State of Utah v. Pearson
Annotate this Casepublication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
----ooOoo----
State of Utah,
Plaintiff and Appellee,
v.
Robyn R. Pearson,
Defendant and Appellant.
OPINION
(For Official Publication)
Case No. 981112-CA
F I L E D
July 1, 1999
1999 UT App 220
-----
Fourth District, Fillmore Department
The Honorable Ray M. Harding, Sr.
Attorneys:
Kenneth R. Brown, Salt Lake City,
for Appellant
Dexter L. Anderson, Fillmore, for
Appellee
-----
Before Judges Greenwood, Davis, and Jackson.
DAVIS, Judge:
¶1
Defendant Robyn R. Pearson appeals
the jury verdict convicting him of failure to disclose transaction to government
employer, a class A misdemeanor in violation of Utah Code Ann. § 17-16a-5
(1995), and theft of services, a class B misdemeanor in violation of Utah
Code Ann. § 76-6-409 (1995). We reverse in part and affirm in part.
FACTS
¶2
We generally recite the facts in
accordance with the jury verdict. See State v. Basta, 966 P.2d 260, 261 (Utah Ct. App. 1998).
¶3
Defendant was employed by Millard
County as the Millard County Administrator (Administrator) for many years.
Part of his responsibilities as Administrator was to oversee the county's
waste management system. In 1990, the State of Utah passed a bill that
anticipated creating a state-wide waste management system. Each county
within the state was to devise a twenty-year waste management plan and
submit it to the state. The state would then develop a state-wide plan
based on the proposed county plans. The state provided $400,000, to be
divided among the counties, to fund the cost of generating the waste management
plan. Millard County received approximately $12,000.
¶4
Millard County subsequently contracted
with an outside consulting firm, Stansbury Design Associates (Stansbury
Design), to prepare its waste management plan. In turn, Stansbury Design
hired defendant as a private subcontractor to perform some of the duties
necessary to complete the plan. Stansbury Design paid defendant approximately
half of the $12,000 allotted to Millard County by the state.
¶5
The Millard County Commissioners
were aware of and approved the arrangement between defendant and Stansbury
Design. The only condition was that defendant complete his tasks for Stansbury
Design on his own time. However, defendant apparently used county resources
to work on the plan; defendant had the county secretaries type letters
on county time, he used county supplies, the county's fax machine, and
he used his position as Administrator to gather information for the plan.
Defendant also directed the county to pay an invoice for services rendered
on behalf of the plan. The total value of the unauthorized Millard County
resources amounted to less than $100.
¶6
Defendant was charged with one count
of abuse of official position, a second degree felony in violation of Utah
Code Ann. § 67-16-5 (1996), failure to disclose transaction to government
employer, a class A misdemeanor in violation of Utah Code Ann. § 17-16a-5
(1995), and theft of services, a class B misdemeanor in violation of Utah
Code Ann. § 76-6-409 (1995). A trial was held before a jury, which
acquitted defendant of the charge of abuse of his official position, and
convicted him of the other two counts. Defendant appeals.
ISSUES AND STANDARD OF REVIEW
¶7
Defendant argues the trial court
erred in instructing the jury regarding the mens rea requirement of section
17-16a-5 because the instruction did not provide that the State was required
to prove that defendant knowingly and intentionally failed to file the
necessary sworn statement with the county legislative body.(1)
See Utah Code Ann. § 17-16a-5 (1995). "The standard of review
for jury instructions to which counsel has objected is correctness." State
v. Bryant, 965 P.2d 539, 544 (Utah Ct. App. 1998).
¶8
Defendant also contends there was
insufficient evidence to convict him of both the charge of failure to disclose
transaction to government employer and the theft of services charge. Regarding
the theft of services charge, we review
the evidence and all reasonable
inferences drawn from that evidence in the light most favorable to the
jury's verdict and reverse[] only if that evidence is so "'inconclusive
or inherently improbable that reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime of which he . .
. was convicted.'"
State v. Souza, 846 P.2d 1313,
1322 (Utah Ct. App. 1993) (quoting
State v. Scheel, 823 P.2d 470,
472 (Utah Ct. App. 1991) (citations omitted)); accord State v.
Longshaw, 961 P.2d 925, 931 (Utah Ct. App. 1998).
ANALYSIS
Failure to Disclose
¶9
Section 17-16a-5 provides:
(1) No elected or appointed
officer may receive or agree to receive compensation for assisting any
person or business entity in any transaction involving the county in which
he is an officer unless he files with the county legislative body a sworn
statement giving the information required by this section, and discloses
in open meeting to the members of the body of which he is a member, immediately
prior to the discussion, the information required by Subsection (3).
(2) The statement required to be filed by this section shall be filed ten days prior to the date of any agreement between the elected or appointed officer and the person or business entity being assisted or ten days prior to the receipt of compensation by the business entity. The statement is public information and is available for examination by the public.
(3) The statement and disclosure
shall contain the following information:
(a) the name and address
of the officer;
(b) the name and address of the
person or business entity being or to be assisted, or in which the appointed
or elected official has a substantial interest; and
(c) a brief description of the transaction
as to which service is rendered or is to be rendered and of the nature
of the service performed or to be performed.
Utah Code Ann. § 17-16a-5 (1995).
¶10
The mens rea requirement of section
17-16a-5 is set out in section 17-16a-10: "In addition to any penalty contained
in any other provision of law, any person who knowingly and intentionally
violates this part is guilty of a class A misdemeanor and shall be dismissed
from employment or removed from office." Utah Code Ann. § 17-16a-10
(1995). Defendant maintains the State was required to prove that he knowingly
and intentionally entered into the contract and knowingly and intentionally
failed to file the necessary sworn statement. We agree.
¶11
Instruction number seven, which
set out the elements of the failure to disclose transaction to government
employer charge, provides, in pertinent part:
(1) That the defendant .
. .
(2) in Millard County, state of Utah,
(3) on or about June 1992,
(4) did knowingly and intentionally receive or agree to receive compensation for assisting . . . Stansbury Design Associates, in a transaction, to wit: preparation of a solid waste management plan involving Millard County,
(5) without filing a sworn statement
giving the information required by Utah Code Annotated § 17-16a-5(2-3),
and without disclosing the same to the Millard County Commission in open
meeting.
¶12
Defendant asserts the instruction
failed to properly instruct the jury regarding the applicable mens rea.
An instruction that generally sets out the required mens rea for the elements
of an offense is permissible. Here, however, although setting out the elements
of the offense, the instruction clearly requires the statutory mens rea
only for the element of entering into a contract for which a party receives
compensation. It does not include any mens rea for failing to file a sworn
statement. By selectively applying the mens rea to some, but not all, of
the elements of the offense, the jury could easily have believed defendant
was strictly liable for failing to file the disclosure statement. The State
must prove every element of a crime to convict an accused defendant, see
Utah Code Ann. § 76-1-501(1) (1995); cf. State v. Stringham,
957 P.2d 602, 608 (Utah Ct. App. 1998), and jury instruction number seven
did not fairly instruct the jury on the mens rea requirement for the charged
offense. "'[B]ecause "'[t]he general rule is that an accurate instruction
upon the basic elements of an offense is essential,'" failure to provide
such an instruction is reversible error that can never be considered harmless.'"
Stringham, 957 P.2d at 608 (quoting
Souza, 846 P.2d at 1320
(citations omitted)).
¶13
We must next determine whether there
was sufficient evidence to show that defendant knowingly and intentionally
failed to file the necessary disclosure statement, even if the instruction
had properly instructed the jury on the necessary mens rea. Generally,
"'the function of a reviewing court is limited to insuring that there is
sufficient competent evidence as to each element of the charge to enable
a jury to find, beyond a reasonable doubt, that the defendant committed
the crime.'" State v. James, 819 P.2d 781, 784 (Utah 1991) (quoting
State v. Warden, 813 P.2d 1146, 1150 (Utah 1991)). Because of the
erroneous instruction, there is no way of knowing whether the jury found
that defendant knowingly and intentionally failed to file the disclosure
statement. Thus, in reviewing the sufficiency of the evidence on this element,
we grant no deference to the jury's verdict and address the issue as a
matter of law. Cf. Cottam v. Heppner, 777 P.2d 468, 471 (Utah
1989);
State v. Salas, 820 P.2d 1386, 1387 (Utah Ct. App. 1991).
¶14
The State argues the jury could
have inferred that defendant knowingly and intentionally failed to file
the disclosure statement from the following evidence: (1) defendant was
the Millard County Administrator for years; (2) defendant was told that
his arrangement with Stansbury Design did not create a conflict as long
as he complied with state laws; and (3) defendant disclosed the matter
to the county commission as early as November 19, 1991. We disagree. To
the contrary, this evidence demonstrates that had defendant actually known
about the requirements of section 17-16a-5, it is inconceivable that he
would not have performed the then purely ministerial act of disclosing
in writing what had already been disclosed. If defendant had intended to
deceive the county commission, he surely would not have discussed the matter
with them at all. After a careful review of the record, we are unable to
find any sufficient competent evidence supporting a knowing and intentional
violation of the disclosure element of section 17-16a-5. See James,
819 P.2d at 784. Accordingly, we reverse defendant's conviction on the
charge of failure to disclose transaction to government employer.
Theft of Services
¶15
Defendant also argues there was
insufficient evidence to convict him of the offense of theft of services.
On this charge, defendant does not contest the propriety of the instruction;
thus, "[b]ecause we owe 'broad deference to the fact finder, [our] power
to review a jury verdict challenged on grounds of insufficient evidence
is limited.'" Longshaw, 961 P.2d at 931 (quoting Souza, 846
P.2d at 1322)). Furthermore, "[a] jury is entitled to use its own judgment
on what evidence to believe and may draw reasonable inferences from that
evidence." State v. Cayer, 814 P.2d 604, 612 (Utah Ct. App. 1991).
¶16
"A person commits theft if, having
control over the disposition of services of another, to which he knows
he is not entitled, he diverts the services to his own benefit . . . ."
Utah Code Ann. § 76-6-409(2) (1995). Based on the evidence, the jury
could have concluded, beyond a reasonable doubt, that there was enough
evidence to satisfy the requisite elements of theft of services. Defendant
had entered into a private contract for which he was compensated over and
above his salary as Administrator. The county commissioners told him to
complete the work on his own time. The county resources used by defendant
were arguably for portions of the waste management plan he had privately
contracted to perform. Because the jury is "'entitled to judge the testimony
in the light of their experience in the every-day affairs of life,'" Bryant,
965 P.2d at 545 (emphasis omitted) (quoting Holland v. Brown, 15
Utah 2d 422, 394 P.2d 77, 79 (1964)), they were not imprudent in concluding
that defendant knew he should not have been using county resources for
items that were defendant's personal duty to complete under the private
contract.
CONCLUSION
¶17
The jury instruction on the failure
to disclose charge did not properly instruct the jury regarding the mens
rea. Even if it had, however, there was insufficient competent evidence
to show beyond a reasonable doubt that defendant knowingly and intentionally
failed to file the required disclosure form. Accordingly, we reverse defendant's
conviction for failure to disclose transaction to government employer charge.
¶18
We do not disturb the jury's verdict
finding defendant guilty of theft of services. There was sufficient evidence
for a jury to find that defendant had diverted county resources for his
own benefit that he knew he was not entitled to and over which he had control.
______________________________
James Z. Davis, Judge
-----
¶19
WE CONCUR:
______________________________
Pamela T. Greenwood,
Associate Presiding Judge
______________________________
Norman H. Jackson, Judge
1. Both testimonial and documentary evidence show that defendant's proposed involvement in the project was appropriately disclosed to and approved by the county commission. Accordingly, we will refer herein only to the failure to file a sworn statement portion of the charge.
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