After a jury convicted her of “fraudulent scheme and
artifice” and the trial judge put her on “a four-year term of probation, which
included . . . thirty days in jail”, Kristella Brandenburg appealed. State
v. Brandenburg, 2013 WL 396163 (Arizona Court of Appeals 2013). On appeal, she argued that “insufficient
evidence supported her conviction.” State v. Brandenburg, supra.
As this site explains, when an appellate court reviews a
trial court’s judgment to determine if the evidence was sufficient to support
the conviction (or the civil judgment, it examines the
to determine whether the evidence in
the record is strong enough to support the judgment. If the trial court's
judgment was in favor of the plaintiff (the person suing), the appellate court
looks at whether the evidence, if believed, would convince the
average person that the plaintiff proved his/her case by a preponderance of the evidence. On appeal, the reviewing court does not weigh the evidence or
determine the credibility (believability) of witnesses. Instead, the appellate
court accepts the trial court's fact finding and affirms the judgment
unless the appellate standard is not met.
This explanation addresses appellate review of a judgment in
a civil case, but the basic principles are the same. The most important differences are that the
appellate court is reviewing the conviction (rather than a civil judgment) and,
in so doing, is deciding whether the evidence, as accepted by the jury, would
convince the average person that the defendant’s guilty had been proven beyond a reasonable doubt.
Brandenburg was convicted of violating Arizona Revised
Statutes § 13-2310(A), which provides as follows:
Any person who, pursuant to a scheme or
artifice to defraud, knowingly obtains any benefit by means of false or
fraudulent pretenses, representations, promises or material omissions is guilty
of a class 2 felony.
The Court of Appeals explained what, precisely, is required
to commit this offense:
`[A] “scheme or artifice” is some “plan, device, or trick” to perpetrate a fraud.’ State v. Haas, 138 Ariz. 413, 675 P.2d 673 (Arizona Supreme Court 1983), quoting State v. Stewart, 118 Ariz. 281, 576 P.2d 140 (Arizona Court of Appeals 1978). Reliance by the victim or any other person is not an element of the offense. . . . Thus, `[s]omething is fraudulent when it is “reasonably calculated to deceive persons of ordinary prudence and comprehension.”’ State v. Haas, supra (quoting U.S. v. Netterville, 553 F.2d 903 (U.S. Court of Appeals for the 5th Circuit 1977)).
State v. Brandenburg,
supra.
Brandenburg’s conviction arose from the following events:
Brandenburg, who was the victim's neighbor,
occasionally helped the elderly victim and his wife with household tasks and
had taken the victim's wife `to a few doctors' appointments.’ In May 2011,
Brandenburg told the victim, his wife, and their professional caregiver that
the victim had a doctor's appointment and that she would transport him to that
appointment. She instead took him to an electronics store.
Once inside, she asked the victim if he
wanted some water, and he apparently said that he did. While
he sat near the registers, she went to buy the bottle of water and also
obtained three laptop computers. Using the victim's credit card, she had the
store clerk ring up the charges -- totaling $2,129.59 -- and brought the victim
over to sign the digital pad.
Brandenburg then walked the victim back
to the car and settled him into the front passenger seat. She then retrieved
the computers from the store and placed them in the back seat. She took the
victim home, took him inside, and then took the computers from the car and
walked home with them.
State v. Brandenburg,
supra.
(The court explains, in a footnote, that the “victim's wife
passed away before trial, and” so was not available to testify at Brandenburg’s
trial. State v. Brandenburg, supra. “The events at the electronics store
were relayed by Brandenburg and corroborated by video recordings from the
store's surveillance system.” State v. Brandenburg,
supra.)
The opinion also explains that
[t]he following day, a representative
of the electronics store called the victim and his wife to confirm the computer
purchases. They were `stunned’ and `shocked’ to discover Brandenburg had used
their credit card to purchase the computers; they cancelled the credit card and
reported the incident to police.
In an interview, Brandenburg claimed
the victim had agreed to purchase a computer for her, but admitted she had `t[aken]
advantage [of the victim] and bought the other two [computers].’
State v. Brandenburg,
supra.
On appeal, Brandenburg claimed the prosecution
`failed to present evidence of a scheme
that would have deceived a person of reasonable prudence and understanding.’
She points to her testimony at trial that the value of the purchase was
displayed on the signature pad when the victim signed for the purchase and the
fact the computers were within the victim's view when he did so. Thus, she
asserts, the victim clearly knew he was `buying $2100 worth of merchandise.’
State v. Brandenburg,
supra.
The Court of Appeals found that Brandenburg’s argument
failed “for several reasons”, the first of which was that it rejected her
contention that the supreme court
in Haas intended to impose a limitation on the scope of the
statute. It stated that a scheme and artifice to defraud `is not defined according
to any technical standard.’ State v.
Haas, supra. It also
stated the statute generally proscribes conduct `lacking in “fundamental
honesty [and] fair play . . . in the general and business life of members of
society.”’ State v. Haas, supra, quoting Blachly
v. U.S., 380 F.2d 665, 671 (U.S. Court of Appeals for the 5th
Circuit1967).
The term `defraud’ as used in the
statute is broadly construed `to cover all of the varieties made possible by
boundless human ingenuity.’ State v.
Haas, supra. The supreme
court and the legislature clearly intended that the acts charged here, if
proven, would constitute a crime.
State v. Brandenburg,
supra.
The Court of Appeals also found that while Brandenburg was
correct that it was uncontradicted, the
jury nonetheless was free to reject her testimony that the signature pad showed
the total amount of the purchase and therefore could infer the victim was not
aware of the value of the purchases he had signed for. See State
v. Lowery, 230 Ariz. 536, 287 P.3d 830 (Arizona Court of Appeals 2012) (jury
free to discredit defendant's testimony); see also State v.
Clemons, 110 Ariz. 555, 521 P.2d 987 (Arizona Supreme Court 1974) (`No
rule is better established than that the credibility of the witnesses and the
weight and value to be given to their testimony are questions exclusively for
the jury.’).
Similarly, the jury could reject
Brandenburg's testimony the computers were within the victim's view when he
signed the signature pad. In any event, the jury fairly could conclude that the
victim, having been informed only that he was purchasing a bottle of water,
would not have reason to believe he was buying three computers merely because
they were sitting nearby.
State v. Brandenburg,
supra.
The court explained that
[a]s we noted above, Brandenburg
claimed the victim had agreed to purchase a computer for her. But, even if the
jury found Brandenburg's description of events credible, it could find
Brandenburg guilty of violating Arizona Revised Statutes § 13-2310(A).
The jury did not have to conclude that
the victim would know the price of $2,129.59 purportedly shown on the signature
pad was for multiple computers instead of only one or that the presence of
three boxes near the register meant that person would know he was purchasing
three computers instead of one computer and accessories or other related items.
State v. Brandenburg,
supra.
And the Court of Appeals rejected Brandenburg’s argument
that her statements during her
interview with police required the
jury to conclude that she merely had `convinced [the victim] to buy more than
he had intended’ and that `convincing him to spend more than [he] intended is not
fraud or misrepresentation.’ She cites a portion of the interview where she had
agreed she had gone `a little overboard’ but the victim `knew that he was going
to buy computers that day.’
Even if we agreed Brandenburg's
statements suggest, as a whole, she merely had convinced the victim to purchase
three computers for her, it did not require the jury to reach that conclusion.
Instead, her statements clearly permitted the jury to infer she had obtained
the victim's signature for the purchase of three computers despite his belief
he was purchasing only one.
State v. Brandenburg,
supra.
Finally, the court noted that
to the extent Brandenburg asserts the
facts of this case are analogous to State v. Johnson, 179 Ariz.
375, 880 P.2d 132 (Arizona Supreme Court 1994), we disagree. In Johnson, the
defendant used a gas card given to him by his employer to purchase gasoline for
personal use. . . . Our supreme court determined there was no fraud
present because the employee had not used pretense in obtaining the card or in
purchasing the gasoline; he merely had purchased more than he was
authorized. . . .
Here, in contrast, the jury could find Brandenburg
induced the victim to purchase the computers by misrepresenting what he was
purchasing.
State v. Brandenburg,
supra.
The Court of Appeals therefore affirmed Brandenburg’s
conviction and sentence. State v. Brandenburg,
supra.
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