State v. Kelly

Batchelder, J.,

with whom SOUTER, J., concurs, concurring in part and dissenting in part: The majority requires that, in order to obtain a conviction for theft by deception, the victim must suffer some pecuniary loss. I disagree and would uphold the conviction.

The statute does not require actual deprivation or loss to the victim. Rather, the gravamen of the offense is that the defendant knowingly made a false impression with the intent to deceive and obtained property of another as a consequence thereof. In this case, the defendant created the false impression that the odometer had registered 52,881 miles rather than the actual 82,000 miles, and knew that the impression was false. Relying on this misrepresentation, the victim parted with and the defendant obtained $2,750 of the victim’s property.

Theft by deception is committed when the victim parts with property in reliance on a false representation. It is immaterial that the victim received nothing, some value of greater value in return.

“A man is none the less cheated out of his property, when he is induced to part with it by fraud, because he gets a quid pro quo of equal value. It may be impossible to measure his loss by the gross scales available to a court, but he has suffered a wrong; he has lost his chance to bargain with the facts before him. That is the evil against which the statute is directed.”

United States v. Rowe, 56 F.2d 747, 749 (2d Cir.) (Learned Hand, J.) cert. denied, 286 U.S. 554 (1932); see People v. Ross, 25 Cal. App. 3d 190, 195, 100 Cal. Rptr. 703, 705-06 (1972); State v. Sargent, 2 Wash. 2d 190, 193, 97 P.2d 692, 693 (1940).

Thus, the State need not allege or prove that the victim suffered or sustained a pecuniary loss. See State v. Mills, 96 Ariz. 377, 381, 396 P.2d 5, 8 (1964); State v. Armstrong, 183 N.W.2d 205, 207 (Iowa 1971), cert. denied, 414 U.S. 857 (1973); State v. Aurgemma, 116 R.I. 425, 429-30, 358 A.2d 46, 49 (1976); State v. Sargent supra; State v. Kennedy, 105 Wis. 2d 625, 631 n.1, 636, 314 N.W.2d 884, 887 n.1, 889 (1981).

Nor does the statute require that the value of the property obtained by the defendant be offset by the value of the property received by the victim in determining the grade of the offense. RSA 637:4 focuses on the property obtained by the defendant. It is the value of that property which is determinative of the grade of the offense and not the value of the net loss to the victim. See State v. Forshee, 588 P.2d 181, 184 (Utah 1978); People v. Ross supra.

The trial court, therefore, did not err in ruling that the value of the Cutlass was immaterial and in excluding the proffered evidence.