State v. Forrester, 1

Decision Date21 October 1982
Docket NumberCA-CR,No. 1,1
Citation134 Ariz. 444,657 P.2d 432
PartiesSTATE of Arizona, Appellee, v. Thomas Charles FORRESTER, Appellant. 5462.
CourtArizona Court of Appeals
OPINION

MEYERSON, Judge.

This is an appeal from a conviction of one count of theft of property in excess of $1,000 and twenty-two counts of fraudulent use of a credit card. For the reasons hereinafter stated, we affirm the conviction of theft and eleven counts of fraudulent use of a credit card. The remaining convictions are reversed.

I. FACTS.

Appellant Thomas Charles Forrester was originally charged with one count of theft of property with a value of more than $1,000 and thirty-nine counts of fraudulent use of a credit card. The indictment by the state grand jury arose out of Forrester's misuse of a check guarantee card. The trial court granted the state's motion to dismiss sixteen counts of fraudulent use of a credit card. Forrester admitted to one prior felony conviction in exchange for the state's agreement not to prove four other prior convictions.

The state's case began with testimony by bank employees who worked at the branch office of First National Bank used by Forrester. In January, 1980, the bank began receiving checks written by Forrester guaranteed by his bank credit card and drawn against insufficient funds. On February 14, a bank official went to Forrester's home to retrieve the check guarantee card. The bank employee spoke personally with Forrester and explained that he had been "misusing" the check guarantee card. According to her testimony, she told Forrester that she was there to pick up the card. He said that he had lost the card. He believed it was misplaced in his bedroom which was in a "great deal of disorder." He said that he would return the card if he found it.

On February 22, the bank sent a written notice to Forrester informing him that his check guarantee card had been cancelled. The letter was sent return receipt requested and it was signed by Jay Morris, the son of a woman living with Forrester at the time. Forrester claimed he never received any notice of the cancellation. Through the end of February, the bank continued to receive Forrester's checks drawn against insufficient funds.

On March 22, an investigator for the bank went to Forrester's home, informed him that his account had been closed and demanded the return of the card. Forrester signed a document thereby closing his account; he told the investigator the card had been stolen. The balance of the state's case concerned testimony by numerous retail merchants regarding the bad checks which Forrester had passed using the guarantee card. Forrester continued to write these checks through July, 1980.

The testimony indicated that the check guarantee card issued to Forrester was at all times the property of the bank. The terms of the check guarantee agreement provided that the bank would guarantee payment of checks drawn against it upon presentation of the card. Forrester agreed not to write any checks against insufficient funds and to promptly repay the bank if that happened. He also agreed to return the card to the bank immediately upon request.

Forrester testified that he was undergoing severe stress during this period and was heavily intoxicated most of the time. He argued that due to his intoxication, he did not have the necessary criminal intent required under the statute.

Forrester was found guilty of one count of theft and twenty-two counts of fraudulent use of a credit card. With respect to count one, he was sentenced to serve five years in the custody of the Department of Corrections and with respect to each count of fraudulent use of a credit card he was sentenced to serve one and one-half years; all of the sentences were concurrent with each other. He was given credit for 174 days of pre-sentence incarceration.

II. THEFT.

Forrester contends that his conviction for one count of theft under A.R.S. § 13-1802 should be reversed because (1) the definition of value in A.R.S. § 13-1801.8. 1 is unconstitutionally vague, (2) a credit card is not a written instrument within the meaning of A.R.S. § 13-1801.8 (the trial court used the definition of written instrument from the forgery statute) and (3) the trial court erred by failing to require the state to elect the theory under which it was proceeding with respect to the theft charge.

Forrester's contention that the theft statute does not encompass the theft of a credit card is incorrect. First, although written instrument is not defined in A.R.S. § 13-1801.8, a credit card is defined as "any instrument or device...." A.R.S. § 13-2101.3. We note also that the Arizona Criminal Code Commission found that the former statute dealing with credit card fraud "duplicates forgery and theft to a great degree...." Arizona Criminal Code Commission, Arizona Revised Criminal Code 205 (1975). We conclude that a credit card is a written instrument within the meaning of A.R.S. § 13-1801.8.

Second, Forrester contends that there is no "trust" relationship between him and the bank and therefore he cannot be convicted of violating A.R.S. § 13-1802.A.2. This statute is the successor to the former crime of embezzlement. A.R.S. §§ 13-681-682 (repealed 1978). Under the terms of the check guarantee card, he could obligate the bank to honor his checks regardless of whether or not he had funds in his account. Thus, the bank's funds were entrusted to Forrester within the meaning of A.R.S. § 13-1802.A.2. See State v. Leeman, 119 Ariz. 459, 581 P.2d 693 (1978) (embezzlement included fraudulent failure to return leased or rented personal property under predecessor statute to A.R.S. § 13-1802.A.2); People v. Schmidt, 147 Cal.App.2d 222, 305 P.2d 215 (1957) (funds on deposit in bank which could be paid out by checks signed by corporate officer were sufficiently in his control to justify embezzlement charge).

Forrester argues that this statute was not intended to apply to a simple debtor-creditor relationship. Had the check guarantee agreement provided that Forrester was to pay interest to the bank on any outstanding balance owed by virtue of his overdrafts, a debtor-creditor relationship would have existed. But where Forrester has been given the use of the bank's money (the payment of his checks drawn against insufficient funds) without any corollary duty to pay interest on such funds, the element of trust has been injected into the relationship of the parties.

Forrester's final objection to his theft conviction is that the trial judge erred by failing to require the jury to specify under what theory it found him guilty. The indictment against Forrester charged him with theft by alleging that he controlled the property (the check guarantee card) of the bank with the intent to deprive it of the property, A.R.S. § 13-1802.A.1, or that he converted property entrusted to him for an unauthorized term or use. A.R.S. § 13-1802.A.2. The jury was instructed that it could find Forrester guilty of theft by finding that his conduct fit within either category.

If a statute describes a single offense which may be committed in more than one way, it is unnecessary for there to be unanimity as to the means by which the crime is committed provided there is substantial evidence to support each of the means charged. If, however, the statute sets forth several distinct acts and makes the commission of each a separate crime there must be a unanimous verdict as to each separate crime described. State v. Dixon, 127 Ariz. 554, 622 P.2d 501 (Ct.App.1981); State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976).

To determine under which category a statute belongs, consideration should be given to:

(1) The title of the act;

(2) Whether there is a readily perceivable connection between the various acts set forth;

(3) Whether the acts are consistent with and not repugnant to each other; (4) Whether the acts may inhere in the same transaction.

Dixon, 127 Ariz. at 561, 622 P.2d at 508.

Title of the Act. The heading on A.R.S. § 13-1802, "Theft; classification," summarizes the statute as dealing with a single offense. Dixon. Id.

Connection Between Acts. A violation of A.R.S. § 13-1802.A.1. requires control of the property of another. A violation of A.R.S. § 13-1802.A.2. requires the conversion of the property of another for an unauthorized term or use. Because this could hardly be accomplished without control, there is a readily perceivable connection between the acts described in the paragraphs. Indeed, the jury could not find that Forrester violated A.R.S. § 13-1802.A.2. without necessarily finding that the elements of A.R.S. § 13-1802.A.1. also were violated.

Acts Consistent or Repugnant. The ways in which a crime may be committed are repugnant to each other if proof of one disproves the other. State v. Pettit, 74 Wash. 510, 518-519, 133 P. 1014, 1018 (1913). Proof that one controlled the property of another with the intent to deprive him of it is not inconsistent with keeping property for an unauthorized time or using it for an unauthorized purpose. In Pettit, it was held not to be repugnant for the defendant to be charged with committing larceny by false pretenses and also by a bailee or trustee; conduct quite similar to that herein.

Whether the Acts Inhere in the Same Transaction. Here, the "acts" are the possession of the property of another. They are the same act under either section of the statute.

On the basis of the foregoing, we conclude that the court was not required to submit the case to the jury on multiple forms of verdict.

III. CREDIT CARD FRAUD.

With respect to his conviction for...

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