Otte v. State

ROSE, Justice.

This appeal is here following the jury’s verdict finding the defendant-appellant-Otte guilty of blackmail and robbery and the court’s entry of judgment and sentence on blackmail and grand larceny — the latter being a lesser-included offense within the crime of robbery.

In his appeal to this court, three main issues are raised:

1. Did the trial court err in receiving hearsay testimony, later striking it and instructing the jury to disregard?

2. Was there entrapment?

3. In the light of the alleged “consent" and participation by the victim, is a necessary element of the crimes for which defendant was sentenced missing, thereby rendering the evidence insufficient to convict?

The court will affirm the conviction for grand larceny and reverse the conviction for blackmail.

FACTS

The facts related here are substantially as presented through appellant’s brief.

On March 6, 1975, one Michael George Rooney, as undercover agent from the Wyoming Attorney General’s Office, met the defendant-appellant, . Michael Otte, at Jake’s Bar in Rock Springs, Wyoming. From that day to the 14th day of March, 1975, they discussed, talked about and planned a robbery or blackmail plot against City Market of Rock Springs, Wyoming. The gist of the plan was that Rooney and Otte would place a telephone call to the manager of City Market and inform him that they were holding the manager’s wife as a hostage and that unless he, the manager, placed the money from City Market in a bag and delivered it to the store’s parking lot for Rooney and Otte to take, they would kill the manager’s wife. Rooney kept other agents of the Attorney’s General’s Office, agents of the City/County Task Force of Rock Springs, and Mr. Robert Delozier (manager of City Market) informed of all the plans and discussions made and had by him and defendant-appellant. Mr. Delozier was informed of the general nature of the proposed threat — he was assured that no actual threat would be made and that his wife would be safe and protected — he was requested to mark some money for later identification — he was requested to cooperate with the agents — and he was advised that he did not have to go along with the plan unless he wished to do so. He was also told that there was some possibility that the plan to catch Otte in the larceny of the money could result in harm to him.

On the 14th day of March, 1975, according to the plan of agent Rooney and Otte, and according to the plan agreed to by Rooney — the remaining agents — and the manager of City Market, Rooney and Otte proceeded to the City Market parking lot. Rooney then crossed the street to a public telephone booth and, after Otte entered City Market, Rooney called the manager of City Market and, in substance, told him that he was with the Task Force people and to go ahead and cooperate and not to worry. In response to this call the manager, Delozier, placed the money in a bag according to previous directions of the agents and deposited it at the designated place in the parking lot, thereafter returning to the store. Rooney and Otte picked up the money, whereupon Otte was immediately arrested and charged.

The Amended Information filed herein charged the defendant Otte in three criminal counts. He was found guilty on Counts I and III.

Counts I and III read as follows:

“COUNT I

“did unlawfully and feloniously demand of Robert Delozier, Manager of the City Market, Rock Springs, Wyoming, the removal of the sum of $150,000.00 from the safe of City Market, his employer, with menaces of personal injury to his wife, Lynn Delozier, by word of mouth, contrary to Section 6-147, Wyoming Statutes, 1957.

“COUNT III

“did unlawfully, forcibly and feloniously, take from City Market of Rock Springs, Wyoming, money in an approximate sum of $50,000.00, by threatening to do harm to Lynn Delozier, wife of the Manager of City Market, Robert Delozier, and putting them in fear, contrary to Section 6-65, Wyoming Statutes, 1957.”

Count I charged the defendant-appellant with the crime of blackmail¹, and Count III charges him with robbery.² He was found guilty of blackmail and robbery, although the trial judge entered judgment and sentence for blackmail and larceny³, a lesser-included offense within the crime of robbery.

Entrapment

The jury was properly charged on the entrapment issue, the court following our decisions in Janski v. State, Wyo., 538 P.2d 271, and Dycus v. State, Wyo., 529 P.2d 979. The jurors believed there was no entrapment — a decision which was theirs to make.

Hearsay

During the trial, the State called the Field Supervisor of the Attorney General’s Investigation Division to testify concerning Rooney’s reports to him and his instructions to Rooney. This testimony was objected to as hearsay. The jury was admonished to disregard that portion of the witness’ testimony and the defendant now complains that it was reversible error to have received it since it was impossible for the members to put the matter out of their minds.

We will not consider this issue, which is made without citation of authority. Reed v. Wadsworth, Wyo., 553 P.2d 1024. Further, no objection was made to the instruction complained of and we will not consider that issue, under our holding in, among other decisions, Duran v. State, Wyo., 546 P.2d 434, citing Oldham v. State, Wyo., 534 P.2d 107.

Larceny

The jury returned a verdict finding the defendant guilty of robbery and the court, rather than following the verdict of the jury, found that the defendant was guilty of grand larceny, an offense included in the crime of robbery but carrying a lesser penalty.

The crime of larceny was committed when the defendant took the money into his possession and started to leave the parking lot. The defendant urges that there could be no larceny because Mr. Delo-zier, the store manager, consented to the taking by delivering the bag of money to the place designated as requested by the defendant. The defendant correctly argues that as a general proposition, in order to commit the crime of grand larceny, there must be a taking of property without the consent of the owner. Under the facts of this case, and within the contemplation of the crime of grand larceny, the owner did not consent to Otte’s taking his property. He placed the money there for the purpose of apprehending this defendant in the course of his committing a larceny. That is the only reason he put the money out — not because he was consenting to Otte’s taking and appropriating it to his own use.

In denying a petition for rehearing in Neel v. State, Wyo., 454 P.2d 241, 242, we said:

“It is well settled that where a person by trick or fraud obtains possession of property intending at the time of obtaining the property to convert it to his own use, and does so convert it, the fraud is the equivalent of a felonious taking and the offense is larceny. Annotation 26 A.L.R. 381, 382. ...”

Fraudulent conduct implies an act which is obnoxious to good morals. First National Bank of Cheyenne v. Swan, 3 Wyo. 356, 23 P. 743 (1890), 31 Am.St.Rep. 122.

Fraud vitiates the consent of the victim if the other elements of the crime are present. State v. Jesser, 95 Idaho 43, 501 P.2d 727, 735. It was .said in Jesser, quoting from a “landmark” Massachusetts decision (Commonwealth v. Barry, 124 Mass. 325, 327 (1878):

“ ‘. . .If the possession is fraudulently obtained, with intent on the part of the person obtaining it, at the time he receives it, to convert the same to his own use, and the person parting with it intends to part with his possession merely, and not with his title to the property, the offence is larceny.’ ”

We agree with the rule expressed by the court in Commonwealth v. Barry and consider it applicable to the fact-situation in the case at hand. We have said essentially the same thing in Neel v. State, supra, where we said:

“In ‘larceny’ owner of the property has no intention to part with title therein to the person taking it although he may intend to part with possession, . . . ” Ibid., p. 242.

The store manager, having been told by the officers of Otte’s fraudulent and illegal scheme to steal his money, placed the money in the lot consistent with the fraudulent plan of Otte in an effort to aid the officers in apprehending Otte. In aiding the officers, the manager was consenting to part with the possession of his money but not the title.

The fact that he placed the money in the parking lot in his effort to aid the law officers does not in any way amount to such consent as to avoid the violation of the larceny statute. In this regard, see the annotation in 18 A.L.R. 146, 172, entitled, “Entrapment to commit crime with view to prosecution therefor,” supplemented by annotations in 66 A.L.R. 478, 503, and 86 A.L.R. 263, 270.

It is said in 18 A.L.R., at page 172:

“It is well established that where the criminal design originates with the accused, and the owner does not, in person or by an agent or servant, suggest the design or actively urge the accused on to the commission of the crime, the mere fact that the owner, suspecting that the accused intends to steal his property, in person or through a servant or agent, exposes the property, or neglects to protect it, or furnishes facilities for the execution of the criminal design, under the expectation that the accused will take the property, or avail himself of the facilities furnished, will not amount to a consent in law, ...”

In the instant case, the owner of the stolen property, when he placed the money in the parking lot for the purpose of attempting to apprehend Otte — an endeavor he was well within his rights to undertake — did not consent to, nor did he intend to, part with its title — only its possession— in which circumstances there was no consent to the taking. The element of felonious taking was present — the crime was grand larceny.

Blackmail

We hold that the evidence reflected by the record before us does not support a guilty verdict or judgment upon the charge of blackmail.⁴ (See Note 1, supra, where the blackmail statute is set out in full.)

The part of the statute which contemplates the sending or delivery of a writing cannot be in issue in this appeal because the facts are clear that there was no sending or delivery of any writing.

Relevant, however, is the question of whether Otte, directly or indirectly, orally demanded money of Delozier, the store manager, by and with the use of threats. We find that he did not, and we further hold that communication of a threat, as a threat, to the intended victim is a necessary element of the crime of blackmail under our statute. No threat was ever communicated to Delozier, Otte’s intended victim, and therefore the crime was not committed.

In the course of the trial, these exchanges took place:

Mr. Delozier testified:

“Q All right. No threats were made; were they? The officers simply told you there is a plan that some threats may be made or will be made, but were any actually made?

“A Not directly toward me.

******

“Q But there was [sic] no threats made to you; were there?

“A Not to me; no, sir.”

Rooney, the undercover agent, testified:

“Q Let’s go now to the day of the occurrence which supposedly constituted this crime. Did you read that note to Mr. Delozier? [“threat” note dictated by Otte to Rooney]

“A No, sir.

“Q Did anyone read that note to Mr. Delozier?

“A I believe he had some idea of what it was, in the content of it.

“Q He had — answer my question. Did anyone, to your knowledge, read that note to Mr. Delozier?

“A No, sir.

“Q Did Mike [Otte] threaten Mr. De-lozier?

“A No, sir.

“Q Did Mike threaten Mr. Delozier’s wife?

“A No, sir.

“Q Did anyone ever say to Mr. Delozier, ‘We have — your wife is in danger and if you don’t put out the certain sum of money something is going to happen to your wife’?

“A Not to my knowledge.”

At still another juncture in his examination, the undercover agent, Rooney, was asked:

“Q Was a threat actually made to Mr. Delozier?”

His answer was:

“A No.”

With respect to whether or not a threat was ever communicated to Delozier, State’s witness Coursey of the Attorney General’s Office [but a member of the City/County Task Force in Rock Springs at the time with which we are concerned] testified:

“Q To your knowledge, were any threats actually imparted to Mr. Delozier at any time by anybody? Now, understand, please, I’m not saying did somebody say to him, ‘They are planning to make such and such a threat.’ What I’m asking you is was an actual threat ever made to Mr. Delozier?

“A Not to my knowledge.”

Agent Compton of the Attorney General’s Office testified:

“Q Mr. Compton, to your knowledge were any threats actually imparted to Mr. Delozier?

“A No, sir.”

Absent a writing the statute requires that the defendant verbally demand money of another person with menace. This bespeaks a communication — the delivery of a threat. The threat need not be communicated directly. It can be communicated by any number of third persons so long as it is given and received as a threat.⁵

In the instant matter, it is clear that Otte intended and even attempted to make a threat which would be delivered by Rooney to Delozier. Certainly, the nature of the communication he intended for delivery was such as to constitute a threat had it been received as such', but neither Rooney nor any other person communicated Otte’s intended threat to Delozier. Instead, the agents advised Delozier that Otte had a plan to blackmail him and, under these circumstances, the communication simply amounted to an enlistment of the store manager’s help in aiding Otte to carry out the intended larceny of the money.

It is said in 31 Am. Jur. 2d, Extortion, Blackmail, and Threats § 10, p. 907:

“A threat must be made in order to constitute the crime of blackmail. . .."

It is further said in the same section:

“ . . .A threat is defined to be a menace of such a nature as to unsettle the mind of the person on whom it is intended to operate, and to take away from his acts that free voluntary action which alone constitutes consent . . .”

[Emphasis supplied]

A threat must be made in such circumstances as would be expected to strike fear in the heart of the ordinary man or woman. As was said in State v. Sondergaard, Me.1974, 316 A.2d 367, 369, quoting from State v. Hotham, Me.1973, 307 A.2d 185:

“State v. Hotham stresses that, as thus substantively conceived, a ‘threat’ must involve more than a message of ‘menace of destruction or of injury’; it is also an indispensable feature of a ‘threat’ that its ‘promise of evil’ must be in a context of circumstances by which it gives rise to reasonable likelihood that ‘alarm’ or ‘fear . to his disquiet’ will be induced in some person.”

We embrace this rule. Applying it to the facts of record here, it can be said that the nature of the threat was indeed such as would have caused disquiet and anxiety in any man — but the threat was not received in circumstances under which the mentioned anxieties and fears for the safety of the intended victim’s wife either did— could — or would arise. The existence of Otte’s intended threat came to Delozier— not as a threat but as a part of a plan “to catch a thief” — a plan with respect to which he was one of the planners.

We hold that the communication of the threat of harm to another — no matter by how many mouths communicated — is the gist of the offense prohibited. There was no such communication here.

We reverse the trial court’s judgment and sentence entered upon the jury’s verdict finding the defendant guilty of blackmail, and affirm the judgment and sentence of that court which was entered finding the defendant guilty of grand larceny.

The case is remanded for resentencing.

1 .Section 6-147, W.S.1957, defines the crime of blackmail as follows:

“§ 6-147. Blackmailing. — Whoever, either verbally or by any letter or writing or any written or printed communication, demands of any person, with menaces of personal injury, any chattel, money or other valuable security; or whoever accuses or threatens to accuse, or knowingly sends or delivers any letter or writing or any written or printed communication, with or without a name subscribed thereto, or signed with a fictitious name, or with any letter, mark or designation, accusing or threatening to accuse any person of any crime punishable by law; or of any immoral conduct, which, if true, would tend to degrade and disgrace such person, or in any way to subject him to the ridicule or contempt of society; or to do any injury to the person or property of any one, with intent to extort or gain from such person any chattel, money or valuable security, or any pecuniary advantage whatsoever; or with any intent to compel the person threatened to do any act against his will, is guilty of blackmailing, and shall be imprisoned in the penitentiary for not more than five years.” [Emphasis supplied]

2 . Section 6-65, W.S.1957, defines the crime of robbery as follows:

“§ 6-65. Robbery generally. — Whoever forcibly and feloniously takes from the person of another any article of value, by violence or by putting in fear, is guilty of robbery, and shall be imprisoned in the penitentiary not more than fourteen years.”

3 . Section 6-132, W.S.1957, 1975 Cum.Supp., defines the crime of grand larceny as follows:

“§ 6-132. Grand larceny. — Whoever feloni-ously steals, takes and carries, leads or drives away the personal goods of another of the value of $100 or upwards, is guilty of grand larceny, and shall be imprisoned in the penitentiary not more than ten years.”

4 . Justices RAPER and THOMAS dissent from the blackmail section of this opinion.

5 . As long as the threat is communicated in a manner calculated to impel the victim to act upon it against his will, it matters not that it came to him through third persons. It is still a threat within the crime of blackmail. See 86 C.J.S. Threats & Unlawful Communications § 4.a, “In General,” p. 794.