State v. Gunnison, 4853-PR

• Decision Date: 22 September 1980
• Docket Number: No. 4853-PR,4853-PR
• Citation: State v. Gunnison, 127 Ariz. 110, 618 P.2d 604 (Ariz. 1980)
• Parties: , Blue Sky L. Rep. P 71,613 STATE of Arizona, Appellee, v. Robert Harlan GUNNISON, Jr., Appellant.
• Court: Arizona Supreme Court

Page 604

618 P.2d 604

127 Ariz. 110, Blue Sky L. Rep. P 71,613

STATE of Arizona, Appellee, v.Robert Harlan GUNNISON, Jr., Appellant.

No. 4853-PR.

Supreme Court of Arizona, In Banc.

Sept. 22, 1980.

Rehearing Denied Oct. 21, 1980.

Stephen D. Neely, Pima County Atty. by Alan D. Davidon, Deputy County Atty., Tucson, for appellee.

Jack L. Lansdale, Jr., Tucson, for appellant.

CAMERON, Justice.

On 21 September 1978, defendantRobert Harlan Gunnison, Jr., was found guilty of five counts involving violations of Chapter 12(sales of securities), Title 44 of the Arizona Revised Statutes.The Court of Appeals, Division Two, reversed as to three counts (Counts 23, 166 and 167) and affirmed as to Count 1, conspiracy to sell securities in violation of A.R.S. § 44-1991and§ 13-331, ¹ and Count 2, fraud in the sale of securities in violation of A.R.S. § 44-1991and§ 44-2036(A), as amended.We agree with the Court of Appeals in their reversal of Counts 23, 166 and 167, and their affirmance in Count 2 for the reasons stated in their opinion in State v. Gunnison, 126 Ariz. 115, 618 P.2d 609(App.1979) and in the companion case of State v. O'Brien, 123 Ariz. 578, 601 P.2d 341(App.1979).We granted review pursuant to A.R.S. § 12-120.24andRule 31.19,Arizona Rules of Criminal Procedure, 17 A.R.S., to answer only one question: Must the State show scienter ² to prove a criminal conspiracy to sell securities in violation of A.R.S. § 44-1991(2)?

In 1975, Gunnison was the president of Arizona Realty and Mortgage Trust, a corporation which managed several other corporations, most of which were involved in the development and/or sale of subdivision lots within the State of Arizona and most of which suffered substantial cash flow problems resulting in an inability to construct projected improvements in their subdivisions.Gunnison thus acted as an informal "receiver" for these ailing businesses.

One of the land companies in his control was Consolidated Mortgage Corporation, which had previously been run by Nathan "Ned" Warren.One method by which Consolidated raised money was through liquidation of assets, including wholesale disposal of lots and sales of mortgages they held as mortgagees.Most, if not all, of the mortgages liquidated by Gunnison went to Equitable Mortgage Company, which, in turn, sold the mortgages to the public.Equitable's president was Thomas O'Brien, a friend of both Gunnison and Warren.

Gunnison, O'Brien, Warren and several other participants in the dealings of Equitable and Arizona Realty were indicted by a Pima County Grand Jury for numerous alleged violations of state securities laws and for conspiracy to commit such violations.The defendant was named in 148 counts of the 173 count indictment.The cases of all indicted, with the exception of O'Brien and Gunnison, were disposed of through plea negotiations.On 14 December 1977, O'Brien was convicted, after trial to a jury, of 30 counts.In September of 1978, Gunnison was tried on the five counts.

The defendant waived his right to a jury.The parties stipulated that Gunnison's bench trial would include the testimony given in the O'Brien trial, which had been heard by the same judge, and that the trial court would be governed by the legal principles set forth in the jury instructions given in the O'Brien trial.Gunnison was convicted of all five counts and sentenced to five concurrent prison terms of one to three years.From this judgment and sentence he appeals.

There was extensive argument in the trial court concerning the scienter which the State must prove in order to convict the defendant.Gunnison attempted to show that he did not have the specific intent to commit the crime; that he acted in good faith because he relied on statements made by an attorney and an official of the Corporation Commission that the contemplated sales were "all right."

The trial court, in excluding evidence of good faith in the O'Brien trial, stated:

"evidence or any comment upon the issue of whether * * * O'Brien knew that his conduct was unlawful * * * is neither relevant or material."

In Gunnison's trial the court restated its position that scienter was not an element of the crime of conspiracy to violate A.R.S. § 44-1991(2), and that to convict the defendantthe State need not prove intentional wrongdoing or "evil motive."

A.R.S. § 44-1991 reads as follows:

"It is a fraudulent practice and unlawful for a person, in connection with a transaction or transactions within or from this state involving an offer to sell or buy securities, or a sale or purchase of securities, including securities exempted under § 44-1843 and including transactions exempted under § 44-1844, directly or indirectly to do any of the following:

"1.Employ any device, scheme or artifice to defraud.

"2.Make any untrue statement of material fact, or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.

"3.Engage in any transaction, practice or course of business which operates or would operate as a fraud or deceit."

The criminal statute under which defendant was prosecuted in Count 1 read in part as follows:

"A person is guilty of conspiracy in the second degree if, with the intent to commit or to have another person commit, any action constituting any felony other than those listed in subsection A, he conspires with one or more persons to engage in or cause the commission of such."A.R.S. § 13-331(B).

a. Does A.R.S. § 44-1991(2) require scienter?

The interpretation of subsection 2 of A.R.S. § 44-1991 has been subject to different interpretations by the two Divisions of our Court of Appeals.In Washington National Corporation v. Thomas, 117 Ariz. 95, 570 P.2d 1268(App.1977)andBaker v. Walston & Company, 7 Ariz.App. 590, 442 P.2d 148(1968), it was held that a violation of subsection 2 of A.R.S. § 44-1991 does not require a guilty knowledge, or scienter.This position has been forcefully reiterated in the opinion in this case of the Court of Appeals, Division Two, in the matter of State v. Gunnison, supra.

On the other hand, the Court of Appeals, Division One, in the case of Greenfield v. Cheek, 122 Ariz. 70, 593 P.2d 293(App.1978), held that as to subsection 2, scienter, or guilty knowledge, was a necessary element of the violation of subsection 2 and that good faith would be a proper defense.We approved this interpretation by the Court of Appeals, Division One, of A.R.S. § 44-1991(2) in Greenfield v. Cheek, 122 Ariz. 57, 593 P.2d 280(1979), expressly overruling anything to the contrary in Washington National Corporation v. Thomas, supra, andBaker v. Walston & Company, supra.Later we reaffirmed our position in a supplemental opinion to State v. Superior Court of Maricopa County, 123 Ariz. 324, 599 P.2d 777(1979).Both the Court of Appeals, Division One, in Greenfield, supra, and this court in State v. Superior Court, supra, relied upon the United States Supreme Courtcase of Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668(1976) which interpreted the federal counterpart of A.R.S. § 44-1991,15 U.S.C. § 77q(a), § 17(a) of the 1933 Act.All of these cases were civil cases.

Although we are not bound by the interpretation placed by the United States Supreme Court on the federal statute, it is helpful, for consistency in the application of the law, to be harmonious with the United States Supreme Court.Unless there is a good reason for deviating from the United States Supreme Court's interpretation, we will follow the reasoning of that court in interpreting sections of our statutes which are identical or similar to federal securities statutes.The United States Supreme Court has stated:

" * * * the language of § 17(a)(2), which prohibits any person from obtaining money or property 'by means of any untrue statement of a material fact or any omission to state a material fact,' is devoid of any suggestion whatsoever of a scienter requirement.As a well-known commentator has noted, '(t)here is nothing on the face of Clause (2) itself which smacks of scienter or intent to defraud.'III L. Loss, Securities Regulation 1422 (2d ed. 1961)."Aaron v. Securities and Exchange Commission, 446 U.S. 680, 696, 100 S.Ct. 1945, 1955, 64 L.Ed.2d 611, 626(1980).

We therefore hold that, as to civil cases, scienter is not an element of a violation of A.R.S. § 44-1991(2), even though it may be an element of A.R.S. § 44-1991(1).Anything to the contrary in State v. Superior Court of Maricopa County, supra, andGreenfield v. Cheek, supra, is overruled.

b. Scienter for criminal violations

Even if we agree that scienter is not a necessary element of a civil violation of subsection 2 of A.R.S. § 44-1991, it does not follow that scienter is not a necessary element of a criminal conspiracy to violate subsection 2 of A.R.S. § 44-1991. § 44-1991 is a civil statute.It is not a criminal statute unless other statutes make it so.A.R.S. § 44-2036(A), for example, makes it a crime to violate A.R.S. § 44-1991.This does not mean, however, that we can dispense with the requirement of scienter for a criminal conspiracy conviction.

The crime of conspiracy has been widely regarded as involving a consciously criminal agreement and is for that reason blameworthy and punishable in itself: "conspiracy imports a corrupt agreement between not less than two with guilty knowledge on the part of each."Morrison v. California, 291 U.S. 82, 92, 54 S.Ct. 281, 285, 78 L.Ed. 664, 671(1934).See also, State v. Burkett, 344 So.2d 868, 869(Fla.App.1977)("criminal intent to commit a substantive offense");State v. Lennon, 3 N.J. 337, 343, 70 A.2d 154, 157(1949)("sinister combination * * * far more perilous * * * than the criminal intent of a single individual");People v. Rosenthal, 91 Misc.2d 750, 754, 398 N.Y.S.2d 639, 642(1977)("corrupt agreement * * * entered into with a criminal intent to...