dissenting.
I dissent on issues 1 and 8.
First, I believe there was insufficient evidence to support Kollar's conviction on Count II, one of the predicate offenses underlying Count I (racketeering). Second, the aggravating circumstances recited by the trial court in support of enhanced and consecutive sentences are both improper-merely restatements of elements of the charged crimes-and insufficiently particularized.
In Count II, Kollar was charged with theft from Dennis Gerrard. Theft occurs when an accused secures control over property of another by promising performance the accused knows will not be performed. IND.CODE 35-48-4-1. The key is the intent of the accused at the time he secures control of the property. Miller v. State (1989), Ind.App., 535 N.E.2d 170. Count II charges Kollar with exerting unauthorized control over Gerard's property on specific dates. Each date was prior to the failure of Kollar's business.
Gerrard entered the one percent plan on February 6, 1984, by buying 100 ounces of silver. He made additional purchases of silver on December 17, 1984, December 81, 1984 and June 15, 1985. Kollar paid the one percent interest until he went out of business, but he did not deliver the silver purchased by Gerrard. Gerrard obtained a judgment for $3,000 which Kollar owed him. There is no evidence to support an inference that Kollar, at the time Gerrard made the purchases, knew he would be unable to deliver the silver. Instead, the evidence shows that at that time Kollar had ample income from other business sources to purchase the silver. The one percent plan was only a part of Kollar's business. Hendrickson testified that the one percent plan could work for several years, but that Kollar should have known the plan would not work at least a year before it collapsed. However, Gerrard made his last purchase in 1985-two years before the business failed. Unlike the charge involving the Egglestons, there is no evidence or reasonable inference therefrom that Kollar knew he would be unable to deliver Gerrard's silver when Gerrard made the purchases. See Coburn v. State (1984), Ind.App., 461 N.E.2d 1154 (a misrepresentation as to future acts or events, or promissory in character, will not support a conviction for theft). Therefore, I would reverse the conviction on Count II.
I would also reverse on Count I, corrupt business influence, (RICO) because the evidence is insufficient to support a conviction on Count II. To sustain a conviction on Count I there must be a finding by the jury of at least two incidents of racketeering activity. IC 85-45-6-2(a)(8). In this case we have a general judgment and we do not know which two predicate offenses the jury considered as supporting the conviction for Count I.
Federal cases which have examined this issue support the holding that a RICO conviction predicated on multiple racketeering acts cannot stand where the evidence of any one of the underlying acts is legally insufficient and the court is unable to determine which acts formed the basis for the RICO conviction. U.S. v. Vastola (3rd Cir.1990) 899 F.2d 211; U.S. v. Brown (3rd Cir.1978), 583 F.2d 659, cert. denied, 440 *945U.S. 909, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979).
The present case is identical to the situation in Brown, supra. The defendants were convicted of four counts of mail fraud and two counts of the federal RICO statute.1 The Court of Appeals reversed two of the predicate counts of mail fraud because of insufficient evidence. The court then reversed the RICO counts stating:
The Jury in this case might have relied on either Counts 5 or 6 [the two mail fraud counts] for which we have found insufficient evidence in reaching its verdict of guilty under Counts 18 and 14 [the racketeering counts]. Accordingly, we must reverse the convictions of both defendants under these two counts.
Id. at 669-670 (footnote omitted).
We observe that in Brown there remained two proper underlying predicate offenses which could have supported the RICO charges; and, still, the court reversed. In the present case, where the jury was instructed it needed to find only two predicate offenses were committed as part of a scheme, we cannot know which two offenses the jury found as the basis for the racketeering conviction. I would, therefore, reverse and remand on this issue.
I also dissent on the issue of sentencing. The majority concludes:
The trial court's findings that Kollar: defrauded "portions of the public who were comprised of persons who were investing typically their savings toward their future or the future of their children"; lulled certain victims while encouraging others to invest; and stole significant amounts of money from those victims constitute particularized findings regarding the nature and circumstances of the crimes committed as contemplated by West's AIC 35-38-1-7(a)(2). This is sufficient to support the imposition of the enhanced and consecutive sentences.
(Maj. opinion at 948). I disagree.
First, I note that this court has exhibited some confusion in identifying non-statutory aggravating circumstances which are sufficient to support enhancement or consecutive sentences. For example, in Campbell v. State (1990), Ind.App., 551 N.E.2d 1164, the defendant business manager for Indiana University-Kokomo campus stole $257,908.00 from the University over a period of five years. The trial court found the following aggravating circumstances:
1. That the defendant, Richard L. Campbell, violated his position of trust within the University;
2. That Richard L. Campbell violated a position of trust and confidence that he had created within the local community;
3. That the crimes to which Richard Campbell has pled Guilty have a multitude of victims, (Le. Indiana University, fellow administrators and teachers, taxpayers of the State of Indiana, the reputation of Indiana University, and last but not least, the students);
4. Further, the crime to which Richard Campbell has been found Guilty was committed in secrecy. That it was a plan to deceive others which involved the building by Richard Campbell of a pattern of trust within the University and community and was a continuing pattern of violation of that trust.
The majority held that the first three reasons were proper aggravating circumstances, but that the fact that the crime was committed in secrecy was not, because "substantially all crimes involving theft and forgery are committed in secrecy." In his dissent, Judge Sullivan argued that a violation of trust is "the very essence of the acts of theft and forgery," citing Linger v. State (1987), Ind.App., 508 N.E.2d 56, in which this court held that theft from an employer was not a proper aggravating circumstance. Judge Sullivan also argued:
The trial court further erred in translat ing the inferred moral outrage or sense of disappointment within the geographical and academic communities into a conclusion that these groups were actual victims of the eriminal offenses. Such is tantamount to stating that every crime committed should carry an enhanced sen*946tence because all society is the victim of crime.
Although I agree with Judge Sullivan, Campbell is illustrative of the problem faced by this court when reviewing non-statutory aggravating circumstances. The problem stems from the essentially ad hoc consideration of such circumstances. I believe this court should articulate a general rule for determining the propriety of non-statutory aggravating circumstances. In order to support enhanced or consecutive sentences the aggravating circumstance should be one not normally associated with the crime charged. This court and our supreme court have generally followed this rule, however it requires further explanation. Our supreme court has held that the mere recitation of a element of the crime does not justify enhanced or consecutive sentences. Townsend v. State (1986), Ind., 498 N.E.2d 1198. See also, Linger, supra. In addition, circumstances which are common to the commission of the charged crime are not proper aggravating circumstances. Campbell, supra.
Here, the aggravating circumstances listed by the trial court are either elements of the crime or are common to all such crimes. The trial court found as an aggravating circumstance that Kollar defrauded "portions of the public who were comprised of persons who were investing typically their savings toward their future or the future of their children." Most people who invest do so for their future. This is the reason for investment. How is the theft of savings for the future worse that the theft of savings for a new car or a long awaited vacation? For that matter, why is the source of the investment relevant? Are people who use borrowed funds to invest less entitled to protection that those who use their savings? There is no evidence that Kollar targeted people who were investing their savings. In all theft cases the victim is deprived of money or other property which he could have used for other purposes. While all victims of theft are deprived of their property, the value that they place on such property is irrelevant. A victim may be far more distressed by the theft of his grandmother's wedding ring, than the theft of a television, but this is no justification for imposing a greater sentence for the theft of the ring. To do so would result in highly unpredictable sentencing based solely on the trial court's perception of the value of the property to the victim.2
The trial court also found that Kollar's "pattern of lulling victims while encouraging other new victims is a matter of aggravation". (Emphasis added). This is merely a restatement of one of the elements of the corrupt business influence charge-a "pattern of racketeering activity", IND.CODE § 35-45-6-2(a)(8). In addition, it is a restatement of one of the definitions of theft -"creating or confirming a false impression in the other person." IND.CODE § 85-48-4-1(b)(4). In Linger, supra, this court noted that the legislature has chosen not to differentiate between the various forms of theft. As the Linger court explained:
This is analogous to differentiating among the forms of theft included in our general theft statute. Townsend recognizes that the trial court may consider the particularized circumstances of the crime's factual elements, and the sen*947tence may be enhanced if an element is particularly egregious. We find that Townsend mandates the conclusion that the mere mention of the elements of the crime of theft, e.g. the theft was from an employer or the theft was from an innocent stranger, is not such a particularized circumstance as can be used to enhance a presumptive 2 year theft sentence. In effect, the trial judge in merely reciting an element as an automatic aggravating circumstance is legislating and creating an automatic four year sentence for that form of theft. Here, the trial court made clear that all thefts from employers were more serious than thefts from others and required an enhanced sentence. This was improper.
Id. at 64-65.
Here, the trial court has merely recited an element of the charges.
Finally, the trial court found that the losses were "significant." However, this is not a particularized finding. It may mean that the losses involved a substantial amount of money or it may mean that the losses caused financial difficulties for the victims. If we were to consider the amount of money taken as an aggravating circumstance, then it would be worse to steal $50,000 from a multimillionaire than to steal $50.00 from an elderly person living on social security. However, if we consider the impact on the victim the theft of $50.00 from the social security recipient is worse, as it may spell the difference between eating and going hungry.
In addition, the sentences imposed are inconsistent with the aggravating circumstances given. For example, the trial court found that the amount of loss suffered by Eggleston, Bixler and the Spies was significant; however, it sentenced Kollar to two years on the Eggleston charge, and three and four years, respectively, on the Bixler and Spies charges despite the fact that Eggleston lost a substantially greater amount than either Bixler or the Spies. The trial court also sentenced Kollar to two years concurrent on the Gerrard charge even though Gerrard lost more money than both Horvath (consecutive sentence) and Bixler (enhanced and consecutive sentence). I fail to find any logical support for these sentences.
Finally, Kollar argues the trial court failed to consider mitigating circumstances. The trial court found two mitigating circumstances-Kollar's youth and the fact that the crimes were nonviolent. However, Kollar submitted over eighty letters to the trial court from people who knew him asking for leniency. The general theme of the letters was that Kollar had many admirable qualities, but was not a good businessman. The writers included Kollar's ex-wife, business associates, friends and and at least one former customer who had lost money because of Kollar's activities. These writers expressed the belief that Kollar, his family, and society would be better served if Kollar was not given a long term of incarceration. The trial court did not specifically mention these letters which were attached to the presentence report. In Townsend, supra, at 1202, our supreme court explained: "Failure to find mitigating circumstances when clearly supported by the record may reasonably give rise to a belief that they were overlooked, hence not properly considered." Here, there is no indication that the trial court considered the letters and the mitigating cireumstanc-es recited in them. This suggests that the trial court overlooked mitigating cireum-stances.
In conclusion, I find nothing in the aggravating circumstances given by the trial court which sets this crime apart from other crimes of the same type. In addition, the trial court has failed to consider mitigating circumstances supported by the record. Therefore, I dissent.
. 18 U.S.C. § 1962.
. For example, in Campbell, supra, Campbell was charged with 162 counts of theft and forgery. Pursuant to a plea agreement, Campbell pleaded guilty to five counts. He stole more than $250,000 from Indiana University over a period of five years. Campbell engaged in a long enduring scheme to steal a substantial amount of money, yet he was sentenced to only two executed terms of five years each to be served consecutively. The sentences on the other three counts were suspended. Of course, a sentencing court cannot be expected to be aware of all sentences for similar crimes and to determine sentence by comparing the seriousness of the crime before it with those other crimes. Nevertheless, consideration of improper aggravating circumstances results in unpredictable and illogical sentencing. When the circumstances in Campbell and this case are compared, it is clear that Campbell stole a substantially greater sum over a longer period time, yet received a lesser sentence. Such results call into question the basic fairness of the judicial system. If non-statutory aggravating circumstances are limited to those circumstances not normally associated with the crime charged, such uneven results will be lessened or eliminated.