State v. Snyder, 20470
| Decision Date | 29 July 1987 |
| Docket Number | No. 20470,20470 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Phillip G. SNYDER, Defendant and Appellant. |
| Court | Utah Supreme Court |
David L. Wilkinson, Kimberly K. Hornak, Salt Lake City, for plaintiff and respondent.
Rodney G. Snow, Neil A. Kaplan, Salt Lake City, for defendant and appellant.
Defendant appeals his conviction of theft of funds invested in a condominium project. 1
In July 1979, defendant acquired a tract of land in Provo, Utah, for the purpose of developing it as a condominium project known as Temple Hills. Beginning in August 1979, defendant proceeded to presell condominiums to be built on the land. The project failed, the land was lost, and all of the investors' funds were primarily expended on defendant's unrelated ventures, which included a gold mine, a real estate agency, a house, and a shopping mall.
On October 7, 1983, defendant was charged by information with seven counts of theft by deception. 2 Apparently to avoid a statute of limitations bar to the prosecution, the information was amended to charge nine counts of theft. 3 The information specifically relied upon Utah Code Ann. § 76-6-404 (1978), theft by unlawful taking or disposition, which superseded several of the older definitions of theft, including embezzlement. 4
At a pretrial conference, it was resolved that the statute of limitations was not an issue. And at trial, the State presented its case on the theory of embezzlement.
It was the State's evidence that as an incentive to investors, defendant offered to discount the price of each condominium purchased in an amount equal to the sum invested, up to $22,200. Alternatively, defendant offered to resell a purchased unit and return to the investor double his or her investment, which could also be as much as $22,200. The investors were told that the purpose of the sales was to generate sufficient cash to complete the purchase of the Temple Hills land and to begin construction of the condominiums. Defendant also represented that the investment opportunity was limited to about twelve buyers, that the funds invested would be held in trust until enough cash was on hand to pay off the sum owing on the land, and that the funds would not be expended except to purchase the land or as up-front construction money for the Temple Hills development.
It was defendant's testimony at trial that he did not hold the investors' funds in trust, nor did he intend to do so. Defendant testified that he believed the money was his to do with as he pleased since the earnest money agreement contained a nonrefundability clause.
It was stipulated for purposes of trial that defendant sold a total of twenty-nine condominiums to some twenty-eight investors, for an aggregate sum of $566,600, all of which was spent by April 29, 1980, and that none of the investors received any of their money back.
At the close of all of the evidence, the trial court dismissed one of the counts of theft for lack of evidence, the alleged victim having failed to appear and testify. The jury convicted on the remaining eight counts.
The trial court sentenced defendant to eight concurrent terms of one to fifteen years and ordered him to pay a fine of $1,000 on each count. The trial court also ordered defendant to make restitution to the persons who invested in the project, not to exceed $500,000. The restitution amount was to be determined (a) by agreement between defendant and the Department of Corrections, (b) through civil litigation or (c) by further order of the court. Defendant's motion for a new trial was denied, and this appeal followed.
Defendant's first point on appeal is that the evidence was insufficient to support his convictions under the theft by unlawful taking or disposition statute, and therefore the jury must have convicted him of theft by deception, an offense time-barred by the statute of limitations.
Section 76-6-404 provides, "A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof." Subsection 76-6-401(4) defines "obtains or exercises unauthorized control" as including conduct "heretofore defined or known as ... embezzlement." Prior to the enactment of the present criminal code, we held that the offense of embezzlement was committed when one entrusted with the property of another converted it to his or her own use. 5 However, the taking of property into possession by unlawful means, such as by trick or deception, did not constitute embezzlement. 6
In the instant case, the State having elected to prosecute on a theory of embezzlement, it was not in dispute that defendant lawfully obtained possession of the funds of the investors. What was in dispute was the authority defendant had to expend the funds entrusted to him. Defendant denied wrongdoing of any kind. He testified that the funds were lawfully his to do with as he saw fit. On the other hand, it was the State's evidence that the funds entrusted to defendant were only to be expended on the Temple Hills project.
The jury was duly instructed on the elements of the offense of theft by unlawful taking or disposition in the following manner:
Under the laws of the state of Utah a person commits theft if he obtains or exercises control over the property of another with a purpose to deprive the owner thereof....
....
When one intentionally and knowingly appropriates the property of another lawfully in his possession, to his personal use without permission for such, the offense of theft is complete....
The case was presented, argued, and submitted to the jury on the theory of embezzlement, and no alternative or conflicting instructions were given on the time-barred offense of theft by deception. Defendant's contention that the jury might have convicted on the basis of an offense neither prosecuted nor instructed upon is not supported by the record and is therefore without merit.
Defendant's challenge to the sufficiency of the evidence relating to the specific acts of embezzlement is similarly without merit. The evidence was not in dispute as to the date and the amount invested by each investor named in the information and the date the sums were deposited in defendant's operating account. They are as follows:
Date Deposited
-----------------
Date of into Defendant's
---------- -----------------
Count Investor Amount Invested Investment Operating Account
----- -------- ---------------- ---------- -----------------
I Yalden $ 7,333.33 11-6-79 12-18-79
II Jolley $30,000.00 8-27-79 8-31-79
III Smith ) 8-31-79 )
IV Smith ) $33,000 (total) 8-31-79 ) 9-4-79
V Smith ) 8-31-79 )
VI Smith $ 5,333.33 11-6-79 12-18-79
VII Barlow $22,000.00 9-5-79 9-10-79
VIII Pace $11,000.00 8-31-79 9-4-79
Brent C. Morris testified on behalf of the State. He had conducted an investigation and had analyzed defendant's operating account. Morris prepared a summary of the account which was received in evidence as Exhibit 47. The exhibit reflects the deposits of the numerous investors, the expenditures, and the purpose of each expenditure from August 30, 1979, through April 29, 1980, when the account became overdrawn. None of the early expenditures appear to have been made for purposes not related to the Temple Hills project. However, beginning in October 1979 and continuing until the account was overdrawn, numerous expenditures were made for purposes clearly unrelated to the Temple Hills project. Expenditures which the jury could have concluded, beyond a reasonable doubt, were made in breach of the investors' trust are as follows:
Date Amount Purpose
-------- ---------- ------------------------
10-16-79 $40,487.96 Payoff on Lockhart
loan
10-30-79 29,000.00 Purchase of two lots
12-11-79 52,109.18 Down payment on real
estate agency
12-21-79 10,000.00 Down payment on
house
1-8-80 5,000.00 Mining venture
1-11-80 5,000.00 Business overhead, real
estate agency
1-21-80 8,700.00 Mining equipment
1-21-80 2,000.00 Mining equipment
1-22-80 20,000.00 Partial payment on
house
1-23-80 1,000.00 Family expenses
2-27-80 2,009.00 Mining venture
3-7-80 5,250.00 Mining venture
3-12-80 14,394.68 Interest in Sundance lot
3-13-80 353.00 Loan payment on
Jaguar
4-17-80 2,000.00 Transfer to personal
Account
Defendant next contends that the trial court erred in denying defendant's motion for a new trial before new counsel could obtain a transcript of the trial proceedings. The trial court denied the motion for a new trial, stating that there was sufficient evidence to submit the issue of guilt to the jury and that it was simply trial strategy for former defense counsel not to have offered evidence of which he had knowledge. Defendant does not now dispute the grounds for the ruling of the trial court.
Moreover, defendant fails to support this contention of error with any reference to the record, and this Court's perusal of the record fails to disclose any request for or denial of a continuance or that defense counsel objected to proceeding with the motion without more time to prepare. For these reasons, we do not consider the matter further and find no error on the part of the trial court.
Defendant's final point of error is that the trial court erred in ordering the payment of fines...
To continue reading
Request your trial
-
Fed. Nat'l Mortg. Ass'n v. Sundquist
...OF REVIEW ¶ 10 We generally will not disturb a district court's order of restitution unless it abuses its discretion. State v. Snyder, 747 P.2d 417, 422 (Utah 1987). However, when the validity of an order of restitution turns on interpretation of a statute, it presents issues of law. State ......
-
State v. Anderson
...655 (Utah 1984); Steadman v. Lake Hills, 20 Utah 2d 61, 433 P.2d 1, 3 (1967).10 Utah Code Ann. § 76-3-201(3)(a) (1990); State v. Snyder, 747 P.2d 417, 421 (Utah 1987).11 See Utah Code Ann. § 77-1-3(3) (1990).12 In Emmertson v. State Tax Comm'n, 93 Utah 219, 72 P.2d 467, 468 (1937), the cour......
-
State v. Haston
...statutory factors. Utah Code Ann. § 76-3-201 (1990). While the court has the discretion to award or deny restitution, State v. Snyder, 747 P.2d 417, 420 (Utah 1987), the judge must state the reasons for the decision in the trial record. Utah Code Ann. § 76-3-201(3)(b)(i) (1990). Although th......
-
State v. Robertson
...of both sections is permissive; therefore, the imposition of restitution is a matter left to the discretion of the court. State v. Snyder, 747 P.2d 417, 420 (Utah 1987). However, before ordering restitution, the court must take into account the financial resources of the defendant. 9 Utah C......