     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

  instructions.

¶ 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.




                                     38
