State v. Galioto
| Decision Date | 27 May 1980 |
| Docket Number | CA-CR,No. 2,2 |
| Parties | The STATE of Arizona, Appellee, v. Joseph Patsy GALIOTO, Appellant. 1861. |
| Court | Arizona Court of Appeals |
Appellant, charged with second-degree arson, arson with intent to defraud insurer and making a false insurance claim, was found guilty of making the false claim. He gives three reasons his conviction should be reversed: (1) The trial court erred in refusing certain instructions; (2) he was forced to appear at trial in prison clothing, and (3) prosecutorial misconduct. 1 We affirm.
Appellant was the manager of The New Broadway Theatre. In April 1977 he contacted Mr. Larry Reed, an insurance agent, in order to secure fire and casualty coverage for the contents of the theater. Appellant told Mr. Reed that the value of the contents was $100,000. Mr. Reed secured a contract with Ohio Casualty Insurance Company of Ohio (Ohio) which provided a maximum payment of $35,000 for a $108,000 loss. Any lesser loss was payable in an amount equal to 35/108 of the loss.
Mr. Reed was in the process of applying for an additional $65,000 with another company when the theater was damaged by a fire which occurred on May 23, 1977.
Appellant submitted three proofs of loss. The first, dated July 14, 1977, was rejected by Ohio on the ground of incompleteness. On October 6, 1977, appellant filed a second proof of loss wherein he claimed the actual cash value of the property at the time of the loss was $160,948 and that his loss was in the same amount. After Ohio refused to accept this proof of loss, a third one was filed by appellant on January 6, 1978. In it appellant claimed the actual cash value of the property was $78,632 and that his loss was $86,495.84 which included an amount for business interruption. 2 This third proof of loss was rejected because appellant had been indicted for arson.
At trial, the state put on evidence that there was only $25,000 to $30,000 invested in the business when it was turned over to appellant and that appellant had attempted the year before to insure the contents for $25,000. There was also extensive testimony as to individual items and groups of items that showed the inventory accompanying the proofs of loss overstated their value.
Appellant requested the following instructions:
"Defendant's Requested Instruction No. 12
Mere puffing or exaggeration of qualities, usefulness or value of an article does not constitute a false representation and, therefore, cannot support a charge of fraudulent scheme or artifice or fraudulent insurance claim.
Defendant's Requested Instruction No. 14
Fraud consists of the making by the person accused of a material, that is, significant, false representation, knowing it to be false, or making it recklessly without knowledge of its truth, with the intent that it should be acted upon, with the person to whom the representation is made being ignorant of its falsity, having a right to rely upon it, and relying upon its truth, with resulting injury to the person relying."
Appellant contends the trial court erred in refusing these instructions. We do not agree.
Appellant was convicted of violating A.R.S. Sec. 44-1220 which provided, prior to its amendment:
"A person who presents a false or fraudulent claim or proof in support of such claim, upon a contract of insurance for the payment of any loss, or who prepares, makes or subscribes to an . . . affidavit or proof of loss . . . with intent to present or use it or allow it to be presented or used in support of such claim, shall be punished by imprisonment in the state prison . . ."
Our statute was adopted from California. See Calif.Ins.Code, Sec. 556 (West 1972). California cases have held that the gravamen of the offense is the accused's intent to defraud. People v. Grossman, 28 Cal.App.2d 193, 82 P.2d 76 (1938); People v. Turley, 119 Cal.App.2d 632, 259 P.2d 724 (1953); People v. Kanan, 208 Cal.App.2d 635, 25 Cal.Rptr. 427 (1962); People v. Scofield, 17 Cal.App.3d 1018, 95 Cal.Rptr. 405 (1971).
California Jury Instructions Criminal (CALJIC), Secs. 15.40 and 15.41 cover the elements of presenting a fraudulent claim for insurance payment and fraudulently supporting an insurance claim. CALJIC 15.40, Fraudulent Claim for Insurance Payment states, inter alia:
CALJIC 15.41, Fraudulently Supporting an Insurance Claim, states the following:
The record shows that the trial court essentially followed the CALJIC instructions.
Furthermore, the trial court gave the following additional instruction:
"A statement, claim, or document is fraudulent if it was falsely made or made with reckless indifference to its truth or falsity, with intent to deceive.
To be made with reckless indifference, a statement must be made without regard to whether it is true or false, or be a statement of fact implying knowledge where there is no knowledge.
One who acts with honest intention is not chargeable with fraudulent intent. One who expresses an opinion honestly held by him, or a belief honestly entertained by him, is not chargeable with fraudulent intent even though such opinion is erroneous and such belief is a mistaken belief.
Evidence which establishes only that a person made a mistake in judgment, or an error in management, or was careless, does not establish fraudulent intent. In order to establish fraudulent intent on the part of a person, it must be established that such person knowingly and intentionally attempted to deceive another. " 3
As evidenced by appellant's proferred instructions, he is under the mistaken belief that the elements and proofs required in a civil action for fraud and deceit are required to be proved by the state in a criminal case under the statute. This in not correct. We are not dealing with a civil action by an insured against his insurer where in order for the insurance company to avoid a policy on the grounds of fraud or false swearing the proof of loss statement in question must be material. See 14 Couch on Insurance 2d, Sec. 49:441 (1965) and see Annot. 16 A.L.R.3d 774 (1967). The gravamen of the offense here is the intent to defraud. Fraud is an instance or act of trickery or deceit; an act of deluding; an intentional misrepresentation for the purpose of inducing another in reliance upon it to part with some valuable thing. There is no requirement that there be a material misrepresentation. A claim presented with a value much in excess of what was shown to be the actual value of the damaged property, has been held sufficient to sustain a prosecution. People v. Kanan, supra. Appellant apparently believed that the elements of a civil action for fraud apply in this criminal prosecution. For example, defendant's Instruction No. 14 states that the fraud involved must be relied upon and...
To continue reading
Request your trial
-
State v. Mauro
...he directed the prosecutor to avoid further testimony about defendant being handcuffed and shackled. In State v. Galioto, 126 Ariz. 188, 192, 613 P.2d 852, 856 (App.1980), the court considered whether the defendant was denied a fair trial when (1) defendant was seen by jurors being escorted......
-
State v. Mills
...State v. Apelt, 176 Ariz. 349, 861 P.2d 634 (1993); State v. Johnson, 147 Ariz. 395, 710 P.2d 1050 (1985); State v. Galioto, 126 Ariz. 188, 613 P.2d 852 (App.1980). "The question is whether the defendant was prejudiced by what the jury saw, not the mere fact that it was seen." Johnson, 147 ......
-
State v. Islas, 2
...defendant in handcuffs does not constitute reversible error. State v. McDonald, 111 Ariz. 159, 526 P.2d 698 (1974); State v. Galioto, 126 Ariz. 188, 613 P.2d 852 (App.1980). Despite this, appellant argues that if the jury viewed the defendant in handcuffs, the prejudice must be cured by a c......
-
State v. Hiles
...a juror may have seen Appellant in restraints outside the courtroom did not deny Appellant a fair trial. See State v. Galioto, 126 Ariz. 188, 192, 613 P.2d 852, 856 (App. 1980); see also State v. Johnson, 147 Ariz. 395, 399, 710 P.2d 1050, 1054 (1985) ("The question is whether the defendant......