State v. Jahns
| Decision Date | 07 June 1982 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 653 P.2d 19,133 Ariz. 562 |
| Parties | The STATE of Arizona, Appellee, v. Michael Christy JAHNS, Appellant. 2418. |
| Court | Arizona Court of Appeals |
The defendant was tried to a jury and convicted of two counts of theft in violation of A.R.S. § 13-1802. The charges arose from the defendant's use of his parents' Master Charge card to obtain goods and services. He has raised seven issues on appeal, none of which requires reversal.
The record, viewed in support of the verdict, discloses that the defendant, while working for a trucking firm that was about to fail, went to his parents' home in Houston. They were away on vacation; he broke a window and entered the house. He stated that he had notified the police of his entry, but his father's attempt to confirm the police contact revealed no record of it. While in the house, the defendant took a Master Charge card issued in his mother's name, but with his father's signature. He used the card to fly to Colorado, for a motel and other travel expenses, and for various other charges.
When the defendant's parents returned home and discovered the taking of the card, they reported to the police that they believed the credit card had been stolen by the defendant. The theft was also reported to Master Charge. The defendant was arrested in Sierra Vista when a suspicious clerk initiated a check on the validity of the card and discovered that it was listed as stolen. The defendant had credit card receipts in his possession and other credit card transactions were discovered.
First City National Bank, the institution which issued the Master Charge card, was listed alternatively as a victim, a question at trial being whether a loss had been sustained, and if so, by whom. The question was complicated in light of the defendant's father's willingness to pay the minimum charges on the account until the defendant could make the payments; this was raised by the defense to mean that there was no loss, hence no crime. The main defense was that the defendant believed he had authority to use the card.
Prosecution was initiated through an indictment under cause number 10414, which included eight counts of credit card violations. The grand jury had returned a "no bill" under the theft statutes, and eventually prosecution under the indictment was dismissed on motion of the prosecution, it apparently having been determined that prosecution under the theft statutes was preferable. Prosecution was reinstated by means of an information as cause number 10441. The information contained only two counts, charging felony theft. Eight misdemeanor counts were split off and tried in justice court as number 2479 J.P., resulting in convictions on all counts. A motion to dismiss based upon "vindictive prosecution" arose from the reformulated charges and was denied by the trial court. The defendant's father attempted to work out a plea agreement whereby the defendant would be placed on probation and would make restitution for the credit charges. Additionally, the defendant's father brought a civil action for the charges and the defendant agreed to a consent judgment being entered wherein he admitted liability. Motions in limine evolved from these proceedings as to what could and could not be admitted.
The defendant was tried in absentia and convicted on both counts. Because of a prior felony conviction, he received an enhanced presumptive sentence on each count, six years, to run concurrently. He raises the following issues on appeal:
I. Was the verdict supported by the evidence?
II. Was prosecution exhibit 28 improperly admitted because of references in it to uncharged misconduct?
III. Was the defense improperly denied its right to make effective closing argument?
IV. Should a mistrial have been declared because of improper closing argument by the prosecution?
V. Should the defendant's amended jury instruction number 12 have been given?
VI. Was it error to deny the pretrial motion to dismiss for vindictive prosecution?
VII. Was it error not to dismiss for other grounds supporting vindictive prosecution?
The defendant was charged generally under A.R.S. § 13-1802 and the jury was instructed on the elements of A.R.S. § 13-1802(A)(3), which provides:
Appellant contends that for proof of theft there must be established a liquidated loss to each victim and that the loss must be actual and not threatened. With respect to the use of the credit card to purchase a citizen's band radio from Rand's Radio Shack, it is argued that Rand's suffered no loss and the bank had not charged off any loss to itself, but was merely planning to charge off the loss later in the month after trial. In addition, the defendant's father was willing to continue making minimum monthly credit card payments to the bank for the radio charge until the defendant could begin making payments. It is contended that with reference to the Tundermountain Inn count, no loss was established since the bank had never been charged for the transaction and the defendant was arrested after he had checked in and before he had any opportunity to check out or otherwise settle his bill. A "liquidated" loss is not an element of theft by false pretenses. Our supreme court rejected such an argument in State v. Mills, 96 Ariz. 377, 396 P.2d 5 (1964), a case discussing the predecessor statute:
Regardless of whether the victims ultimately suffered a loss, or whether they were protected through the Master Charge program or through reimbursement from the defendant's father, they parted with property in reliance upon the defendant's false representation, i.e., that he lawfully possessed the credit card and was authorized to use it. Cf., State v. Joseph, 20 Ariz.App. 70, 510 P.2d 69 (1973).
The defendant argues that the statute is void for vagueness, contending that the word "obtain" is too vague. So long as the statute is couched in terms that men of average intelligence can understand and gives sufficient warning "so that men may conform their conduct to its dictates," it meets constitutional standards for clarity. State v. Darby, 123 Ariz. 368, 373, 599 P.2d 821, 826 (App.1979). Webster's Third International Dictionary, at 1559 (1971), defines the word "obtain" as follows:
"Obtain--to gain or attain possession or disposal of, usu. by some planned action or method."
We do not find the term so vague that men of average intelligence could not understand it in the context of the statute.
The defendant complains about the introduction of a transcribed interview with the defendant on the basis that it contains references to other transactions involving his use of the credit card. This evidence would appear to have been properly admissible under the "common scheme or plan" exception to the rule precluding evidence of uncharged bad acts, Arizona Rules of Evidence, Rule 404(b). No objection was made to the exhibit. Indeed, the record discloses that defense counsel read the transcript as edited by the prosecutor and consented to its admission.
The defendant contends that the trial court, in giving instructions to counsel prior to closing argument, erroneously limited defense counsel's right to argue vindictive prosecution to the jury. The instructions given by the court were directed to avoiding counsel's becoming involved in personalities during argument. The court emphasized that counsel should limit their arguments to the facts and reasonable deductions from the facts. We do not see in the court's instructions how counsel were unduly hampered. Defense counsel posed the following objection with reference to the trial court's instructions concerning closing arguments:
"MR. CODY: I am going to have to state a problem for the record. I am going to try to, to the best of my belief and intent, I am not going to attempt to get anything in in front of the jury relating to what the court has instructed me to leave out.
The problem in objection, although I think the court is considerably qualified, Mr. Lusk's position on the subject by permitting to make arguments based on principle, as long as they can be reference to specific testimony or specific introduced facts. I think the court has cut off the defense counsel at a point a little bit prior to what he should have been cut off at, and more specifically, that goes to, in arguing, that a case should not be brought or in arguing in generalized principles, arguing in generalized principles based upon facts or testimony that a case should not be brought, in drawing upon commonly known facts or general knowledge or otherwise, that specific reference can be made to the specific prosecutor in a case.
I really don't know how to express that objection any better. I don't think I expressed it very well, but...
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