State v. Roche, Inc., A-92-1039

• Decision Date: 04 January 1994
• Docket Number: No. A-92-1039,A-92-1039
• Citation: 511 N.W.2d 195,2 Neb.App. 445
• Parties: STATE of Nebraska, Appellee, v. ROCHE, INC., doing business as the COPY CENTER, a Nebraska Corporation, Appellant.
• Court: Nebraska Court of Appeals

Page 195

511 N.W.2d 195

2 Neb.App. 445

STATE of Nebraska, Appellee, v. ROCHE, INC., doing business as the COPY CENTER, a Nebraska Corporation, Appellant.

No. A-92-1039.

Court of Appeals of Nebraska.

Jan. 4, 1994.

Patrick T. O'Brien, of Bauer, Galter, O'Brien, Allan & Butler, Lincoln, for appellant.

Don Stenberg, Atty. Gen., and Marilyn B. Hutchinson, Lincoln, for appellee.

SIEVERS, C.J., and HANNON and MILLER-LERMAN, JJ.

MILLER-LERMAN, Judge.

Appellant, Roche, Inc., doing business as The Copy Center, a Nebraska corporation, was convicted in a bench trial before the district court for Lancaster County of two counts of theft by deception. The case generally involved allegations that Roche had sold two copy machines on which the meters had been rolled back, thereby deceiving the purchasers with respect to the actual number of copies which had been run on the machines. The trial court found beyond a reasonable doubt that Roche was guilty of theft by deception with regard to property valued at $300 or more but less than $1,000, placing a value of $405 on count I, in connection with the sale of a used Mita 4055 copy machine to Naber's Consulting & Tax Services, Inc. (Naber's). The court also found Roche guilty of theft by deception on count II with regard to property valued at more than $100 but less than $300, placing a value of $180, in connection with the sale of an allegedly new Mita 2555 copy machine to the Nebraska Pharmacists Association, Inc. (NPA). Both convictions are based on violations of Neb.Rev.Stat. § 28-512(1) (Reissue 1989) and graded as theft offenses pursuant to Neb.Rev.Stat. § 28-518 (Reissue 1989). Count I was a Class IV felony, and count II was a Class I misdemeanor pursuant to § 28-518. After a presentence report was prepared, the court ordered Roche to pay restitution of $405 to Naber's and $180 to the NPA. For the reasons recited below, we affirm the judgment in part, vacate the sentences, and remand the cause with directions.

ASSIGNMENTS OF ERROR

Roche claims on appeal that the trial court erred because (1) a corporation cannot be liable for theft by deception because a corporation cannot possess the requisite intent and (2) there is insufficient evidence to support the convictions of theft by deception because the testimony is not persuasive and there is no evidence that the victims suffered pecuniary loss.

SCOPE OF REVIEW AND RELEVANT STATUTES

With respect to a question of law, "an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the trial court." VanDeWalle v. Albion Nat. Bank, 243 Neb. 496, 499, 500 N.W.2d 566, 569-70 (1993).

The Nebraska Supreme Court has held:

In determining whether evidence is sufficient to sustain a conviction in a bench trial, an appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented, which are within a fact finder's province for disposition. A conviction in a bench trial of a criminal case is sustained if the evidence, viewed and construed in the light most favorable to the State, is sufficient to support that conviction. The trial court's findings have the effect of a verdict and will not be set aside unless clearly erroneous.

State v. Reichert, 242 Neb. 33, 35, 492 N.W.2d 874, 876 (1992).

Under Nebraska statutes, theft by deception is defined as follows:

A person commits theft if he obtains property of another by deception. A person deceives if he intentionally:

(1) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise ... [.]

....

The word deceive does not include falsity as to matters having no pecuniary significance, or statements unlikely to deceive ordinary persons in the group addressed. § 28-512.

The word "person" is defined in the Criminal Code as "any natural person and where relevant a corporation or an unincorporated association." Neb.Rev.Stat. § 28-109(16) (Reissue 1989).

The grading of theft offenses is controlled by § 28-518, which provides in relevant part:

(1) Theft constitutes a Class III felony when the value of the thing involved is over one thousand dollars.

(2) Theft constitutes a Class IV felony when the value of the thing involved is three hundred dollars or more, but not over one thousand dollars.

(3) Theft constitutes a Class I misdemeanor when the value of the thing involved is more than one hundred dollars, but less than three hundred dollars.

(4) Theft constitutes a Class II misdemeanor when the value of the thing involved is one hundred dollars or less.

Restitution is controlled by Neb.Rev.Stat. § 29-2280 et seq. (Reissue 1989). The pertinent portion of those statutes regarding this case states:

A sentencing court may order the defendant to make restitution for the actual physical injury or property damage or loss sustained by the victim as a direct result of the offense for which the defendant has been convicted. Whenever the court believes that restitution may be a proper sentence or the victim of any offense or the prosecuting attorney requests, the court shall order that the presentence investigation report include documentation regarding the nature and amount of the actual damages sustained by the victim.

(Emphasis supplied.) § 29-2280.

FACTS

Gerald (Jerry) Rock and Sandra Rock are co-owners of Roche, Inc., doing business as The Copy Center. The evidence regarding both counts of theft by deception involved the acts of employees of The Copy Center's Lincoln, Nebraska, branch office.

According to the evidence, on April 4, 1989, a Mita 4055 copier, serial No. 36002506, had a beginning meter reading of 847,752 when it was delivered to Cooper Nuclear Station. On June 21, 1989, that same copier left Cooper Nuclear Station with a meter reading of 870,308. On January 30, 1990, this copier was sold to Naber's. The meter read 375,254. The meter reading appeared on a Copy Center invoice and was prepared and initialed by a Copy Center salesperson, Matt Mueller.

Calvin Krohn, a former service manager at The Copy Center in Lincoln, testified that he rolled back the meter on the machine sold to Naber's. Krohn rolled the meter back from approximately 890,000 to under 400,000, pursuant to directions from T.J. Goltl. Goltl was the location manager at the Lincoln store.

Naber's paid $1,595 for the used Mita 4055 copier. Keith Naber testified that he knew he was purchasing a used machine and that he had been told to expect the machine to have a useful life of 1,000,000 copies. He testified that he was not told that the meter had been rolled back. Naber testified that had he been told the meter had been rolled back, he would have paid less for the machine.

Carol Langdon, office manager of the NPA, testified that in November 1989, Mueller offered to bring a demonstrator copier to the NPA. The NPA was looking for a new copier. A few days after the machine had been delivered by Mueller and one other person, the copier malfunctioned. Langdon called Mueller to report the broken copier, and Mueller and a technician went to the NPA to inspect it. The condition of the machine was such that it had to be taken back to the shop at The Copy Center to be repaired.

On December 15, 1989, the NPA purchased from The Copy Center a new Mita 2555, for which the NPA paid $4,220. During the installation by Mueller and a technician of the "new" Mita 2555, serial No. 36002766, Langdon recognized scratches on the copier identical to scratches on the demo that had been taken away for repairs. When asked if the "new" machine was the demo, Mueller replied, "Definitely not. We wouldn't do that. This is a new machine." Langdon pursued by asking, "Are you sure now?" to which Mueller replied, "Definitely."

The copier received by the NPA had two noticeable scratches about 1 foot apart, one above the other. Langdon was suspicious, so she looked at the meter, which read 16. The demo had had approximately 300 on its meter when it was taken away for repairs.

Timothy Arroyo, a former employee of The Copy Center in Lincoln, testified that he was the individual who had rolled the meter back on the machine sold to the NPA. According to Arroyo, Mueller directed him to roll back the meter so that it could be sent back to the NPA as a new one. Arroyo testified that this copier had had a reading of about 2,000 on its meter, and he rolled it back to zero.

Investigator Curtis Hibdon of the Lincoln Police Department, who investigated the case against Roche, testified that pry marks on the meter housings on the copiers sold to Naber's, the NPA, and another customer not at issue here were consistent with marks left on a sample meter which had been altered.

Brian Thomas, a former copier service technician at The Copy Center, testified that he saw another service technician there, Brian Shea, roll back a copier meter in 1988. He also testified that he heard Jerry Rock tell Kevin Braden, the service manager in charge of all the service technicians, to have a meter rolled back.

Michael Cooper, a former salesperson with Roche, testified that he heard Jerry Rock tell Kenneth Hoefler, a former Copy Center employee, to roll back the meter on a machine.

Hoefler testified that in March or April 1987, in Norfolk, Nebraska, he was asked by Jerry Rock if he had yet learned how to turn meters back. Hoefler stated that in February 1988, Jerry Rock asked him to turn the meters back to zero on two 2055 copiers that had previously been demos. Hoefler testified that he refused and that Jerry Rock became upset. According to Hoefler, Braden telephoned Hoefler later that afternoon and insisted that Hoefler turn back the meters. Hoefler testified that he again refused, acknowledging that doing...