Harris v. State

BROWN, Justice,

dissenting, in which RAPER, Justice, joins.

In the form of the verdict submitted to the jury in this case, provision for the jury to find the value of the property falsely obtained was inadvertently omitted. The majority found that this omission violated the mandate in § 7-11-502, W.S.1977,1 and was, therefore, error. I have no real disagreement with this determination in view of prior Wyoming cases. In my opinion, however, the error, if any, is not plain error, nor is it prejudicial. This error is at most harmless and should be disregarded.

Section 7-11-502, W.S.1977, has caused this Court considerable trouble in its 112-year history. The history of this provision of the statute is traced in Hatheway v. State, Wyo., 623 P.2d 741 (1981), reh. denied.

I understand the state of the law with respect to § 7-11-502, supra, to now be: such statute only applies to offenses enumerated in § 7-11-502, supra, in which the grade of the offense depends on value, (larceny and obtaining property under false pretenses), or those offenses in which the available punishment includes an order for restitution (obtaining property under false pretenses). Buckles v. State, Wyo., 622 P.2d 934 (1981); and Hatheway v. State, supra. In summary, § 7-11-502, supra, does not apply to embezzlement but applies to larceny, and is doubly applicable to obtaining property by false pretenses.

Section 7-11-502, supra, is an obscure provision of the law hidden in the criminal procedure section of our statutes. It is easily overlooked by lawyers and the courts because it has very little value except as a *1170fertile source for reversal. Section 7-11-502, supra, should be amended to have application only when restitution is part of the sentence.

Section 7-11-502, supra, is entirely unnecessary in determining the grade of the offense. Larceny and obtaining property under false pretenses are graded offenses. If the evidence at trial indicates any question as to the value of property stolen or obtained by false pretenses, and this dispute makes a difference whether the offense is a felony or a misdemeanor, the court then must give instructions on lesser included offenses. If there is no conflict in evidence on value, instructions on lesser included offenses are not required. Section 7-11-502, supra, only unnecessarily complicates a jury trial and creates yet another source for error.

I am inclined to agree with Justice Raper in his concurring opinions in Buckles v. State, supra, and Hatheway v. State, supra, when he observed that the rulings in those cases set out by the majority amended § 7-11-502, supra, despite protestations to the contrary. This Court in the past has distorted the plain language of § 7-11-502, supra, in order to avoid ridiculous results and avoid a miscarriage of justice. While I do not disagree with the results in these cases, I believe there is a sound, legal way to effect justice without judicially amending the statute and doing violence to statutory construction.

Both Rule 7.04, W.R.A.P. and Rule 49(a), W.R.Cr.P. provide:

“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”

Conversely, Rule 7.05, W.R.A.P. and Rule 49(b), W.R.Cr.P. provide:

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”

In Kennedy v. State, Wyo., 559 P.2d 1014, 1017 (1977), error was asserted on appeal because the court had failed to include in the verdict the statutorily required language as follows:

“ ‘ * * * Each verdict shall also contain the words, “and find that defendant was sane at the time of the commission of the offense” * * * ” (Section 7-242(c), W.S. 1957.)’ ”2

This Court said in Kennedy v. State, supra, at 1018:

“ * * * We are convinced that had this been called to the trial court’s attention this would have been done. Error cannot be asserted for the first time on appeal, Wright v. State, Wyo., 466 P.2d 1014, 1016, and Connor v. State, Wyo., 537 P.2d 715, 717. An examination of all the instructions given by the court reveals that the jurors were clearly advised several times in the instructions that if there was any reasonable doubt as to the sanity of the defendant Kennedy at the time of the alleged offenses it was their duty to find him not guilty by reason of such insanity. * * *
“We must consider the instructions as a whole, Hoskins v. State, Wyo., 552 P.2d 342, 348, and Elmer v. State, Wyo., 463 P.2d 14, 22, certiorari denied 400 U.S. 845, 91 S.Ct. 90, 27 L.Ed.2d 82, and must assume that the jury did its duty and followed the court’s instruction, Dobbins v. State, Wyo., 483 P.2d 255, 259, and State Highway Commission v. Peters, Wyo., 416 P.2d 390, 396. In light of the clear presentation of this question to the jury by virtue of these instructions we find no difficulty in inferring, and find no other inference available but that the jury did find this defendant was sane as a condition of its verdict. In light of these facts no prejudicial error was present and the appellant Kennedy has failed in his burden to demonstrate such prejudice, Cosco v. State, Wyo., 503 P.2d 1403, 1406, certiorari denied 411 U.S. 971, 93 S.Ct. 2164, 36 L.Ed.2d 693.
“ * * * This omission in the form of the verdict was not plain or fundamental er*1171ror as contemplated by Rule 49, W.R. Cr.P.; Reeder v. State, Wyo., 515 P.2d 969, 973, mandamus denied 419 U.S. 1018, 95 S.Ct. 509, 42 L.Ed.2d 303; Hampton v. State, Wyo., 558 P.2d 504.”

The only difference I find in Kennedy and the case at bar is that the former dealt with an absence of a sanity finding in the verdict, and the latter dealt with an absence of a finding of value in the verdict. The rationale for the consequence of this omission in Kennedy is equally applicable in this case.

Applying the foregoing rules (7.04 and 7.05, W.R.A.P.; 49(a) and 49(b), W.R.Cr.P.) and the rationale in Kennedy to this case, the jury was advised in Instruction No. 3 3 that appellant was charged with obtaining $100 by false pretenses. In Instruction No. 4 the Court sets out the elements of the offense charged. The fifth element in Instruction No. 4 was (obtain) “money, to-wit, cash in the amount of one hundred dollars ($100.00).”

Instruction No. 4 continues:

“If you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

In the verdict the jury found appellant “guilty of the offense of obtaining property by false pretenses, as charged.” Appellant was charged with obtaining $100 by false pretenses. One of the elements of the offense was that the property obtained by false pretenses was $100. In the jury’s finding of guilty as charged is the implicit finding that the money obtained was “cash in the amount of one hundred dollars ($100.00).” How can it be said then that the jury did not find the value of the property to be $100?

In Hampton v. State, Wyo., 558 P.2d 504 (1977) we established certain criteria that must be met by an appellant before the plain error rule can be invoked. The third criterion set out in Hampton is:

“ * * * [T]he error or defect must adversely affect some substantial right of the accused * * *.”

I disagree with the majority in its holding that “A substantial right of appellant has been affected.” Does anyone suppose that had the form of the verdict provided for a specific finding of value any amount other than $100 would have been found? No other amount was ever talked about in the entire trial. Either appellant obtained property valued at $100 or he is not guilty.

There is just no other value that the jury could conceivably have found. If this case were a case of first impression with respect to the consequences of § 7-11-502, supra, I would find that the jury did, in fact, declare in their verdict the value of the property obtained by false pretenses and there was no error.

Considering the charge set out in Instruction No. 3, and the elements of the offense set out in Instruction No. 4, the only reasonable interpretation of the jury’s finding is that they found the value of the property obtained to be $100. The spirit of § 7-11-502, supra, has been complied with. The jury determined everything that appellant had a right to be determined. The error, if any, is harmless.

Appellant has entirely failed to show how he was prejudiced by the form of the verdict, which is his burden to discharge.

“ * * * It is appellant’s burden on appeal to show affirmatively that error was committed, and to establish that the error *1172prejudiced the substantial rights of the accused. (State v. Freeman, 216 Kan. 653, 533 P.2d 1236.) Speculation as to the possibility of prejudice is insufficient to reverse a conviction.” State v. Ambler, 220 Kan. 560, 552 P.2d 896, 900 (1976). See also Kennedy v. State, supra, at 1018.

I do not believe there is any merit in the second issue on appeal and would therefore affirm the district court on both issues raised by appellant.4

. Section 7-11-502, W.S.1977:

“When the indictment charges an offense against the property of another by larceny, embezzlement or obtaining under false pretenses, the jury, on conviction, shall ascertain and declare in their verdict the value of the property stolen, embezzled or falsely obtained.”

. Repealed in 1975 in a complete revision of the procedure in the trial of cases wherein the defense of mental illness is raised. Ch. 191, S.L. of Wyoming, 1975.

. Instruction No. 3:

“The Information under which the defendant is charged reads in pertinent part as follows: “Comes now Michael N. Deegan, Deputy County and Prosecuting Attorney of the County of Carbon and State of Wyoming, and in the name and by the authority of the State of Wyoming informs the Court and gives the Court to understand that Jerry Harris, late of the County aforesaid, on the 8th day of November, A.D. 1980, at the County of Carbon in the State of Wyoming, did knowingly and designedly, by false pretense, obtain from another person, the Jade Motel and its agent, Betty Pacheco, money, to wit, cash in the amount of $100.00, with intent to cheat or defraud such person and its agent, and is thus a cheat, all in violation of Wyoming Statutes, Section 6-3-106, 1977.”

. At the trial appellant purported to appear pro se; however, he was assisted by a public defender and the public defender did participate in the trial. I attach no significance to a pro se appearance, but it was mentioned by the majority. In any event, appellant is held to the same standard at trial and on appeal as any litigant represented by counsel. Johnson v. Aetna Casualty and Surety Company of Hartford, Wyo., 630 P.2d 514, 517 (1981), reh. denied.