State v. Musselman

• Decision Date: 21 June 1983
• Docket Number: No. 17380,17380
• Citation: 667 P.2d 1061
• Parties: STATE of Utah, Plaintiff and Appellant, v. D. John MUSSELMAN, Defendant and Respondent.
• Court: Utah Supreme Court

Page 1061

667 P.2d 1061

STATE of Utah, Plaintiff and Appellant, v. D. John MUSSELMAN, Defendant and Respondent.

No. 17380.

Supreme Court of Utah.

June 21, 1983.

David L. Wilkinson, Atty. Gen., Robert R. Wallace, Craig L. Barlow, Asst. Attys. Gen., Salt Lake City, for plaintiff and appellant.

Phil L. Hansen, Salt Lake City, for defendant and respondent.

STEWART, Justice:

Defendant was charged with (1) forgery pursuant to U.C.A., 1953, § 76-6-501(1)(b), and (2) theft pursuant to § 76-6-404 and § 76-6-412, or alternatively, theft by deception pursuant to § 76-6-405 and § 76-6-412. At the conclusion of the State's case in chief, defendant moved to dismiss both counts. The trial court found the defendant innocent of the theft charges on the ground that the State had failed to prove the requisite criminal intent, and denied the motion to dismiss the forgery count. The defense then presented its case. At the close of all evidence, the trial court ruled that the motion to dismiss the forgery count made at the close of the State's case was granted nunc pro tunc as a matter of law on the ground that an attorney does not commit a crime by signing his client's name to a settlement check.

The State appeals both dismissals and seeks a new trial on both counts. Defendant responds that the appeals should be dismissed because a retrial is barred by the double jeopardy clauses of the State and Federal constitutions and asserts that an opinion on the merits would be advisory only.

In 1976 defendant, an attorney, filed a lawsuit on behalf of his client, Val Conlin. In the summer of 1978, defendant informed Conlin that a settlement offer had been made and showed Conlin a settlement check for $3,500.00 made payable to both Conlin and defendant. Conlin rejected the check because the settlement amount was not enough and he wanted his day in court. Nevertheless, the defendant retained the settlement check, and in September 1978 signed Conlin's and his own name on the check as endorsements and deposited the check in his trust account. Defendant also signed Conlin's signature on a stipulation, a motion, an order of dismissal with prejudice, and on a release of all claims. ¹ By the end of September, defendant's trust account balance had fallen to $129.14, and nothing had been paid out to Conlin.

Sometime the following year, Conlin asked the defendant about the status of the lawsuit, and the defendant informed Conlin that the action had been dismissed. Thereafter, Conlin employed other counsel to determine why his suit had been dismissed. As a result, defendant's activities came to light.

The theft by deception and theft charges were brought in the alternative because the State was uncertain whether the $3,500.00 held by defendant belonged to Conlin, who had refused the check, or to the opposing party's insurer, which had issued the check. Conlin disclaimed any right to the money apparently because he did not want to ratify the unauthorized settlement, and the insurer disclaimed any right to the money, apparently because it wanted to enforce the settlement agreement. Presumably, theft by deception was the proper charge if the money belonged to the insurer, and theft was the proper charge if the money belonged to Conlin.

The charges were tried to the court sitting without a jury. The court dismissed both theft charges on the finding that there was insufficient evidence that defendant had the requisite intent to deprive the owner of the money. The trial court also dismissed the forgery charge as a matter of law at the close of all evidence on the ground that an attorney cannot be guilty of forgery in signing his client's name to documents relating to his client's lawsuit. The trial court stated that "given the existence of either implied or statutory authority of some kind to execute a document in the name of one's client, an attorney at law cannot commit a forgery within the meaning of the statutes of the State of Utah in so executing his client's name on the document." The court found that defendant had such authority as a matter of law.

The first issue is whether the State may appeal the trial court's rulings disposing of the theft and forgery charges. U.C.A., 1953, § 77-35-26(c) sets forth the limited circumstances in which the State may appeal in a criminal case:

(c) An appeal may be taken by the prosecution:

(1) From a final judgment of dismissal;

(2) From an order arresting judgment;

(3) From an order terminating the prosecution because of a finding of double jeopardy or denial of a speedy trial;

(4) From a judgment of the court holding a statute or any part thereof invalid; or

(5) From an order of the court granting a pre-trial motion to suppress evidence when, upon a petition for review, the supreme court decides that such an appeal would be in the interest of justice.

The State argues that the trial court's adverse ruling on the theft charges was erroneous as a matter of law and should be reversed because reasonable minds could only conclude that there was overwhelming proof of all the elements of the theft charges. The critical issue in resolving this contention is whether the trial court's action constituted an acquittal. Section 77-35-26(c) does not authorize the State to appeal an acquittal, no matter how overwhelming the evidence against the defendant may be.

The label attached to a ruling by a trial judge is not determinative of whether the termination of a criminal prosecution is an acquittal. United States v. Scott, 437 U.S. 82, 96-97, 98 S.Ct. 2187, 2196-2197, 57 L.Ed.2d 65 (1980); United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977). A ruling that constitutes a factual resolution in favor of the defendant on one or more of the elements of the offense charged is an acquittal. United States v. Scott, supra 437 U.S. at 97, 98 S.Ct. at 2197; United States v. Martin Linen Supply Co., supra 430 U.S. at 571, 97 S.Ct. at 1354.

In the instant case, the trial court "dismissed" the theft charges because of its determination that there was inadequate proof of the requisite intent to commit the crimes charged. Although the ruling was labeled a "dismissal" by the trial court, it was clearly based on the trial court's assessment of the evidence and is an acquittal and not a "dismissal" as that term is used in § 77-35-26(c). See United States v. Scott, supra; United States v. Martin Linen Supply Co., supra. The State's appeal of the theft counts must, therefore, be dismissed because an acquittal is not appealable. Cf. State v. Davenport, 30 Utah 2d 298, 517 P.2d 544 (1973); State v. Overson, 26 Utah 2d 313, 489 P.2d 110 (1971).

An appellate court, on principles deeply rooted in the double jeopardy clauses of the Utah and Federal constitutions, and by the very nature of the judicial process itself, may not reassess an acquittal even though the acquittal was made under an incorrect application of the law or an improper determination of the facts. United States v. Martin Linen Supply Co., supra. Once a criminal charge has resulted in an acquittal by the trier of fact, the prohibition against double jeopardy prevents that determination from ever again being challenged. It is of no consequence that the determination was made as a matter of law by a directed verdict of acquittal, ² or as a matter of fact by the trier of fact. See, e.g., Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982); United States v. Martin Linen Supply Co., supra; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). ³ Furthermore, for an appellate court to render an opinion on appeal from an acquittal would be to render an advisory opinion, which is beyond our power. See State v. Overson, supra.

In contrast to the dismissal of the theft charge, the trial court dismissed the forgery charge, on the motion of the defendant, on the ground that the defendant had authority, as a matter of law, by virtue of his office as an attorney to sign Conlin's name to the settlement check. Thus, the dismissal of the forgery charge was based on the trial court's construction of the applicable law before the court ruled on the sufficiency of the evidence to convict. The ruling was, in effect, a "final judgment of dismissal" under § 77-35-26(c)(1), and therefore appealable even though the ruling was made at the close of all the evidence.

Nevertheless, even if there is statutory authorization for the State to appeal the dismissal of the forgery count, it does not necessarily follow that we may consider the merits of the appeal. An appellate court may not address the merits of a criminal appeal if a reversal would require a retrial that would be barred by the double jeopardy clause. See, e.g., United States v. Martin Linen Supply Co., supra.

Jeopardy attaches in a judge-tried case when the first witness is sworn and the court begins to take evidence. Crist v. Bretz, 437 U.S. 28, 37 n. 15, 98 S.Ct. 2156, 2162 n. 15, 57 L.Ed.2d 24 (1978); Lee v. United States, 432 U.S. 23, 28 n. 3, 97 S.Ct. 2141, 2144 n. 3, 53 L.Ed.2d 80 (1977); Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). See Boyer v. Larson, 20 Utah 2d 121, 433 P.2d 1015 (1967). Since testimony was taken in the instant case, jeopardy attached. It is not, however, necessarily true that a retrial is barred by the double jeopardy clause in all cases once jeopardy has attached. When a defendant's motion for a mistrial is granted, the jury is unable to reach a verdict, or a conviction is reversed on appeal for errors of law in the trial of the case, a defendant may be retried notwithstanding the double jeopardy clause. E.g., Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); State v. Jaramillo, 25 Utah 2d 328, 481 P.2d 394 (1971); State v. Gardner, 62 Utah 62, 217 P. 976 (1923). See United States v. Scott, supra.

Defendant relies on United States v. Jenkins, ...