State v. O'CONNELL

508 N.W.2d 23, 179 Wis. 2d 598, 1993 Wisc. App. LEXIS 1285
CourtCourt of Appeals of Wisconsin
DecidedOctober 7, 1993
Docket92-1254-CR
StatusPublished
Cited by10 cases

This text of 508 N.W.2d 23 (State v. O'CONNELL) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. O'CONNELL, 508 N.W.2d 23, 179 Wis. 2d 598, 1993 Wisc. App. LEXIS 1285 (Wis. Ct. App. 1993).

Opinions

DYKMAN, J.

This is an appeal from a judgment of conviction for three counts of theft, one count of obtaining telecommunications service by fraud, and one count of participating in an enterprise through a pattern of racketeering activity. O'Connell asserts that: (1) the complaint charging a violation of the Wisconsin Organized Crime Control Act (WOCCA)1 was deficient; (2) the trial court erred by failing to dismiss all but one theft count because the information was not timely filed; (3) the thefts were not committed as part of an "enterprise," preventing her conviction for racketeering; (4) WOCCA is unconstitutionally vague; (5) the trial court erroneously exercised its discretion by failing to grant a continuance; and (6) the evidence was insufficient to support her theft convictions. We find no error and affirm.

Janice O'Connell was a long-term employee of the State Historical Society of Wisconsin. She was an expert on antique dolls and jewelry. She and a volunteer at the historical society, Rodney DeFoe, lived together and began a business of buying and selling antiques. From about June 1988, until January 1990, DeFoe, with O'Connell's assistance, stole antiques from the society and sold them. O'Connell made per[604]*604sonal long distance calls which she charged to the historical society. A jury convicted her of the five crimes we have noted, and she appeals.

SUFFICIENCY OF WOCCA COMPLAINT

We determine the sufficiency of a criminal complaint de novo. State v. Manthey, 169 Wis. 2d 673, 685, 487 N.W.2d 44, 49 (Ct. App. 1992). The function of a complaint is informative — to allege facts from which a reasonable person could conclude that the defendant probably committed a crime. State v. Gilles, 173 Wis. 2d 101, 117, 496 N.W.2d 133, 140 (Ct. App. 1992). A complaint is sufficient if it answers five questions: (1) Who is charged? (2) What is the person charged with? (3) When and where did the alleged offense take place? (4) Why is this particular person being charged? and (5) Who says so? or How reliable is the informant? State v. Adams, 152 Wis. 2d 68, 73-74, 447 N.W.2d 90, 92 (Ct. App. 1989). O'Connell asserts only that the complaint does not adequately explain why she is being charged. Specifically, she asserts that the complaint does not allege that she and DeFoe engaged in an "enterprise," an element of a WOCCA violation.

O'Connell asserts that the complaint fails to assert that the incidents of theft alleged were a regular way of conducting or participating in the conduct of the ongoing WOCCA enterprise. She claims that no facts show any infrastructure between her and DeFoe in support of a continuing relationship, or that they committed the predicate acts themselves.

Section 946.82(2), Stats., defines "enterprise":

"Enterprise" means any sole proprietorship, partnership, corporation, business trust, union organized under the laws of this state or other legal [605]*605entity or any union not organized under the laws of this state, association or group of individuals associated in fact although not a legal entity. "Enterprise'1 includes illicit and licit enterprises and governmental and other entities.

The crime with which O'Connell was charged is defined in sec. 946.83(3), Stats.:

No person employed by, or associated with, any enterprise may conduct or participate, directly or indirectly, in the enterprise through a pattern of racketeering activity.

The complaint is fifteen pages long. In part, it alleges that O'Connell and DeFoe lived together and, together, bought and sold antiques. O'Connell told a police detective that she and DeFoe had rented a storage shed in which to keep their collectible/antique property. She admitted that she and DeFoe normally dealt with seven named antique dealers and "other markets." The complaint alleges that DeFoe received money from antique dealers, and in particular, a check for $18,750 from an auction house for the sale of a doll. Within eight days of the date of that check, DeFoe, a person without gainful employment, wrote four checks to O'Connell totaling $10,757, which she deposited in her account. She and DeFoe discussed the prices they should charge for particular antiques. DeFoe and O'Connell brought items to another antique dealer and sold some of them. O'Connell received checks totaling $896.15. Jon and Helen Grimm purchased at least twelve dolls from O'Connell and DeFoe for $14,775. The dolls were owned by the State Historical Society.

A reasonable person, upon reading these facts, could conclude that O'Connell and DeFoe were running [606]*606an antique business. The complaint alleged that some of the business — the sale of stolen items — was criminal. But some of the business was legitimate. Buying and selling antiques and renting a storage shed for antiques is not criminal. Section 946.82(2), Stats., includes illicit and licit businesses in its definition of "enterprise." Nor does it matter whether the business was a partnership, a proprietorship or a corporation. The business needs no infrastructure to be an "enterprise." Nor does the statute require that the organization have a trade name. Even a "group of individuals associated in fact" is an "enterprise." A reasonable person could conclude from reading the complaint that O'Connell and DeFoe were engaging or participating in an enterprise.

O'Connell also asserts that the facts we have repeated here do not show a pattern of racketeering activity. Federal cases have discussed the definition of "pattern of racketeering activity" under the federal Racketeer Influenced and Corrupt Organizations Act (RICO).2

Federal case law interpreting RICO is persuasive authority in interpreting WOCCA. State v. Judd, 147 Wis. 2d 398, 401, 433 N.W.2d 260, 262 (Ct. App. 1988). Both O'Connell and the state cite United States v. Ric cobene, 709 F.2d 214, 223-24 (3d Cir.), cert. denied, 464 U.S. 849 (1983), for its discussion of what constitutes a pattern of racketeering activity:

[I]t is not necessary to show that the enterprise has some function wholly unrelated to the racketeering activity, but rather that it has an existence beyond that which is necessary merely to commit each of [607]*607the acts charged as predicate racketeering offenses. The function of overseeing and coordinating the commission of several different predicate offenses and other activities on an on-going basis is adequate to satisfy the separate existence requirement.

Id. (footnote omitted).

O'Connell argues: "The alleged criminal agenda of the so-called enterprise in the instant case did not extend beyond the commission of the individual predicate acts." But the enterprise did have an existence separate from O'Connell.

In McCullough v. Suter, 757 F.2d 142 (7th Cir.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anthony Greene v. Mark Mone
Court of Appeals of Wisconsin, 2021
State v. Corey Benson
Court of Appeals of Wisconsin, 2019
Lee Quality Home Care LLC v. Dep't of Health Servs.
2019 WI App 8 (Court of Appeals of Wisconsin, 2019)
Johnson v. Bankers Life & Casualty Co.
973 F. Supp. 2d 950 (W.D. Wisconsin, 2013)
MBS-Certified Public Accountants, LLC v. Wisconsin Bell Inc.
2013 WI App 14 (Court of Appeals of Wisconsin, 2013)
State v. Mueller
549 N.W.2d 455 (Court of Appeals of Wisconsin, 1996)
State v. Flynn
527 N.W.2d 343 (Court of Appeals of Wisconsin, 1994)
State v. O'CONNELL
508 N.W.2d 23 (Court of Appeals of Wisconsin, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
508 N.W.2d 23, 179 Wis. 2d 598, 1993 Wisc. App. LEXIS 1285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-oconnell-wisctapp-1993.