Harris v. State

ROSE, Chief Justice.

Appellant Harris appeared pro se at his jury trial and on January 19, 1981 was convicted of obtaining. property by false pretenses under § 6-3-106, W.S.1977. Mr. Harris takes this appeal from the judgment and sentence entered on the jury’s verdict and raises the following issues for review:

1. Is the judgment and sentence of the trial court void for failure of the verdict to comply with § 7-11-502, W.S.1977?

2. Did the prosecutor’s comments in closing argument amount to a denial of appellant’s right to a fair trial?

We will reverse and remand for a new trial under appellant’s first contention, thus making it unnecessary to address the issue having to do with prosecutorial comment.

FACTS

The incident giving rise to appellant Harris’ conviction occurred during the early morning hours of November 8, 1980. At approximately three a. m., Harris and a friend left a bar in Rawlins, whereupon they proceeded to the Jade Lodge for the purpose of phoning for a cab. Ms. Betty Pacheco was the night clerk, and she agreed to call a cab for them. Mr. Harris’ friend left in the cab, but Mr. Harris remained because he and Ms. Pacheco had by then become involved in some intimate expressions of affection.

Mr. Harris soon fell asleep in one of the chairs in the office, and around five a. m. Ms. Pacheco shook him awake to request that he leave, since she expected the hotel manager to arrive around 5:30 a. m., and she did not want him to find Harris there. A cab was called and Mr. Harris asked Ms. Pacheco for some money for the cab, whereupon she gave him approximately $2.50 from her purse. The appellant then explained that he needed some change for a $100.00 bill. Ms. Pacheco withdrew the correct change from the register and the appellant thereupon placed what appeared to be a folded $100.00 bill in the cash drawer. The appellant then left in a cab that had been waiting outside. Thereafter, Ms. Pacheco discovered that the $100.00 bill was not genuine and that it was, in fact, an advertisement for a welding company located in Encampment, Wyoming. While the paper had the appearance of a $100.00 bill on one side, the other side contained nothing more than company advertising.

Mr. Harris was followed to his hotel by the manager of the Jade Lodge, who had driven up as Ms. Pacheco was discovering the fraud. When confronted, Harris said he knew nothing about it, at which juncture the police were called. The officers arrived at the hotel and arrested appellant, but a search of his room and person failed to produce the $100.00 which had purportedly been delivered by Ms. Pacheco. The money was never recovered.

ERROR IN FAILURE TO DETERMINE VALUE OF PROPERTY UNDER § 7-11-502, W.S.1977

The appellant argues that his conviction for obtaining property by false pretenses should be reversed because the jury failed to ascertain and declare the value of the property alleged to have been obtained under false pretenses. Such a determination is required by § 7-11-502, W.S.1977, which provides:

“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.” (Emphasis added.)

This court has construed the present § 7-11-502, W.S.1977, on several occasions. In fact, in two decisions handed down this year, Buckles v. State, Wyo., 622 P.2d 934 (1981) and Hatheway v. State, Wyo., 623 P.2d 741 (1981), we clarified and discussed at length the purpose and application of this section. A review of those decisions leads inevitably to the conclusion that in the case at bar § 7-11-502, W.S.1977, was not complied with and that this failure amounted to prejudicial and, thus, reversible error.

In Buckles we upheld a conviction for grand larceny where the jury had determined in their verdict that the value of the property at issue was over $100.00. 622 P.2d at 935. There we held that the jury’s value determination satisfied the requirements of § 7-11-502. We also noted that our past decisions construing this statute had overturned convictions because the juries had only declared that the defendants were guilty “as charged,” and no determinations as to value had been made. 622 P.2d at 935-936. However, we rejected the reasoning of prior decisions that had held that a principal rationale for the value determination was to assist the trial judge in sentencing the defendant.¹ Instead, we decided that § 7-11-502 was intended to require:

“ * * * the determination and declaration in the verdict of value of the goods by the jury only in those cases in which the grade of the offense depended upon value * * *.” 622 P.2d at 936.

Buckles finally noted the obvious need for a determination of value by the jury when the grade of the offense was dependent on it, and observed that the legislature had only intended the predecessor of § 7-11-502 to fill that need. 622 P.2d at 938.

The rule announced in Buckles was reaffirmed about one week later in Hatheway v. State, supra. In Hatheway, we upheld a conviction for embezzlement even though the jury in that case had not made a determination of value in their verdict. 623 P.2d at 744. The reason for our holding arose from the fact that the embezzlement statute, § 6-7-310, W.S.1977, which was enacted after the predecessor to § 7-11-502, did not grade the offense into degrees of embezzlement. Therefore, we held that § 7-11-502 was no longer applicable to the crime of embezzlement, and we overruled State v. Chambers, 70 Wyo. 283, 249 P.2d 158 (1952), which had earlier applied the statute in an embezzlement case. We did, however, refine the rule announced in Buckles by stating:

“ * * * that § 7-11-502, W.S.1977, has no application to those offenses defined by statute subsequent to 1869 unless the grade of the offense depends upon value or unless the available punishment includes an order for restitution. Buckles v. State, supra.” 623 P.2d at 745.

From these decisions, it is apparent that § 7-11-502 can only apply to appellant’s case if the crime of false pretenses is graded by statute into particular degrees, or restitution is available as a punishment. As mentioned previously, the appellant was convicted of obtaining money by false pretenses pursuant to § 6-3-106, W.S.1977. That section provides:

“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 ail 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.” (Emphasis added.)

It can be seen from a reading of this statute that the crime of false pretenses is graded into degrees by § 6-3-106, and also that restitution is available as a form of punishment. Our holdings in Buckles and Hatheway leave no room for any conclusion except that § 7-11-502 was intended to apply to the crime of false pretenses.² There can also be no other conclusion reached but that error was committed in this case, since it is clear from the record that the jury did not make a determination of value in their verdict.³ Rather the verdict read:

“We, the Jury, duly empaneled and sworn to try the above-entitled case, do find the defendant, Jerry Harris, guilty of the offense of obtaining property by false pretenses as charged.” (Emphasis added.)

We must give effect to the statutory language, and were we to hold that in this case no error occurred, we would be failing in that duty. Hayes v. State, Wyo., 599 P.2d 558, reh. denied (1979). We have held before that the language of the statute is mandatory, State v. Chambers, supra, and under the test established in Buckles and reiterated in Hatheway, it was error for the jury not to determine the value of the property appellant obtained through false pretenses.

DOES PLAIN ERROR APPLY?

Although we have concluded that there was error below in the failure of the jury to determine value in their verdict pursuant to § 7-11-502, W.S.1977, the record shows that appellant did not object to this failure at trial. Thus in order for this court to consider appellant’s contention, the complained-of error must fall within Rule 49(b), W.R.Cr.P. This rule provides:

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

In Hampton v. State, Wyo., 558 P.2d 504 (1977), we established some guiding criteria when an appellant seeks review under the plain-error concept. These criteria are: (1) that the record reflects clear and unequivocably the facts complained of; (2) that the facts prove a transgression of a clear rule of law; and (3) that the error affects a substantial right of the accused. 558 P.2d at 507. Applying these criteria to appellant’s claim, it is at first clear that the record reflects clearly and unequivocally that the jury in their verdict did not determine the value of the property obtained by false pretenses. Secondly, there can be no argument that § 7-11-502 and our recent decisions construing it set up a clear rule of law that was transgressed. This is so because, as we said earlier in this opinion, § 7-11-502 was applicable to this case and it was not complied with. Finally, we believe that a substantial right of the appellant has been affected. In Hatheway we referenced a prior decision of this court which stated that a failure to determine value in a verdict when the statute so required resulted in a failure of the verdict to confer the authority upon the trial court to enter a judgment and sentence. Hatheway v. State, supra, 623 P.2d at 744, citing Thomson v. State, 21 Wyo. 196, 130 P. 850 (1913). The jury’s verdict must confer the authority upon the trial court to enter its judgment, and, when the verdict is faulty, the trial court lacks the jurisdiction necessary to enter a judgment and sentence. We find that an accused has a substantial right in only being convicted and incarcerated by a trial court having the power to do so as a result of a proper verdict. The appellant in this case was denied that substantial right as a result of the defective verdict.

The failure of the jury to determine value in their verdict violated § 7-11-502, W.S. 1977, and such error amounted to plain error affecting a substantial right of the accused.

Reversed and remanded for a new trial.

1 . Prior decisions indicating such a rationale are: Thomson v. State, 21 Wyo. 196, 130 P. 850 (1913); Merrill v. State, 22 Wyo. 186, 136 P. 795 (1913); and State v. Le Masters, 36 Wyo. 241, 254 P. 120 (1927).

2 . We noted in Hatheway the necessary application of § 7-11-502 to the crime of false pretenses if not solely for the purpose of determining the amount of the restitution. 623 P.2d at 745.

3 . There was some indication during argument of this case that the appellant had himself submitted a verdict form which did not require the jury to determine value. We, however, are unable to discern such a fact from the record and therefore can only reach a conclusion on such evidence as is, in fact, of record.