79 Wash. App. 553 | Wash. Ct. App. | 1995
Theft by deception is obtaining control over the property or services of another by deception.
Mervin Stanley Sloan’s girlfriend, Faith Worthington, owned a boat with her ex-boyfriend. The boyfriend had possession of the boat, but refused to make payments to
The question presented is whether the information charges facts which, if proven, would constitute the crime of theft by deception. Because the repossession services had been procured before the deception and could not, therefore, have been the result of the deception, we hold that the information did not charge the elements of the crime of theft by deception.
Theft by deception requires a finding that the defendant procured (obtained control over) another’s property or services "[b]y color or aid of deception . . . .”
In a criminal case, the State is required to file a charging document which apprises the accused of the charges with reasonable certainty to permit preparation of a defense.
The State next argues that any error was harmless because the testimony would support a verdict that Sloan procured Auto Recovery’s services by deception. Whether
By retrieving the boat, Sloan at most breached a contract to pay for the repossession services. But breach of a contract without more does not support criminal liability.
The information here did not allege, and the State did not argue, that Sloan fraudulently procured Auto Recovery’s repossession services on April 9, 1991. It argued rather that he fraudulently avoided payment for those
The facts alleged in the information and argued at trial do not support conviction for second degree theft by deception and we so hold. Because the verdict is based on a defective information, the proper remedy is dismissal without prejudice.
The conviction is reversed and the personal restraint petition is dismissed.
Munson and Schultheis, JJ., concur.
RCW 9A.56.020(l)(b).
RCW 9A.56.010(4)(a).
RCW 9A.56.020(l)(b); State v. Stanton, 68 Wn. App. 855, 868, 845 P.2d 1365 (1993) (false representation of a material fact made to induce another to part with his property); State v. Vargas, 37 Wn. App. 780, 785, 683 P.2d 234 (1984) (fraudulently procuring a victim’s consent to the transfer of property).
LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989); Hein v. Taco Bell, Inc., 60 Wn. App. 325, 332, 803 P.2d 329 (1991) .
State v. Simon, 120 Wn.2d 196, 198, 840 P.2d 172 (1992); State v. Hale, 65 Wn. App. 752, 755, 829 P.2d 802 (1992).
Simon, 120 Wn.2d at 198; State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992).
State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991).
Kjorsvik, 117 Wn.2d at 105.
Kjorsvik, 117 Wn.2d at 105-06.
State v. Pike, 118 Wn.2d 585, 595, 826 P.2d 152 (1992) (the courts "are loath to turn the criminal justice system into a mechanism for the collection of private debts”).
State v. Pike, 60 Wn. App. 738, 807 P.2d 368 (1991), aff’d, 118 Wn.2d 585, 826 P.2d 152 (1992).
Pike, 118 Wn.2d at 595.
Pike, 118 Wn.2d at 594-95.
Simon, 120 Wn.2d at 199.