agricultural chemicals. Collins directed the others to burglarize chemical plants, stores, and warehouses and steal the chemicals. After taking delivery of the chemicals, Collins would sell them to another person. Collins paid the others from his proceeds of the sales.

On April 22, 1984, Boyd Wright picked up Charles Koger at Koger's house in Muncie. Wright asked Koger to break into an agricultural supply outlet in Ohio to steal chemicals. Koger consented. Koger was a last minute replacement since Wright had planned on taking another person. Koger and Wright then picked up Oliver Burke. The three men went to Hardin County in Ohio and burglarized the farm supply outlet. The three loaded their rented truck with agricultural chemicals valued at about $35,000. Wright, Koger, and Burke returned to Muncie where Collins took the truck and sold the chemicals to another person. Although the evidence is unclear, Collins returned to Wright's house that same day and paid Wright $1,200. Wright then paid $400 each to Koger and Burke.

Koger was indicted along with eleven (11) other defendants for violating Indiana's Racketeer Influenced and Corrupt Organization (RICO) statute, Indiana Code section 35-45-6-2. The pertinent provisions of the indictment are as follows:

"The Grand Jury of the County of Delaware for the 1985 Term, being duly sworn, empaneled and charged in the name and upon the authority of the State of Indiana, upon their oath charge and present that Rodney E. Collins, Boyd A. Wright (a.k.a Anthony Boyd Wright), Paul Steven Reeder, Eugene Oliver Burke, Charles Koger, Michael Koger, Joseph Reeder, Charles Plumb, Curtis Hicks, Bobby Garrett, Vince Garrett, and Jimmy Swingley from on or about January, 1984 to on or about October 1st, 1984, at and in the County of Delaware, State of Indiana, did knowingly associate with and participate in the activities of an enterprise, to-wit: a group of the said persons aforenamed, and unknown others, an association of persons in fact, for the purpose of planning and conspiracy to commit crimes and committing crimes including burglaries, thefts, and dealing in stolen property and drugs, to-wit:

"3. On or about April 22nd, 1984, the said Rodney Collins, Boyd Wright, Eugene Oliver Burke, Charles Koger and Jimmy Swingley, with intent to commit burglary, did conspire, each with the others, to burglarize Landmark Ag Supplies, a commercial business building, Hardin County, Ohio, and Boyd Wright, Eugene Oliver Burke, Charles Koger, and Jimmy Swingley did perform an overt act in furtherance of said conspiracy, to-wit: the burglary of said business;

"10. That Rodney E. Collins, Boyd A. Wright (a.k.a Anthony Boyd Wright), Paul Steven Reeder, Eugene Oliver Burke, Charles Koger, Michael Koger, Joseph Reeder, Charles Plumb, Curtis Hicks, Bobby Garrett, Vince Garrett, and Jimmy Swingley from on or about January, 1984 to on or about October 1st, 1984, at and in the County of Delaware, State of Indiana, did conspire, each with the others, to exert unauthorized control over property of another, to-wit: fertilizer, prescription drugs, radios, and other property of the aforesaid businesses, with the intent to deprive the owners of the use and value thereof, and that said persons did perform an overt act in furtherance of said conspiracy by stealing said property during commission of said burglaries, by transporting said property to places within Delaware County, Indiana, and by transporting said property to other places and selling said property to persons unknown;

all while said persons were associated with the aforesaid enterprise, all of which is contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana."

Record at 32-35 (emphasis added).

Koger was tried alone for the RICO violation. After the jury returned a guilty verdict, Koger was sentenced to three years. Koger now brings this appeal.

ISSUES

1. Whether there is sufficient evidence to sustain Koger's conviction for violating Indiana's RICO statute.

2. Whether the trial court erred in allowing State witnesses to testify when the State failed to disclose them pursuant to a discovery order.

3. Whether the trial court erred in refusing two of the defendant's tendered jury instructions.

Discussion AND DECISION

Issue One

Koger argues that the State failed to prove two (2) or more incidents of racketeering activity to support the RICO conviction. He argues that he participated in only one criminal event, i.e., by going to Ohio, committing a burglary, stealing chemicals, returning to Muncie, and being paid $400. The State counters this argument by citing United States v. Starnes (7th Cir. 1981), 644 F.2d 673, cert. denied, 454 U.S. 826, 102 S. Ct. 116, 70 L. Ed. 2d 101.

In Starnes, the defendants were charged with violating the federal RICO provisions by conspiring to engage in a pattern of racketeering. Under the federal statute, a "pattern of racketeering activity" is defined as "at least two acts of racketeering activity . . . ." 18 U.S.C. § 1961(5). In that case, the defendants conspired to set fire to a building and defraud the insurance company by accepting the insurance proceeds. To accomplish the task, the defendants traveled from Indiana to Illinois, set the building afire in Illinois to defraud the insurer, and then used the mails to collect from the insurance company. On appeal, the defendants argued that they could not be convicted under the federal RICO statute since the offense charged involved only a single instance of arson. The Seventh Circuit disagreed:

"Acts of racketeering under RICO include arsons punishable under state law by imprisonment for more than one year, 18 U.S.C. § 1961(1)(A), and crimes indictable under federal mail fraud laws or federal laws that prohibit interstate travel with intent to commit arson, 18 U.S.C. § 1961(1)(B). Each of those acts is a separate instance of racketeering activity under RICO. When two or more of those acts are connected to each other in some logical manner so as to effect an unlawful end, a pattern of racketeering exists. 18 U.S.C. § 1961(5), 1962(d).

"Defendants' argument that RICO cannot apply to a conspiracy to commit a single arson ignores the statutory scheme just described. While there may indeed have been a single scheme or objective of the conspiracy -- the arson -- it turned out that several acts of racketeering were contemplated to achieve that objective. Under RICO, the ...


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