State v. Jones, 17476

Decision Date10 November 1982
Docket NumberNo. 17476,17476
Citation657 P.2d 1263
PartiesSTATE of Utah, Plaintiff and Respondent, v. James Murrell JONES, Defendant and Appellant.
CourtUtah Supreme Court

Edward K. Brass, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.

OAKS, Justice:

Defendant, a lawyer, was convicted by a jury on two counts of theft by deception in connection with his work as an employee of Global Marketing Services, Inc. (Global), a business that held itself out as a developer and marketer of inventions. He contends on appeal (1) that the evidence was insufficient, and (2) that the jury should have been instructed that reliance by the victim is a necessary element of the crime.

Our theft by deception statute states: "A person commits theft if he obtains or exercises control over property of another by deception and with a purpose to deprive him thereof." U.C.A., 1953, § 76-6-405(1). 1 Our aiding and abetting statute, § 76-2-202, provides:

Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.

The jury in this case was instructed in substantially the same language as these statutes.

I.

In challenging the sufficiency of the evidence, defendant argues that there was no proof that he achieved a transfer of property to himself or Global, that he worked a deception, that he had a purpose to deprive the victims of their property permanently, or that there was any union of act and intent (because defendant's involvement did not occur until after the alleged victims paid their money). We test those contentions against the following evidence, viewed most favorably to the verdict of the jury. State v. Forsyth, Utah, 641 P.2d 1172, 1173 (1982).

Defendant was employed by Global on a part-time basis in the summer of 1977, and became a full-time salaried employee by November, 1977. The victims in this case were two of Global's clients, Covey and Brown.

Covey contacted Global in January, 1978, with an idea for an automatic cassette tape changer. He met defendant the following month. Covey testified that defendant told him Global had the ability "to have plans drawn up to do market research, to test the market, and to have a prototype built and this type things." Defendant also told Covey "about other products that they had that they were working on at that time," like a speedometer, a fuel-saving device and an electric car. Defendant showed him "new catalogues they were putting together to show new products, this type thing." Thereafter, on February 14, 1978, Covey signed a contract that was drafted and witnessed by defendant. In this contract, Global promised to obtain bids from manufacturers to produce Covey's invention, and to "use its best efforts, influence, and connections to help effect the marketing of the initial production units." Its promise to provide alternatives and suggestions for marketing included the cited possibilities (where deemed appropriate by Global) of "showing the product at upcoming marketing trips, nationwide press releases, trade shows, preparations of illustrations and prepared brochures." All of this was illustrative of Global's promise of a "best efforts approach to effect successful manufacturing, marketing and distribution" of Covey's product. Global also promised to "seek proposals and offers" from domestic and foreign "manufacturers, investors and distributors." "As deemed necessary," Global also promised to provide "tax suggestions" to Covey, and "when deemed necessary by Global," to recommend revisions to improve the salability, safety, and packaging durability of the product, and to protect it by patents, copyrights, and trademarks.

On March 3, 1978, Covey paid Global $2,000 pursuant to the contract. Defendant gave him a receipt for that amount. Covey also testified that defendant's position as a lawyer had an effect on him, since he considered a lawyer "more reliable" than others. After Covey signed the contract, defendant told him that his product was being worked on, he and defendant met with an engineer to discuss building a prototype, and Covey saw some artwork on his product. No prototype was ever built, and Covey never received any royalties.

Brown contacted Global in the fall of 1977 with an idea for seminar presentations. Defendant was present for part of the first and subsequent meetings early in 1978, at each of which the marketability of Brown's product was discussed. Brown paid $500 as a deposit in February, and defendant gave him a receipt. Still, Brown was not yet willing to sign the contract or pay the balance of $4,500. Late in March, Global asked him to come to Salt Lake City from his home in Montrose, Colorado, to work out the details of a contract. He and his attorney met with defendant for that purpose. At this time, defendant signed and gave Brown a written progress report, which outlined Global's "preliminary work" on his project and made representations about Global's plans for marketing it. 2

Thereafter, Brown signed the contract (dated Apr. 1, 1978) and paid the $4,500. Defendant and one other officer signed for Global. The contract obligated Global for a one-year period to "promote, develop, organize and put in intelligible form, Client's concepts and ideas and copyright said materials and endeavor to publish those ideas in a marketable and profitable manner." Global agreed to prepare a full franchise agreement "to implement the marketing of seminars using Client's materials, ideas and likeness on first a regional and a national basis," and "to make available for contracting a minimum of one distributor per month ... to distribute Client's publications and materials," as well as to "book lecture tour commitments," including the first lecture within two weeks of the execution of the agreement. Global agreed "to guarantee a minimum of $5,000 in royalties, lecture fees, and other sources to the Client within twelve months of execution, or it will refund the difference." 3 Brown, the client, agreed to pay Global a total of $5,000, which he did. Global never fulfilled its commitments under the contract, and Brown received no monies under it.

Various witnesses testified to the general nature of Global's operation and defendant's knowledge of it. Defendant's secretary testified that in March, 1978, in response to her comment on the volume of angry mail Global was receiving, defendant stated, "Well, everyone knows we are running a scam up here." 4 Defendant's law clerk testified that in November of 1977 defendant stated that Global was a "front-end operation" which consisted of "bringing clients in the door to have them sign the contracts and pay their money and that the operation was restricted to the front end." This witness also quoted defendant as saying about Global:

There was nothing being done with respect to the back end of the operation which had to do with contacting manufacturers, actually doing the work to market the client's products and fulfilling the terms of the contract.

Defendant also said that Global's president "would be well advised if he would do something on the back end of the operation or he would be courting trouble." The law clerk also testified to a conversation with defendant in April of 1978, when she no longer worked for him, in which defendant referred to Global as "ripoff incorporated," and said, "We're fleecing people and taking lambs to slaughter." She described defendant's attitude as "just kind of like ho, ho, ho, this is what's happening and it's kind of funny ...."

Defendant's law clerk testified that at one point, when two of the company's executives were away, Global's full-time staff consisted of herself, defendant, his secretary, and a person whose job was to compile a list of potential clients. She knew of four consultants--an engineer, a market analyst, and two artists--but knew of no persons involved in marketing or sales on either a full- or part-time basis. Defendant's secretary from January through April, 1978, testified to a full-time staff of three people, including herself, plus a "clerical staff," part or all of which she believed to be part-time. During the period she worked there, she observed an engineering consultant two or three times and one artist. She knew of no salesmen or manufacturing representatives. 5

Steven Mabey, Global's president, who had previously pleaded guilty to theft by deception in connection with his affiliation with Global and who had been sentenced to jail and required to make restitution for all client funds paid into the company, also testified. He recited a conversation in late February, 1978, in which defendant stated, "Why don't we turn on this machine and make our money and get out of this business as fast as we can." He also testified that in November, 1977, he and defendant discussed the fact that "about 90 percent of the products were not marketable, not of full marketable value." Defendant also stated, "I want my...

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