v. McDonald

2020 COA 65, 490 P.3d 730

• Court: Colorado Court of Appeals
• Decided: April 9, 2020
• Docket: 17CA1096, People
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY April 9, 2020

2020COA65

No. 17CA1096, People v. McDonald — Crimes — Colorado Organized Crime Control Act — Enterprise Associated in Fact

This is an appeal from a criminal conviction for violation of the

Colorado Organized Crime Control Act (COCCA). Defendant

contends that the prosecution failed to present sufficient evidence

to prove the existence of, and his participation in, an “enterprise

associated in fact” under COCCA because the prosecution did not

present evidence to satisfy the additional three factors required in

prosecution of federal Racketeer Influenced Organizations Act

(RICO) offenses.

Defendant asks a division of the court of appeals to reexamine,

for the first time since People v. James, 40 P.3d 36 (Colo. App.

2001), if we construe section 18-17-103(2), C.R.S. 2019, the

definition for an “enterprise” under COCCA, in the same way that federal courts construe “enterprise” under RICO, 18 U.S.C.

§ 1961(4) (2018). Under the federal RICO scheme, two United

States Supreme Court cases require a prosecutor to demonstrate

three factors to prove that there is an “enterprise associated in

fact.” The division in James, however, rejected this approach,

concluding that “enterprise” under COCCA is a complete definition

that doesn’t require the prosecution to demonstrate the three

factors required under federal RICO precedent.

The division, in a split decision, declines to depart from

James. In doing so, the division does not interpret “enterprise”

under COCCA in the same manner as the federal RICO scheme. On

this basis (and because the majority concludes that the evidence on

the COCCA charge was sufficient), the division affirms. COLORADO COURT OF APPEALS 2020COA65

Court of Appeals No. 17CA1096 Douglas County District Court No. 15CR542 Honorable David J. Stevens, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marquis DeShawn McDonald,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE WELLING Terry, J., concurs Berger, J., dissents

Announced April 9, 2020

Philip J. Weiser, Attorney General, Brittany Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for Defendant-Appellant ¶1 Defendant, Marquis DeShawn McDonald, appeals his

conviction for violation of the Colorado Organized Crime Control Act

(COCCA). McDonald contends that the prosecution failed to

present sufficient evidence to prove the existence of, and his

participation in, an “enterprise associated in fact” under COCCA

because the prosecution did not present evidence to satisfy the

additional three factors required in prosecution of federal Racketeer

Influenced and Corrupt Organizations Act (RICO) offenses.

¶2 McDonald asks us to reexamine, for the first time since People

v. James, 40 P.3d 36 (Colo. App. 2001), whether the definition of

“enterprise” under COCCA, § 18-17-103(2), C.R.S. 2019, should be

construed in the same way that federal courts construe “enterprise”

under RICO, 18 U.S.C. § 1961(4) (2018). Under the federal RICO

scheme, both Boyle v. United States, 556 U.S. 938 (2009), and

United States v. Turkette, 452 U.S. 576 (1981), require the

prosecution to demonstrate three factors to prove that there was an

enterprise “associated in fact.” The division in James, however,

rejected Turkette, concluding that the definition of “enterprise”

under COCCA is complete and, therefore, doesn’t require the

1 prosecution to demonstrate the three factors required under federal

RICO precedent. See 40 P.3d at 47-48.

¶3 We decline to depart from James. In so declining, we do not

interpret “enterprise” under COCCA in the same manner as the

federal RICO scheme. Although James hangs the distinction

between “enterprise” under COCCA and “enterprise” under RICO on

a thin reed, we conclude that the General Assembly has acquiesced

to the James division’s interpretation of “enterprise” because, while

it has amended the definitions section of COCCA several times since

James, the definition of “enterprise” has remained untouched.

Compare § 18-17-103(2), with Ch. 229, sec. 1, § 18-17-103(2), 1981

Colo. Sess. Laws 1016. Accordingly, we affirm.

I. Background

¶4 McDonald confessed that he and three other men drove from

Michigan to Colorado to steal Rolex watches from a retail jeweler in

an Arapahoe County shopping mall. The plan was to have three

men enter the jewelry store and steal watches, and have a fourth

man wait in a getaway vehicle outside the mall.

¶5 On the morning of the heist, the men stole a minivan to use as

their getaway vehicle. Video surveillance from the jewelry store

2 shows that, later that day, McDonald and another man entered the

jewelry store, smashed open display cases containing Rolex

watches, and then fled on foot with some of the watches. The police

apprehended all four men shortly thereafter at various locations

near the mall.

¶6 A jury convicted McDonald of theft, criminal mischief,

aggravated motor vehicle theft, conspiracy to commit theft, and

engaging in a pattern of racketeering in violation of COCCA.

Further, the trial court adjudicated McDonald a habitual offender

under section 18-1.3-801, C.R.S. 2019. This resulted in the

quadrupling of McDonald’s twenty-four-year COCCA sentence to

ninety-six years.

II. Analysis

¶7 McDonald appeals only his COCCA conviction. To secure a

COCCA conviction, the prosecution must prove beyond a

reasonable doubt that the defendant “associated with[] any

enterprise to knowingly conduct or participate, directly or indirectly,

in such enterprise through a pattern of racketeering activity.” § 18-

17-104(3), C.R.S. 2019. To be convicted, the defendant must have

participated in “at least two acts of racketeering activity which are

3 related to the conduct of the enterprise”; acts of racketeering

include, but are not limited to, offenses such as burglary or theft.

§ 18-17-103(3), (5)(b)(II). And, central to this appeal, the defendant

must have been part of an “enterprise,” which is defined as “any

individual, sole proprietorship, partnership, corporation, trust, or

other legal entity or any chartered union, association, or group of

individuals, associated in fact although not a legal entity, and shall

include illicit as well as licit enterprises and governmental as well

as other entities.” § 18-17-103(2) (emphasis added). An enterprise

consists of “at least one other person or entity besides the

defendant.” James, 40 P.3d at 46 (first citing People v. Pollard, 3

P.3d 473 (Colo. App. 2000); then citing Ferris v. Bakery,

Confectionery & Tobacco Union, Local 26, 867 P.2d 38 (Colo. App.

1993)).

¶8 McDonald was charged and tried for his participation in an

“associated-in-fact enterprise.” He raises two contentions on

appeal, both of which rest on the meaning of an “associated-in-fact

enterprise.” First, McDonald contends that the evidence was

insufficient to convict him under COCCA. In this regard, he asserts

that the trial court should have imported the RICO requirements to

4 prove he participated in an “enterprise associated in fact,” and that,

applying the RICO standard for such an enterprise, the evidence

was insufficient to support his COCCA conviction. See 18 U.S.C.

§ 1961(4). Second, McDonald contends that the jury instructions

should have included additional requirements for establishing an

“associated-in-fact enterprise” —that is, additional requirements

that track those required under RICO. Because both of McDonald’s

contentions rest on our construction of “associated-in-fact

enterprise” under COCCA, we turn to this overarching issue of

statutory construction first; then we address the two specific

contentions McDonald raises on appeal.

A. Statutory Construction

1. Legal Principles

¶9 We review issues of statutory interpretation de novo. McCoy v.

People, 2019 CO 44, ¶ 37; see also Doubleday v. People, 2016 CO 3,

¶ 19. Our primary purpose in construing a statute is to “ascertain

and give effect to the legislature’s intent.” McCoy, ¶ 37. First, we

look to the language of the statute, giving words and phrases their

plain meanings, reading them in context, and construing “them

according to the rules of grammar and common usage.”

5 Doubleday, ¶ 19. Next, we look to the purpose of the legislative

scheme, reading the entirety of the statute to give consistent

meaning to all its parts and avoiding constructions that would

create illogical results. Id. at ¶ 20. Only if the statute is ambiguous

may we look to other aids of construction like legislative history or

canons of statutory construction. Id.

¶ 10 COCCA is modeled after — but not identical to — RICO.

People v. Chaussee, 880 P.2d 749, 753 (Colo. 1994) (citing Benson

v. People, 703 P.2d 1274, 1276 n.1 (Colo. 1985)). Because of their

similarities, COCCA and RICO are “generally construed according to

similar principles.” L-3 Commc’ns Corp. v. Jaxon Eng’g & Maint.,

Inc., 863 F. Supp. 2d 1066, 1076 (D. Colo. 2012). Indeed, “[a]bsent

a prior interpretation by our state courts, federal case law construing

[RICO] is instructive because COCCA was modeled after the federal

act.” Ferris, 867 P.2d at 46 (emphasis added) (citation omitted).

¶ 11 But Colorado courts have declined to extend federal

interpretations of RICO to the construction of COCCA where there

are differences — even slight differences — in statutory language.

See, e.g., Chaussee, 880 P.2d at 759 (declining to follow federal

interpretation of the definition of “pattern of racketeering,” focusing

6 on the use of the word “requires” in RICO versus the word “means”

in COCCA, because “for purposes of COCCA, we are persuaded that

the construction adopted by the federal cases is not correct”);

James, 40 P.3d at 47-48 (declining to follow the interpretation of

“enterprise” under RICO); Tallitsch v. Child Support Servs., Inc., 926

P.2d 143, 147 (Colo. App. 1996) (departing from RICO’s attorney

fees regime because “there exists appropriate Colorado authority on

this issue, and that authority is controlling”); cf. Nicholas v. N. Colo.

Med. Ctr., Inc., 902 P.2d 462 (Colo. App. 1995) (noting that the

court is not bound to follow federal law in construing the state

statutory scheme for anticompetitive conduct), aff’d, 914 P.2d 902

(Colo. 1996). And where another division of this court has

construed COCCA, we should accord deference to that earlier

interpretation. See People v. Smoots, 2013 COA 152, ¶ 20 (“We are

not obligated to follow the precedent established by another

division, even though we give such decisions considerable

deference.”), aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15.

¶ 12 With these principles in mind, we turn to the construction of

“associated-in-fact enterprise” under COCCA.

7 2. Meaning of Enterprise Associated in Fact Under COCCA

¶ 13 As alluded to earlier, McDonald contends that we should

follow the lead of federal courts interpreting RICO when we

construe “associated-in-fact enterprise” under COCCA. Specifically,

McDonald urges us to adopt the three-part test for an “association-

in-fact enterprise” from Boyle, 556 U.S. 938, and Turkette, 452 U.S.

576. Under Boyle and Turkette, to secure a RICO conviction,

federal prosecutors must demonstrate that the defendant was part

of an enterprise that had “[1] a purpose, [2] relationships among

those associated with the enterprise, and [3] longevity sufficient to

permit these associates to pursue the enterprise’s purpose.” Boyle,

556 U.S. at 946; id. at 944-47 (favorably discussing and applying

Turkette). McDonald asserts that these same three requirements

should be imported into COCCA, and, therefore, the prosecution

should be required to prove all three to establish that a defendant

participated in an “associated in fact” enterprise under COCCA.

¶ 14 To address McDonald’s argument, we first examine how each

statute defines the term “enterprise.” Under RICO, an “‘enterprise’

includes any individual, partnership, corporation, association, or

other legal entity, and any union or group of individuals associated

8 in fact although not a legal entity.” 18 U.S.C. § 1961(4) (emphasis

added). And, under COCCA, an “‘[e]nterprise’ means any

individual, sole proprietorship, partnership, corporation, trust, or

other legal entity or any chartered union, association, or group of

individuals, associated in fact although not a legal entity . . . .” § 18-

17-103(2) (emphasis added).1

¶ 15 At first glance both provisions appear nearly identical: both

define an “enterprise” and neither statute provides a separate

definition of the meaning of “associated in fact.” Compare 18 U.S.C.

§ 1961(4), with § 18-17-103(2). If we were writing on a clean slate,

these similarities might steer us in the direction of following federal

1 To more clearly illustrate the similarities and differences between COCCA’s and RICO’s definitions of “enterprise,” what follows is the COCCA definition overlaid with the RICO definition. The struck through words are in RICO, 18 U.S.C. § 1961(4) (2018), but not in COCCA, § 18-17-103(2), C.R.S. 2019; the underscored words are in COCCA but not in RICO:

“[E]nterprise” includes means any individual, sole proprietorship, partnership, corporation, trust, association, or other legal entity, and or any chartered union, association, or group of individuals, associated in fact although not a legal entity, and shall include illicit as well as licit enterprises and governmental as well as other entities.

9 precedent in construing the meaning of this provision. But we are

not writing on a clean slate. Nineteen years ago, a division of this

court faced this very question — Should we follow the federal lead

when it comes to construing the meaning of “enterprise” under

COCCA? It answered “no.” See James, 40 P.3d at 47-48. We now

take a closer look at James.

¶ 16 In James, the defendant, relying on the United States

Supreme Court’s decision in Turkette, argued the trial court erred

by failing to instruct the jury concerning three “additional

nonstatutory elements” he contended were required for finding the

existence of an “enterprise” under COCCA. James, 40 P.3d at 47.

The division in James rejected defendant’s argument, declining to

follow RICO when interpreting “enterprise” under COCCA. Id. at

48. In doing so, the James division relied on a subtle distinction

between the definitions of “enterprise”: RICO’s definition uses the

word “includes,” whereas COCCA’s definition uses the word

“means.” Id. at 47. Observing that “includes” is “a word that

normally operates to extend rather than limit,” while “means” is “a

word of limitation,” the division held that the General Assembly’s

use of “means” in COCCA indicated a “legislative intent to limit the

10 requirements . . . exclusively to those explicit in the statute.” Id.

(citing Chaussee, 880 P.2d 749); see Chaussee, 880 P.2d at 757

(declining to extend additional federal requirements to the definition

of “pattern of racketeering” because the General Assembly used

words of “limitation” in the COCCA counterpart). In contrast, the

use of “includes” in RICO creates a less prescriptive definition,

permitting federal courts to elucidate what constitutes an enterprise

“associated in fact” under RICO. James, 40 P.3d at 47. Relying on

this distinction, the James division held COCCA’s definition of an

“enterprise associated in fact” is complete, and it declined to expand

the definition to include the Turkette requirements, observing that

“[t]hese proposed requirements are beyond those mandated by the

explicit language of our statute.” Id. at 48.

¶ 17 McDonald first contends that the continuing viability of

James, decided in 2001, is undermined by the Supreme Court’s

2009 decision in Boyle. We are not persuaded. True, Boyle was

decided eight years after James, and James has not been revisited

with respect to this issue in the intervening decade. But Boyle did

not break new ground. Rather, it simply built on and further

11 explained the Court’s holding and rationale articulated in Turkette.2

See Boyle, 556 U.S. at 942-51 (relying on Turkette). Simply put,

Boyle does not provide a basis for following RICO’s interpretation of

“enterprise” that was not already in Turkette — and rejected in

James. Thus, we are not persuaded that the Court’s intervening

decision in Boyle provides any independent grounds for departing

from James.

¶ 18 In the alternative, McDonald urges us not to follow the James

division for two related reasons. First, he contends that the James

division’s interpretation of “enterprise” under COCCA violates equal

protection, therefore, it should be rejected under the canon of

constitutional doubt. Second, he contends that, even if the result

in James does not raise constitutional doubt, we should still decline

to follow it. We are not persuaded by either contention.

2 In Boyle v. United States, 556 U.S. 938 (2009), the Court repeatedly demonstrated its reliance on United States v. Turkette, 452 U.S. 576 (1981), through its use of phrases such as “we explained in Turkette,” Boyle, 556 U.S. at 944, 947; “[a]s we succinctly put it in Turkette,” id. at 946; “[w]e recognized in Turkette,” id. at 947; “[a]s we said in Turkette,” id. at 948; and “[t]his instruction properly conveyed the point we made in Turkette,” id. at 951.

12 ¶ 19 We disagree with McDonald that the James court’s

interpretation of “enterprise” creates constitutional doubt. The

constitutional-doubt canon provides that, “when possible, statutes

should be construed so as to avoid questions of their constitutional

validity.” Adams Cty. Sch. Dist. No. 50 v. Heimer, 919 P.2d 786, 790

(Colo. 1996); see also, e.g., People v. Iannicelli, 2019 CO 80, ¶ 22

(“[I]f a statute is capable of alternative constructions, one of which

is constitutional, then the constitutional interpretation must be

adopted.” (quoting People v. Zapotocky, 869 P.2d 1234, 1240 (Colo.

1994))); Perry Park Water & Sanitation Dist. v. Cordillera Corp., 818

P.2d 728, 732 (Colo. 1991) (“A construction of statutory language

that creates doubts as to the constitutional validity of the legislation

should be assiduously avoided if an alternative construction

consistent with legislative intent is available.”).

¶ 20 McDonald contends that the James division’s construction of

“enterprise” violates equal protection because there are no

“reasonably intelligible standards” to distinguish a COCCA offense

from a simple conspiracy, which has a far lesser penalty. See

People v. Marcy, 628 P.2d 69, 74-75 (Colo. 1981) (“[E]qual

protection of the laws is violated if different statutes proscribe the

13 same criminal conduct with disparate criminal sanctions.”).

Compare § 18-17-103(2), and § 18-17-104(3), with § 18-2-201,

C.R.S. 2019. We disagree.

¶ 21 “[I]f a criminal statute proscribes different penalties for

identical conduct, a person convicted under the harsher penalty is

denied equal protection unless there are reasonable differences or

distinctions between the proscribed behavior.” People v. Stewart,

55 P.3d 107, 114 (Colo. 2002). However, the General Assembly “is

entitled to establish more severe penalties for acts it believes have

greater social impact and graver consequences.” Dean v. People,

2016 CO 14, ¶ 16.

¶ 22 Though at issue in this appeal is the construction of an

“enterprise” under COCCA — an element of the COCCA

offense — in determining whether equal protection interests are

implicated, we compare the overall COCCA offense to a simple

conspiracy offense. In doing so, we conclude that there are

intelligible differences between each that justifies the higher penalty

imposed by COCCA.

¶ 23 Convicting a defendant of a COCCA offense requires findings

that an enterprise exists, that the defendant directly or indirectly

14 participated in the enterprise, and that this participation included

at least two acts of racketeering activity. An act of racketeering

means “to commit, to attempt to commit, to conspire to commit, or

to solicit, coerce, or intimidate another person to commit” offenses

listed under section 18-17-103(5)(a) and (b). § 18-17-103(5). A

simple conspiracy, however, is an inchoate offense where there was

both an agreement to commit a crime with the intent to promote or

facilitate its commission and an “overt act” in furtherance of the

conspiracy, which does not need to be a criminal act in and of itself.

§ 18-2-201. Thus, because a “racketeering activity” includes

“conspir[ing] to commit” one of the offenses listed in section 18-17-

103(5)(a) and (b), it includes simple conspiracy.

¶ 24 There are, however, differences between the two offenses, even

if the bar for finding an enterprise is no higher than finding a

conspiracy. Simple conspiracy requires only one agreement and

one overt act — an act which doesn’t need to be a completed crime

itself — while COCCA requires a finding that the defendant

participated in at least two acts of racketeering. Although a

conspiracy can be found based on one act of racketeering, because

a “pattern of racketeering” must consist of at least two acts of

15 racketeering, a single conspiracy alone is not enough to

demonstrate a pattern of racketeering activity as a prerequisite to

pursue a COCCA conviction. See Chaussee, 880 P.2d at 758

(concluding that a pattern of racketeering activity can, at minimum,

be established “simply by providing at least two acts of racketeering

activity, as defined in section 18-17-103(5), that are related to the

conduct of the enterprise”).

¶ 25 And, in this case, McDonald was charged with and convicted

of committing three distinct, completed offenses — not just

conspiracy. The People charged him with one count of theft, one

count of criminal mischief, one count of aggravated motor vehicle

theft, conspiracy to commit theft, conspiracy to commit criminal

mischief, and conspiracy to commit aggravated motor vehicle theft

(in addition to the COCCA charge). And, he was ultimately

convicted of theft, aggravated motor vehicle theft, and criminal

mischief in addition to one count of conspiracy to commit theft.

¶ 26 Further, during trial, McDonald conceded that he had

committed both theft and criminal mischief. A COCCA pattern of

racketeering requires a finding of two predicate offenses. Thus,

16 given McDonald’s concessions, at least one — if not two or more —

predicate offenses were completed crimes, not just conspiracies.

¶ 27 Further, the greater penalties for COCCA offenses are

grounded in the General Assembly’s reasonable belief that

organized crime has “greater social impact and graver

consequences” than simple conspiracy. Dean, ¶ 16. The General

Assembly’s stated purpose for enacting COCCA was to “seek the

eradication of organized crime in this state,” in part through

enhanced penalties. § 18-17-102, C.R.S. 2019. And by requiring a

finding of a pattern of racketeering activities — that is, two or more

criminal offenses, rather than only one — the General Assembly

drew a boundary between simple conspiracy and the more

concerning COCCA offense. Given the distinctions between COCCA

and a simple conspiracy, as well as the particular facts before us,

we conclude that the James division’s interpretation of COCCA does

not put COCCA in constitutional doubt.

¶ 28 Next, McDonald urges us to abandon the James division’s

interpretation of “enterprise.” Although we have latitude to do so,

we “give such decisions considerable deference.” People v. Frye,

2014 COA 141, ¶ 12 (quoting Smoots, ¶ 20). While the rationale in

17 James is certainly subject to good-faith critique for hanging so

much weight on the thin reed of the distinction between “includes”

and “means,” the opinion does provide a reasoned and thoroughly

explained rationale for its holding. See Williams v. Dep’t of Pub.

Safety, 2015 COA 180, ¶ 143 (Berger, J., concurring in part and

dissenting in part) (“[W]e should not easily cast aside a considered

decision by a prior division of this court.”); see also Greyhound

Lines, Inc. v. County of Santa Clara, 231 Cal. Rptr. 702, 704 (Cal.

Ct. App. 1986) (“We acknowledge we are not bound by an opinion of

another District Court of Appeal, however persuasive it might be.

We respect stare decisis, however, which serves the important goals

of stability in the law and predictability of decision.”) (citation

omitted).

¶ 29 In the final analysis, it is the absence of any action on the part

of the General Assembly in the wake of James that tips the balance

in favor of according deference to that division’s holding. See, e.g.,

Avalanche Indus., Inc. v. Clark, 198 P.3d 589, 595 (Colo. 2008) (“We

have consistently regarded the General Assembly’s decision not to

alter a statute when it makes amendments to related statutes ‘as

evidence of its acquiescence to the judicial construction of the terms

18 in those opinions.’” (quoting City of Colorado Springs v. Powell, 156

P.3d 461, 467 (Colo. 2007))), overruled on other grounds by

Benchmark/Elite, Inc. v. Simpson, 232 P.3d 777 (Colo. 2010).

¶ 30 In the nineteen years since James was decided, the General

Assembly has not amended the definition of “enterprise” in COCCA;

in fact, the General Assembly has not amended the definition of

“enterprise” since enacting COCCA in 1981. Compare § 18-17-

103(2), with Ch. 229, sec.1, § 18-17-103(2), 1981 Colo. Sess. Laws

1016. And it’s not because the General Assembly has not had

occasion to amend COCCA during this interval. Indeed, since

James was announced in 2001, the General Assembly has amended

the definitions section of COCCA — section 18-17-103 — at least

ten times, never once touching the definition of “enterprise.” See

§ 18-17-103 source note (listing amendments to section 18-17-103

enacted during the 2006, 2009, 2010, 2012, 2013, 2014, 2018, and

2019 legislative sessions).

¶ 31 McDonald contends that most, if not all, amendments to

COCCA were merely technical. We disagree. On five separate

occasions, when the General Assembly established new criminal

offenses, it added those new offenses to the list of crimes that are

19 “racketeering activities.”3 On each of these occasions, the General

Assembly expanded the reach of COCCA to additional conduct

without making the definition of “enterprise” more robust. This is a

persuasive indication that the General Assembly approves of the

construction of “enterprise” articulated in James. See, e.g.,

Rauschenberger v. Radetsky, 745 P.2d 640, 643 (Colo. 1987)

(“When a statute is amended, the judicial construction previously

placed upon the statute is deemed approved by the General

Assembly to the extent that the provision remains unchanged.”);

Tompkins v. DeLeon, 197 Colo. 569, 571, 595 P.2d 242, 243-44

(1979) (holding that where legislature amends statute and does not

change section previously interpreted by settled construction, it is

3See Ch. 156, sec. 2, § 18-17-103(5)(b)(I), 2010 Colo. Sess. Laws 537 (adding three newly established human trafficking crimes as racketeering activities); Ch. 256, sec. 3, § 18-17-103(5)(b)(IV), 2010 Colo. Sess. Laws 1141 (adding the newly established crime of money laundering as a racketeering activity); Ch. 326, sec. 4, § 18- 17-103(5)(b)(IV), 2009 Colo. Sess. Laws 1738-39 (adding the newly established crime of criminal possession of an identification document as a racketeering activity); Ch. 289, sec. 9, § 18-17- 103(5)(b)(IV), 2006 Colo. Sess. Laws 1323-24 (adding eight newly established identity theft crimes as racketeering activities); Ch. 224, sec. 4, § 18-17-103(5)(b)(IV), 2001 Colo. Sess. Laws 769 (adding the newly established crime of trademark counterfeiting as a racketeering activity).

20 presumed the legislature agrees with the judicial construction);

Rivera v. Am. Family Ins. Grp., 2012 COA 175, ¶¶ 13-15 (inferring

legislative approval of a prior judicial construction of a statute from

the General Assembly’s decision to amend other parts of the statute

being construed without modifying the provision at issue).

¶ 32 For these reasons, we reject McDonald’s invitation to import

RICO’s requirements for an “enterprise associated in fact” into

COCCA and, instead, adhere to James.

¶ 33 We now turn to the merits of the contentions McDonald

advances on appeal.

B. The Evidence was Sufficient to Convict McDonald under COCCA

¶ 34 McDonald’s first contentiontion is that the evidence was

insufficient to convict him under COCCA because it did not

establish all three federal requirements of an “associated in fact”

enterprise. See Boyle, 556 U.S. at 946 (applying the Court’s earlier

decision in Turkette). Given the construction of COCCA discussed

above, we must disagree.

¶ 35 We review a sufficiency of the evidence claim de novo — even if

the claim is raised for the first time on appeal. McCoy, ¶ 27. In

21 conducting our review, we examine the record to “determine

whether the evidence presented was sufficient in both quantity and

quality to sustain a defendant’s conviction.” Id. at ¶ 63. And we

consider “whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.” People v. Perez, 2016 CO

12, ¶ 24 (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d

466, 469 (1973)).

¶ 36 McDonald contends that the evidence was required to meet,

but fell short of satisfying, the three-factor test set out in Boyle and

Turkette — namely, that there was a “purpose, relationships among

those associated with the enterprise, and longevity sufficient to

permit these associates to pursue the enterprise’s purpose.” Boyle,

556 U.S. at 946.

¶ 37 But, as discussed in Part II.A, we adhere to the James

division’s interpretation of associated-in-fact enterprise and decline

to import those federal requirements from RICO into COCCA. Thus,

the evidence needed only satisfy the requirements contained within

22 the four corners of section 18-17-103(2), as explained in James.

We conclude that it did.

¶ 38 COCCA requires that an enterprise consist of at least one

more person or entity other than the defendant. James, 40 P.3d at

46. And the “enterprise need not be separate and distinct from the

racketeering activity.” People v. Cerrone, 867 P.2d 143, 149 (Colo.

App. 1993), aff’d, 900 P.2d 45 (Colo. 1995).

¶ 39 The evidence presented at trial satisfies these requirements.

First, Detective Shannon Jones testified that McDonald confessed

that he and the three other men stole a minivan, used that vehicle

to drive to the mall, and planned to steal Rolexes from the jewelry

store. Second, another witness testified that video surveillance

footage of the store showed two men — one of whom he identified in

the courtroom as McDonald — breaking into a case of Rolex

watches. Third, the People submitted body camera footage from an

arresting officer, in which McDonald stated that he worked with

three other men. This evidence was sufficient to support the jury’s

findings that McDonald worked with at least one other person,

engaged in at least two predicate acts of racketeering — the theft of

the minivan and the robbery of the jewelry store — and that this

23 group was an enterprise of four men formed to carry out this

robbery.

¶ 40 Although McDonald contends there was no evidence of

structure, organization, or unity of purpose among the four men,

this is not required to satisfy COCCA. See James, 40 P.3d at 48

(“[W]e decline to impose additional requirements for proof of the

existence of an enterprise. These proposed requirements are

beyond those mandated by the explicit language of our statute.”).

McDonald is correct that federal law requires that “[s]omething

more must be found — something that distinguishes RICO

enterprises from ad hoc one-time criminal ventures.” United States

v. Cianci, 378 F.3d 71, 82 (1st Cir. 2004). But under COCCA, a

criminal enterprise need not have some broader purpose beyond

commission of the crime itself. People v. Randell, 2012 COA 108,

¶ 74; cf. People v. McGlotten, 166 P.3d 182, 190 (Colo. App. 2007)

(“COCCA broadly defines the term ‘enterprise’ . . . .”). Accordingly,

we conclude that sufficient evidence supports McDonald’s COCCA

conviction.

24 C. The Trial Court Did Not Err in Issuing its Jury Instruction for “Associated in Fact”

¶ 41 McDonald next contends that the trial court erred because the

jury instructions did not include RICO’s requirements for an

“associated-in-fact enterprise.” Specifically, he asserts that the trial

court should have provided supplemental instructions consistent

with Boyle and Turkette. We disagree.

¶ 42 We first review the jury instructions de novo to determine

whether they accurately informed the jury of the applicable law.

People v. Mendenhall, 2015 COA 107M, ¶ 14 (citing People v. Lucas,

232 P.3d 155, 162 (Colo. App. 2009)). “Generally, instructions that

accurately track the language of applicable statutes and pattern

instructions are sufficient.” People v. Jackson, 2018 COA 79, ¶ 64

(citing People v. Gallegos, 260 P.3d 15, 26 (Colo. App. 2010)) (cert.

granted July 30, 2019). In contrast, whether to give additional

instructions, including definitions of undefined terms, lies within

the trial court’s sound discretion, Fain v. People, 2014 CO 69, ¶ 17,

and we will not reverse on this basis “absent manifest prejudice or a

clear showing of abuse of discretion,” People v. Rogers, 220 P.3d

931, 936 (Colo. App. 2008).

25 ¶ 43 Here, the trial court’s instruction on the elements of the

COCCA charge tracked the applicable statute as well as the pattern

jury instruction. And the definition of “enterprise” that the trial

court gave to the jury tracked the definition of an “enterprise” set

forth in section 18-17-103(2) — and McDonald doesn’t contend

otherwise. Thus, we conclude that the trial court provided the jury

with legally accurate instructions. Jackson, ¶¶ 64, 66. But that

doesn’t end our inquiry; we must also consider whether the trial

court abused its discretion in declining to give additional

instructions.

¶ 44 McDonald contends that the trial court should have given the

jury additional instructions on the meaning of “enterprise” and

“associated in fact.” McDonald’s tendered additional instructions in

this regard read, as follows:

An enterprise also includes a group of people who associated together for a common purpose of engaging in a course of conduct over a period of time. This group of people does not have to be a legally recognized entity, such as a partnership or corporation. This group may be organized for a legitimate and lawful purpose, or it may be organized for an unlawful purpose.

26 This group of people must have (1) a common purpose; and (2) an ongoing organization, either formal or informal; and (3) personnel who function as a continuing unit.

The “[a]ssociation in fact” must be distinct from pattern of racketeering activity.

¶ 45 We conclude that the trial court did not abuse its discretion by

declining to give McDonald’s tendered additional instructions for

two independent reasons.

¶ 46 First, the tendered and rejected instructions were not accurate

statements of the law. The tendered instructions were based on

Boyle’s and Turkette’s interpretation of RICO, and, as discussed

above in Part II.A, we reject this interpretation of COCCA’s

definition of enterprise. See James, 40 P.3d at 47-48. And because

the tendered instructions misstated the law, the trial court did not

abuse its discretion by declining to include them in the instructions

it gave to the jury. See People v. Lopez, 2018 COA 119, ¶¶ 39-40

(holding that a trial court did not err by declining to give a proposed

definitional instruction when the proposed instruction misstated

the law); People v. Harris, 2016 COA 159, ¶ 97 (“It is within the

sound discretion of the trial court to determine whether additional

27 jury instructions that properly state the law should be submitted.”)

(emphasis added).

¶ 47 Second, we reject the notion that the trial court abused its

discretion by declining to give the jury further guidance on the

meaning of “associated in fact” — a phrase not specifically defined

in COCCA. A trial court has broad discretion when it comes to

defining undefined terms. Harris, ¶ 97. “When a term, word, or

phrase in a jury instruction is one with which reasonable persons of

common intelligence would be familiar, and its meaning is not so

technical or mysterious as to create confusion in jurors’ minds as to

its meaning, an instruction defining it is not required.” Lopez, ¶ 41

(quoting Harris, ¶ 98). There is nothing from the events during trial

or the case law that would have alerted or indicated to the trial

court that the phrase “associated in fact” is sufficiently complicated

that it required further definition. See McGlotten, 166 P.3d at 190

(“Although COCCA’s definition of ‘enterprise’ is broad, it is not so

vague that persons ‘of common intelligence must necessarily guess

at its meaning.’”) (citations omitted); cf. Mendenhall, ¶ 24 (“It is the

legislature’s prerogative to define criminal offenses; absent

constitutional constraints, . . . it is not the proper function of a

28 court to limit the reach of a criminal statute because the court

thinks the statute reaches too broadly.” (citing People v. Manzo, 144

P.3d 551, 554 (Colo. 2006))); James, 40 P.3d at 46 (indicating that

it was only the term “individual” in the definition of enterprise that

required further definition). For this reason too, the trial court did

not abuse its discretion by declining to provide additional

¶ 48 McDonald argues that because the jury asked a question

during its deliberations about the meaning of “associated in fact,”

that is proof positive that an additional instruction on the meaning

of that phrase was required. But the fact that the jury asked a

question during its deliberations does not change our assessment of

whether the trial court abused its discretion during the jury

instruction conference by refusing to give the jury further guidance.

¶ 49 It is true that the jury did ask the court the following question

during its deliberations: “What is an ‘enterprise’ of a group of

individuals ‘associated in fact’?”

¶ 50 The trial court conferred with counsel about how to respond to

the jury’s question. McDonald’s counsel told the court:

29 My response is simply that, unfortunately, they have all the law that they have and there’s nothing further we can give. These two cases [James and McGlotten] don’t do anything but say that it’s already defined, essentially. So I don’t think there’s really much to say except that this is all the law we give. I don’t think we can do anything beyond that.

¶ 51 After conferring with counsel, the court proposed the following

response to the jury: “The court has instructed you on all the legal

definitions applicable to this matter.” After defense counsel said,

“Yeah, that’s fine,”4 the court submitted its proposed response to

the jury in writing.

4 The Attorney General contends that counsel’s response is a waiver of McDonald’s contention that the trial court erred in not giving his tendered additional instructions. While counsel may well have waived the argument that the trial court erred in the manner that it answered the jury’s question, that issue is not raised on appeal and, therefore, not before us. And we reject the Attorney General’s contention that counsel’s statement waived McDonald’s previously preserved request that the court give his tendered instructions. See People v. Tardif, 2017 COA 136, ¶ 10 (“An alleged instructional error is preserved if the defendant tenders the desired relevant instruction even if the defendant does not object or otherwise raise the issue during the jury instruction conference.”); People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006) (holding that tendering an alternative jury instruction is sufficient to preserve instructional error for appeal). Instead, we conclude that, because counsel made a “plain and reasonable assertion” of his right to have his tendered instructions given to the jury, the issue is preserved. notwithstanding counsel’s colloquy regarding the jury’s question. Deleon v. People, 2019 CO 85, ¶ 24.

30 ¶ 52 While this exchange does indicate that the jury ultimately

sought further guidance on the meaning of “associated in fact,” it

does not meaningfully inform our analysis regarding whether the

trial court was required to include additional guidance in the first

instance. See, e.g., Leonardo v. People, 728 P.2d 1252, 1254-56

(Colo. 1986) (stating that whether a trial court was required to

provide further guidance in response to a jury’s question is a

separate issue from the “adequacy of the original instructions

given”). That question turns on the difficulty in according such

terms their plain meanings in the absence of further guidance.

And, as discussed above, the trial court acted within its discretion

by giving the instructions it gave.

III. Conclusion

¶ 53 For the reasons set forth above, we affirm.

JUDGE TERRY concurs.

JUDGE BERGER concurs in part and dissents in part.

31 JUDGE BERGER, dissenting.

¶ 54 I am convinced that we should depart from People v. James,

40 P.3d 36 (Colo. App. 2001), and instead interpret the enterprise

“associated in fact” element of the Colorado Organized Crime

Control Act (COCCA), section 18-17-103(2), C.R.S. 2019,

consistently with the United States Supreme Court’s definition of

the identical term in the federal Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. § 1961(4) (2018).

¶ 55 Before James, the United States Supreme Court stated that an

enterprise under RICO is “a group of persons associated together for

a common purpose of engaging in a course of conduct.” United

States v. Turkette, 452 U.S. 576, 583 (1981). James rejected this

interpretation and interpretations of other federal courts. James,

40 P.3d at 47-48. Eight years later, in Boyle v. United States, 556

U.S. 938 (2009), the Supreme Court further held that to establish

the existence of an “association-in-fact enterprise” under RICO, the

prosecutor must prove that the defendant was part of an enterprise

that had (1) a purpose; (2) relationships among those associated

with the enterprise; and (3) longevity sufficient to permit the

associates to pursue the enterprise’s purpose. This three-part test

32 seeks to, and usually will, distinguish an impulsive, run-of-the-mill

crime from criminal liability under RICO.

¶ 56 If my disagreement with the majority were only based on two

different, but reasonable, readings of a criminal statute, I would

defer to the division’s decision in James. In re Estate of Becker, 32

P.3d 557, 563 (Colo. App. 2000), aff’d sub nom. In re Estate of

DeWitt, 54 P.3d 849 (Colo. 2002). While “we should not easily cast

aside a considered decision by a prior division of this court,”

Williams v. Dep’t of Pub. Safety, 2015 COA 180, ¶ 143 (Berger, J.,

concurring in part and dissenting in part), “one panel is not

obligated to follow the precedent established by another,” Becker,

32 P.3d at 563. Because the interests at play here far transcend

the ordinary, important considerations underpinning the deference

we typically afford other divisions of this court, I would depart from

James.

¶ 57 First, I have serious doubts whether James was correctly

decided. As the majority acknowledges, the minor differences

between the relevant statutory language in COCCA and RICO are a

“thin reed” on which to reject relevant holdings of the Supreme

Court. Even acknowledging the subtle language differences

33 between COCCA and RICO, I have trouble understanding how those

differences bear at all on the question of whether Colorado courts

should reject the three subparts of the federal definition of an

associated-in-fact enterprise.1

¶ 58 Second, the United States Supreme Court did not impose the

three-part Boyle test that McDonald asks us to adopt until after the

division’s opinion in James. The majority discounts this fact,

stating that Boyle relied heavily on the Supreme Court’s pre-James

decision in Turkette. But Turkette did not squarely address the

meaning of “associated in fact.” Boyle did, and we should follow its

reasoning and apply its three-part test here.

¶ 59 Third, the reasons underlying the Supreme Court’s

construction of the associated-in-fact enterprise element of RICO

are very important when viewed through the lens of the criminal

justice system. While the Supreme Court has rejected the

1 I recognize that in People v. Chaussee, 880 P.2d 749 (Colo. 1994), the Colorado Supreme Court seized on a wording difference between COCCA and RICO to conclude that establishing a pattern of racketeering was less demanding under COCCA than under RICO. But that wording difference affected whether or not particular conduct was proscribed by COCCA, rather than whether complex terms contained in COCCA needed further definition to enable juries to do their job.

34 proposition that RICO applies only to the type of organized crime

frequently encountered in movies and television shows, Boyle, 556

U.S. at 950-51 (collecting cases), it is equally true that neither

Congress nor the Colorado General Assembly reasonably intended

to transform “run-of-the-mill” crimes into the much more harshly

punished violations of RICO and COCCA.

¶ 60 Fourth, we place awesome responsibilities on jurors in

criminal cases. But judges have an equal responsibility — to

provide the jurors with sufficient guidance to understand the task

imposed on them. Merely instructing a jury that one of the

elements of COCCA is that the defendant engaged in an

“enterprise,” which may consist of “individuals . . . associated in

fact,” gives lay jurors insufficient guidance to determine whether the

elements of the crime have been proved beyond a reasonable doubt.

Without further definition, I don’t know what “associated in fact”

means, and I think it is presumptuous to assume that lay jurors

are able to meaningfully understand and then apply that undefined

term. (Indeed, in this very case, questions by the jury during

deliberations demonstrate the insufficiency of the definition of an

enterprise and the James rationale better than any of my words.) Is

35 it enough that two persons who engage in criminal conduct violative

of more than one statute meet each other minutes before

commission of a crime and decide to commit the crime together?

Under James, and the majority’s holding, that is probably enough.

That makes little sense to me.

¶ 61 Fifth, particularly in the years since James, the Colorado

Supreme Court has made clear its strong preference for uniformity

between similar federal and state court rules, constitutional

provisions, and (by extension) statutes. For instance, in Warne v.

Hall, 2016 CO 50, ¶ 2, the supreme court stated its preference to

“maintain uniformity in the interpretation of the federal and state

rules of civil procedure” and its “willingness to be guided by the

Supreme Court’s interpretation of corresponding federal rules

whenever possible.” To be sure, we are not bound by the United

States Supreme Court’s construction of a federal statute when we

interpret a Colorado statute, but that does not mean that we should

not carefully consider the Supreme Court’s holdings. Id. When

“the provisions and purposes of our statute parallel those of the

federal enactments, such federal authorities are highly persuasive.”

Cagle v. Mathers Family Tr., 2013 CO 7, ¶ 19 (citation omitted).

36 ¶ 62 Sixth, as I read the majority opinion, despite the majority’s

skepticism of James’ reasoning and result, the majority relies on

the rule of construction that the legislature is deemed to have

acquiesced in a court’s prior construction of a statute when the

legislature amends the statute without disturbing the prior court

ruling. Supra ¶ 29 (majority opinion) (citing Avalanche Indus., Inc.

v. Clark, 198 P.3d 589, 594 (Colo. 2008), overruled on other grounds

by Benchmark/Elite, Inc. v. Simpson, 232 P.3d 777 (Colo. 2010)).

¶ 63 Rules of statutory construction certainly are useful to enable

courts to do their jobs construing unclear statutes. See, e.g.,

Frazier v. People, 90 P.3d 807, 810-11 (Colo. 2004). But we should

also recognize that rules of construction have their limits. One

need only read the rules of construction treatise authored by former

Supreme Court Justice Antonin Scalia and Professor Bryan Garner

to realize that for virtually every recognized rule of construction,

there is another one that leads to precisely the opposite result. See

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts (2012).

¶ 64 More to the point, the majority’s reliance on this rule of

construction assumes that after James was decided, someone

37 employed by the General Assembly immersed himself or herself in

the many complexities of RICO and COCCA law and made a

considered judgment that James was correctly decided and that the

United States Supreme Court’s later interpretation in Boyle of a

nearly identical federal statute should be rejected. With respect

both to my colleagues and the General Assembly, I think this is a

very unrealistic assumption.

¶ 65 For all these reasons, I would hold that the COCCA term

“associated in fact” has the same meaning and requires the same

sub-elements as under RICO. Because a jury, not a judge, must

make these subsidiary findings, it follows that McDonald’s COCCA

conviction cannot stand. But I also conclude, given the extremely

deferential standard of review that we apply to challenges of the

sufficiency of the evidence, that the evidence here was sufficient for

the jury to make the required COCCA findings. People v. Hard,

2014 COA 132, ¶ 41. Therefore, I would remand for a new trial on

the COCCA charge and reject McDonald’s contention that double

jeopardy bars a retrial. Id. With respect, I dissent from the

majority’s contrary disposition.