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Bohling v. State

Supreme Court of Wyoming

January 25, 2017

RICHARD CARL BOHLING, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal 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.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          DAVIS, Justice.

         [¶1] 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.

         [¶2] 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 felony convictions.

         [¶3] 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.

         ISSUES

         [¶4] We consider the following two questions to be dispositive of this appeal:

         1. Does 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?

         2. Was 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?

         FACTS

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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 personal property.

         [¶9] Based upon the evidence gathered by DCI, the State[1] 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).[2] 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, respectively.

         [¶10] 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).[3] 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.

         [¶11] 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.[4]

         [¶12] 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.

         [¶13] 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.

         [¶14] 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.

         [¶15] 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.

         [¶16] Additional pertinent facts will be set forth below in our discussion of the second issue concerning the sufficiency of the evidence.

         DISCUSSION

         Elements of Obtaining Property by False Pretenses

         [¶17] 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 charge.

         [¶18] 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).

         [¶19] Title 6 of Wyoming's statutes establishes the Wyoming Criminal Code.[5] 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; penalties.

(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).

         [¶20] 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.

         [¶21] 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, [6] 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 added).

         [¶22] 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 ยง 428 (15th ed., Sept. 2016 update). Both ...


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