McLaughlin v. State , 1981 Wyo. LEXIS 315 ( 1981 )

THOMAS, Justice.

We are confronted in this case with a novel question in Wyoming. What is the criminal responsibility of a person who is employed in an enterprise that serves as the matrix of a criminal conspiracy but whose activities consist of acts that would be lawful in the absence of the conspiracy and

whose commitment to the conspiracy must be inferred from circumstantial evidence? The question is posed by an attack upon the sufficiency of the evidence to support the jury’s verdict of guilty.

David McLaughlin was charged by information with one count of conspiracy to obtain money by false pretenses, as defined in § 6-3-106, W.S.1977¹ in violation of § 6-1-117, W.S.1977². He was convicted after a trial to the jury, and he was sentenced to serve 12 to 18 months in the State Penitentiary. We shall affirm his conviction.

The sole issue presented by McLaughlin is stated in his brief as follows:

“Whether it was error for the Trial Court to deny Appellant’s Motion for Judgment of Acquittal made at the close of the State’s case in chief per Rule 30(a), W.R. Cr.P.”

This statement of the issue is expanded in the appellant’s summary of argument, which is stated in his brief in this way:

“Since there was introduced at trial no evidence sufficiently connecting appellant to the alleged conspiracy, by which a jury could reasonably conclude appellant’s guilt, it was error for the trial court to deny Appellant’s Motion for Judgment of Acquittal.”

The position of the State of Wyoming is that the Motion for Judgment of Acquittal should be granted only where there is no evidence which would support a guilty verdict, and it argues that in this instance the determination that there was sufficient evidence was properly made within the sound discretion of the trial judge.

In Jasch v. State, Wyo., 563 P.2d 1327, 1332 (1977), this court adopted the following definitions pertaining to conspiracy:

“A conspiracy is an agreement between two or more persons to do an unlawful act. The crime of conspiracy is complete when an agreement has been made and overt acts performed to further the unlawful design. * * * ”

In his brief the appellant very candidly concedes that the record discloses all of the elements of a conspiracy. He says, “There is a veritable mountain of evidence supporting the State’s contention that there did exist between February, 1977 and November, 1978 in Carbon County, Wyoming, a conspiracy to fraudulently sell automobile parts to unwary travelers.” We wholeheartedly agree that this record manifests a vicious scheme to sell to members of the public tires, alternators, shock absorbers, and fan clutches to replace similar items which were functional and did not need to be replaced. Various employees of several filling stations in Carbon County, Wyoming, all of which were operated by one Dave McCracken, were involved in this fraudulent scheme. They were paid on the basis of $2.00 per hour plus 50 percent of the cost of any parts they succeeded in selling.

Differing methods were used to mar tires on vehicles, and these purported defects then were called to the attention of the operator of the vehicle who was persuaded that the tire was defective and needed to be replaced. Oil would be sprayed around shock absorbers, and the operator of the vehicle then would be persuaded that this manifested a failure of the shock absorber which needed to be replaced. Fan clutches were manually manipulated in such a way that they appeared to be defective, or fluid was sprayed on them and the representation made that the seals were leaking and the part needed to be replaced. As to alternators, a substance called liquid smoke, intended for use in barbecue cooking, would be sprayed on the alternator which then would smell as though the wires were overheated and burning. There then followed the obvious suggestion that the alternator needed to be replaced. Once an alternator or fan clutch had been sold to a motorist, the purportedly defective part would be cleaned by sandblasting, or repainting, or both, and it then would be sold as a rebuilt part to the next victim who needed a similar part. Apparently the marred tires and the used shock absorbers were not resold.³

While work orders apparently were maintained in these several businesses, some of the other record keeping was less formal, and the employees were usually paid in cash at the end of each shift for their $2.00 per hour plus 50 percent of whatever parts were sold. One of the principals explained that this was done so that if anyone had to leave in a hurry he was not owed money.

The question then to be resolved is whether the evidence is sufficient to support the jury’s finding that McLaughlin was a participant in this criminal conspiracy. No issue is taken with any instructions of the court upon the crime of conspiracy. The essence of the issue posed by this appeal was presented to the jury in the instructions of the court as follows:

“It is necessary, however, to prove beyond a reasonable doubt that a defendant was aware of the common purpose and was a willing participant in the conspiracy.”

The court also properly instructed the jury that in its deliberations it could weigh circumstantial evidence equally with direct evidence. These instructions express the rules generally applied by the courts with respect to individual participation in a conspiracy. Once the conspiracy is established, and we reiterate that the fact of the conspiracy is admitted here, knowledge of the conspiracy alone or, as this instruction notes, awareness of the common purpose will not be’ sufficient to convict the defendant. United States v. Laughman, 618 F.2d 1067 (4th Cir. 1980), cert. den., 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980); United States v. Richardson, 596 F.2d 157 (6th Cir. 1979); United States v. James, 510 F.2d 546 (5th Cir. 1975), cert. den., Vasquez v. United States, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975); United States v. Edwards, 488 F.2d 1154 (5th Cir. 1974); State v. Salazar, 27 Ariz.App. 620, 557 P.2d 552 (1976); and Commonwealth v. Gill, 5 Mass. App. 337, 363 N.E.2d 267 (1977). The defendant must intentionally take part in or actively participate in the conspiracy as well. United States v. Laughman, supra; United States v. Richardson, supra; United States v. James, supra; United States v. Edwards, supra; State v. Salazar, supra; State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977); Commonwealth v. Schoening, - Mass. -, 396 N.E.2d 1004 (1979); Commonwealth v. Gill, supra; People v. Huey, 345 Mich. 120, 75 N.W.2d 893 (1966); State v. Carbone, 17 N.J.Super. 446, 86 A.2d 259 (1952), affirmed, 10 N.J. 329, 91 A.2d 571 (1952); and State v. Gilman, 110 R.I. 207, 291 A.2d 425 (1972). In the foregoing instruction this concept is expressed by the advice to the jury that the proof must establish that McLaughlin was a willing participant in the conspiracy. These matters may, and in most cases must, be established by circumstantial evidence. In addition to the cases cited above, see e. g., People v. Haskin, 55 Cal.App.3d 231, 127 Cal.Rptr. 426 (1976); United States v. Thomas, 468 F.2d 422 (10th Cir. 1972); and People v. Britz, 17 Cal.App.3d 743, 95 Cal.Rptr. 303 (1971).

In this instance, as is usually true with respect to the crime of conspiracy, the participation of McLaughlin must be inferred from circumstantial evidence. He was present on one occasion when McCracken, the chief figure in the conspiracy, discussed fraudulent sales techniques. With that one exception there is no direct testimony that McLaughlin knew of the common purpose of the conspiracy, and with respect to his being a willing participant the testimony in some respects could lead to a conclusion that he did not participate. That testimony, however, is fairly limited to the substantive crime of false pretenses, and it is not necessary to a charge of conspiracy that the defendant actively participate in the substantive crime which is the object of the conspiracy. Curry v. Superior Court of San Diego County, 7 Cal.App.2d 836, 86 Cal.Rptr. 844 (1970).

The record does disclose that McLaughlin worked with one of the conspirators, who was granted immunity for his testimony, at Dave’s Standard Service Station in Rawlins from July 1976 until February of 1977. This period of time antedates the period of the charged conspiracy, but testimony relating to this earlier period was not the subject of any objection at the trial. In February of 1977 McLaughlin began managing Dave’s Standard Service Station. The duties of a manager included watching the salesmen and making sure that they didn’t get into the cash box. McLaughlin also worked at the Outpost Chevron in eastern Carbon County for several days while its regular manager was absent on his honeymoon. From September 1977 through the balance of the time charged in the conspiracy, McLaughlin served as the night manager of the 18th Street Chevron Station. The evidence relative to sandblasting was especially pertinent. McLaughlin knew of the purpose for sandblasting automobile parts in the several McCracken stations. The practices briefly discussed earlier in this opinion were so prevalent at the McCracken stations that the jury would be justified in inferring knowledge of these unlawful activities on the part of anyone who was present and employed in the capacities that McLaughlin was.

McLaughlin was paid $2.00 an hour plus a 50 percent commission on all parts that he sold. This was the identical compensation arrangement made with all other salesmen. He sold one fan clutch and one alternator while he was employed at the Outpost Chevron, and the regular manager of the Outpost Chevron testified that the alternator would have been one of those which had been removed from a victim’s automobile and either sandblasted or refinished. McLaughlin spoke of purchasing a welder’s mask in order to protect his eyes and other parts of his head from the particles that were generated by the sandblasting operation. On one occasion he signed an invoice which represented the purchase of glass beads which were used in sandblasting the automobile parts. The duties of a manager included among other things that he was to “run interference” for the salesmen and to keep supplies and parts available at the station so that they would have something to sell. The manager would fill in as a salesman wherever he could.

On the basis of this evidence the jury was justified in inferring that McLaughlin was an active and willing participant in the conspiracy. As some authorities say, once the illegal conspiracy has been established, only “slight evidence” is required to connect an individual defendant with the conspiracy. United States v. Petersen, 611 F.2d 1313 (10th Cir. 1979); United States v. Richardson, supra; and United States v. Chambers, 382 F.2d 910 (6th Cir. 1967). Other authorities indicate that this must, however, be more than a scintilla of evidence, and the State must produce evidence which if believed affords a substantial basis in fact from which the defendant’s guilt can be inferred. United States v. James, supra.

We conclude that the record in this instance discloses evidence justifying the jury in the dual inference that McLaughlin knew of the conspiracy to fraudulently sell parts to motorists which they did not need and that he was a willing and active participant in the conspiracy.

The judgment of conviction is affirmed.

1 . “If any person or persons shall knowingly and designedly, by false pretense or pretenses, obtain from any other person or persons any choses in action, money, goods, wares, chattels, effects, or other valuable thing whatever, with intent to cheat or defraud any such person or persons of the same, every person so offending shall be deemed a cheat, and upon conviction, where the value of such chose in action, money, goods, wares, chattels, effects or other valuable thing shall be twenty-five dollars ($25.00) or more, shall be imprisoned in the penitentiary for a period not more than ten (10) years. In all cases where the value of such chose in action, money, goods, wares, chattels, effects or other valuable thing is less than twenty-five dollars ($25.00), the person so offending shall be punished by a fine not to exceed one hundred dollars ($100.00), or by imprisonment in the county jail not more than six (6) months. In either case under this section he shall be sentenced to restore the property so fraudulently obtained if it can be done.”

2 . “If two (2) or more persons conspire to (a) commit a felony in the state of Wyoming or to commit an act beyond the state of Wyoming which if done in this state would be a felony, and (b) one (1) or more of such persons do any act, within or without the state of Wyoming, to effect the object of the conspiracy, each, upon conviction, shall be fined not more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years or both. A conspiracy may be prosecuted in the county where the conspiratorial agreement or combination was entered into, or in any county where any act or acts evidencing the conspiracy or in any county wherein the furtherance of its purpose took place.”

3 . The evidence concerning the fraudulent scheme is set forth in much greater detail in the concurring opinion.