Byford v. State
2015 Alas. App. LEXIS 90
Alaska Ct. App.2015Background
- Byford was convicted by a jury of scheme to defraud (class B), first‑degree theft by deception (class B), and deceptive business practices (class C). The superior court merged the three verdicts into one conviction (scheme to defraud) and sentenced Byford to 6 years with 3 years suspended (3 years to serve).
- The scheme-to-defraud/theft counts arose from 2004–2007: Byford solicited deposits from nine customers to build log homes, took substantial sums, and did not build or refund the money.
- The deceptive business practices charge was based on a 2009 company website that displayed photographs of log cabins falsely attributed to Byford/Prefab Log Homes.
- At trial, the web developer testified he worked mainly with Byford’s girlfriend/bookkeeper (who provided the photos); Byford attended some meetings and participated in at least one. The jury found Byford guilty of the deceptive website charge.
- Byford challenged (1) sufficiency of evidence on the deceptive business practices count, (2) the jury instruction that jurors need not agree which statutory theory (defraud ≥5 persons or obtain ≥$10,000) applied to scheme to defraud, and (3) two aggravating factors and excessiveness of sentence. The State cross‑appealed the merger ruling.
Issues
| Issue | Byford’s Argument | State’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for deceptive business practices | Website was created/maintained by his girlfriend; State failed to show Byford’s personal participation or condoning | Evidence showed Byford was company president, attended meetings about the site, and had a pattern of similar in‑person misrepresentations | Evidence sufficient; jurors could infer Byford’s awareness and responsibility |
| Jury unanimity on scheme to defraud theory | Instruction allowing non‑unanimity as to whether scheme aimed to defraud ≥5 persons or obtain ≥$10,000 deprived unanimity | Statutory alternatives define the scheme’s intended aim (mental state), not separate acts; only one criminal act alleged | No unanimity error; jurors need not unanimously agree on which statutory purpose was proven |
| Merger of deceptive business practices with scheme/theft | Trial court properly merged related offenses | Deceptive website (2009) was factually distinct in time from 2004–2007 scheme and supports a separate conviction | Merger was erroneous; deceptive business practices must be entered as a separate conviction and sentence (subject to double jeopardy limits on aggregate exposure) |
| Challenge to aggravating factors and sentence excessiveness | Aggravators unsupported; sentence excessive | Judge found aggravators; under pre‑March 2005 sentencing law (applied here) sentence lawful; overall sentence within allowed range | Aggravator challenge moot under applied law; 6 yrs (3 to serve) not clearly mistaken and is affirmed |
Key Cases Cited
- Knix v. State, 922 P.2d 913 (Alaska App.) (scheme to defraud requires proof of purpose or design)
- United States v. Mastelotto, 717 F.2d 1238 (9th Cir.) (unanimity issues where multiple discrete schemes alleged)
- Ward v. State, 758 P.2d 87 (Alaska) (no unanimity required as to alternative theories when one criminal act alleged)
- Totemoff v. State, 866 P.2d 125 (Alaska App.) (unanimity and single‑act theory distinctions)
- Ragsdale v. State, 23 P.3d 653 (Alaska App.) (alternative mens rea theories need not be unanimous when a single act is at issue)
- Joseph v. State, 293 P.3d 488 (Alaska App.) (when separate instances of the same crime may support separate convictions)