dissenting.
I respectfully disagree with the majority’s analysis for the reason that follows.
The issue in this case turns on whether a reasonable factfinder could infer from the totality of the circumstances that defendant’s criminal activity originated from a criminal enterprise or “a sense of organization.” In enacting Oregon’s version of ORICO, the legislature intended “to deal with multiple criminal activity that resulted from formal or informal organizations that traditional criminal prohibitions failed to cover” in order to provide “prosecutors [with] a tool to reach persons behind otherwise isolated acts of criminal conduct who were in fact responsible for those crimes.” State v. Cheek, 100 Or App 501, 505 n 1, 786 P2d 1305, rev den, 310 Or 121 (1990). In Cheek, we held that the “sense of organization” necessary to satisfy ORICO’s requirements in that case arose from the defendant’s criminal activities where the evidence demonstrated that he directed a group of young men from broken families over a four-year period to commit 28 different crimes by choosing the site of the crimes, by planning their commission, by instructing others on how to commit them, and by providing others with the means for their commission. 100 Or App at 505.
This case lacks similar evidence from which the “sense of organization” element that ORICO requires can be reasonably inferred. The evidence merely demonstrates that the defendant acted in concert with another person to steal merchandise from two Safeway grocery stores by using the same modus operandi on three separate occasions. Importantly, there is no additional reasonable inference or evidence available that defendant’s and his coactor’s activities found their genesis in an ongoing criminal organization as distinguished from conduct involving ad hoc or episodic activities on multiple occasions.1
*15In the abstract, I do not question that an “informal partnership” to commit multiple crimes could fall within the parameters of ORICO’s definition of an enterprise, depending on the circumstances surrounding those crimes. However, it is apparent from the legislative history underlying ORICO that the legislature did not intend that multiple criminal acts committed by multiple persons without a criminal enterprise constitute the crime of criminal racketeering. Rather, ORICO was intended to make easier the prosecution of unlawful criminal activities that were more difficult to prosecute under traditional criminal prohibitions.
Here, the evidence shows that defendant and his coactor entered grocery stores and took merchandise off the shelf, placed the items in plastic bags, and left the stores without paying for them, and that they had been involved in similar thefts for the two-month period preceding defendant’s arrest. Those activities evidence multiple acts of shoplifting for which defendant could be separately prosecuted under ordinary theft statutes. Unlike when persons merely act in concert to commit crimes, an “enterprise” for purposes of the ORICO statute requires that an organization exist that is distinct from the commission of the predicate crimes. Cheek, 100 Or App at 505; see also State v. Pierce, 153 Or App 569, 579, 962 P2d 35 (1998) (holding that a law office functioned as an “enterprise” separate from the criminal acts committed by its member). What is missing from the evidence in this case is some fact from which it could be inferred that defendant and his coactor were involved in an ongoing criminal business venture of which their thefts were a part — for example, acting together in an organized manner to steal particular merchandise, which, in turn, they could then sell to an available buyer. It follows, because a reasonable factfinder could not infer from the evidence that defendant was acting pursuant to an organized criminal racketeering activity of the kind that we recognized in Cheek, that ORICO is not available.
For this reason, I dissent.
For example, if two persons acting together committed multiple bank robberies, it would not follow from that fact alone that they were part of a criminal organization or enterprise. Rather, those facts demonstrate merely that they acted in concert on more than one occasion to commit crimes together.