Miller v. State

• Decision Date: 13 February 1987
• Docket Number: No. 86-130,86-130
• Citation: 732 P.2d 1054
• Parties: John G. MILLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1054

732 P.2d 1054

John G. MILLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-130.

Supreme Court of Wyoming.

Feb. 13, 1987.

David B. Hooper, Riverton, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Robert J. Walters, Asst. Atty. Gen., for State of Wyoming.

Before BROWN, C.J., and THOMAS, ^* CARDINE, URBIGKIT, and MACY, JJ.

URBIGKIT, Justice.

Defendant, John G. Miller, a practicing attorney in Colorado, engaged in home building there, then moved to Casper, Wyoming, where his newly formed Wyoming corporation eventually encountered difficulty due to the economic disaster in that area. After closing two sales based on title insurance company affidavits that all costs were paid, Miller was prosecuted on two counts for obtaining property under false pretenses, when subcontractor claimants filed lien claims on the sold property. The charges were tried before the court, and Miller now appeals his two felony convictions.

Appellant argues three issues on appeal: (1) individual criminal responsibilities did not exist for acts committed on behalf of the corporate entity; (2) insufficiency of the evidence to prove intent to defraud or obtain property by false pretenses; and (3) the imposed restitution sentence is contrary to law.

FACTS

Miller was admitted to practice law in Colorado in 1965, and went inactive in that profession while engaged in general home building first in Colorado, and then from 1978 to 1983 in Casper, where through a majority-owned Wyoming corporation, Hilltop Homes, Inc. (Hilltop), he built about 100 residences. His actual investment in the company totaled about $1,000,000. For the business operation in Casper, title insurance for sales was secured from Rocky Mountain Title Insurance Agency (then owned by Milton Coffman) as a local agent for a national title insurance company. Financing trouble developed due to the economic downturn in 1981-1982, and both Miller and Hilltop went into Chapter 11 bankruptcy in late 1982.

Prior thereto, on September 14, 1982, Hilltop closed a sale to Richard Beal. At closing, Rocky Mountain Title, as the closing agent, used one of their pre-printed forms "Final Affidavit and Agreement" (corporate). The documents, signed by Miller as President of Hilltop, stated in material part:

"1. That he is the President of HILLTOP HOMES, INC. a corporation herein designated 'General Contractor', and that he is duly authorized by said corporation to make this affidavit, for any and all purposes herein contemplated or intended.

"2. That the undersigned and the General Contractor, for the purposes of inducing the Rocky Mountain Title and Abstract Company to issue an ALTA mortgage policy in connection with the hereinafter described property, do hereby make the following representations, covenants and agreements to the Rocky Mountain Title and Abstract Company, with full knowledge that said company shall reply thereon.

"3. That all persons, firms and corporations including the general contractor and all subcontractors who have furnished services, labor or materials, according to the plans and specifications or otherwise, used in the construction of improvements on the real estate hereinafter described, have been paid in full, and that such work has been fully completed and accepted by the owner, and that no liens of any nature whatsoever have now, or will in the future attach to said real estate. [Emphasis added.]

"4. That all persons, firms and corporations including the general contractor and all subcontractors who have furnished services, laborer or materialman, and that no chattel mortgages or conditional sales contract have been made or are now outstanding as to any materials, appliances, fixtures, or furnishings, placed upon or installed in said premises.

"5. The undersigned and the general contractor covenants, agree and guarantee to hold each and every party making a loan on said real estate as improved and his or its successors and assigns, and also to hold the Rocky Mountain Title and Abstract Company either by reason of the fact that it has issued a policy of title insurance or acted as escrowee, harmless against any lien claim or suit by or against the general contractor, subcontractor, mechanic, laborer or materialman, and against any chattel mortgage or conditional sales contract in connection with the construction of the improvements on said real estate by the undersigned.

"LOT 3, BLOCK 8, WOLF CREEK ONE, AN ADDITION TO THE CITY OF CASPER, NATRONA COUNTY, WYOMING.

"HILLTOP HOMES, INC., A WYOMING CORPORATION

"By /s/ John G. Miller

"Attest:

"Secretary James A. Johnson

[Acknowledged by 'John G. Miller, President Hilltop Homes, Inc.']"

Sales financing was funded by First Wyoming Bank, as the permanent homeowner's mortgage loan. Again, on October 28, 1982, another sale was closed, using the same form for sale to David William Harris, and financed by the permanent loan through Guaranty Federal Savings Bank.

Thereafter, a lien was filed on disassociated property, since the subcontractors were more anxious to be paid than cash flow permitted, and the contractor's construction lender, First Interstate Bank of Casper, N.A., discontinued draws of construction payments, and started foreclosure on project properties. Liens were also filed on the Harris and Beal properties, and Miller took himself and his company into Chapter 11 bankruptcy to "buy time" to try to work out the financial problems.

Rocky Mountain had written the lender's title insurance on both properties, and the owner's title insurance, apparently, on only one. Curiously enough, by trial date, although Rocky Mountain had generally provided lien insurance on all policies written for Miller, including all houses which he had built, it had not made any payment to any lien claimants on any title policy. As to these particular houses, there is no evidence that the lien claims ever matured past filing, which was significant since suit is statutorily limited to 180 days from the filing date. Section 29-2-109, W.S.1977. Because criminal prosecution was not instituted until 1985, it was then clear that neither the home owners nor the lenders were exposed to security jeopardy from the lien notices that had been filed in 1982 and 1983. ¹

Without maturity of the lien claims by suit and judgment, there was no determination of original validity or invalidity. The bankruptcy stay order as to the contractor did not toll or deter foreclosure proceedings against the purchaser and lender, Hamel v. American Continental Corporation, Wyo., 713 P.2d 1152 (1986), but no foreclosure actions were pursued.

In the brief trial, only one lien claimant testified. The plumbing contractor stated that he had done work on the houses; billed for the work; issued a final bill; and that it had not been paid although probably interim payments had been made. He could not recall the amount that he was owed on the two houses. He believed that he had worked on all houses constructed by Miller in the area, and had been paid for other jobs that he had done--"the majority of them."

"Q. And you can't tell us today, as I understand it, whether or not you had sent the Hilltop Homes a final bill for your services prior to the time that these two sales in question closed?

"A. I couldn't say today, no."

For whatever reason, he did not file a claim in the bankruptcy proceeding, nor did he file a lien foreclosure action. The record reflects that substantial costs incurred by Hilltop in constructing the two houses remained unpaid at the date of sales closing, in accord with the ongoing process of Hilltop in their volume home-building activities. ²

The criminal charges, filed February 21, 1985, were:

" * * * [O]n or about the 14th day of September, 1982, in the County of Natrona, State of Wyoming, the said JOHN G. MILLER * * * did unlawfully

"COUNT I

"and knowingly obtain property, to wit: $92,950.00 cash from other persons, namely: First Wyoming Bank of Casper, Richard Beal and Donna Beal, by false pretenses with the intent to defraud said persons and the property is valued at or above twenty-five dollars ($25.00) in violation of W.S. 1977, § 6-3-106

"COUNT II

"On or about the 28th day of October, 1982, in the County of Natrona, State of Wyoming, the said JOHN G. MILLER did unlawfully and knowingly obtain property, to wit: $100,000.00 cash from other persons, namely: Guaranty Federal Savings and Loan, David W. Harris, by false pretenses with the intent to defraud said persons and the property is valued at or above twenty-five dollars ($25.00) in violation of W.S. 1977, § 6-3-106

"contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Wyoming."

The statute, § 6-3-106, W.S.1977, was repealed by Ch. 75, S.L. of Wyoming 1982 as a rewritten criminal code effective July 1, 1983. The repealing code included a savings clause:

"(b) Except as provided in this section, this act does not apply to offenses committed prior to its effective date and prosecutions for the offenses shall be governed by the prior law, which is continued in effect for that purpose, as if this act were not in force. An offense was committed prior to the effective date of this act if any of the elements of the offense occurred prior to the effective date.

"(c) In a case pending on or after the effective date of this act, involving an offense committed prior to the effective date:

* * *

* * *

"(iii) If the penalty for the offense under this act is different than the penalty under prior law, the court shall impose the lesser sentence." Section 6-1-101, W.S.1977, 1982 Replacement.

The law in effect in late 1982, § 6-3-106 provided:

"If any person or persons shall knowingly and designedly, by false pretense or pretenses, obtain from any other person or persons any choses in action, money, goods, wares, chattels,...