Merchant v. State

• Decision Date: 04 April 2000
• Docket Number: No. 98-157.,98-157.
• Citation: 4 P.3d 184
• Parties: Thomas MERCHANT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

4 P.3d 184

Thomas MERCHANT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 98-157.

Supreme Court of Wyoming.

April 4, 2000.

Representing Appellant: Sylvia L. Hackl, State Public Defender; Kenneth M. Koski, Deputy Public Defender; and Donna D. Domonkos, Appellate Counsel.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

THOMAS, Justice.

The primary effort of Thomas Merchant (Merchant) in this case is to have all charges against him dismissed because of a claimed violation of the anti-shuttling provision of the Agreement on Detainers. In addition, he claims as error the giving of an instruction which, he argues, had the effect of structuring a mandatory presumption for the jury with respect to the intent that certain checks charged as fraudulent would not be paid. Merchant also contends that his motion for judgment of acquittal should have been granted as to certain counts because the evidence did not satisfy the element of intent to deprive an owner of property; the payment of a pre-existing debt by an insufficient funds check did not constitute an offense under the law; and venue and jurisdiction were improperly charged in Laramie County on two checks that were delivered in Platte County. As a final claim of error, Merchant charges vindictive prosecution with respect to the refiling of certain charges. This Court is satisfied that no violation of the Agreement on Detainers occurred in these circumstances; the instruction did not advise the jury of a mandatory presumption; the district court did not err in denying the motion for judgment of acquittal on the charges addressed by the motion; and there is no basis for concluding that the refiling of the charges by the State constituted vindictive prosecution. The Judgment and Sentence of the Court, entered in the district court, is affirmed in every respect.

The issues articulated in the Brief of Appellant, filed on behalf of Merchant, are:

ISSUE I

Whether the State's violation of Article IV(e) of the Interstate Agreement on Detainers Act must result in a dismissal with prejudice of the Wyoming charges?

ISSUE II

Whether the district court erred by giving Instruction 4E, which stated in essence that there was a presumption of intent to defraud by committing certain acts and which assumed as true the existence or nonexistence of a material fact?

ISSUE III

Whether the district court erred in denying appellant's motion for judgment of acquittal as to Counts IV, VI, VII, and X?

1. COUNT IV & COUNT VII: Whether the mens rea element of larceny (the intent to deprive) was satisfied by an intent temporarily to use property without the owner's permission, or even an intent to appropriate outright the benefits of the property's short-term use?

2. COUNT VI: Whether payment of a preexisting debt by an insufficient funds check where nothing was gained, and no change in the relationship between the parties occurred, negated any intent to defraud?

3. COUNT X: Whether venue and jurisdiction were proper in Laramie County, Wyoming on a criminal offense when the insufficient funds checks were issued in Platte County, Wyoming?

ISSUE IV

Whether appellant's constitutional rights to due process were violated by the prosecutor's vindictive filing of Docket Number 24-150 immediately after appellant exercised his right to a preliminary hearing and successfully obtained a dismissal of that charge?

This Statement of the Issues is found in the Brief of Appellee, filed by the State of Wyoming:

I. Did the State violate the Interstate Agreement on Detainers?

II. Did the district court err in giving Instruction 4E?

III. Did the district court improperly deny appellant's motion for judgment of acquittal as to Counts IV, VI, VII and X?

IV. Did the filing of charges in Case No. 24-150 constitute vindictive prosecution in violation of appellant's right to due process?

This Statement of the Issues is found in the Reply Brief of Appellant:

ISSUE I

Whether the State's violation of the anti-shuttling provision of the Interstate Agreement on Detainers Act must result in a dismissal with prejudice of the Wyoming charges?

ISSUE II

Whether the district court erred by giving Instruction 4E, which stated in essence that there was a presumption of intent to defraud by committing certain acts and which assumed as true the existence or nonexistence of a material fact?

1. Whether instructing the jury that it may disregard evidence that appellant lacked intent to defraud is plain error?

We summarize the historical and procedural facts of this case to serve as background for a discussion of the particular facts in connection with the resolution of the issues asserted by Merchant. Merchant commenced doing business as a dealer in and consignment agent for used motor vehicles. The charges on which Merchant was convicted all related to events that occurred in connection with his business activities.

On December 19, 1994 a two-count information was filed in which Merchant was charged with larceny by a bailee and check fraud. The first count was based upon a consignment sale after which Merchant refused to turn over to the owner any proceeds of the consignment sale. The second count charged in this information was an "insufficient funds" check for $5,452.27, which was written and signed (stamp signature) by Merchant. The check was made out to a Cheyenne service station and automobile repair business. After a number of notifications from the issuing bank, Merchant still refused to pay the check. On January 4, 1995, the State amended the information against Merchant by adding two more counts of issuing "insufficient funds" checks. The first additional count included two checks written to an automobile dealer in Wheatland that totaled $13,200.00. The second count related to a check written to RS for $1,050.00.

Then, on January 10, 1995, the State filed a new information charging Merchant with one count of larceny by a bailee and two counts of obtaining property by false pretenses. The larceny count involved Merchant's sale of a truck to DJ and his subsequent failure to provide DJ with the title to the truck. The truck had been used as collateral for "floor plan" financing of vehicles that Merchant had purchased for resale, and the title had been delivered to the lender. The first count of obtaining property by false pretenses arose out of Merchant's purchase of another truck. In that instance, Merchant failed to pay off the loan on the truck, and when Merchant sold the truck he was unable to deliver the title to the purchaser. The third count, another count of obtaining property by false pretenses, charged Merchant with purchasing a truck with a check that was returned for "insufficient funds." Merchant again was not able to provide the title to the truck to the purchaser, upon the subsequent sale of the truck.

On February 2, 1995, a third information was filed charging Merchant with four counts of making false statements to obtain credit, but those charges were dismissed. On February 27, 1995, a fourth information was filed charging Merchant with presenting false information to obtain two loans. The first count related that Merchant supplied a false date of birth, a false Social Security number, false documents relating to his place of employment, and false information relating to his income in obtaining a loan totaling $23,353.92. The second count charged that Merchant used similar false information to obtain a loan in the amount of $6,900.09.

On October 24, 1996, the fifth information was filed charging Merchant with one count of obtaining property by false pretenses and two counts of check fraud. The first count charged Merchant with obtaining a truck with an "insufficient funds" check, and selling the truck to some unsuspecting customers from whom he again withheld the title. The second count related to a check written by Merchant to LG for $1,000.00, which was knowingly drawn on an account that Merchant knew had insufficient funds. The third count charged the issuance of nine "insufficient funds" checks totaling $627.01, which were written in December of 1994. On July 7, 1997, the State filed another amended information which dropped the third count of the Information filed on October 24, 1996.

Merchant proceeded to trial on eleven counts, and the jury returned a guilty verdict on all counts. A Motion for Judgment of Acquittal After Discharge of Jury then was filed, and the district court granted that motion as to one of the counts. Merchant was sentenced to three consecutive sentences of not less than six (6) nor more than nine (9) years, with sentences on two or three of the other counts to be served concurrently with each of the consecutive sentences. Merchant appeals from the Judgment and Sentence of the Court.

In his first claim of error, Merchant contends that the Agreement on Detainers, Wyo. Stat. Ann. §§ 7-15-101-7-15-105 (Lexis 1999), was violated by the State. This argument is based upon the fact that after he was brought to Wyoming for trial on the charges against him, he was returned to Weld County, Colorado, so that charges pending against him there could be resolved. Merchant contends that the Agreement on Detainers specifically provides for dismissal, with prejudice, of the charges against him under the circumstances. The State argues that a correct application of the Agreement on Detainers demonstrates that there was no violation of its provisions.

Merchant was serving a sentence in the Colorado Territorial Correctional Facility located in Canon City, Colorado, when he was returned to Wyoming in October of 1996 to stand trial on the charges pending against him in Wyoming. Under the Agreement on Detainers, Colorado was designated as the "sending state," and Wyoming was designated as the ...