                                                                             Jul 31 2013, 6:41 am

FOR PUBLICATION
ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

STEVEN E. RIPSTRA                              GREGORY F. ZOELLER
Ripstra Law Office                             Attorney General of Indiana
Jasper, Indiana
                                               RYAN D. JOHANNINGSMEIER
                                               Deputy Attorney General
                                               Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

SETH A. MILLER,                                )
                                               )
     Appellant-Defendant,                      )
                                               )
            vs.                                )     No. 63A01-1210-CR-475
                                               )
STATE OF INDIANA,                              )
                                               )
     Appellee-Plaintiff.                       )



                      APPEAL FROM THE PIKE CIRCUIT COURT
                       The Honorable Jeffrey L. Biesterveld, Judge
                            Cause No. 63C01-1201-FB-38



                                     July 31, 2013

                            OPINION - FOR PUBLICATION

GARRARD, Senior Judge
       A jury convicted Seth Miller on four counts:              Corrupt Business Influence,

Burglary of a Dwelling, and two counts of Theft. He was sentenced to an aggregate term

of seventeen years in prison and five years of probation. On appeal, Miller challenges

only his conviction for Corrupt Business Influence.

       The governing statute provides in pertinent part:

       A person:

                ****

                (3) who is employed by or associated with an enterprise, and who
                knowingly or intentionally conducts or otherwise participates in the
                activities of that enterprise through a pattern of racketeering activity;

       commits corrupt business influence, a Class C felony.

Ind. Code § 35-45-6-2 (1991).

       The facts of the case disclose that on the night of January 9, 2012, Ivy Smith, a

friend of Miller, sent him a text and then picked him up in her car. As they were driving,

they discussed burglarizing homes. After midnight they stopped at the Fredericks’ home

and entered it through an unlocked sliding glass door. Miller stole a television, a laptop

computer and a purse. Smith found a camera and a wallet in the purse. As the two were

then driving toward Winslow, Indiana, they discussed using credit cards that they found

in the purse.

       Miller spotted a black Charger parked in a driveway, and Smith stopped the car.

Miller took video games and a wallet from the Charger. They then drove to the home of

Smith’s father where they took most of the stolen items inside.



                                                2
       The two then drove to a Wal-Mart store in Washington, Indiana, to try to use the

stolen credit cards. They entered the store and both placed items totaling $1124 in a cart

and then attempted to pay for them with Janet Frederick’s credit card. The card was

declined. They tried again at a Vincennes Wal-Mart where both stolen credit cards were

declined. This happened yet again at a Vincennes CVS store and a liquor store. Leaving

Vincennes, the two returned to Winslow.

       This all occurred in less than twenty-four hours. If Smith’s later disposal of the

computer and camera are taken into account, less than forty-eight hours were involved.

       Indiana’s corrupt business influence statute is patterned after the federal Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962. Our supreme court has

determined, however, that under the Indiana act which applies to “a person . . . who . . .

participates in the activities of that enterprise,” it is unnecessary that a person play some

part in directing the affairs of the enterprise as required by the federal act. Simple

participation is enough. Keesling v. Beegle, 880 N.E.2d 1202, 1206 (Ind. 2008).

       Even so, federal cases concerning the general construction of the Act are

instructive. See, e.g., Waldon v. State, 829 N.E.2d 168, 176 (Ind. Ct. App. 2005), trans.

denied; see also Kollar v. State, 556 N.E.2d 936, 940 (Ind. Ct. App. 1990), trans. denied.

       Both statutes require: (1) a knowing or intentional degree of participation (2) in an

enterprise (3) through a pattern of racketeering activity. Waldon, 829 N.E.2d at 175.

Indiana Code section 35-45-6-1(c) (2011) provides:

              “Enterprise” means:



                                             3
                   (1) a sole proprietorship, corporation, limited liability company,
                       partnership, business trust, or governmental entity; or

                   (2) a union, an association, or a group, whether a legal entity or
                       merely associated in fact.

In addition, Indiana Code section 35-45-6-1(d) defines a “pattern of racketeering activity”

as “engaging in at least two (2) incidents of racketeering activity . . . that are not isolated

incidents.”1

          We find the critical issues in Miller’s case to be whether the evidence was

sufficient to establish the element of enterprise and the necessary pattern of racketeering

activity.

          We adopt the reasoning of the Supreme Court in United States v. Turkette, 452

U.S. 576, 583, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981), that was cited with approval by

this Court in Waldon:

                  In order to secure a conviction under RICO, the Government must
          prove both the existence of an ‘enterprise’ and the connected ‘pattern of
          racketeering activity.’ The enterprise is an entity, for present purposes a
          group of persons associated together for a common purpose of engaging in
          a course of conduct. The pattern of racketeering activity is, on the other
          hand, a series of criminal acts as defined by the statute. The former is
          proved by evidence of an ongoing organization, formal or informal, and by
          evidence that the various associates function as a continuing unit. The
          latter is proved by evidence of the requisite number of acts of racketeering
          committed by the participants in the enterprise. While the proof used to
          establish these separate elements may in particular cases coalesce, proof of
          one does not necessarily establish the other. The ‘enterprise’ is not the
          ‘pattern of racketeering activity’; it is an entity separate and apart from the
          pattern of activity in which it engages. The existence of an enterprise at all
          times remains a separate element which must be proved by the
          Government.


1
    Subparagraph (e) then lists more than thirty offenses that constitute racketeering activity.
                                                        4
829 N.E.2d at 176 (emphasis added).

       We also agree with the Waldon court’s reliance upon two other federal decisions

in determining whether an enterprise exists for purposes of prosecution under Indiana

Code section 35-45-6-2(3). In Stephens, Inc. v. Geldermann, Inc., 962 F.2d 808, 815 (8th

Cir. 1992), the court stated that the essential elements of an enterprise include: “(1) a

common or shared purpose; (2) some continuity of structure and personnel; and (3) an

ascertainable structure distinct from that inherent in a pattern of racketeering.”

       Of more help is the Seventh Circuit opinion in United States v. Rogers, 89 F.3d

1326, 1337 (7th Cir. 1996), where the court stated, “If the ‘enterprise’ is just a name for

the crimes the defendants committed, or for their agreement to commit these crimes that

was charged separately in the conspiracy count, then it would not be an enterprise within

the meaning of the statute.”2 (quoting United States v. Masters, 924 F.2d 1362, 1367 (7th

Cir. 1991)). Furthermore, the hallmark of an enterprise is structure. Id. A RICO

enterprise is an ongoing group of persons “associated through time, joined in purpose,

and organized in a manner amenable to hierarchical or consensual decision-making.” Id.

       The enterprise element in Waldon was established by the evidence that Waldon

recruited the assistance of three juveniles to commit a series of burglaries in the Lafayette

area during the summer of 2002. They would drive around and Waldon would mention

the places he wanted to hit. They would enter businesses by prying around the locks on



2
 Miller might have been charged with conspiracy under Indiana Code section 35-41-5-2 (1977), but any
conviction would likely be barred by our double jeopardy rule. See, e.g., Gregory-Bey v. State, 669
N.E.2d 154, 158 (Ind. 1996), overruled in part on other grounds by Grinstead v. State, 684 N.E.2d 482,
486 (Ind. 1997).
                                                  5
the doors, while one stayed outside as a lookout and communicated with the others by

walkie-talkie.   Waldon would later divide the proceeds among them.           The pattern

developing showed regular, almost daily, attempts at burglary.

       Contrast that with the situation before us. Here, Miller and Smith got together on

the night in question and committed the offenses described. There was no evidence of a

prior history of such conduct, nor was there evidence that they planned to repeat their

escapade.   The events all occurred in a very brief period.       Indeed there was scant

evidence of a pattern of racketeering activity. As the court pointed out in Rogers, the

hallmark of an enterprise is structure. It is an ongoing group of persons associated

through time, joined in purpose, and organized in a manner amenable to hierarchical or

consensual decision making.

       The evidence in this case simply fails to establish the necessary element of an

enterprise within the meaning of the statute.       Accordingly, we need not reach the

additional issue of whether their episode of conduct qualifies as a pattern of racketeering

activity.

       The conviction for corrupt business influence is reversed and the sentence of eight

years thereon is vacated.

       In all other respects the judgment is affirmed.

       Affirmed in part and reversed in part.

FRIEDLANDER, J., and KIRSCH, J., concur.




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