State v. Rogers

• Decision Date: 11 May 2001
• Docket Number: No. 28201.,28201.
• Citation: 209 W.Va. 348,547 S.E.2d 910
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Thomas ROGERS, Defendant Below, Appellant.

547 S.E.2d 910

209 W.Va. 348

STATE of West Virginia, Plaintiff Below, Appellee, v. Thomas ROGERS, Defendant Below, Appellant.

No. 28201.

Supreme Court of Appeals of West Virginia.

Submitted January 23, 2001.

Decided May 11, 2001.

Dissenting Opinion of Justice Davis May 14, 2001.

Darrell V. McGraw, Jr., Attorney General, Stephen B. Stockton, Assistant Attorney General, Charleston, for Appellee.

James M. Pool, J. Robert Russell, Law Office of James M. Pool, Clarksburg, for Appellant.

ALBRIGHT, Justice.

Thomas D. Rogers appeals his convictions in the Circuit Court of Randolph County, after a jury trial, for the felony offenses of two counts of larceny by depriving another of property by means of a fraudulent scheme under West Virginia Code § 61-3-24d (1995) (Repl.Vol.2000), one count of larceny by obtaining property of another by false pretense under West Virginia Code § 61-3-24 (1994) (Repl.Vol.2000) and one count of larceny by embezzlement under West Virginia Code § 61-3-20 (1929) (Repl.Vol.2000).¹ Contending that the charges were internally inconsistent and that the conduct underlying the charges did not rise to the level of criminal conduct, Appellant claims that the trial court erred by not granting a motion for judgment of acquittal as to all counts. In addition, Appellant argues that the evidence introduced at trial was insufficient to support the convictions.

After a thorough review of these arguments in conjunction with the record, we conclude that two of the convictions constitute multiple convictions and sentences for the same acts which violated double jeopardy protections. We also conclude that the evidence adduced at trial was sufficient to sustain two convictions for larceny. Accordingly, we reverse and remand this case for new orders of conviction and sentencing consistent with this opinion.

I. Factual and Procedural Background

Appellant sold and installed computer hardware, as well as network and operating systems for computers through Micro Computer Associates, Inc., a company owned by him. In the summer of 1994, Appellant and his company entered into a contract with Micro Vane, Inc., a Michigan software company, to sell Micro Vane products to beer distributors in a seven state region as an authorized independent contractor, for which Micro Vane was to pay a commission on completed sales. The contract permitted Appellant to promote Micro Vane products as well as the products and services of Appellant's business.

Micro Vane specializes in a software inventory system, known as "dBEV® Beverage Management System" (hereinafter "dBEV®"), which automates the record keeping, reporting and accounting systems of beer wholesale companies. To enable Appellant to demonstrate the various components of the computer system to prospective buyers, Micro Vane supplied him with certain dBEV® software, two operating manuals and a hand-held computer/printer.² The demonstration software provided to Appellant did not contain all of the components of a licensed software package because some features could not be demonstrated.³ Appellant maintained that he provided an additional incentive to prospective Micro Vane customers who were already computerized but were using a different brand of record keeping software. To save the prospective Micro Vane customer the time and expense of re-keying the information from an existing data base, Appellant testified that he developed an automated method by which a customer's historical data could be converted to the Micro Vane system. He said that the service was routinely provided to Micro Vane customers, but that Micro Vane refused to pay for the service. Conflicting testimony was presented regarding the existence and quality of Appellant's data conversion system.⁴

Although its independent contractors could demonstrate and promote the dBEV® software, Micro Vane's general practice was to require the buyer to submit a completed software license agreement with a check for an agreed-upon price directly to its Michigan office before it released a licensed copy of the software to the buyer. If Micro Vane accepted the contract, it would send a licensed copy of the software that was assigned a unique serial number for each customer. Micro Vane included one year of technical support in the cost of all dBEV® license agreements. After the first year, an annual service or maintenance contract could be purchased for continued technical support. Customers accessed this technical support by toll-free phone calls to the Micro Vane staff located in Michigan.

In the summer of 1996, Micro Vane deviated from its custom of requiring payment and a signed license agreement in advance of releasing a copy of its software to a new customer when one of Appellant's prospective North Carolina customers insisted on receiving the product before tendering payment or signing a license agreement. On July 26, 1996, Micro Vane sent a copy of the dBEV® software and other related software to Appellant to assist him in closing a sale with the North Carolina company. Appellant testified that the customer then gave him $2,000 in earnest money⁵ and signed a contract,⁶ and Appellant began work on converting the customer's existing data to the Micro Vane program. Soon thereafter, Appellant was informed by the North Carolina customer that he had decided not to purchase the software from Appellant.⁷ The evidence discloses that the customer subsequently obtained a new copy of the dBEV® software directly from Micro Vane. Appellant admitted that after the North Carolina customer withdrew from the contract, Appellant did not return the licensed dBEV® software or other related software to Micro Vane.

Although Appellant's written contract with Micro Vane expired on July 31, 1996, it was established at trial that Appellant was permitted to work as a Micro Vane sales representative during a period of contract renewal negotiations. However, by certified letter dated October 22, 1996, Micro Vane informed Appellant that his contract would not be renewed, and that the services of Appellant and Appellant's company were terminated, effective October 18, 1996. Micro Vane requested through this same communication that Appellant cease further sales activities on its behalf upon receipt of the letter and that Appellant forward a list of his active sales prospects to Micro Vane. Micro Vane agreed to pay commission on any sales to companies on the prospect list completed before December 31, 1996. In the letter of October 22, 1996, Micro Vane also requested that Appellant advise it about the number of Micro Vane hardware and software products in his possession so that arrangements for retrieving these items could be made. The president of Micro Vane testified that the only Micro Vane product which Appellant returned in response to the October 22, 1996, letter was the hand-held computer/printer. In addition to the software from the failed North Carolina sale noted above, Appellant failed to return any other Micro Vane software and instructional materials in his possession.

In late September or early October 1996, before receiving the October 22, 1996 non-renewal letter from Micro Vane, Appellant contacted a beer distributor in Elkins, West Virginia, known as Elkins Distributing Company, Inc. (hereinafter "Elkins"), as a potential Micro Vane software purchaser.⁸ Appellant gave Elkins a business card which contained his business address and toll-free telephone number even though the name of his business, Micro Computer Associates, was not on the card.⁹

Testimony was offered at trial that Appellant demonstrated the dBEV® software for Elkins in "mid or mid-late" October 1996. Impressed with the system, Elkins entered into a sales contract with Appellant's company, Micro Computer Associates, Inc, dated November 18, 1996, for a total amount of $56,535. This total represented a $20,435 purchase by Elkins of Micro Vane products and a $36,100 purchase of computer hardware, to be supplied by Appellant. Although the Elkins employee involved in the sale testified that she believed she was purchasing a licensed software product, Appellant did not present the standard Micro Vane license agreement to Elkins at the time of sale. Appellant also did not ask that a check be issued to Micro Vane for any portion of the sale. Instead, Appellant asked Elkins to write all checks payable to the order of Micro Computer Associates. The down payment on the sale was made by check dated November 19, 1996, well after Appellant's relationship with Micro Vane had been terminated, and the final payment was made thereafter by check dated December 6, 1996. Bank records established that all proceeds from the Elkins sale were deposited in the Micro Computer Associates bank account and testimony further revealed that no money from this sale was remitted by Appellant to Micro Vane for any of its products.

Appellant delivered the hardware that Elkins purchased from his company under the contract. He installed on that hardware the Micro Vane dBEV® software which had been sent to him by Micro Vane in the aborted North Carolina sale. He also installed the Anheuser Busch software he had obtained from the same North Carolina transaction, as well as some of the software in the demonstration package Micro Vane had given to him. Appellant gave Elkins three training manuals: two of the manuals were part of the demonstration materials that Micro Vane supplied to Appellant and the third book, which provided information on the Anheuser Busch software, was obtained from the North Carolina company that chose not to purchase the Micro Vane system from him. Appellant informed Elkins during the course of the installation that any questions regarding service of the software in the first year should be directed to him at his toll-free number, rather than to Micro Vane. According to the Elkins representative, Appellant indicated at the time of sale that the system should be in...