State v. Deshazer

January 12 2016
DA 14-0551
Case Number: DA 14-0551
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 8
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TANRE DESHAZER,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 2013-243
Honorable James A. Haynes, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Natalie Wicklund, Assistant Appellate Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz,
Assistant Attorney General; Helena, Montana
William Fulbright, Ravalli County Attorney, Thorin Geist, Deputy
County Attorney; Hamilton, Montana
Submitted on Briefs: October 28, 2015
Decided: January 12, 2016
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Tanre Deshazer appeals an order of the Thirteenth Judicial District Court, Ravalli
County, denying his motion to dismiss a charge of felony theft by common scheme for
improper venue. We address the following issue:
Whether the District Court erred when it denied Deshazer’s motion to dismiss for
improper venue.
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In December 2013, the State of Montana charged Deshazer with felony theft by
common scheme for double-cashing seven paychecks issued by SS Staffing Inc., an
employment agency located in Ravalli County. SS Staffing issued the paychecks for
Deshazer’s work as a temporary employee at The Springs, a senior living community in
Missoula County.
¶4 Between October and December 2012, Deshazer electronically deposited the
seven paychecks to his Bank of America account via a mobile banking application on his
smartphone. Using the application, Deshazer sent a photograph of each paycheck and a
note of its amount to Bank of America for deposit. After making the electronic deposits,
Deshazer retained the physical paychecks; then, between February and April 2013,
Deshazer endorsed, submitted, and received cash for those same paychecks at either a
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Walmart or an Albertson’s in Missoula. Bitterroot Valley Bank in Ravalli County,1
where SS Staffing does its banking, honored all fourteen deposits and later reimbursed
SS Staffing for the duplicate charges.
¶5 In April 2013, an SS Staffing employee reported the double-cashed paychecks to
the Hamilton Police Department in Ravalli County. Deshazer admitted to double-cashing
the paychecks, and the State charged him in Ravalli County with one count of felony
theft by common scheme. Deshazer moved to dismiss the charges against him, alleging
that they were brought in an improper venue. At a May 8, 2014 pre-trial hearing, the
District Court verbally denied Deshazer’s motion, concluding that Ravalli County was a
proper venue. The District Court issued its written opinion and order denying Deshazer’s
motion on June 2, 2014. The District Court concluded that the State could charge
Deshazer with theft in Ravalli County because the stolen funds were unlawfully
transferred from SS Staffing’s bank account at Bitterroot Valley Bank in Ravalli County.
¶6 On June 3, 2014, at the conclusion of a non-jury trial, Deshazer was convicted of
felony theft by common scheme. The parties stipulated to $1,549.03 in restitution, and
Deshazer was sentenced to a five-year commitment to the Department of Corrections.
On appeal, Deshazer contends that the District Court erred by denying his motion to
dismiss for improper venue.
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Deshazer requests that this Court take judicial notice of the Secretary of State’s Registry that
Bitterroot Valley Bank is located in Lolo, in Missoula County. We decline to do so, as that fact
was not presented below and we “will not consider on appeal facts that are not found in the
record.” State v. Bromgard, 273 Mont. 20, 23, 901 P.2d 611, 613 (1995).
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STANDARD OF REVIEW
¶7 We review de novo a district court’s grant or denial of a motion to dismiss in a
criminal case. State v. Young, 2007 MT 323, ¶ 24, 340 Mont. 153, 174 P.3d 460.
DISCUSSION
¶8 Whether the District Court erred when it denied Deshazer’s motion to dismiss for
improper venue.
¶9 The Montana Constitution safeguards a criminal defendant’s right to a trial by a
“jury of the county or district in which the offense is alleged to have been committed.”
Mont. Const. art II, § 24. In line with this provision, § 46-3-110(1), MCA, requires
criminal charges to be filed “in the county where the offense was committed.” However,
when the requisite acts of a criminal offense occur in more than one county, “the charge
may be filed in any county in which any of the acts or offenses occurred.”
Section 46-3-112(1), MCA. Similarly, “if the county in which the offense was
committed cannot be readily determined, the offender may be charged in any county in
which it appears that an element of the offense occurred.” Section 46-3-114(1), MCA.
¶10 The State charged Deshazer with the crime of felony theft by common scheme
pursuant to § 45-6-301(1), MCA. “A person commits the offense of theft when the
person purposely or knowingly obtains or exerts unauthorized control over property of
the owner” with “the purpose of depriving the owner of the property.”
Section 45-6-301(1), MCA. Felony theft thus consists of two elements: “a knowing
exertion of control and a purpose to deprive.” State v. Eagle Speaker, 2000 MT 152,
¶ 13, 300 Mont. 115, 4 P.3d 1 (citing § 45-6-301(1)(a), MCA (Compiler’s Cmts.)).
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Under the Montana Constitution, the State had the authority to bring charges against
Deshazer in any county in which either of these elements occurred. See Eagle Speaker,
¶ 24 (“[T]he offense of theft occurs for jurisdictional purposes where the elements of that
offense take place.”).
¶11 The parties dispute the moment in time at which Deshazer “knowingly exert[ed]
unauthorized control” over the property of SS Staffing. See § 45-6-301(1), MCA. In its
order denying Deshazer’s motion to dismiss, the District Court concluded that Ravalli
County was an appropriate venue because “the requisite act of exerting unauthorized
control over money occurred when Deshazer cashed each of the 7 checks a second time,
causing funds to be unlawfully transferred from SS Staffing’s bank account at Bitterroot
Valley Bank, thereby acting negatively upon these two Ravalli County based entities.”
On appeal, Deshazer contends that Ravalli County was not a proper venue because “Mr.
Deshazer completed the theft when he accepted the cash” and, thus, “[e]very element of
Mr. Deshazer’s theft transpired within Missoula County.” By contrast, the State contends
that “[u]nauthorized control did not occur until Bitterroot Valley Bank transferred the
funds” for the duplicate checks.
¶12 “[A] theft is complete once all the elements of the theft transpired.” Eagle
Speaker, ¶ 15. The State cites State v. Cline, 170 Mont. 520, 555 P.3d 724 (1976), to
support its argument that Deshazer’s theft was not complete until the funds for the
duplicate checks were retracted from SS Staffing’s bank account at Bitterroot Valley
Bank. In Cline, we held that Lewis and Clark County was a proper venue to charge a
defendant with obtaining money by false pretenses because one of the elements of that
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crime—“fraud in obtaining the state’s settlement money”—occurred “in Lewis and Clark
County where the settlement money was disbursed.” Cline, 170 Mont. at 533,
555 P.3d at 732-33. Deshazer attempts to distinguish Cline by arguing that, in Cline, “the
disbursal action completed the element of fraud.” By contrast, Deshazer argues, a theft
charge does not require a victim to assent to action, so Deshazer committed a theft “as
soon as” he received cash for his paychecks at Albertson’s or Walmart.
¶13 Section 45-6-301(1), MCA, specifically requires the exertion of “unauthorized
control over the property of the owner” (emphasis added). The parties do not dispute that
SS Staffing owned the bank account from which the money for Deshazer’s duplicate
paychecks was retracted. Until the funds were transferred out of SS Staffing’s account,
Deshazer did not exert unauthorized control over SS Staffing’s property. We find
Deshazer’s attempt to distinguish Cline unpersuasive.
¶14 SS Staffing, based in Ravalli County, issued Deshazer’s paychecks. Deshazer first
electronically deposited seven paychecks into his own bank account. He then took the
same seven paychecks to retailers in Missoula County and received cash in exchange for
them. Deshazer did not obtain control of SS Staffing’s property until the duplicate
amounts were transferred from SS Staffing’s bank account at Bitterroot Valley Bank.
¶15 Had Deshazer’s theft been interrupted immediately after he had cashed the checks,
or had Bitterroot Valley Bank refused to honor the checks before retracting the money
from SS Staffing’s bank account, then Deshazer’s theft would have been perpetrated
against Walmart and Albertson’s, since they would have been the “owners” of the money
over which he had exercised “unauthorized control.” See § 45-6-301(1), MCA. But that
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is not what happened in this case. The checks were honored, and duplicate funds were
retracted from SS Staffing’s account, thus completing Deshazer’s theft of SS Staffing’s
funds. Accordingly, the element of theft requiring the exertion of unauthorized control
over property of the owner occurred in Ravalli County when the stolen funds were
transferred out of SS Staffing’s bank account. The District Court did not err in
concluding that Ravalli County was a proper venue for the State to charge Deshazer with
felony theft by common scheme.
CONCLUSION
¶16 We affirm the District Court’s decision and order denying Deshazer’s motion to
dismiss for improper venue.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE
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