Fitzgerald v. State

• Decision Date: 17 August 1979
• Docket Number: No. 5058,5058
• Citation: 599 P.2d 572
• Parties: Delton LeRoy FITZGERALD, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 572

599 P.2d 572

Delton LeRoy FITZGERALD, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 5058.

Supreme Court of Wyoming.

Aug. 17, 1979.

Jerry A. Yaap, of Bishop, Bishop & Yaap, Casper, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., James W. Gusea, Asst. Atty. Gen., and Sandra Dunn, Legal Intern, Cheyenne, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

THOMAS, Justice.

Delton LeRoy Fitzgerald, having waived a trial by jury, was convicted, after a trial to the court, of obtaining goods by false pretenses in violation of § 6-38, W.S.1957 (now § 6-3-106, W.S.1977). Fitzgerald seeks reversal of this conviction, and in this appeal he asserts these claims of error:

"1. The trial court erred in failing to declare the value of the property obtained under false pretenses.

"2. The trial court erred in failing to suppress the State's evidence which was obtained by illegal search and seizure, and subsequently used by the police to secure a statement from the appellant.

"A. The trial court erred in failing to suppress the State's evidence consisting of the appellant's bank records obtained by the police on a voluntary basis from the bank without legal process consisting of either a search warrant or subpoena.

"B. The trial court erred in failing to suppress the State's evidence consisting of the defendant's application to the Post Office Department (sic) for a box number in Mills, Wyoming and applications and acceptance for a mail drop in Chicago.

"C. The trial court erred in failing to suppress the statement of appellant given to the police after questioning about the bank records and U.S. postal records seized illegally as evidence.

"3. The State failed to prove the specific intent of the appellant to defraud beyond a reasonable doubt."

Finding no error in any of the matters complained of by Fitzgerald, we shall affirm his conviction.

In discussing the facts of this case, we apply the principle that the evidence should be examined in the light most favorable to the State when a question of the sufficiency of the evidence is raised. We accept as true evidence favorable to the State; we disregard evidence favorable to the defendant in conflict with the State's evidence; and we afford to the State's evidence every favorable inference which may reasonably and fairly be drawn from it. Harvey v. State, Wyo., 596 P.2d 1386 (1979); Hovee v. State, Wyo., 596 P.2d 1127 (1979). Heretofore we have had occasion to apply these concepts only to cases tried before juries. We have no compunction, however, in joining other courts which have applied these concepts in trials to the court. Simmons v. State, 255 Ark. 82, 498 S.W.2d 870 (1973); People v. Johnson, 276 Cal.App.2d 232, 80 Cal.Rptr. 683 (1969). The function of the finder of fact in cases tried to a court is identical to that in cases tried to juries, and the same rules are applicable with respect to the standards and principles applied in appellate review.

In the fall of 1976, Fitzgerald obtained a six-month trial subscription to a magazine called "Money-Making Opportunities." He described it as a magazine consisting of get-rich-quick schemes, ideas and products. He answered several of the advertisements from this magazine, some seven or eight all told. He did follow through with one of them, an advertisement by a firm called Two Brothers, Inc., showing a St. Louis, Missouri address. Two Brothers, Inc., was offering to sell and drop-ship unwoven cotton or rayon towels. One could obtain fifty of their towels for $1.45 plus thirty cents for postage and packing. The price per towel then declined at a gradual rate from $5.00 for 200 towels, or two and one-half cents each, to $164.75 for ten thousand towels which would result in 1.6475 cents per towel. The cost of one hundred dozen towels, which inferentially would have been sold by Two Brothers, Inc., at their price of $17.75 for 1,000 towels, would have been $21.30 or 1.775 cents per towel.

Fitzgerald responded to this advertisement, and he testified that he was sent a letter in reply which had the prices pretty much like those reflected in the advertisement. There was also an explanation of what they referred to as drop-shipping, which was a method pursuant to which Fitzgerald could supply the money for the merchandise ordered together with pre-typed or addressed shipping labels, and Two Brothers, Inc., would in turn package, pay the mailing costs and so forth, and ship the product in smaller lots to the persons whose names were on the mailing list.

Fitzgerald followed through with this by running an advertisement in the Casper Shopper on February 23, 1977. This advertisement was taken out in the name of Cannon Bros. Inc., with a Chicago, Illinois address. In his advertisement, Fitzgerald offered the towels at a price of $4.98 per dozen for the first five dozen. This would convert into a price per towel of 41.5 cents. Fitzgerald also had a reducing price scale so that if one ordered as many as one hundred dozen the price was $3.09 per dozen, or 25.75 cents per towel. A comparison of the pricing scales reveals that Fitzgerald's markup was somewhere between 1,450 and 1,660 percent, assuming that he gained no additional markup by ordering towels in large quantities to be sold in smaller lots at a greater price per towel.

In the advertisement by Two Brothers, Inc., the following language appears:

" * * * We SHOULD know Towel values, we've sold more than 80,000,000 that's 80 MILLION already! We've sold MILLIONS in Sweden, Switzerland, France, Germany, and other companies all over the world! And, in the United States, we sell million after million! Sometimes we ship about a million Towels in a month."

The record is silent as to the veracity of the claims made by Two Brothers, Inc. In his advertisement in the Casper Shopper, Fitzgerald used the following language:

" * * * We should know towel values; we've sold more than 80,000,000 that's 80,000,000 already!!

"We've sold millions in Sweden, Switzerland, France, Germany and other countries all over the world!! And, in the United States, we sell million after million."

It is obvious from the record that Cannon Bros. Inc., had no previous record of such sales.

When the bill for this advertisement became delinquent, the publisher of the Casper Shopper contacted Fitzgerald by telephone. He knew that Fitzgerald had placed the advertisement from an account card which his saleslady had prepared at the time the advertisement was obtained. At that time, Fitzgerald advised him that he was not responsible for the advertising because he had not been paid his commission and he assumed that Cannon Bros. Inc. would pay for the advertisement.

In March of 1977, Fitzgerald opened a checking account at the First National Bank of Casper in the name of Cannon Bros. He identified himself on the signature card as the president under the name of Damon Cannon. The money transactions relating to the sale of towels were handled through his checking account. Fitzgerald admitted advising the saleslady for the Casper Shopper advertising that he was representing Cannon Bros. Fitzgerald testified that Cannon Bros. Inc., is a makeup name of Cannon Towels and Two Brothers, Inc. On cross-examination, in response to a question as to why he chose the Cannon name, he answered:

"Well, that is a well-known name. A person buying a towel, the idea of maybe it is a Cannon towel, they would be more inclined to order them, probably."

Also, in March of 1977, Fitzgerald obtained a mail box for Cannon Bros. Inc., at the Post Office in Mills, Wyoming. At the same time he arranged for a confidential mailing address for Cannon Bros. at the Mail Center of Chicago, 216 Jackson Boulevard, Chicago, Illinois 60606. This was the address used in the advertisement in the Casper Shopper. Mail sent to that address would be forwarded to the Mills address, but subject to the payment of new postage for which the Mail Center of Chicago required an advance deposit.

In March of 1977, Delores Cashel responded to the advertisement in the Casper Shopper. She submitted an order for 85 dozen towels at $3.09 per dozen for a total of $262.65, together with postage in the amount of $25.50. She enclosed an Omaha National Bank Draft No. 18199 for the amount of $288.15. Mrs. Cashel worked at the First National Bank of Casper, and when the towels were not received, she checked the draft in the bank records and found that it had been paid. She also discovered that it had been deposited in the First National Bank, endorsed by Cannon Bros. In addition she found a deposit slip for that firm in the amount of $288.15, and she further discovered that that amount had been drawn out of the account on checks payable to Del Fitzgerald but which were signed by Damon Cannon.

She then attempted to contact Mr. Fitzgerald, and about an hour and half later she received a return call at the bank from him. She complained to him about the failure to receive the towels and told him that she had written asking about her order. She testified Fitzgerald said he had placed the advertisement for the company, but he had nothing more to do with it after placing the advertisement, and he did not know what happened. She asked him who Damon Cannon was, and he told her he was a representative of the company. She then asked him how she could contact Damon Cannon, and Fitzgerald told her that she could not contact him.

Upon investigation by the police department of the City of Casper, the bank records of the First National Bank relating to Cannon Bros. were voluntarily made available by the bank to the investigating police officers. After a motion on the part of Fitzgerald to suppress these records, they were admitted into evidence at his trial. Similarly, authorities of the United States Postal Service made available to the Casper police officers the Postal...