State v. Guthrie

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ANDREW STEPHEN GUTHRIE, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 11/02/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CR 09-0484 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-102145-001 DT The Honorable James T. Blomo, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Michael J. Mitchell, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Karen M. Nobel Attorneys for Appellant W E I S B E R G, Judge Phoenix ¶1 Andrew Stephen Guthrie ( Defendant ) appeals from his convictions imposed. following a jury trial and from the sentences For reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We view the facts sustaining the verdicts. in the light most favorable to State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). Defendant was indicted for theft of property with a value of $25,000 or more, but less than $100,000, a class 2 felony, and fraudulent schemes and artifices, a class 2 felony. ¶3 The following evidence was presented at trial. 2007, Defendant ( TPP ), a controller worked tire as a salesman wholesaler. informed the for Around general Tire Partners December manager, During Shawn Plus 2007, TTP s D., that the company had several accounts that were over the credit limit and that all of the accounts related Defendant s clients. He first discovered that although there were electronic records of sales by TTP to customer several signatures Defendant told Shawn customers, were that the missing. he original When believed he invoices asked had about turned showing them, in the original invoices, but said he would check for them at home. Defendant failed, however, to respond to repeated calls from Shawn. When Defendant returned to work, Shawn confronted him about the missing invoices, but Defendant denied any wrongdoing. 2 ¶4 Shawn also discovered that TTP did not have receipts or other proof of deliveries corresponding to the questionable invoices showing the customers received the merchandise listed on the invoices. making the Shawn contacted one such customer who denied purchases from TTP. Shawn investigated two deliveries made by Defendant personally in December 2007 to an alleged customer. He reviewed a videotape of Defendant leaving the warehouse twice with a loaded truck and returning twice in less than an hour s time. distances making involved, those Further, Because of the size of the order, the rain, deliveries Defendant s and time would daily of be activity day, Shawn physically log did not knew that impossible. reflect the alleged deliveries made by him that day. ¶5 Shawn noticed discrepancies between the information found on some of the purchase orders and on TTP s corresponding invoices. Three invoices did not have stock numbers on them and six had inaccurate numbers. invoices involving six In all, Defendant created false customers: Freeway Chevy, Tire Pro s, Goins Automotive Group, Jones Auto Outlet, Bell Honda and AZ Elite Wheels. Shawn was unable to locate the merchandise listed on the invoices at the TTP warehouse. He received payment of $383.08 for a set of tires Defendant had sold to Jason M., which had been incorrectly billed to Freeway Chevy, but estimated that the total value of lost inventory was about $54,000. 3 Shawn indicated that Defendant improved his position in the company and received commissions as a result of generating the invalid invoices. ¶6 Shawn Detective notified Angel the Phoenix investigated the Police case. Department and contacted the He customers listed on the subject invoices and all of them denied making the purchases from TTP as reflected on the invoices. detective arrested Defendant and interviewed him. The Defendant admitted creating false invoices to boost[] his sales numbers because he was getting in trouble at work [and] wasn t making enough money for the company. He also told the detective that Goins Automotive had an account with TTP but that it had poor credit, so he created the invoices so Goins could purchase the tires. Defendant said he had sold the missing inventory, worth about $60,000 to Goins, but that Goins had not yet paid for it. Defendant also told Detective Angel that Jason M. had purchased tires from him and that Jason would pay for them. Defendant denied Defendant s possessing house, police TTP s found property, a set in of a Although search tires and of rims belonging to TTP for which Defendant had not paid. ¶7 six Representatives authorized to make purchases for the companies testified at whose trial. names appeared Each of on them the invalid denied merchandise from TTP and paying the invoices. 4 invoices ordering the Some of them denied knowing Defendant and/or TTP. The owner of Goins Automotive, in particular, testified that he had never heard of Defendant or TTP and that at the time of the alleged purchase, his company was going out of business. Jason M. testified that he purchased tires from Defendant for $383.08, but that he did not purchase reflected. them through Freeway Chevy as the TTP invoice Defendant s former employer s also testified that he purchased tires from Defendant, that Defendant personally delivered them and that he paid Defendant $700 in cash. ¶8 The jury found Defendant guilty as charged. The court suspended Defendant s sentences and placed him on concurrent, seven-year terms of probation. have jurisdiction pursuant Defendant timely appealed. to Arizona Revised We Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 and, -4033 (A) (2010). DISCUSSION ¶9 On appeal, Defendant claims the trial court erred in denying his motion for judgment of acquittal on the charge of fraudulent schemes and artifices because there was insufficient evidence to support the conviction. He also argues that the trial court committed fundamental error in instructing the jury on that offense. 5 Sufficiency of Evidence ¶10 After the State presented its case, Defendant moved for a judgment of acquittal, alleging that the State had failed to present evidence that Defendant had received a benefit from the alleged fraudulent scheme. In denying the motion, the court found that there was substantial evidence that Defendant had received higher commissions and had made money on a side deal as a result of the different argument. scheme. On appeal, Defendant makes a Relying on State v. Johnson, 179 Ariz. 375, 880 P.2d 132 (1994), Defendant alleges there was no evidence of a false pretense that induced TTP to permit him to remove the inventory and that the fraudulent activity occurred after the theft. ¶11 We review a trial court s denial of a judgment of acquittal for an abuse of discretion. motion for State v. McCurdy, 216 Ariz. 567, 573, ¶ 14, 169 P.3d 931, 937 (App. 2007). no A judgment of acquittal is only appropriate if there is substantial Crim. P. evidence 20(a). to warrant Substantial a conviction. evidence is such Ariz. proof that R. a reasonable person could find beyond a reasonable doubt that the defendant is guilty of the charged offense. State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993). When reviewing the sufficiency of the evidence, 6 we resolve all reasonable inferences and conflicts in the evidence against the defendant. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). ¶12 A person commits the offense of fraudulent schemes and artifices if the person knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions. A.R.S. § 13-2310(A) (2010). Reliance on the part of any person shall not be a necessary element of the offense. A.R.S. 13-2310(B). A scheme or artifice to defraud includes a scheme or artifice to deprive a person of the intangible right of honest services. ¶13 A scheme or artifice trick to perpetrate a fraud. on its face but must is A.R.S. § 13-2310(E). some plan, device or The scheme need not be fraudulent involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension. State v. Henry, 205 Ariz. 229, 232, ¶ 12, 68 P.3d 455, 458 (App. 2003) (internal citations omitted). The statute generally proscribes conduct lacking in fundamental honesty [and] fair play . . . in the general and business life of members of society. State v. Haas, 138 Ariz. 413, 424, 675 P.2d 673, 684 (1983) (citation omitted). It is broadly construed to cover all of the varieties made possible by boundless human ingenuity. Id. A benefit is defined as anything of value or advantage, present or prospective. A.R.S. § 13-105(3) (2010). 7 It includes more than just money or property. Henry, 205 Ariz. at 233, ¶ 15, 68 P. 3d at 459. ¶14 person We find the evidence was sufficient for a reasonable to find committed invoices the beyond a offense. reflecting reasonable Defendant that doubt that knowingly customers of TTP Defendant created had false purchased merchandise from TTP totaling approximately $54,000. None of the customers, however, ordered, received or paid for it and TTP was unable to account for the missing merchandise. obtained a benefit from this scheme by having Defendant access to inventory, receiving commissions for each fraudulent invoice he created and $700 in cash from his former employer. Defendant admitted he falsified the invoices to boost his sales numbers and improve his position with TTP. ¶15 Defendant s reliance on Johnson is misplaced. There, the defendant worked for a trucking company that gave him debitlike cards to purchase gasoline for company trucks. Although not authorized to do so, the defendant used the cards to fuel his personal vehicles. and artifices. He was charged with fraudulent schemes 179 Ariz. at 376, 880 P.2d at 133. Finding that the defendant could be guilty of theft, but not of fraudulent schemes, the court vacated the defendant s conviction. 381, 880 P.2d at 138. Id. at The court explained that false pretense, created through words or omissions, is the act that separates 8 fraud from actually routine cause the theft [and] victim to that rely, the and, property or money to the defendant. 135. false as a pretense must result, give Id. at 378, 880 P.2d at The court held that the defendant created no pretense, made no representation and concealed nothing from his employer when he used the card by inserting it into [the] pump [and] did nothing other than use the card[] to steal gas, presumably hoping [his employer] would pay for it without noticing. Id. at 380-81, 880 P.2d at 137-38. ¶16 tires In this case, however, Defendant did not merely steal or embezzle money from TTP and then cover it up, as Defendant alleges; rather, he created numerous false invoices and submitted them to TTP in order to perpetrate his fraudulent scheme. As a result, Defendant was allowed to remove inventory from the warehouse and also received commissions and cash. In contrast to Johnson, Defendant s false pretenses caused TTP to unwittingly provide benefits to him. See also State v. Fimbres, 222 Ariz. 293, 297-98, ¶ 9, 213 P.3d 1020, 1024-25 (App. 2009) (holding that unlike Johnson, the defendant s use of gift cards that had been altered to correspond to others accounts was a fraudulent scheme and artifice). Defendant s reliance on federal cases interpreting the federal mail fraud statute as restricted to schemes involving bribes or kickbacks is also misplaced because of the distinct difference[s] between the 9 federal mail statute. fraud Haas, statute 138 and Ariz. the at Arizona 419, 675 version P.2d at of that 679. The evidence was sufficient to support the conviction, and the trial court did not err in denying the motion for judgment of acquittal. Jury Instructions ¶17 Defendant claims the trial court committed fundamental error in instructing the schemes and artifices. jury on the offense of fraudulent In particular, Defendant alleges that the court (1) failed to instruct the jury on specific intent to defraud; (2) improperly instructed the jury that the State need not prove reliance; and (3) overbroadly instructed the jury on intangible loss of honest employee service. The State argues that Defendant s the error was invited because the jury instructions on the offense were nearly identical to those given by the trial court. ¶18 Defendant stating that depriv[ing] a a services. requested scheme person and or of received artifice the to intangible See A.R.S. § 13-2310(E). a jury instruction defraud right includes of honest Under the invited error doctrine, a defendant who expressly requests a jury instruction is precluded erroneous. from arguing on appeal that the instruction is State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001); State v. Lucero, 223 Ariz. 129, 136, ¶ 20, 10 220 P.3d 249, 256 (App. 2009). Thus, we do not consider Defendant s argument as to that instruction. ¶19 Defendant requested a jury instruction stating that the crime of fraudulent schemes and artifices requires proof that the defendant: 1. [k]knowingly participated in a scheme or artifice to defraud; and 2. [o]tained any benefit by means of false or fraudulent material omissions. pretenses, representations, promises or Defendant did not request nor did the court give an instruction that the State was required to prove that Defendant acted with specific intent to defraud. ¶20 The court instructed the jury that the crime requires proof that the defendant: participated in a scheme or artifice to defraud; and knowingly obtained any benefit by means of false or fraudulent pretenses, representations, omissions. A.R.S. § 13-2310(A). promises or material It instructed the jury on the statutory definitions of intentionally and knowingly. § 13-105(10(a),(b)(2010). A.R.S. The court also instructed the jury that reliance on the part of any person is not required to prove this offense. ¶21 A.R.S. § 23-2310(B). Defendant failed to object to the challenged instructions, and we review only for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To establish fundamental error, the defendant must prove that error occurred, that the error 11 complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a prejudice. fair trial, and that such error resulted in Id., 210 Ariz. at 568, ¶¶ 23-26, 115 P.3d at 608. [F]undamental error occurs when the trial judge fails to instruct upon matters vital to a proper consideration of the evidence. State v. Edmisten, 220 Ariz. 517, 522, ¶ 11, 207 P.3d 770, 775 (App. 2009) (citation omitted). ¶22 Here, there was no error. The instructions tracked the language of A.R.S. § 13-2310 and correctly stated the law applicable to the offense, including statutory element of the crime. that reliance is not a See State v. Bridgeforth, 156 Ariz. 60, 64-65, 750 P.2d 3, 7-8 (1988) (instructions adequately covered crime of fraudulent schemes and artifices and included definitions of intentionally and knowingly, trial court did not err in failing to give requested instruction that state must prove specific intent to defraud). See also State v. Fierro, 220 Ariz. 337, 339-40, ¶¶ 10-11, 206 P.3d 786, 788-89 (App. 2008) (trial court gave instructions that tracked language of statute defining offense and accurately described required mental state, there was no error); State v. Rios, 217 Ariz. 249, 251, ¶ 9, 172 P.2d 844, 846 (App. 2007) (no error occurred where trial court gave instructions that tracked express language of governing statutes). Also, if there was any ambiguity in the 12 instructions about specific intent to defraud, the prosecutor argued in closing that Defendant order to receive a benefit. intended to deceive TTP in Fierro, 220 Ariz. at 340, ¶ 14, 206 P.3d at 789 (closing arguments can be considered when assessing adequacy of instructions). He told the jury that Defendant admitted he falsified invoices to raise [his] sales numbers and urged the jury to consider all of the people who came in here to tell you about how the defendant did the same thing over and over and over again. mistake. That s how you know this was not a This was not an accident. defendant intended to do. This was exactly what the There was no error. CONCLUSION ¶23 For the foregoing reasons, we affirm Defendant s convictions and disposition. /s/__________________________ SHELDON H. WEISBERG, Judge CONCURRING: /s/_________________________________ PHILIP HALL, Presiding Judge /s/_________________________________ PETER B. SWANN, Judge 13

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