State v. Kelly

519 N.W.2d 202, 1994 Minn. LEXIS 498, 1994 WL 315666
CourtSupreme Court of Minnesota
DecidedJune 30, 1994
DocketC5-92-1537, C7-92-1538
StatusPublished
Cited by3 cases

This text of 519 N.W.2d 202 (State v. Kelly) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kelly, 519 N.W.2d 202, 1994 Minn. LEXIS 498, 1994 WL 315666 (Mich. 1994).

Opinions

OPINION

SIMONETT, Justice.

This appeal raises the same RICO issues as in State v. Trong Kim Huynh, 519 N.W.2d 191 (Minn.1994), also decided today. In this ease, we hold that the evidence is insufficient to show defendant was associated with an “enterprise” as that term is used in Minnesota’s Racketeering Influenced and Corrupt Organizations Act. We therefore reverse the racketeering conviction.

Defendant-appellant Gary Allen Kelly and four codefendants were charged with assorted prostitution-related crimes, plus racketeering. The jury found defendant guilty of one count of soliciting prostitution,1 five counts of promoting prostitution,2 five counts of receiving profits derived from prostitution,3 and one count of [203]*203racketeering.4 Defendant Kelly subsequently pled guilty to an additional count of soliciting prostitution. The trial court sentenced defendant to concurrent terms of imprisonment, ranging from a year and a day to 57 months, for the two counts of soliciting and five counts of promoting prostitution (the judge ruled that the convictions for receiving profits from prostitution merged with the soliciting and promoting offenses). The court added a concurrent 153 months in prison for the racketeering conviction.

The court of appeals affirmed the racketeering conviction (the only conviction defendant challenged), but remanded for resen-tencing. State v. Kelly, 504 N.W.2d 513 (Minn.App.1993). We granted defendant’s petition for further review, where again defendant contends he did not participate in an “enterprise” and disputes the sentencing.

The State’s case consisted primarily of the testimony of seven juvenile girls who testified they either engaged in prostitution for defendant Kelly or were able to tell about defendant’s prostitution activities. Two of the codefendants, having negotiated guilty pleas, testified for the defense. Defendant did not testify.

The first young woman to testify was I.B., and her story provides a good overview of defendant’s activities. I.B. testified that in July 1989, at age 16, she and two friends ran away to Minneapolis. There, while waiting for a bus, they met eodefendant James Patten, who introduced them to his uncle, defendant Kelly. The men offered to help the girls find a place to stay. The group went to an apartment where I.B. had consensual sex with Patten, and from there the group went to a motel. Patten told I.B. she had to sleep with some men to pay for the motel and food. When I.B. refused, defendant Kelly threatened and beat her, and she then had sex with the three Asian-Ameriean men who had driven the group to the motel.

Afterwards, defendant told I.B. she had done a good job and he was going to take her places the next day. He told her she had to prostitute herself to get new clothes and to keep a roof over her head. The next day defendant and Patten took I.B. to Cedar Square West apartments, where they went to various rooms and offered the tenants her services as a prostitute for $20. She spent about 2 hours having sex with men in various apartments, with defendant supplying the condoms. Later that day defendant took her to “some other places” for prostitution. For the next 3 to 5 days, I.B. stayed at the apartment of a friend of defendant, and prostituted herself there and at the same apartment complex as before. She testified defendant threatened to hurt her or someone in her family if she ever ran away.

Defendant then took I.B. to Chicago for 2 weeks, where again they went door to door selling sex in various apartment buildings. Defendant also had I.B. walk the streets. Eventually, I.B. contacted a family member and was able to return to Minneapolis. I.B. estimated that she performed two to three hundred acts of prostitution for Kelly in Chicago, four hundred in Minneapolis, and fifty for codefendant Patten in Minneapolis. She never received any money. On a given day, she testified, defendant would inject heroin into his arm about once every hour.

The other juveniles had somewhat similar stories to tell. D.L. testified that in January 1991, when she was 17, she worked for code-fendant Herman Gordon, and then for code-fendant DeAndre Suggs; that her friend, C.F., worked for codefendant Ronnie Nelson; and that S.W., another friend, worked for defendant Kelly. For about a week, they worked two Minneapolis apartment complexes, with defendant Kelly knocking on doors to specific apartments and asking the occupants if they wanted a girl for a specified price. Defendant had a “black book” with telephone numbers in it, which he would use to call Asian-Ameriean customers. After [204]*204about a week, C.F. and S.W. left with defendant Kelly and codefendant Ronnie Nelson for Chicago. D.L. did not go along.

C.F., also 17 at the time, testified along similar lines. During the week after she arrived in Minneapolis, in January 1991, she went to the same apartments three or four times with two other juveniles and defendant Kelly. The other two pimps stayed in their car outside the apartments. Defendant would take the girls door-to-door, as described by the other witnesses. C.F. testified she was supposed to work for defendant Kelly but she decided instead to work for codefendant Nelson. After a week in Minneapolis, C.F. and S.W. went to Chicago with defendant Kelly and codefendant Nelson. C.F. stayed there for a week and a half to two weeks before returning to Minneapolis with Nelson. While in Chicago, defendant Kelly would take the girls to various apartment complexes, where they would have sex with Asian-American men.

A.D. worked for defendant Kelly in August 1990, when she was 17, first at the Cedar Square West apartments and then in Chicago for about a week and a half. She testified she performed five hundred to a thousand acts of prostitution, with all the money going to Kelly, who was spending it on heroin. Another juvenile, D.A., testified she met defendant Kelly in February 1991, when she was 17; that she performed two acts of prostitution for him, one at his apartment and the other at the Minneapolis apartment complex; and that she did not work for him again.

Finally, two other juveniles, who did not work for defendant Kelly but for his code-fendants, also testified. The first juvenile, R.H., testified that Kelly called her from Chicago in late 1990 and wanted her to come to Chicago to prostitute, but she did not go. (This testimony provided the basis for the solicitation conviction.) The second juvenile, T.N., testified vaguely that at some time in 1991, at age 14, while she was working as a prostitute for codefendant Patten in Minneapolis and Chicago, S.W. was then working in Chicago for Kelly.

To sum up: From July 1989 through February 1991, a period of about 19 months, defendant Kelly solicited one juvenile for prostitution and promoted prostitution with five others. The five juveniles who worked for defendant did so at different periods of time, the times ranging from three or so weeks (I.B.) to a day or so (A.D.). Apparently, only with respect to I.B. did defendant use any physical force.

The dispositive issue here can be simply put: Was defendant employed by or associated with an “enterprise”? The answer, we conclude, is no.

Preliminarily, it is important to note what the State claims the “enterprise” to be. See

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Related

State v. Longo
909 N.W.2d 599 (Court of Appeals of Minnesota, 2018)
State v. Kujak
639 N.W.2d 878 (Court of Appeals of Minnesota, 2002)
State v. Kelly
519 N.W.2d 202 (Supreme Court of Minnesota, 1994)

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Bluebook (online)
519 N.W.2d 202, 1994 Minn. LEXIS 498, 1994 WL 315666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kelly-minn-1994.