State v. Aurgemma

• Citation: 358 A.2d 46,116 R.I. 425
• Decision Date: 27 May 1976
• Docket Number: No. 75-173-C,75-173-C
• Parties: STATE v. Anthony AURGEMMA. A.
• Court: United States State Supreme Court of Rhode Island

Page 46

358 A.2d 46

116 R.I. 425

STATE v. Anthony AURGEMMA.

No. 75-173-C.A.

Supreme Court of Rhode Island.

May 27, 1976.

[116 R.I. 437] Julius C. Michaelson, Atty. Gen., Judith Romney Wegner, Sp. Asst. Atty. Gen., for plaintiff.

Taft & McSally, Bernard F. McSally, Providence, for defendant.

OPINION

JOSLIN, Justice.

The defendant was tried and convicted in a nonjury trial in the Superior Court on three counts of a five count indictment charging him with obtaining money from another by means of false pretenses in violation of G.L.1956 (1969 Reenactment) § 11-41-4. ¹ The case is here on the defendant's appeal.

For our recitation of the material facts, we draw primarily upon the trial justice's factual determinations. As viewed by him the record discloses that Charles St. Peter met defendant at a lumber yard in June 1970. St. Peter had just purchased two sheets of paneling in order 'to do a little do-it-yourself work' at home and was having difficulty loading his purchases in his automobile. At that point defendant volunteered to deliver the paneling and St. Peter accepted his offer. When they reached their destination, defendant, who had been engaged in the home repair and improvement business for more than 15 years, told St. Peter what his business was and also advised that he was a sheriff or constable as well as a member of the Better Business Bureau. They then entered into an agreement calling for defendant to remodel a bedroom and the kitchen of St. Peter's home. Work was to start in a few days and the agreed price was $1,450 of which $500 was then paid and another $500 several days thereafter while work on the bedroom was proceeding. Following completion of the bedroom defendant told St. Peter he was going to Connecticut where he anticipated making a 'good buy' on paneling and doors, and he offered to remodel several other rooms for the additional price of $800. His offer was accepted, and the $800 was subsequently paid. St. Peter also paid $45 for a kitchen sink which defendant agreed to purchase for him.

During June or early July the work on one bedroom was completed, several doors were hung, and the kitchen was ripped out to the bare walls. In addition, some kitchen materials were delivered to the job site, but were removed when St. Peter insisted that they were not of the kind and quality called for by the agreement. Thereafter, all work on the job came to a halt and St. Peter's repeated attempts to get defendant to resume work and to complete his undertakings were of no avail. Finally, he consulted an attorney who wrote to defendant on August 21, 1970 accusing him of abandoning the contract and threatening legal proceedings unless appropriate financial adjustments were promptly forthcoming. When this demand was not satisfied civil proceedings were commenced.

The defendant, who disputed St. Peter's testimony in part, attributed his failure to complete the job to labor and financial problems, and to the letter from St. Peter's attorney which he interpreted as advising him not to continue working on the house.

To the extent that the state's and defendant's evidence differs, the trial justice found the former more credible and he concluded that the state had proved beyond a reasonable doubt that defendant '* * * willfully, knowingly and with an intent to defraud, falsely represented his capacity to accomplish the work that he had agreed to do for Charles St. Peter, that he had no intention of performing his agreement with Charles St. Peter, and that Mr. St. Peter was induced to rely, and did rely, on the representations of the defendant, and paid the defendant $1,800 to his, Mr. St. Peter's loss.' He further found by a like quantum of proof that defendant '* * * by false pretenses, and with the intent to cheat and defraud, did unlawfully and knowingly obtain and steal from Charles St. Peter the sum of $1,845, wherefore, he is guilty of larceny in violation of Section 11-41-4 of the General Laws as charged in Count I of the indictment.'

Although different incidents gave rise to Counts II and III, we need not discuss them inasmuch as the proof with respect to all three counts is substantially identical. Hence, what we now say and decide with respect to Count I, excepting only as may be otherwise specified, applies equally to Counts II and III.

As good a starting point as any for our discussion of defendant's several specifications of error is with his contention that a conviction for obtaining property by false pretenses hinges on the actual loss suffered by the victim, rather than on the amount of money paid or the worth of the property transferred, and that consequently the state's failure to offer any evidence that the value of the work left undone by him exceeded $500 precluded a felony conviction. ² The short answer to this contention is that the crime is committed at the moment the victim is fraudulently induced to part with his money or property. It is the amount of that money or the worth of that property that it pivotal, and the extent of a victim's ultimate loss in immaterial on the issue of the degree of the offense charged. La Moyne v. State, 53 Tex.Crim. 221, 111 S.W. 950 (1908). Moreover, even proof that a victim has suffered no loss whatsoever or that the money fraudulently obtained has been repaid will not suffice as a defense. State v. Mills, 96 Ariz. 377, 379-82, 396 P.2d 5, 7-8 (1964); Stewart v. State,256 Ark. 619, 509 S.W.2d 298 (1974); People v. Brady, 275 Cal.App.2d 984, 994-95, 80 Cal.Rptr. 418, 424 (Ct.App.1969). Accordingly, the state was not burdened in this case with establishing the value of the work left undone by defendant.

The defendant also urges upon us the view that to constitute a false pretense under statutes comparable to § 11-41-4, the misrepresentation must relate to a past or existing fact or event and that a present intention not to perform some promised act will not suffice. But that approach, although widely followed, ³ is at odds with State v. McMahon, 49 R.I. 107, 140 A. 359 (1928), where we said:

'This state is committed to the doctrine that in an action for deceit intention not to meet a future obligation is a question of fact to be submitted to the jury and that misrepresentation of a present state of mind as to such intention is a false representation of an existing fact. (citations omitted) The rule is equally applicable in this criminal prosecution for cheating.' Id. at 108-09, 140 A. at 360.

Thus, the rule in this state is that a misrepresentation with regard to a future transaction, no less than one relating to an existing fact, is a false pretense within the meaning of § 11-41-4.

If we were in error in thus construing the legislative intent underlying § 11-41-4's precursor, it would not be unreasonable to believe that the Legislature in the almost half a century which has passed since McMahon was decided would in all probability have corrected that error by amending the law so as to leave no doubt that it had no intention of criminalizing a fraudulent promise to act in the future. Its failure to do so justifies us in now assuming that whatever other Legislatures may have intended in adopting comparable legislation, ours by its silence has approved of the construction which its enactment received in McMahon. See Woonsocket Hosp. v. Lagace, 113 R.I. 95, 102, 318 A.2d 472, 477 (1974); Coletta v. State, 106 R.I. 764, 771, 263 A.2d 681, 685 (1970); Santanelli v. City of Providence, 105 R.I. 208, 212, 250 A.2d 849, 851 (1969); Order of St. Benedict v. Town Council, 84 R.I. 503, 507, 125 A.2d 150, 152 (1956).

A further assignment of error relates to the testimony that at about the time of the offense charged defendant obtained money from other persons by means of fraudulent representations similar to those allegedly used here. The defendant does not challenge the general principle permitting that kind of evidence for the limited purpose of showing that the acts charged are part of a general felonious scheme and of aiding in the establishment of a fraudulent intent, State v. Mastracchio, 112 R.I. 487, 493, 312 A.2d 190, 194 (1973); State v. Mancini, 108 R.I. 261, 266-67, 274 A.2d 742, 745 (1971); State v. Mazzarella, 103 R.I. 253, 257, 236 A.2d 446, 449 (1967). He argues, however, that this rule is inapplicable here upon two grounds.

The first of those grounds is that such evidence qualifies for admission under the rule only if it is of a 'prior criminal activity.' But we have not so limited application of the rule. For example, we have permitted evidence of other acts, even if no criminal offenses were charged, as long as those acts were so similar in character and so closely related in their circumstances to those with which the defendant was charged that they plainly tended to establish a general fraudulent scheme. Thus, in State v. Colangelo, 55 R.I. 170, 179 A. 147 (1935), in responding to the accused's claim that the trial court erred in permitting the state to introduce evidence of immoral sexual conduct by the defendant to show a pattern of false representations, we said:

'While it is the rule that in the trial of a criminal offense evidence of other and distinct criminal acts is generally prejudicial and inadminissible, yet it is generally conceded that evidence of other acts, representations and conduct at different times, even of a criminal nature, may be received when they are interwoven with the offense for which the defendant is being tried, or directly support a finding of guilty knowledge in the perpetration of that offense. Any circumstance that is incidental to or connected with the offense under investigation in such a way that it tends to establish guilty knowledge, intent, motive, design, plan, scheme, system, or the like, is proper evidence according to the overwhelming weight of authority.' Id. at 173-74, 179 A. at 149; accord, State v. Peters, 86 R.I. 447, 450, 136 A.2d 620, 621 (1957).

For his second...