State v. Vigil

• Decision Date: 05 July 1996
• Docket Number: No. 940614-CA,940614-CA
• Citation: 922 P.2d 15
• Parties: STATE of Utah, Plaintiff and Appellee, v. Thomas M. VIGIL, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 15

922 P.2d 15

STATE of Utah, Plaintiff and Appellee, v. Thomas M. VIGIL, Defendant and Appellant.

No. 940614-CA.

Court of Appeals of Utah.

July 5, 1996.

Patrick L. Anderson, Salt Lake City, for Appellant.

Jan Graham and Todd A. Utzinger, Salt Lake City, for Appellee.

Before DAVIS, BILLINGS, and WILKINS, JJ.

OPINION

DAVIS, Associate Presiding Judge:

Defendant Thomas M. Vigil appeals a jury verdict convicting him of three counts of theft by deception, one third degree felony and two second degree felonies, in violation of Utah Code Ann. § 76-6-405 (1995). We affirm.

I. FACTS

Defendant is appealing from a jury verdict; thus we recite the facts in a light most favorable to the jury's verdict, "but present conflicting evidence to the extent necessary to clarify the issues raised on appeal." State v. Winward, 909 P.2d 909, 910 (Utah App.1995).

A. The Elizondos

In early November 1992, John Giffen, an adoption attorney in St. George, Utah, received a phone call from defendant's wife, Tonya Vigil, a co-defendant in this case. Tonya informed Giffen that she was expecting a child March 27, 1993, and that she and defendant, the child's father, wished to place the baby for adoption. Giffen explained to Tonya the procedure for a private adoption and offered to have Saunya Schuchart, his paralegal who resided in Salt Lake City where the Vigil's were living, meet with her and show her several "resumes" ¹ of potential adoptive families.

Schuchart met with defendant and his wife at a local restaurant, provided them with the resumes, and explained the adoption process. The Vigils chose Frank and Stephanie Elizondo, a California couple, from the resumes as the prospective adoptive parents. At this meeting, defendant asked Schuchart whether the Vigils could receive financial assistance for living and medical expenses during the pregnancy. Schuchart assured him that they could.

After the Vigils had chosen the Elizondos as the adoptive parents, Frank Elizondo contacted Tonya by phone. The two conversed to get acquainted. At this time, Frank agreed to send Giffen money to assist the Vigils with their living expenses. Because neither defendant nor Tonya were working, the Elizondos agreed to pay for their living expenses until defendant found employment. At that time, the financial assistance would be reduced by the amount defendant was earning. Giffen would deposit the money received from Frank into a trust account, which would then be used to assist the Vigils when needed. Either defendant or Tonya would call Schuchart and request money; she would then contact Giffen. Giffen would transfer Frank's money into a Salt Lake City bank account from which Schuchart could draw the necessary amount. ² Frank initially forwarded $1200 on November 5th to help defendant and Tonya get into an apartment.

After the initial meeting, Schuchart again met with the Vigils when defendant called requesting that she assist them in locating an apartment. An apartment was found and Schuchart gave defendant two checks, presumably to cover rent. However, Tonya called Schuchart one or two days later and told her defendant had left and taken the checks without paying for the apartment. Schuchart stopped payment on the checks.

Schuchart did not hear from the Vigils for approximately two and a half weeks. When Tonya finally made contact with Schuchart, Schuchart again helped the two find an apartment. Because of the Vigils' poor credit history, the landlord required Giffen to personally guarantee rent for four months.

Giffen met with the Vigils in either late November or early December. Along with a medical record release form, Giffen had the Vigils sign a "Waiver of Consent of Interest." Giffen explained that because he represents both the Elizondos and the Vigils, there was a potential conflict of interest and, therefore, he needed to get their permission to represent both parties. Giffen also discussed a document with the Vigils entitled "The Illegality Pitfalls in Adoptions." The document informs birth parents what they can and cannot do regarding the adoption. Giffen advised the Vigils that receiving money from adoptive parents for pregnancy related expenses did not mean that consent for the adoption had to be given. Additionally, Giffen told them it was illegal to take money from an adoptive couple if they did not intend to go through with the adoption and it was illegal for the birth parents to take money from more than one prospective adoptive couple. Although the document covered California law, Giffen told the Vigils that Utah had the same type of laws. Both defendant and Tonya signed this document.

In the middle of December, Giffen received a phone call from defendant, who requested that Giffen pay him the rent for January early so that he and Tonya could buy "Christmas presents, and clothes and things." Defendant assured Giffen he would take care of the January rent himself if Giffen would release the funds. Based on this conversation, Giffen sent $375 on December 11th and $125 on December 14th to cover the holiday expenses. Notwithstanding defendant's promise, the Vigils failed to pay January's rent, which was ultimately paid a second time by the Elizondos.

During the middle of February 1993, the Elizondos visited the Vigils in Salt Lake City. Schuchart picked the Elizondos up at the airport and dropped them off at the Vigils' apartment. The four went to lunch and after some sightseeing, Tonya suggested they visit the hospital maternity ward where she anticipated the baby would be born. Tonya also gave Stephanie a baby blanket which a friend had made for Tonya's baby. Defendant then dropped the Elizondos off at the airport. Both Frank and Tonya testified the visit went well.

After this visit, Frank received a phone call from defendant, who requested that Frank start sending the money directly to defendant, bypassing Giffen. Defendant also requested that Frank change attorneys, stating he was not happy with Giffen because defendant wanted to control the money and Giffen did not allow it. Frank told defendant he was bound contractually to Giffen and could not change attorneys. Subsequent to this conversation, defendant called Frank again and requested $1500 to buy a car. Frank told defendant that he did not have that kind of money and, in any event, the money had to go through Giffen and had to be for pregnancy related items. Defendant became angry and told Frank not to tell Giffen about the request.

Toward the end of February, Giffen received another phone call from defendant. Defendant again requested that the March rent be sent early and that it be sent directly to defendant, as opposed to the landlord. Giffen resisted and defendant hung up on him. Defendant called again the next day, insisting that he needed the money. Giffen relented and had Schuchart write a check to Tonya, which was done on February 24th. A few short weeks after this transaction took place, defendant again called Giffen stating that he needed money for the March rent. ³ After Giffen reminded defendant that they had already paid rent for March, defendant replied that he spent the money on his car. When Giffen told defendant he did not think they could pay the rent again, defendant got angry and hung up on Giffen. Giffen spoke with Frank, who again sent money to cover the rent for March.

Frank continued to call the Vigils numerous times a week to check on Tonya's status. Although he was able to talk to Tonya a few times, the majority of the conversations were with defendant, who told Frank that Tonya was resting. Toward the middle of March Frank began calling almost every day, anxious about the baby's arrival. Frank had discussed with the Vigils the arrangements for picking up the baby; when Tonya went into labor, either she or defendant was to call Frank. As soon as Frank received word, he and Stephanie would take the next flight into Salt Lake City and meet the Vigils at the hospital.

At one point, Frank was unable to reach either defendant or Tonya for a full day. ⁴ Anticipating that Tonya had gone into labor, Frank called the hospital, where he talked to defendant. Defendant assured Frank that Tonya was only there for a routine check-up. Frank called again the following Monday and spoke to defendant. Defendant told Frank that Tonya was resting. When Frank asked defendant when Tonya's next doctor appointment was, defendant replied that it was Tuesday. Frank phoned again on Tuesday and defendant stated that the appointment had been moved to Wednesday. When Frank called on Wednesday, he discovered that the Vigils' phone had been disconnected.

The last conversation Giffen had with defendant was on or about March 18th. Defendant called Giffen and told him that they had not paid their utility bills for several months and, as a result, the utility companies were threatening to turn them off. Giffen had Schuchart confirm this with the utility companies, and the Elizondos ultimately paid for the phone and electric bill. Schuchart issued a check to the Vigils on March 18th for $150 to cover groceries. On the same day, Schuchart wrote a check to the phone company, stuck the check in the envelope with the bill, sealing it. Schuchart also deposited $250 with the landlord on March 19th for a cleaning fee deposit.

After delivering this money to the Vigils, Schuchart received a phone call from Frank, who asked that she investigate why the phone had been disconnected. Schuchart, knowing that she had just paid the phone bill, went over to the apartment on the Thursday following Frank's last phone call to the Vigils, where defendant let her in. After approximately 20 minutes, defendant brought out a newborn baby girl and introduced her as Alexandria. Defendant informed Schuchart that he and Tonya had decided to keep the baby. When Schuchart asked when the baby was born, defendant said that she was born two days ago. ⁵ After learning this, Schuchart informed...