After being convicted of felony larceny in violation of
Wyoming Statutes § 6-3-410, Connie Marie Powell appealed. Powell
v. State, __ P.3d __, 2012 WL 3174126 (Wyoming Supreme Court 2012). We will begin with the facts.
bookkeeper for Rocky Mountain Pump Services (RMPS)
from March 2005 to February 2007, when her employment was terminated. During
that period, RMPS's primary officers and managers were Bradley Nelson, the
project manager, Chad Federer, the construction foreman, Nick Hartsook, the
office manager, and Jerry Krotz, the service manager. RMPS was in the business
of constructing and maintaining gas stations, truck stops, and similar
facilities.
Powell v. State, supra.
After RMPS terminated Powell’s employment, it contracted with Melanie
Field to
handle the company's books until another bookkeeper
could be hired. Field immediately found the books to be incomplete, inaccurate,
and in need of `rebuilding.’
Painstaking reconstruction of the books, back to
the time when [Powell] was hired, revealed numerous discrepancies and missing
records, with multiple paychecks to [her] for the same pay period, copies of
checks made payable to [Powell] where the computer QuickBooks system showed
those checks being paid to vendors, and a few checks made payable to [her]
where the issuing manager's signature appeared to be forged.
Powell v. State, supra.
RMPS apparently contacted police, because the opinion notes that Field’s
examination
of the books was followed by a law
enforcement investigation that included a review of [Powell’s] personal bank
account records. Eventually, it was determined that 93 checks, totaling
$78,200, and claimed to be `unauthorized’ by RMPS, had been deposited into [Powell’s]
personal account during her tenure as RMPS's bookkeeper.
Of those checks, 86
were issued by Hartsook, and seven bore Nelson's signature.
Powell v. State,
supra. Powell was arrested, charged
with one count of felony larceny and, as noted above, convicted by a jury. Powell
v. State, supra.
The Wyoming Supreme Court begins the analytical part of its
opinion by noting that the case against Powell
went awry when the State decided to
charge her with larceny. To understand why this is so, one must look at
Wyoming's statutory scheme in regard to theft offenses.
Powell v. State,
supra.
The court explained there “are three separate crimes” that
were relevant to the issues in this case, the first being “the `historic’ crime
of larceny” codified at Wyoming Statutes § 6-3-402(a), which states that “[a] person
who steals, takes and carries, leads or drives away property of another with
intent to deprive the owner or lawful possessor is guilty of larceny.” Powell
v. State, supra. It noted that to
convict someone of this offense, the prosecution must prove a “taking” and
“carrying” of property that was “`trespassory,’ meaning that it must be without
the owner's consent.” Powell v. State, supra.
The second form of larceny the court
identified as relevant “is `larceny by a bailee,’ which Wyoming Statutes §
6-3-402(b) defines as follows:
A bailee . . . or any person entrusted with the
control, care or custody of any money or other property who, with intent to
steal or to deprive the owner of the property, converts the property to his own
or another's use is guilty of larceny.
Powell v. State, supra.
The court noted that the “material elements of larceny by a bailee for
purposes of our present discussion are that the defendant have custody or possession
of the property with consent, and that, while in such possession, the defendant
converts the property to his own or another's use.” Powell
v. State, supra. It also noted that the “crime of larceny by a bailee is similar to
the common law crime of embezzlement.” Powell
v. State, supra.
The third form of larceny the court found
relevant to the issues in this case is “obtaining property by false pretenses,”
which is codified in Wyoming Statutes § 6-3-407(a). Powell v. State, supra. That
statute states that a “`person who knowingly obtains property
from another person by false pretenses with intent to defraud the person is
guilty of [a felony or misdemeanor, depending upon the amount obtained].’” Powell
v. State, supra (quoting Wyoming Statutes § 6-3-407(a)).
key elements of this crime are: (1) the
pretenses; (2) their falsity; (3) the fact of obtaining property by reason of
the pretenses; (4) the knowledge of the accused of their falsity; and (5) the intent
to defraud. . . .
The misrepresentation must be of past or existing facts;
a false representation as to a future act will not suffice. . . .
Powell v. State, supra.
The then explained that the essential elements of these
three crimes
can be described as follows. Larceny
requires a trespassory non-consensual taking, and the thief obtains neither
title nor the right to possession. Larceny by a bailee does not require a
trespassory taking; instead, a thief who is in rightful possession of property unlawfully
converts it to his own or another's use, without thereby obtaining title to the
property.
The crime of obtaining property by
false pretenses occurs when a thief, without a trespassory taking, but via the
utterance of false pretenses, obtains both possession and title to the
property. The key to this last-described crime is that, having been deceived by
the thief, the victim consensually parts with both possession and title.
Powell v. State, supra.
The Supreme Court then explained that it
is hard to identify the State's larceny
theory in this case. In the Information, it is alleged that [Powell] `did
unlawfully take money.’ The Affidavit of Probable Cause attached to the
Information says that she `issu[ed] unauthorized checks to herself.’
The State's
proposed elements instruction, which instruction was accepted and given to the
jury, alleges that [Powell] `took money. During voir dire, the
prosecutor described the crime being charged as follows:
`I bring that up because sometimes you
might have heard throughout your experiences in life the word embezzlement and
kind of may have a form of what that is. Embezzlement is what some other places
call it when you steal from an employer. In Wyoming it is called larceny. It is
the same as if you steal from a stranger or if you steal from anybody else.
That's all lumped into one prong that's being accused here.’
`So I don't want you to be confused of
why didn't we charge embezzlement versus larceny. It is the same thing in
Wyoming.’
Powell v. State, supra.
The court also pointed out that this statement
does not accurately reflect the actual state of the three
separate statutory theft offenses discussed herein, and `steal’ is not a word
that even appears in the elements instructions. Repeatedly during both his
opening statement and his closing argument, the prosecutor said the case was
about `documents and deception.’
Also during closing argument, the prosecutor summed up the
State's burden as follows: `If just one check over a thousand you believe she
was not legally entitled to, she took that money with the intent to deprive
someone, beyond a reasonable doubt, then that's enough.’
Powell v. State, supra.
The Supreme Court pointed out that the
fatal flaw in the State's case is that
it produced no evidence whatsoever of a trespassory taking. The checks were not
`issued by [Powell] without the owners' consent. Instead, the checks were issued by the
owners and given to [Powell] for the purpose, or for the payee, stated on the
check.
Possession of and title to both the
check and the money represented by the check passed with the consent of the
owners, even though, accepting the State's evidence as true, [Powell] deceived
them as to the validity of the check's purpose.
And while Nelson testified that his
`signature’ on several of the checks did not look like his signature,
suggesting that the signature was forged, the State inexplicably made no
attempt beyond Nelson's generalized statement, to prove that the signatures
were actually forged, or that it was [Powell] who forged them.
Powell v. State, supra.
The court noted that the prosecution did prove that Powell
altered
the company's computer bookkeeping system to `cover her tracks’ in regard to
the checks issued to her under false pretenses. If a check allegedly was a
paycheck, she would create a fictitious pay period in the books. On other
checks that were made payable to her, she would enter the payee into the
bookkeeping system as a particular vendor.
But in no instance did the State prove
that, without authority, [Powell] issued herself a check without authorization
from one of the company managers. She did not `take’ the checks under the
historical definition of that word in the context of larceny. Rather, the
checks were `given’ to her under the mistaken belief that the money represented
by the checks was due [to her.]
Powell v. State, supra.
The Supreme Court therefore held that Powell
was charged with larceny, which crime
as defined in the Wyoming Statutes, requires a trespassory taking in the common
law sense. The State did not prove that element of the crime; therefore, we
reverse.
Powell v. State, supra.
For a news story that provides a little more of the facts in
the case, including the impact on the company and some reader comments that are
very sympathetic to Powell, check out this source.
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