Otte v. State
| Decision Date | 03 May 1977 |
| Docket Number | No. 4605,4605 |
| Citation | 563 P.2d 1361 |
| Parties | Michael OTTE, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Joe R. Wilmetti, Public Defender, Sweetwater County, for appellant.
V. Frank Mendicino, Atty. Gen., Jerry M. Murray, Sr., Asst. Atty. Gen., and Frank R. Chapman, Law Clerk, Cheyenne, and Robert L. Bath, County Atty., Sweetwater County, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
This appeal is here following the jury's verdict finding the defendant-appellant-Otte guilty of blackmail and robbery and the court's entry of judgment and sentence on blackmail and grand larceny-the latter being a lesser-included offense within the crime of robbery.
In his appeal to this court, three main issues are raised:
1. Did the trial court err in receiving hearsay testimony, later striking it and instructing the jury to disregard?
2. Was there entrapment?
3. In the light of the alleged 'consent' and participation by the victim, is a necessary element of the crimes for which defendant was sentenced missing, thereby rendering the evidence insufficient to convict?
The court will affirm the conviction for grand larceny and reverse the conviction for blackmail.
The facts related here are substantially as presented through appellant's brief.
On March 6, 1975, one Michael George Rooney, as undercover agent from the Wyoming Attorney General's Office, met the defendant-appellant, Michael Otte, at Jake's Bar in Rock Springs, Wyoming. From that day to the 14th day of March, 1975, they discussed, talked about and planned a robbery or blackmail plot against City Market of Rock Springs, Wyoming. The gist of the plan was that Rooney and Otte would place a telephone call to the manager of City Market and inform him that they were holding the manager's wife as a hostage and that unless he, the manager, placed the money from City Market in a bag and delivered it to the store's parking lot for Rooney and Otte to take, they would kill the manager's wife. Rooney kept other agents of the Attorney's General's Office, agents of the City/County Task Force of Rock Springs, and Mr. Robert Delozier (manager of City Market) informed of all the plans and discussions made and had by him and defendant-appellant. Mr. Delozier was informed of the general nature of the proposed threat-he was assured that no actual threat would be made and that his wife would be safe and protected-he was requested to mark some money for later identification-he was requested to cooperate with the agents-and he was advised that he did not have to go along with the plan unless he wished to do so. He was also told that there was some possibility that the plan to catch Otte in the larceny of the money could result in harm to him.
On the 14th day of March, 1975, according to the plan of agent Rooney and Otte, and according to the plan agreed to by Rooney-the remaining agents-and the manager of City Market, Rooney and Otte proceeded to the City Market parking lot. Rooney then crossed the street to a public telephone booth and, after Otte entered City Market, Rooney called the manager of City Market and, in substance, told him that he was with the Task Force people and to go ahead and cooperate and not to worry. In response to this call the manager, Delozier, placed the money in a bag according to previous directions of the agents and deposited it at the designated place in the parking lot, thereafter returning to the store. Rooney and Otte picked up the money, whereupon Otte was immediately arrested and charged.
The Amended Information filed herein charged the defendant Otte in three criminal counts. He was found guilty on Counts I and III. Counts I and III read as follows:
'COUNT I
'did unlawfully and feloniously demand of Robert Delozier, Manager of the City Market, Rock Springs, Wyoming, the removal of the sum of $150,000.00 from the safe of City Market, his employer, with menaces of personal injury to his wife, Lynn Delozier, by word of mouth, contrary to Section 6-147, Wyoming Statutes, 1957.
'COUNT III
'did unlawfully, forcibly and feloniously, take from City Market of Rock Springs, Wyoming, money in an approximate sum of $50,000.00, by threatening to do harm to Lynn Delozier, wife of the Manager of City Market, Robert Delozier, and putting them in fear, contrary to Section 6-65, Wyoming Statutes, 1957.'
Count I charged the defendant-appellant with the crime of blackmail 1, and Court III charges him with robbery. 2 He was found guilty of blackmail and robbery, although the trial judge entered judgment and sentence for blackmail and larceny 3, a lesserincluded offense within the crime of robbery.
The jury was properly charged on the entrapment issue, the court following our decisions in Janski v. State, Wyo., 538 P.2d 271, and Dycus v. State, Wyo., 529 P.2d 979. The jurors believed there was no entrapment-a decision which was theirs to make.
During the trial, the State called the Field Supervisor of the Attorney General's Investigation Division to testify concerning Rooney's reports to him and his instructions to Rooney. This testimony was objected to as hearsay. The jury was admonished to disregard that portion of the witness' testimony and the defendant now complains that it was reversible error to have received it since it was impossible for the members to put the matter out of their minds.
We will not consider this issue, which is made without citation of authority. Reed v. Wadsworth, Wyo., 553 P.2d 1024. Further, no objection was made to the instruction complained of and we will not consider that issue, under our holding in, among other decisions, Duran v. State, Wyo., 546 P.2d 434, citing Oldham v. State, Wyo., 534 P.2d 107.
The jury returned a verdict finding the defendant guilty of robbery and the court, rather than following the verdict of the jury, found that the defendant was guilty of grand larceny, an offense included in the crime of robbery but carrying a lesser penalty.
The crime of larceny was committed when the defendant took the money into his possession and started to leave the parking lot. The defendant urges that there could be no larceny because Mr. Delozier, the store manager, consented to the taking by delivering the bag of money to the place designated as requested by the defendant. The defendant correctly argues that as a general proposition, in order to commit the crime of grand larceny, there must be a taking of property without the consent of the owner. Under the facts of this case, and within the contemplation of the crime of grand larceny, the owner did not consent to Otte's taking his property. He placed the money there for the purpose of apprehending this defendant in the course of his committing a larceny. That is the only reason he put the money out-not because he was consenting to Otte's taking and appropriating it to his own use.
In denying a petition for rehearing in Neel v. State, Wyo., 454 P.2d 241, 242, we said:
Fraudulent conduct implies an act which is obnoxious to good morals. First National Bank of Cheyenne v. Swan, 3 Wyo. 356, 23 P. 743 (1890), 31 Am.St.Rep. 122.
Fraud vitiates the consent of the victim if the other elements of the crime are present. State v. Jesser, 95 Idaho 43, 501 P.2d 727, 735. It was said in Jesser, quoting from a 'landmark' Massachusetts decision (Commonwealth v. Barry, 124 Mass. 325, 327 (1878):
". . . If the possession is fraudulently obtained, with intent on the part of the person obtaining it, at the time he receives it, to convert the same to his own use, and the person parting with it intends to part with his possession merely, and not with his title to the property, the offence is larceny."
We agree with the rule expressed by the court in Commonwealth v. Barry and consider it applicable to the fact-situation in the case at hand. We have said essentially the same thing in Neel v. State, supra, where we said:
'In 'larceny' owner of the property has no intention to part with title therein to the person taking it although he may intend to part with possession, . . .' Ibid., p. 242.
The store manager, having been told by the officers of Otte's fraudulent and illegal scheme to steal his money, placed the money in the lot consistent with the fraudulent plan of Otte in an effort to aid the officers in apprehending Otte. In aiding the officers, the manager was consenting to part with the possession of his money but not the title.
The fact that he placed the money in the parking lot in his effort to aid the law officers does not in any way amount to such consent as to avoid the violation of the larceny statute. In this regard, see the annotation in 18 A.L.R. 146, 172, entitled, 'Entrapment to commit crime with view to prosecution therefor,' supplemented by annotations in 66 A.L.R. 478, 503, and 86 A.L.R. 263, 270.
It is said in 18 A.L.R., at page 172:
'It is well established that where the criminal design originates with the accused, and the owner does not, in person or by an agent or servant, suggest the design or actively urge the accused on to the commission of the crime, the mere fact that the owner, suspecting that the accused intends to steal his property, in person or through a servant or agent, exposes the property, or neglects to protect it, or furnishes facilities for the execution of the criminal design, under the expectation that the accused will take the property, or avail himself of the facilities furnished, will not amount to a consent in law, . . .'
In the instant case, the owner of the stolen property, when he placed...
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