State v. Amsden

• Decision Date: 14 January 1981
• Docket Number: No. 64347,64347
• Citation: 300 N.W.2d 882
• Parties: STATE of Iowa, Appellant, v. Everett Raymond AMSDEN, Appellee.
• Court: Iowa Supreme Court

Page 882

300 N.W.2d 882

STATE of Iowa, Appellant, v. Everett Raymond AMSDEN, Appellee.

No. 64347.

Supreme Court of Iowa.

Jan. 14, 1981.

Thomas J. Miller, Atty. Gen., Julie F. Pottorff, Asst. Atty. Gen., and Patrick C. McCormick, Woodbury County Atty., for appellant.

Donald H. Molstad of Shuminsky & Shuminsky, Sioux City, for appellee.

Considered by REYNOLDSON, C. J., and UHLENHOPP, HARRIS, ALLBEE, and McGIVERIN, JJ.

UHLENHOPP, Justice.

In this appeal from a grant of a new trial in a prosecution for first-degree theft, we construe section 714.3, The Code 1979:

Value. The value of property is its normal market or exchange value within the community at the time that it is stolen. If money or property is stolen by a series of acts from the same person or location, or from different persons by a series of acts which occur in approximately the same location or time period so that the thefts are attributable to a single scheme, plan or conspiracy, such acts may be considered a single theft and the value may be the total value of all the property stolen.

A jury could find the following from the evidence. Defendant Everett Raymond Amsden was service shop foreman for Weiland Implement Company. He did not have authority to sell implements. On August 24, 1978, Steve Ohl went to Weiland Implement for mechanical work on farm equipment. Amsden asked Ohl if he was interested in buying a 4020 John Deere tractor which would be delivered from Colorado in ten days to two weeks. Ohl bought the tractor for $2000, which he paid to Amsden by check a few days later. The tractor never arrived, and Ohl made repeated requests for the tractor or his money but never received either.

On the same date, Marion Flewelling came to Weiland Implement, at Amsden's request. Amsden made the same offer that he made to Ohl. Flewelling bought a tractor, paid Amsden $2000 by check, but never received the tractor or a refund.

In the first part of September 1978, Louis Fixsel brought his combine to Weiland Implement for repair. Amsden offered to sell Fixsel and his son each a tractor for $3500 apiece. Each Fixsel bought a tractor and paid Amsden $3500 by check.

About a week later Amsden told the elder Fixsel he had a better tractor coming which would cost more. Fixsel paid Amsden $6000 more by check. None of these tractors bought by the Fixsels ever came, and the Fixsels never got their money back.

On November 8, 1978, Amsden called Donald Kramper and offered to sell a 3020 John Deere tractor, which would be delivered from Colorado in two to three weeks. Kramper bought the tractor for his brother and himself for $3500, which he paid Amsden the next day by check at Weiland Implement. The Krampers never got the tractor or a refund.

The county attorney charged Amsden in one count with first-degree theft under sections 714.1(3) and 714.2(1) of the Code. He alleged the five incidents which we have related. (Originally the county attorney also charged a sixth incident, but on Amsden's motion to direct verdict the trial court struck that incident for lack of substantial evidence of the requirements of section 714.3 for joinder.)

Under section 714.2(1), theft is of the first degree when the amount exceeds $5000. Under section 714.1(3), obtaining property by deception is theft. "Property" is anything of value. § 702.14. Section 714.3 on joinder speaks of "stolen" money or property. The word "steal" means to take by theft. § 702.19; see J. Yeager & R. Carlson, Criminal Law & Procedure § 324 (1979).

By motion to sever, motion to direct verdict, and exceptions to instructions, Amsden contended in district court that the several transactions could not be joined because the State did not allege or prove that the thefts were "attributable to a single scheme, plan or conspiracy" under section 714.3, and that in any event the transactions would have to be alleged in separate counts under rule 6(1) of the Rules of Criminal Procedure:

Multiple offenses. When the conduct of a defendant may establish the commission of more than one public offense arising out of the same transaction or occurrence, the defendant may be prosecuted for each of such offenses. Each of such offenses may be alleged and prosecuted as separate counts in a single complaint, information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise. Where the public offense which is alleged carries with it certain lesser included offenses, the latter should not be charged, and it is sufficient to charge that the accused committed the major offense.

The trial court overruled Amsden's contentions and tried the several offenses together under the single-count information.

Amsden also contended in the trial court that the State should be prohibited from showing the consideration paid for the machinery purchases by testimony which Amsden asserted was hearsay and not the best evidence. The court overruled his contention.

The jury found Amsden guilty, and he filed a motion for new trial. The court sustained the motion on grounds that we will take up. The State appealed. See § 814.5(1)(c), The Code.

The General Assembly treats several property crimes generically as theft. The charge here is in the nature of false pretenses theft by deception. The problem of combining several incidents for prosecution exists in connection with various property crimes such as larceny, embezzlement, or false pretenses, but the test of the propriety of combining incidents is usually determined under rules applicable to larceny prosecutions. W. LaFave & A. Scott, Handbook on Criminal Law § 87, at 635-36 (larceny), § 89, at 654 (embezzlement), § 90, at 668 (false pretenses) (1972); 3 Wharton's Criminal Law §§ 357-359, 417, 445 (14th ed. C. Torcia 1980); cf. People v. Sichofsky, 58 Cal.App. 257, 263-65, 208 P. 340, 343 (1922) (larceny by fraud).

The question of aggregating thefts may arise in at least three contexts: for purposes of charging and trying an accused, of determining the value of the property stolen to ascertain the degree of the offense, and of twice prosecuting an accused for the same offense. Annot., 37 A.L.R.3d 1407, 1409 (1971). Here we have the first two of these contexts. We must construe section 714.3, apply the construction to the charge and trial in this case, and determine whether the evidence is sufficient to permit aggregating the alleged incidents. Since we conclude that the case must be tried again, we deal with these questions to the extent they are likely to arise on retrial.

I. Construing section 714.3. The problem of combining thefts for prosecution may involve the taking of several items on one occasion from one person or several persons, or the taking of several items on several occasions from one person or several persons. Here we have the most extended variety: the alleged taking (obtaining) of several items (monies, by checks) on several occasions from several persons.

In the absence of statute providing otherwise, the general rule on combining thefts is stated thus in 52A C.J.S. Larceny § 53, at 479-80 (1968):

Where several articles are stolen from the same owner at the same time and place, only a single crime is committed, and the taking of separate articles belonging to the same owner from different places in the same building, pursuant to a single criminal impulse, usually is held to constitute only a single larceny. Where the property is stolen from the same owner and from the same place by a series of acts, whether the acts of accused constitute several thefts or one single crime must be determined by the facts and circumstances of each case. If each taking is the result of a separate, independent impulse, each is a separate crime; but where the successive takings are all pursuant to a single, sustained, criminal impulse and in execution of a general fraudulent scheme, they together constitute a single larceny, regardless of the time which may elapse between each act.

Also in section 54, at 480-81:

The prevailing rule is that where several articles, stored in the same place, are taken by a single larcenous act, the mere fact that some of them belong to one person and some to another does not dissolve the act into separate crimes. There is authority, however, holding that, where two or more articles belonging to different owners are stolen at the same time and place, the theft of the property of each owner is a separate crime and may be prosecuted as such, or that such a theft may be prosecuted, at the pleasure of the state, either as one offense or as several distinct offenses.

Where articles belonging to different owners are taken at different times or from different places, it is usually held that each taking is a distinct and independent larceny, although there is only a short space of time and distance between the acts.

The principles just quoted are stated in the following way in 3 Wharton § 359:

When several articles of property are stolen by the defendant from different owners at the same time and at the same place, only one larceny is committed. The underlying theory is that there is only one taking. However, according to some courts, multiple larcenies are committed. According to others, the takings may be prosecuted at the pleasure of the state as one offense or as multiple ones.

When several articles are stolen by the defendant from different owners on different occasions, multiple larcenies are committed. It matters not that the takings occur on the same expedition, and are committed in rapid succession or in pursuance of a larcenous scheme or plan.

See State v. Cabbell, 252 N.W.2d 451, 453 (Iowa 1977); State v. Vandewater, 203 Iowa 94, 99-100, 212 N.W. 339, 342 (1927); State v. Sampson, 157 Iowa 257, 260-63, 138 N.W. 473, 474-75 (1912); 50 Am.Jur.2d Larceny § 4 (1970); Annots., 53 A.L.R.3d 398 (1973), 37 A.L.R.3d 1407 (1971). See also Fed.R.Crim.P. 8; L. Orfield, Criminal Procedure from Arrest to Appeal,...