State v. FowlerState v. Fowler
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- Before:
- Bench
Defendant appeals her conviction for theft. We affirm.
Defendant Carol Fowler and Ella Stevens are neighbors. In 1984, defendant began borrowing small amounts of money from Ella to buy pet food. Ella’s generosity prompted defendant to make subsequent requests for larger sums to pay for everything from automobile repairs to medical bills. Typically, defendant would place a letter in Ella’s mailbox requesting a certain amount of money, explaining her need, and including a receipt as evidence of her need. With each request, defendant inevitably promised to repay Ella soon or by a specific date. Ella would prepare a check for the requested amount, record the loan in a notebook, and give defendant the check. Between 1984 and 1986, defendant borrowed over $70,000 from Ella and repaid only about $1,500.
Ella’s bank, concerned over the large amounts paid to defendant, contacted the police. After an investigation, defendant was charged with theft, a second degree felony, in violation of
Trial before the court was held on February 20, 1986. At trial, defendant acknowledged her $70,000 debt to Ella. She admitted the various receipts accompanying her requests for money were either counterfeit or altered with higher amounts due. Defendant testified that between 1984 and 1986, she had only been employed for a brief period in the summer of 1984. Although she consistently promised to repay Ella, defendant admitted she had no idea how she would be able to do so.
At the close of the prosecution’s case, defendant moved to dismiss the charge as the prosecution had failed to prove “unauthorized control” and “purpose to deprive” as required under
On appeal, defendant challenges the sufficiency of the evidence to establish she had obtained unauthorized control of and intended to deprive Ella of her property. The prosecution relies upon Utah’s consolidated theft statute in support of the conviction. That statute,
Conduct denominated theft in this part constitutes a single offense embracing the separate offenses such as those heretofore known as larceny, larceny by trick, larceny by bailees, embezzlement, false pretense, extortion, blackmail, receiving stolen property. An accusation of theft may be supported by evidence that it was committed in any manner specified insections 76-6-404 through 76-6-410, subject to the power of the court to ensure a fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.
In State v. Taylor, 570 P.2d 697 (Utah 1977), the Utah Supreme Court explained the principle of and procedure behind consolidated theft. Taylor was charged with theft in violation of
On appeal, the Utah Supreme Court explained:
The Utah theft statute consolidates the offenses known under prior law as larceny, embezzlement, extortion, false pretenses, and receiving stolen property into a single offense entitled theft, and clearly evidences the legislative intent to eliminate the previously existing necessity of pleading and proving those separate and distinct offenses. All that is now required is to simply plead the general offense of theft [footnote indicatessection 76-6-403 ] and the accusation may be supported by evidence that it was committed in any manner specified in sections 404 through 410 of the Code, including that of receiving stolen property, as was done in this case.
570 P.2d at 698 (footnotes omitted) (emphasis in original). It is evident from the facts and holding in Taylor that
In the instant case, the procedural facts are identical to those in Taylor. Defendant was charged with theft under
A “purpose to deprive” is an element common to both sections and we therefore address defendant’s claim of insufficient evidence to establish this element.
(a) To withhold property permanently or for so extended a period or to use under such circumstances that a substantial portion of its economic value, or of the use and benefit thereof, would be lost; or
(b) To restore the property only upon payment of a reward or other compensation; or
(c) To dispose of the property under circumstances that make it unlikely that the owner will recover it.
In its decision, the trial court found:
That defendant represented to Ella Stevens that defendant was gainfully employed and had the means to repay said money within a reasonable time; that such representations were false; that defendant repeatedly lied to Ella Stevens about the need and purpose for which defendant sought money from Ella Stevens; that defendant repeatedly falsified records and receipts for the purpose of concealing from Ella Stevens the real purposes for which said money was obtained by the defendant from said victim, that defendant knew there was no realistic possibility that defendant would be able to repay said money to the victim and defendant’s assertions to the victim that such money would be repaid were nothing more than a fraud and a sham to facilitate obtaining money from the victim and to deprive the victim thereof; that defendant was aware that her promises to repay said money to the victim were reasonably certain not to be performed and the defendant thus obtained such money from the victim with the purpose to deprive the victim thereof.
This Court recently recognized the Utah Supreme Court’s decision in State v. Walker, 743 P.2d 191 (Utah 1987), to apply
Defendant’s conviction for theft is affirmed.
GREENWOOD and GARFF, JJ., concur.