Yeager v. State, 4 Div. 593

• Decision Date: 09 September 1986
• Docket Number: 4 Div. 593
• Citation: 500 So.2d 1260
• Parties: Vicky J. YEAGER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1260

500 So.2d 1260

Vicky J. YEAGER v. STATE.

4 Div. 593.

Court of Criminal Appeals of Alabama.

Sept. 9, 1986.

Rehearing Denied Oct. 14, 1986.

Certiorari Denied Jan. 9, 1987

Alabama Supreme Court 86-110.

Rufus R. Smith, Jr., of Farmer, Price & Smith, Dothan, and Edward L. Hardin, Jr., of Hardin & Hollis, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Tommie Wilson, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Vicky J. Yeager was convicted for theft of property in the first degree, sentenced to twenty years' imprisonment, and ordered to pay restitution in the amount of $94,000.

I

The defendant argues that the evidence is insufficient to support her conviction.

The indictment charged the defendant with theft by deception in that she

"did knowingly obtain, by deception, control over money, the property of D.E. Ponder, Jr., of the value of, to-wit: $147,000.00, with the intent to deprive the owner of said property, by representing to the said D.E. Ponder, Jr. that she had purchase orders for $147,000.00, of Amagift Albums from West Point Pepperell, said representation being false, in violation of § 13A-8-3 of the Code of Alabama."

In February of 1981, the defendant approached Dan Ponder, Jr. with a business proposition. She represented that she was an Amway Distributor and that she had conceived a novel plan to market Amway Amagift Albums to businesses. Because Amway required payment for the products prior to delivery, the defendant asked Ponder to advance her the $1200 she needed to purchase the products. In return she promised him a $600 profit from the sale of the product to the business. Ponder advanced her $1200 and within several days, the defendant fulfilled the agreement and paid $1800 to Ponder.

By September of 1982, Ponder and the defendant had conducted forty-four similar transactions which had been financed by conventional loans. After that, the transactions were evidenced by joint venture agreements. Between February of 1981 and July of 1983, Ponder and the defendant had engaged in 120 business transactions.

The subject of the indictment was joint venture agreement Number 121 entered into on July 21, 1983. In this agreement, the defendant represented that West Point Pepperell had ordered 12,100 Amagift Albums for a total purchase price of $286,524.37, and that she required $94,000 in order to complete her order of the albums. Attached to the joint venture agreement was a purchase order from West Point Pepperell.

Under the agreement, Ponder agreed to contribute the $94,000 so that the defendant could "fulfill the order and complete the sale." In return, Ponder would receive $141,000 ($94,000 investment plus $47,000 profit) to be paid in three equal installments. As security for the investment the defendant assigned her rights in the inventory and the proceeds of the sale.

On July 26, 1983, Ponder borrowed $94,000 from the Commercial Bank in Georgia, deposited it in his own bank account and on July 29, 1983, wired $147,000 to the defendant who was doing business as Southeastern Horizons in Dothan, Alabama. Included in this $147,000 was the $94,000 for the West Point Pepperell transaction.

Customarily, Ponder financed the transaction by a "roll over" arrangement. "[W]hat I was doing was rolling the profit and the principal or whatever payment she had to meet into a new deal." Ponder's personal accountant, Paul D. Fields, Jr., described the situation:

"It was a rollover situation. He was merely taking the profit or being told he was getting certain profits on a transaction. And, when those profits and the principal were to be paid to him, there was other transactions that these monies were rolled over into rather than going through a burdensome paper trail of writing checks back and forth. So, he normally rolled over the profit."

However, the West Point Pepperell transaction was a "cash" arrangement. Ponder testified that he "went to the bank, borrowed ninety-four thousand dollars to go specifically against West Point Pepperell and specifically give [sic] her cash, not rollover, for that."

The State proved that the purchase order attached to joint venture agreement number 121 was false, that the printed form was not the purchase order form used by West Point Pepperell, and that William A. Lane, the Director of General Purchasing for West Point Pepperell, had not signed the order, had not agreed with the defendant or anyone else to purchase Amagifts Catalogues, and had not done any business with the defendant or Southeastern Horizons.

Between 1981 and July of 1984, when the fraud was discovered, Ponder "personally transferred" 2.8 million dollars and received $800,000 from the defendant. The record does not show where the defendant obtained the substantial sums of money she paid Ponder and the other investors on some of the transactions or what she did with the millions of dollars she received.

The defendant contends that the State failed to present a prima facie case because: (A) There was insufficient evidence that any property was transferred to the defendant in reliance on or pursuant to joint venture agreement number 121; (B) there was insufficient evidence to show that Ponder's reliance on the defendant's representation was reasonable because a reasonably prudent businessman, under like and similar circumstances, would not have relied on the representations made by the defendant; and (C) there was a fatal variance between the indictment alleging the theft of "money" and the proof of a "wire transfer."

A.

In support of this argument, the defendant cites Ponder's testimony that "[t]here is considerable doubt that the money I wired [the $147,000] was to go to West Point Pepperell. * * * I can not specifically tell [the jury what the $147,000 was for]. * * * I really just don't know [how much money I owed the defendant on the West Point Pepperell deal]. I mean I agreed to advance her $94,000.00. And it is my assumation that that is what I did. I could only assume. I cannot tell you beyond that."

These quoted portions of Ponder's testimony are taken out of context. At one point during the time these statements were made, Ponder stated to defense counsel, "You lost me." Even if Ponder were not confused in the portions of his testimony cited by the defendant, other portions of his testimony reflect that he did transfer money to the defendant in reliance upon her representations. Ponder testified that he "thought" the purchase order was good; that the $94,000 "[i]n this particular transaction, it represented cash," that he "relied" on the purchase order; that he would not have given her the $94,000 "without that representation and purchase order"; that he was not aware that "these purchase orders were fraudulent or forgeries"; that he "just came to trust her more and more"; that "[t]here was absolutely never a question in my mind that they [purchase orders] were not valid"; and that he specifically gave the defendant "cash, not rollover," for the West Point Pepperell transaction: "I specifically remember even though there were a lot of joint ventures surrounding this, that the cash was to go for the West Point Pepperell deal. * * * On July 29, when I wired her the money, ninety-four thousand dollars [of] that was for that particular deal." Some of the confusion appears to be generated by the fact that Ponder testified that he could not state that the same $94,000 he borrowed from the bank was used to pay the defendant on the West Point Pepperell transaction:

"My obligation to Yeager was not to get ninety-four thousand dollars from the bank and put them in a box and save it and give it to her. My obligation was to furnish her ninety-four thousand dollars on Friday.... And, when Friday came, I wired her one hundred and forty-seven thousand dollars. Of which ninety-four thousand dollars was to go against that contract and the balance of which was to go to various contracts that I don't, I cannot tell you specifically which contracts, because we did not go into depth."

Even if Ponder actually did contradict himself at trial, the evidence was sufficient to go to the jury because the State presented a prima facie case. "The effect of contradictory and inconsistent statements goes to the credibility of the witness and is a question for the jury." Magro v. State, 384 So.2d 871, 874 (Ala.Cr.App.), cert. denied, Ex parte Magro, 384 So.2d 875 (Ala.1980). " '[A] jury may believe part of the evidence of a witness and reject part.' ... 'Inconsistencies and contradictions in the testimony of a witness do not make it inherently improbable.' ... 'The inconsistencies may impair the credibility of the witness and reduce the weight of the testimony, but they do not destroy the probative force of the testimony as a matter of law.' Jones v. State, 469 So.2d 713, 716-17 (Ala.Cr.App.1985).

B.

The defendant also argues that the evidence does not support her conviction because Ponder's reliance on her representations was unreasonable.

The legal principles involved in this issue are discussed in Part II of this opinion. Under the particular and peculiar circumstances of this case, we find that the misrepresentations were such that Ponder acted as a reasonably prudent person who exercised ordinary care.

Ponder, the victim, did not avail himself of the means of detecting the falsity of the defendant's representations because of representations made by the defendant. Ponder testified that he "checked out" the defendant's scheme and determined that it was possible. However, he kept it confidential at her request:

"[She said] there was no reason that any other Amway person who became aware of it, there was no reason why they couldn't do the same thing. And therefore, didn't need to tell anybody, because there was no reason they couldn't do the same thing."

He did not telephone the purchasing agent at West Point Pepperell and verify the purchase order "[b]ecause of the...