Hatheway v. State

• Decision Date: 02 February 1981
• Docket Number: No. 5300,5300
• Citation: 623 P.2d 741
• Parties: Elvis D. HATHEWAY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 741

623 P.2d 741

Elvis D. HATHEWAY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5300.

Supreme Court of Wyoming.

Feb. 2, 1981.

Rehearing Denied Feb. 18, 1981.

Richard Scott Rideout, Vines, Rideout & Gusea, Cheyenne, signed the brief and appeared in oral argument on behalf of appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and Sharon A. Lyman, Asst. Atty. Gen., signed the brief of appellee. Lyman appeared in oral argument.

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

RAPER, Justice.

PART I

Four issues are raised in this appeal from appellant's conviction for embezzlement. First, a challenge is made to the trial court's ruling, admitting evidence of other bad acts allegedly committed by the appellant. Second, appellant argues that the trial court erred in refusing to give his offered instruction concerning the effect of a mistake of fact which negates the requisite mens rea. Third, appellant contends that there was insufficient evidence to sustain the verdict of guilty. Finally, appellant claims that the jury verdict is inadequate to support the judgment and sentence because it does not contain a finding of the value of the property embezzled.

The opinion is divided into two parts because of a division on the court as to the disposition of the last issue. Justice Thomas will furnish Part II.

We will affirm.

The appellant and his wife were hired by Howard Davidson to manage a trailer park in Rawlins, Wyoming, on August 20, 1979. The job included collecting rental payments and depositing them in a particular bank account, as well as paying bills and basic bookkeeping. The conviction in this case was in connection with a transaction occurring on September 27, 1979, in which appellant participated. He was found by the jury to have misappropriated his employer's funds when, as partial payment for a trailer, he had his wife issue a receipt to the seller for rent due but never received. During the trial, evidence was also introduced showing that the appellant had swindled several other people while acting as manager of the trailer court. The jury's verdict failed to specify the value of the property embezzled.

Appellant contends that the trial court's decision to admit evidence of collateral misconduct was erroneous. He premises his attack upon Rules 403 ¹ and 404(b), ² W.R.E.

Under Rule 404(b) he argues that the prosecution failed to establish that this evidence was in any way probative of appellant's motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Under Rule 403, he asserts that whatever relevancy the evidence had was outweighed by its prejudicial effect.

As we have often said, deference is given to a trial judge's determinations upon the admissibility of evidence. As long as there is a legitimate basis for his conclusions, this court will not second-guess him on appeal. Key v. State, Wyo. 1980, 616 P.2d 774. The trial judge here may have legitimately concluded that the fact that the appellant had been using his position to swindle others indicated that he had not merely made a mistake in his bookkeeping, nor for that matter, that he misunderstood his duties and obligations under his employment contract. It should be noted that Rule 404(b) lists various purposes preceded by the words "such as." The stated purposes are not exclusive. It is established in this jurisdiction that other similar acts are not excludable where they tend to show a course of conduct. State v. Lindsay, 1957, 77 Wyo. 410, 317 P.2d 506; State v. Grider, 1955, 74 Wyo. 88, 284 P.2d 400. That is evident here. Further he may have determined that the relevancy of this evidence outweighed the danger of prejudice; we cannot conclude that such was improper. Therefore, we are constrained to uphold his decision.

Next appellant argues that the trial court's refusal to give the jury his proffered Instruction B is reversible error. The instruction read:

"An act committed or an omission made under a mistake of fact which nullifies the requisite intent as an element of the crime charged is a defense to that crime.

"Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act or omission lawful."

The court rejected the instruction because no evidence had been admitted concerning the appellant's beliefs as to the facts when he had the rent receipt issued. We do not find this to have been error. The law is that the trial judge need only instruct a jury of the law applicable to issues actually raised by the evidence. Benson v. State, Wyo. 1977, 571 P.2d 595. Here, the defense did not put on any evidence; no evidence of a mistake of fact was adduced during the trial. Thus, the jury was not properly presented with a question concerning a mistake of fact. Therefore, the proffered instruction would have only served to have confused the jury since it was not pertinent to the case.

Appellant's third challenge is to the sufficiency of the evidence supporting his conviction. In order for him to prevail on appeal, after reviewing all of the evidence in a light most favorable to the appellee and drawing any reasonable inferences therefrom, we must conclude that reasonable minds could not believe the defendant guilty beyond a reasonable doubt. McCarty v. State, Wyo. 1980, 616 P.2d 782, 786. In this case, we cannot reach such a conclusion. Evidence was introduced showing that money was owed Hatheway's employer; Hatheway had the debt cancelled as a payment on a trailer; and the employer never received any reimbursement. This misappropriation of funds comes within the definition of THOMAS, Justice, with whom ROSE, C. J., and McCLINTOCK and ROONEY, JJ., join.

                embezzlement found in § 6-7-310, W.S.1977.  3  The appellant had a fair trial and the evidence supports the verdict
                

PART II

Turning to the appellant's claim that the jury verdict is inadequate to support the judgment and sentence because it does not contain a finding of the value of the property embezzled, we conclude that Hatheway is entitled to present his claim of a violation of § 7-11-502, W.S.1977, even though this claim was not reached in the district court. Our consideration of this alleged error leads us to the conclusion that no violation of § 7-11-502, W.S.1977, occurred in this instance, and we all are in accord that Hatheway's conviction should be affirmed. As to this issue, State v. Chambers, 70 Wyo. 283, 249 P.2d 158 (1952) and those Wyoming cases which rely upon it are overruled.

The criteria adopted in Hampton v. State, Wyo., 558 P.2d 504 (1977), are satisfied in this instance. We are able to discern from the record, without any resort to speculation or equivocal inference, what occurred at the trial. For purposes of this claim of error, the record demonstrates that the jury did not find the value of the property embezzled. Until our consideration of this case and Buckles v. State, Wyo., 622 P.2d 934 (1981) there did exist in Wyoming a contrary rule of law which was clear and unequivocal and which was transgressed by the form of verdict returned by the jury. Under that rule of law a substantial right of Hatheway was adversely affected because of language found in State v. Chambers, supra, at 70 Wyo. 291, 249 P.2d 161, which was first espoused in Thomson v. State, 21 Wyo. 196, 130 P. 850 (1912), "that the verdict conferred no authority upon the trial court to enter a judgment or sentence." Hatheway was entitled to rely in his appeal upon that concept, which approaches a statement that the trial court did act in excess of its jurisdiction in entering its judgment and sentence.

We now construe § 7-11-502, W.S.1977, to the end that its reach is limited to those instances in which the grade of the offense depends upon value, or those instances in which the permissible disposition includes authority to require restitution. The finding of value is not required for sentencing purposes. Buckles v. State, supra. In those instances in which the statute provides that restitution may be made a part of the court's sentence, the statute should be applied only to the end that any requirement of restitution should be set aside if the value is not found in the jury's verdict.

The statutory provision now found in § 7-11-502, W.S.1977, was adopted as a part of the Laws of Territory of Wyoming 1869, Ch. 74, Title XIII, Sec. 156. At the time that it was adopted the offense of larceny was graded into categories of felony and misdemeanor, depending upon value. Laws of Territory of Wyoming 1869, Ch. 3, Title V, Secs. 42, 43, and 44. The statute defining the offense of embezzlement provided that it should be punished like larceny. Laws of Territory of Wyoming 1869, Ch. 3, Title V, Sec. 50. The significance of that provision is that the offense of embezzlement then was graded into categories of felony and misdemeanor, depending upon value. The purpose for the requirement that value be found by the jury with respect to the crime of false pretenses is somewhat different. That statutory provision then, as now, provided for restitution, and, of course, the value needed to be established in order to adjudicate the amount of the restitution. Laws of Territory of Wyoming 1869, Ch. 3, Title X, Sec. 139.

Only Nebraska, Ohio and Wyoming have had such statutes. Ohio has modified its statute to the end that it applies only when the grade of the offense depends upon value. Section 2913.61, Baldwin's Ohio Revised Code Annotated. This modification occurred, however, after decisions which had so construed earlier forms of the statute. See, e. g., Serra v. State, 14 Ohio App. 252 (1921). Ohio both in its judicial branch and in its legislative branch has recanted the holdings in Armstrong v. State, 21 Ohio St. 357 (1871)...