from the District Court of Albany County The Honorable John
R. Perry, Judge
Representing Appellant: Tim Newcomb, Attorney at Law,
Laramie, Wyoming; Linda Devine, Devine Law Office, Laramie,
Wyoming. Argument by Ms. Devine.
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.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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.
We have examined Wyo. Stat. Ann. § 6-3-407 (LexisNexis
2015), which establishes the crime of obtaining property by
false pretenses. Our interpretation of this statute leads to
the unremarkable conclusion that the charge of obtaining
property by false pretenses requires that the victim
consensually part with both title and possession in reliance
on the defendant's false representations. We have also
carefully reviewed the record and can only conclude that
there was insufficient evidence to prove beyond a reasonable
doubt that Bohling committed the crime of obtaining property
by false pretenses. Consequently, we must reverse those four
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.
We consider the following two questions to be dispositive of
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?
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?
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.
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.
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.
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
Based upon the evidence gathered by DCI, the
State filed an information consisting of nine
counts against Bohling. Counts I through IV of the
information charged him with felony larceny by bailee under
Wyo. Stat. Ann. § 6-3-402(b). These counts were based on
Bohling's alleged conversion of the cameras and
electronics to his own use. Count V charged a felony for
wrongfully taking or disposing of property in violation of
Wyo. Stat. Ann. § 6-3-403(a). Count VI also charged a
felony for submitting false vouchers in violation of Wyo.
Stat. Ann. § 6-5-303(b). Counts VII through IX were
misdemeanor charges pursuant to Wyo. Stat. Ann. §
6-5-107(a)(i), § 6-5-110 and § 9-13-105,
A few months later, the State amended the information. It
decided to change Counts I through IV from larceny by bailee
to obtaining property by false pretenses in violation of Wyo.
Stat. Ann. § 6-3-407(a) and (a)(i). These first four
felony counts charged that Bohling knowingly obtained
property valued over $1, 000.00 from Albany County by false
pretenses with the intent to defraud it. Count V remained a
felony wrongful taking or disposing of property charge
pursuant to § 6-3-403(a). Count VI also remained the
same, charging a felony for submitting false vouchers in
violation of Wyo. Stat. Ann. § 6-5-303(b). Counts VII
through IX, the misdemeanor charges, remained substantively
the same. The district court dismissed Count IX, misuse of
office, on the State's motion.
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.
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.
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.
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
of Obtaining Property by False Pretenses
The first step in resolving this matter is to determine
whether the crime of obtaining property by false pretenses
under Wyo. Stat. Ann. § 6-3-407 requires that the victim
not only gives possession to the defendant, but passes title
as well. The parties' positions on this issue are polar
opposites. Bohling asserts that title must be transferred,
while the State clings to the contention that it is not
necessary for title to pass in order to convict of the
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 by inference or
construction. Mraz v. State, 2016 WY 85, ¶ 71,
378 P.3d 280, 296 (Wyo. 2016). A statute is clear and
unambiguous if the words are such that reasonable minds are
able to agree on its meaning in a consistent and predictable
fashion. Mendoza v. State, 2016 WY 31, ¶ 9, 368
P.3d 886, 891 (Wyo. 2016). Ambiguity arises if the statute is
vague or uncertain and subject to varying interpretations.
Id. Divergent opinions among parties as to the
meaning of a statute may be evidence of ambiguity, but the
fact that opinions may differ as to a statute's meaning
is not conclusive of ambiguity. Campbell Cty. Sch. Dist.
v. Catchpole, 6 P.3d 1275, 1285 (Wyo. 2000). If we
determine that the language of a statute is ambiguous, only
then will we proceed to the next step; that is, the
application of general principles of statutory construction
to the language of the statute in order to construe any
ambiguous language to accurately reflect the intent of the
legislature. Powder River Basin Res. Council v. Wyoming
Oil & Gas Conservation Comm'n, 2014 WY 37,
¶ 19, 320 P.3d 222, 229 (Wyo. 2014).
Title 6 of Wyoming's statutes establishes the Wyoming
Criminal Code. 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;
(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).
Wyo. Stat. Ann. § 6-3-407 (emphasis added).
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.
To understand the elements of the crime of obtaining property
by false pretenses under § 6-3-407, it is helpful to
consider the crime's genesis. It was created by the
British Parliament in 1757 to plug a loophole left by the
crime of larceny. See Adekale, ¶ 28, 344 P.3d
at 768; see also People v. Williams, 305 P.3d 1241,
1246 (Cal. 2013); State v. Sabins, 127 N.W.2d 107,
108 (Iowa 1964). Back then, while a person who obtained
possession but not title to another's property by false
representations was guilty of larceny,  one who obtained
title to the property was not guilty of larceny, and there
was no crime to fill the void. See 3 LaFave,
supra, § 19.7(a). Parliament stepped in and
adopted a statute which punished one who knowingly and
designedly by "false pretence or pretences, shall
obtain from any person or persons, money, goods,
wares or merchandises, with intent to cheat or defraud any
person or persons of the same." Id. (emphasis
This newly enacted crime was considered a statutory offense
separate and distinct from the common law crime of larceny.
See Williams, 305 P.3d at 1246. A principal
difference between the offenses was that the crime of
obtaining property by false pretenses involved acquiring
title to the property, and not just possession. Id.;
3 LaFave, supra, § 19.7(d); 3 Charles E.
Torcia, Wharton's Criminal Law § 428 (15th
ed., Sept. 2016 update). Both ...