Richard Carl BOHLING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
S-16-0144
Supreme Court of Wyoming.
January 25, 2017
2017 WY 7; 388 P.3d 502
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General. Argument by Ms. Martens.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
DAVIS, Justice.
[¶1] Appellant Richard Bohling was convicted of four felony counts of obtaining property by false pretenses and one misdemeanor count of official misconduct. On appeal, he claims that in order to have been convicted of obtaining property by false pretenses, the State was required to prove that title to the property in question passed from Albany County to him. He contends that the State failed to prove that it did.
[¶2] We have examined
[¶3] We decline to consider Bohling‘s claim regarding the misdemeanor conviction of official misconduct, due to his failure to provide cogent argument on this issue. As a result, the misdemeanor conviction is affirmed.
[¶4] We consider the following two questions to be dispositive of this appeal:
- Does the crime of obtaining property by false pretenses under
Wyo. Stat. Ann. § 6-3-407 require that the victim part with both title and possession? - Was the evidence presented sufficient for a reasonable jury to find beyond a reasonable doubt that Bohling committed the crime of obtaining property by false pretenses?
FACTS
[¶5] Bohling was the Albany County and Prosecuting Attorney from 2003 through 2014. His responsibilities included managing his office‘s budget and overseeing the purchases of items it required. It is Bohling‘s purchases of certain cameras and electronic equipment with county funds between 2008 and 2012 that are at the heart of this matter.
[¶6] When items were purchased for the office with county funds, a voucher was submitted to the Albany County Commissioners for approval. A voucher is formatted like a cover sheet, with the name of the creditor that the county needs to pay, and it is submitted to the county commissioners with the relevant receipts attached. The voucher includes an affidavit from an elected official or department head, like Bohling, who must sign to certify that the charge to be paid is correct. After review and approval of the expenditure, a county commissioner will sign off on the voucher. The county treasurer will then pay the charge. This same process is followed in Albany County regardless of whether the expense is a charge directly with a vendor, or if it is a purchase made on a county credit card issued to the elected official.
[¶7] Concerns over some of Bohling‘s purchases with county funds began in 2012, when the office manager of the county attorney‘s office brought certain purchases involving camera equipment to the attention of Albany County Commissioner Tim Sullivan, who was chairman of the Commission at the time. After reviewing the purchases with Albany County Clerk Jackie Gonzales, Commissioner Sullivan decided not to refer the matter to law enforcement.
[¶8] About two years later, in 2014, another employee in Bohling‘s office raised a similar concern about his purchases of cameras and electronic equipment with county funds. Commissioner Sullivan worked with Albany County Sheriff David O‘Malley and County Clerk Gonzales to look into those purchases. They contacted the Wyoming Division of Criminal Investigation (DCI). DCI agents investigated and concluded that Bohling had used a number of cameras and some electronic equipment purchased with county funds as his own personal property.
[¶9] Based upon the evidence gathered by DCI, the State1 filed an information consisting of nine counts against Bohling. Counts I through IV of the information charged him with felony larceny by bailee under
[¶10] A few months later, the State amended the information. It decided to change
[¶11] Bohling moved for a bill of particulars. The State acceded to the request and provided a bill which indicated, inter alia, that in regards to Counts I through IV, Bohling had submitted vouchers to the Board of Albany County Commissioners for the purchase of certain cameras and other electronics for his own personal use, thereby using falsehood to induce the county to pay for the items.4
[¶12] The case proceeded to trial in due course. At the close of the State‘s case-in-chief, Bohling moved pursuant to W.R.Cr.P. 29 for a judgment of acquittal on the four felony counts of obtaining property by false pretenses and the felony count of submitting false vouchers. With regards to the four felony false pretenses counts, he argued that title to the property in question had to pass from the county to him, and that the evidence did not establish that it did. The State countered by arguing that passage of title was not required to sustain a charge of obtaining property by false pretenses, and that even if it was, the State had provided sufficient evidence of it.
[¶13] After considering the parties’ positions, the district court denied Bohling‘s motion. Bohling then presented his case. The jury convicted him of Counts I through IV, the four felony counts of obtaining property by false pretenses, and Count VII, the misdemeanor charge of official misconduct. He was acquitted of the charges in Counts V, VI and VIII.
[¶14] Bohling renewed his motion for judgment of acquittal after the verdict was returned. He argued essentially the same grounds as he had earlier, and the State responded with the same arguments it had made before. The district court denied Bohling‘s renewed motion.
Bohling was sentenced to two to four years of incarceration and fined $10,000 for each felony count of obtaining property by false pretenses. The sentences were to run concurrently. On the misdemeanor conviction, he was fined $5,000. Bohling then timely perfected this appeal.
Additional pertinent facts will be set forth below in our discussion of the second issue concerning the sufficiency of the evidence.
DISCUSSION
Elements of Obtaining Property by False Pretenses
[¶17] The first step in resolving this matter is to determine whether the crime of obtaining property by false pretenses under
[¶18] Statutory interpretation is a question of law requiring de novo review. Adekale v. State, 2015 WY 30, ¶ 12, 344 P.3d 761, 765 (Wyo. 2015). Criminal statutes are to be strictly construed, meaning that they are not to be enlarged by implication or extended
[¶19] Title 6 of Wyoming‘s statutes establishes the Wyoming Criminal Code.5 Our analysis must begin by examining the statute creating the offense of obtaining property by false pretenses. It states:
§ 6-3-407. Obtaining property by false pretenses; penalties.
(a) A person who knowingly obtains property from another person by false pretenses with intent to defraud the person is guilty of:
(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the property is one thousand dollars ($1,000.00) or more; or
(ii) Repealed by Laws 1984, ch. 44, § 3.
(iii) A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the value of the property is less than one thousand dollars ($1,000.00).
[¶20] The word in the statute that is critical to our conclusion in this case is “obtains.” While it seems to be straightforward at first glance, the term has created consternation in the context of this crime, and we find it ambiguous. As one authoritative secondary source confirms: “The wording of the typical false pretenses statute—requiring that the defendant ‘obtain’ property by false pretenses—is quite ambiguous on the issue of whether he must obtain title to, or possession of, the property, or whether he must obtain both title and possession.” 3 Wayne R. LaFave, Subst. Crim. L. § 19.7(d) (2d ed., Oct. 2016 update). Fortunately, there is a great deal of precedent and persuasive authority for us to consult in construing the language to accurately determine our legislature‘s intent.
[¶21] To understand the elements of the crime of obtaining property by false pretenses under
[¶23] In 1876, the Wyoming Territory codified the crime of obtaining property by false pretenses:
Obtaining Goods Under False Pretenses
Sec. 139. If any person or persons shall knowingly and designedly, by any false pretense or pretenses, obtain from any other person or persons, any chose in action, money, goods, wares, chattels, effects, or other valuable thing whatever, with intent to cheat or defraud any such person or persons of the same; every person so offending shall be deemed a cheat, and, upon conviction, shall be fined in any sum not exceeding one thousand dollars, and imprisoned in the penitentiary not exceeding one year, and shall be sentenced to restore the property, so fraudulently obtained, if it can be done.
Wyo. Comp. Stat. Chap. XXXV, § 139 (J. R. Whitehead 1876) (emphasis added). The territorial Supreme Court had occasion to scrutinize the statute and made clear that “[t]he distinction between larceny and false pretenses is well settled, and consists in the fact whether or not the owner intended or consented to part with the title to property.” Haines v. Territory, 3 Wyo. 167, 175, 13 P. 8, 13 (Wyo. Terr. 1887).
[¶24] The crime continued to have a place in Wyoming‘s statutes after statehood, and its substance, including the use of the word “obtain,” remained unchanged. See Wyo. Comp. Stat. Ch. 9, § 5143 (Van Orsdel & Chatterton 1899).7 In 1908, we took another look at the crime in Martins v. State, 17 Wyo. 319, 98 P. 709 (1908). Our interpretation was again that the statute required the accused to obtain title to the property from the owner. Id. at 330, 98 P. at 712. We cited an authoritative source that put the requirement plainly: “To constitute an obtaining of property, defendant must in the first place acquire at least a voidable title to the property; that is, the owner must intend to invest him with the title, as distinguished from the mere custody or possession of the goods.” Id. Based upon this interpretation, we concluded that the facts of that case did not fit the charge of false pretenses as set out in the information because the one parting with the money was not the actual owner of it, and thus he could not pass title. Id.
[¶25] Over the next hundred-plus years, Wyoming‘s false pretenses statute did not change in substance, and it has always included the word “obtain.” See
[¶26] Throughout the decades, we have had quite a few occasions to revisit the statute defining the crime of obtaining property by false pretenses and its distinction from other offenses—larceny in particular. See, e.g., Sweets v. State, 2013 WY 98, ¶ 15, 307 P.3d 860, 866 (Wyo. 2013); Nguyen v. State, 2013 WY 50, ¶ 14, 299 P.3d 683, 687 (Wyo. 2013); Powell v. State, 2012 WY 106, ¶ 6, 282 P.3d 163, 164 (Wyo. 2012); Maycock v. State, 2011 WY 104, ¶ 9, 257 P.3d 20, 22 (Wyo. 2011); Perritt v. State, 2005 WY 121, ¶ 10, 120 P.3d 181, 186-87 (Wyo. 2005); Lopez, 788 P.2d at 1152; Miller v. State, 732 P.2d 1054, 1062 (Wyo. 1987); Driver v. State, 589 P.2d 391, 393 (Wyo. 1979); Anderson v. State, 27 Wyo. 345, 352-53, 196 P. 1047, 1048 (1921). In none of our opinions concerning this crime have we ever said that the term “obtain” means that the wrongdoer only needs to acquire possession and not title; we have always said the contrary. A ruling that only possession must be obtained would destroy the distinction from larceny: if the owner of the goods intends to keep title but part with possession, the crime is larceny, but if the owner intends to part with both title and possession, the crime is false pretenses. To this day, the distinction is preserved by the structure of our criminal code, which defines larceny in
[¶27] In Miller, we explained that to establish the crime of obtaining property by false pretenses, it is necessary that the victim pass title to his property to the accused. 732 P.2d at 1063. Similarly, in Perritt, our analysis focused on the requirements of
The crime of false pretenses has deep roots in Anglo-American law. That crime is defined in slightly different ways in the various jurisdictions but as a general rule has five elements: (1) a false representation of a material present or past fact (2) which causes the victim (3) to pass title to (4) his property to the wrongdoer, (5) who (a) knows his representation to be false and (b) intends to defraud the victim.
Id. ¶ 15, 120 P.3d at 188 (citing 3 LaFave, supra, § 19.7). More recently, in Powell v. State, we again examined the difference between larceny and false pretenses and explained the key to the latter “is that, having been deceived by the thief, the victim consensually parts with both possession and title.” 2012 WY 106, ¶ 10, 282 P.3d at 166.
[¶28] Additional precedent this Court unearthed is consistent with our other cases and confirms our conclusion today. Unfortunately, neither party cited the following two cases, which we believe to be important. In Neel v. State, this Court explained:
[W]e affirmed the conviction of defendants on a charge of grand larceny. They have petitioned for rehearing, asserting they were not proved guilty of a theft; that if they were to be charged with any crime, it should have been the crime of obtaining property under false pretenses; and that the evidence necessary to prove the charge of obtaining property under false pretenses is different from the evidence required to prove the charge of theft.
It is well settled that where a person by trick or fraud obtains possession of property intending at the time of obtaining the property to convert it to his own use, and does so convert it, the fraud is the equivalent of a felonious taking and the offense is larceny. In the instant case the jury was expressly instructed to this effect.
Our grand larceny statute, § 6-132, W.S. 1957, appears to have been taken from the laws of Indiana, and that state has repeatedly held possession of property obtained by fraud with the intent to steal the same constitutes larceny when there is a felonious appropriation.
In “larceny” owner of the property has no intention to part with title therein to
the person taking it although he may intend to part with possession, while in “false pretenses” owner intends to part with both his possession and title but such are obtained from him by fraud.
If only the possession of the thing of value is obtained and it is then converted by the accused, the crime involved is larceny and not false pretense. Otherwise stated, one test for distinguishing between larceny and obtaining property by false pretenses is to determine whether the offender could confer good title upon another by sale and delivery of the property. If he could not, the offense is larceny.
454 P.2d 241, 242-43 (Wyo. 1969) (citations and emphasis omitted). Subsequently, in Otte v. State we reaffirmed that
[i]n denying a petition for rehearing in Neel v. State, we said:
It is well settled that where a person by trick or fraud obtains possession of property intending at the time of obtaining the property to convert it to his own use, and does so convert it, the fraud is the equivalent of a felonious taking and the offense is larceny.
* * *
Fraud vitiates the consent of the victim if the other elements of the crime are present. State v. Jesser, 95 Idaho 43, 501 P.2d 727, 735. It was said in Jesser, quoting from a “landmark” Massachusetts decision (Commonwealth v. Barry, 124 Mass. 325, 327) (1878):
If the possession is fraudulently obtained, with intent on the part of the person obtaining it, at the time he receives it, to convert the same to his own use, and the person parting with it intends to part with his possession merely, and not with his title to the property, the offence is larceny.
We agree with the rule expressed by the court in Commonwealth v. Barry and consider it applicable to the fact-situation in the case at hand. We have said essentially the same thing in Neel v. State, supra, where we said:
In “larceny” owner of the property has no intention to part with title therein to the person taking it although he may intend to part with possession, . . . .
563 P.2d 1361, 1364 (Wyo. 1977) (citations and emphasis omitted).
[¶29] Our case law is clear that the word “obtain” in the statute defining the crime of false pretenses has always been interpreted to mean that the wrongdoer must obtain both title to and possession of the victim‘s property.8 If only possession passes, the crime is larceny if all the elements can be proven under
[¶30] Secondary sources also support this unavoidable conclusion. LaFave states that “the crime of false pretenses requires that the defendant, by his lies, obtain title to the victim‘s property. If he obtains possession without title by means of his lies, his crime is
Over the years, the pertinent statutes and decisions relating to the crime of false pretenses have commonly spoke in terms of the defendant “obtaining” property or causing the victim to “part with” or “surrender” his property. Despite this generality of language, it has traditionally been required, for the crime to be committed, that the defendant obtain possession of and title to the victim‘s property.
3 Wharton‘s Criminal Law § 428; see 35 C.J.S. False Pretenses §§ 2, 27; see also 32 Am. Jur. 2d False Pretenses § 3; Wyo. Criminal Pattern Jury Instructions 34.07, Use Note (2014).
[¶31] Consistent with our long-standing precedent, we again conclude the elements for the crime of obtaining property by false pretenses pursuant to
Sufficiency of the Evidence on Felony Convictions
[¶32] Now that we have found, as we have in the past, that the crime of obtaining property by false pretenses pursuant to
[¶33] When reviewing a sufficiency of the evidence claim, we must accept as true the State‘s evidence and all reasonable inferences which can be drawn from it. Sweets, ¶ 14, 307 P.3d at 865. We cannot consider conflicting evidence presented by Bohling. Id. “We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt.” Id.
[¶34] Because of the State‘s mistaken belief that passing of title was not required for a charge of obtaining property by false pretenses, its case went awry10 when it amended the information on the first four felony counts.11 The State‘s theory on these charges
[¶35] The amended information says in a general fashion in Counts I through IV that Bohling “did knowingly obtain property from Albany County, Wyoming by false pretenses with the intent to defraud....” The bill of particulars sheds some light on the State‘s theory, explaining that:
As to Count One, the crime of Obtaining Property by False Pretenses was committed by Defendant . . . when he purchased a Nikon D7000 camera and accessories and submitted voucher number 78883 to the Board of County Commissioners for Albany County, thereby falsely inducing them to pay $2,499.60.
As to Count Two, the crime of Obtaining Property by False Pretenses was committed by Defendant . . . when he purchased a Nikon D7000 camera body and caused the submission of voucher number 79028 to the Board of County Commissioners for Albany County, thereby falsely inducing them to pay $1,204.35.
As to Count Three, the crime of Obtaining Property by False Pretenses was committed by Defendant . . . when he purchased a Nikon D5100 camera and accessories and submitted voucher number 81396 to the Board of County Commissioners for Albany County, thereby falsely inducing them to pay $1,555.77.
As to Count Four, the crime of Obtaining Property by False Pretenses was committed by Defendant . . . when he purchased the items detailed in Exhibit A . . . and either caused the submission of vouchers or submitted vouchers to the Board of County Commissioners for Albany County, thereby falsely inducing them to pay approximately $29,000.00.
[¶36] During the trial, prosecutors at times told the jury that the case was all about the cameras and related electronic equipment: “And again, ladies and gentlemen, this case is about that property that the defendant purchased with the county‘s money. It‘s about the property. It‘s about who bought it, who paid for it, who used it, and what it was used for.” Yet at other times, prosecutors seemed to suggest that the case was about the county money that was used to pay for those items: “The whole reason to talk about cameras is to figure out where the money went and how the defendant benefitted. Sure, the money didn‘t go straight to his pocket, but it went to property that was for his personal benefit.”
[¶37] In an apparent effort to avoid any ambiguity, the verdict form listed each camera and related piece of electronic equipment in relation to the false pretenses counts to which they pertained. The form required the jury to determine which were obtained by false pretenses. If the jury did not select the items as being obtained by false pretenses, it was to find Bohling not guilty of the charge. Thus, from the verdict form it appears that the cameras and related items were the property, not the money. By way of example, the verdict form states with regard to Count I:
COUNT ONE—OBTAINING MONEY BY FALSE PRETENSES
As to the charge in Count I of Obtaining Property by False Pretenses, before you deliberate as to your ultimate verdict, you must answer the following question. As with all other deliberations in cases of this nature, your answer must be based upon your unanimous, collective opinion and must be determined beyond a reasonable doubt.
Please indicate which, if any, of the items of property listed below was obtained by false pretenses by the defendant, as discussed in Count I:
✓ Camera Nikon D7000 with 18-105 lens
✓ Nikon 35 mm 1.8G lens
✓ Nikon speedlight unit SB-400 x 2
✓ Nikon 55-200 mm lens
✓ Nikon 50 mm lens
✓ Shipping expense
(If you have selected none of the above items, you must find the defendant “Not Guilty” of the charge of Obtaining Property by False Pretenses, however you must continue to deliberate on the other charges.
If, on the other hand, you have selected any of the above items, you must continue to deliberate and determine your ultimate verdict in accordance with all of the instructions.)
However, at oral argument, this Court asked the State what the property alleged to have been obtained by false pretenses was, to which counsel responded that the money was the property.
[¶38] Because it remains unclear what the property at issue actually was under the charges in question, we will examine the evidence relating to both the physical items and the county money used to pay for them. With respect to the cameras and other electronic equipment, the only evidence presented by the State regarding the county‘s intention to give title, or ownership, of the items to Bohling comes from the testimony of several county commissioners. Unfortunately for the State, the commissioners testified that the county never intended to transfer title or ownership of the items to Mr. Bohling. Commissioner Sullivan testified as follows:
Q. [A]ll the property that we‘ve talked about, cameras and so forth, who owns that?
A. The county.
Q. Albany County, Wyoming?
A. That‘s correct.
* * *
Q. So the Board of County Commissioners never relinquished ownership of any county item to Mr. Bohling, correct?
A. That‘s correct.
Q. So all the cameras, all the tablets, hard drives, all owned by the county; correct?
A. That‘s correct.
Commissioners Chestnut and Kennedy also testified that the items purchased with the county‘s money were owned by the county.
[¶39] Even if the above evidence was disregarded—despite the fact that the commissioners were called to testify by the State—there is no evidence in the record supporting the position that ownership of the cameras and related electronic equipment passed from the county to Bohling. The State simply did not prove that the county, having been deceived, intended to transfer title (ownership) of the items in question.
[¶40] The State‘s theory that the property obtained was the county money used to pay for the items fares no better. There is no question that the cameras and other equipment were purchased by Bohling in two specific ways. He either charged the items on a county credit card that was issued to him in his official capacity, or he charged the items to an account that the county maintained with a vendor, such as Sam‘s Club. Once the vouchers were submitted, the county commissioners reviewed and approved them, and the county treasurer then directly paid the credit card company or vendor.
[¶41] Nevertheless, the State says that because the county parted with its money for Bohling‘s benefit, the false pretenses charges were correct, and there was sufficient evidence to convict. We must disagree. First, there is no evidence that the county gave Bohling any money with the expectation of never getting it back from him. This is not a situation where Bohling personally paid for the items and the county then gave him money as reimbursement. There is no plausible way Bohling could have obtained title to it under the facts of this case.
[¶42] Second, we question how the evidence could possibly have shown that Bohling obtained possession of the money in question. While there is no dispute that he obtained possession of the cameras and other equipment, the record does not reveal any
[¶43] Lastly, assuming arguendo that the county had given Bohling money for the specific items purchased, “[i]t is generally held that where the victim hands money to the wrongdoer with the understanding that the latter is to spend it only for a particular purpose (thus creating an agency or trust, it would seem) title does not pass to the wrongdoer—he has only a power to pass title by spending it for the specified purpose.” 3 LaFave, supra, § 19.7(d)(2); see Reid v. Com., 781 S.E.2d at 376.
[¶44] In sum, the fatal flaw in the State‘s case is that it failed to produce any evidence that the county intended to pass title of any of the claimed property to Bohling. Even when viewed in the most favorable light possible to the State, the evidence it presented could not establish beyond a reasonable doubt that Bohling obtained the property in a manner made unlawful by
Misdemeanor Conviction
[¶45] Bohling argues that his misdemeanor conviction for official misconduct ought to be overturned based on the same theory he argues as to the felony counts. However, he provides no cogent argument or citation to supporting authority for that proposition. Consequently, we will not consider the issue and construct an argument for him. See Willey v. Willey, 2016 WY 116, ¶ 30, 385 P.3d 290, 299 (Wyo. 2016) (“We decline to consider this issue. It is vague and undefined and, to the extent we can decipher the argument, it is not supported by any cogent argument or authority.“); Hamburg v. Heilbrun, 889 P.2d 967, 968 (Wyo. 1995) (“We need not consider issues which are not supported by proper citation of authority and cogent argument or which are not clearly defined.“). Bohling‘s misdemeanor conviction for official misconduct is, therefore, affirmed.
CONCLUSION
[¶46] The elements for the crime of obtaining property by false pretenses under
[¶47] There was insufficient evidence to sustain Bohling‘s convictions for the crime of obtaining property by false pretenses. The case is remanded to the district court with direction that the judgment and sentence be vacated as to Counts I through IV.
[¶48] The misdemeanor conviction for official misconduct on Count VII is affirmed.
DAVIS
Justice
Notes
Wyo. Comp. Stat. Ch. 9, § 5143 (Van Orsdel & Chatterton 1899) (emphasis added).OBTAINING GOODS BY FALSE PRETENSES.
Sec. 5143. If any person or persons shall knowingly and designedly, by false pretense or pretenses, obtain from any other person, or persons any chose in action, money, goods, wares, chattels, effects or other valuable thing shall be twenty-five dollars-or more, shall be imprisoned in the penitentiary for a period not more than ten years.