State v. Poutre

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.



                                No. 87-315


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Rene Poutre                                  Unit No. 3, Orleans Circuit

                                             May Term, 1990



Shireen Avis Fisher, J.

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
   Attorney General, Montpelier, for plaintiff-appellee

Martin & Paolini, Barre, for defendant-appellant



PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.



     GIBSON, J.   Defendant appeals from a jury verdict convicting him of
embezzlement in violation of 13 V.S.A. { 2531.  We affirm.
     In June of 1986, defendant was charged with three counts of embezzling
insurance policy premiums during his ownership and management of the
Raintree Insurance Company.  One of those counts was dismissed, but five
more were added in November of 1986.  Essentially, the counts alleged that
defendant had taken premium payments from individuals seeking insurance
coverage and failed to pass the payments on to the companies that were to
provide the coverage.  Five days after the jury trial began in March of
1987, the court granted the State's motion to amend three of the counts to
charge that defendant was, in addition to being an agent of the insureds as
stated in the original counts, an agent of the insurance companies providing
the coverage.  On March 21, 1987, the jury convicted defendant on five of
the seven counts.
     On appeal, defendant claims that the court erred by (1) allowing the
State to amend the information during the trial, (2) charging the jury that
it need find an agency relationship only between defendant and any one of
several principals in order to convict him, (3) failing to enter a judgment
of acquittal on one of the counts, and (4) failing to grant defendant a new
trial after defense counsel disclosed that during the trial she was
negotiating for employment with a law firm that represented two of the
State's witnesses.  Defendant also contends that his conviction for
embezzlement, rather than larceny, constitutes plain error.
                                     I.
     Defendant first argues that, by permitting the State to amend three of
its counts to allege that defendant was an agent of the insurance companies
providing coverage, the court violated the prohibition against changing an
essential element of the crime charged.  Because defendant agreed to the
amended information, he has waived this claim of error.
     Under V.R.Cr.P. 7(d), the court may permit an information to be amended
after the trial has commenced "[i]f no additional or different offense is
charged and if substantial rights of the defendant are not prejudiced."
Thus, the court may not permit an amendment of one of the essential elements
of a crime when the amendment, in effect, charges an additional offense or
increases the potential punishment.  See State v. Verge, ___ Vt. ___, ___,
564 A.2d 1353, 1354-55 (1989) (defense counsel did not object to and failed
to show prejudice resulting from mid-trial amendment which struck part of
language in burglary information; however, amendment of unlawful mischief
information, over defense counsel's objection, that increased amount of
damage allegedly done to building during break-in was error because it
increased potential maximum punishment).
     In this case, defense counsel initially objected to the prosecutor's
proposed amendment, stating that she had not been able to explore the agency
issue when she had cross-examined witnesses representing the insurance
companies.  The prosecutor argued that the relationships between defendant
and the insurance companies had been examined and that, in any case, he
would not object to a telephone deposition of those witnesses if defendant
sought additional information from them.  A week later, when the amendment
issue was addressed again, the court pointed out that the State had taken
the position that it would have to prove an agency relationship both between
defendant and the insureds and between defendant and the insurance companies
if the amendment were allowed.  Based on that consideration and "the possi-
bility that there might be a double jeopardy issue," defense counsel with-
drew her objection to the addition of the insurance companies as principals.
The court, however, expressed doubt that the State was obligated to prove an
agency relationship between the defendant and both the insured and the
insurer; although it had not yet decided what the State's burden would be in
this regard, it indicated that it was inclined to rule that the State need
prove only one principal so long as the jury was unanimimous as to who that
principal was.  The court then directly asked defense counsel if, given the
court's inclination, she was still willing to withdraw her objection to the
State's amended information.  Defense counsel responded in the affirmative.
Subsequently, at the close of the evidence, the court instructed the jury,
without objection from defendant, that the State was required in each count
to prove an agency relationship between defendant and the insured or between
defendant and the insurance company, but not both.
     By withdrawing his objection and agreeing to the amended information,
defendant waived his right to a review of the court's ruling on appeal.
See Scanlan v. Hopkins, 128 Vt. 626, 632, 270 A.2d 352, 356 (1970) (claim of
error in jury instructions waived by defense counsel's statement that he was
content with supplementary charge); Schuler v. State, 668 P.2d 1333, 1339
(Wyo. 1983) (defendant waived his right to attack propriety of amended
information when not only did he fail to object to the amendment, but he
moved the court to consolidate the two informations); see also State v.
Trombly, 148 Vt. 293, 304-05, 532 A.2d 963, 970 (1987) (strategic and
tactical decisions after consultation with client are exclusive province of
attorney, cert. denied, 486 U.S. 1029 (1988).  Further, defendant has not
shown how the amended information created unfair suprise or disadvantaged
him, see State v. Loso, 151 Vt. 262, 264-67, 559 A.2d 681, 683-84 (1989);
therefore, there is no plain error.
                                     II.
     Next, defendant maintains that the court's jury instructions denied him
a unanimous verdict on the agency element of the embezzlement prosecution
because the charge allowed the jury to find an agency relationship between
defendant and either the insureds or the insurers.  We disagree.
     In support of his argument, defendant relies on State v. Couture, 146
Vt. 268, 269-72, 502 A.2d 846, 847-49 (1985), where we held that it was
plain error for the trial court to give instructions that did not assure the
jury's unanimity regarding an essential element of the crime of kidnapping.
There, the single count alleged that the defendant had forcibly confined
five named persons against their will.  The trial court charged the jury
that the defendant could be found guilty if they found that the defendant
had forcibly confined "'any one of the five alleged victims.'"  Id. at 270,
502 A.2d  at 848 (emphasis in original).  We reversed and remanded the
kidnapping conviction, pointing out that "the court did not divide the
information into multiple counts," "did not require special verdicts by the
jury, identifying each person unanimously concluded to have been forcibly
confined," and did not "explain that unanimity regarding the confinement of
each person was required."  Id. at 271-72, 502 A.2d  at 849.
     Couture does not support defendant's argument.  Here, the jury was
given interrogatories for each of the seven counts, and the court reminded
the jury that the answers to each of the interrogatories would have to be
unanimous.  The first interrogatory of each count asks whether defendant was
the agent of "any one of the following" persons or entities listed, and the
jury was required to indicate by check mark which, if any, of the listed
persons or entities defendant represented.  The jury charge and interrog-
atories in this case assured the unanimous selection of one or all of the
named principals; indeed, a review of the interrogatories confirms that the
jury unanimously found defendant to be an agent of each of the named
principals in all of the amended counts.
                                     III.
     Next, defendant argues that the absence of any evidence suggesting an
agency relationship between defendant and the Marinco Insurance Company, the
only principal named in count two, compelled the court to enter judgment of
acquittal on that count pursuant to his V.R.Cr.P 29 motion.  We conclude
that the court did not abuse its discretion in denying the motion; the
evidence was sufficient to support the jury's determination that defendant
was an agent of Marinco with respect to the transaction described in count
two.
     The evidence concerning count two showed that the Town of Troy
contacted defendant to renew its insurance coverage, that defendant informed
the Town that he had arranged coverage with Marinco, that the Town sent
defendant over $13,000 to pay for that coverage, and that defendant failed
to pay the money to Marinco.  In its charge to the jury, to which defendant
did not object, the court correctly stated that an agency relationship can
be created by law or agreement, and may be temporary and narrow in scope.
Moreover, an agency relationship may be implied from the circumstances of a
particular situation, and can arise from a single transaction.  Bills v.
Wardsboro School Dist., 150 Vt. 541, 544, 554 A.2d 673, 675 (1988).
     In the instant case, both defendant and the Town were aware of where
the $13,000 was to go.  Further, defendant violated state statutory law by
failing to act as a fiduciary and timely transfer to Marinco the premium
payments he received in his capacity as an insurance broker.  See 8 V.S.A.
{ 4724(12).  Therefore, the jury could have properly found an implied
agency, or an agency by estoppel or operation of law, see Taylor v. United
States Casualty Co., 229 S.C. 230, 240, 92 S.E.2d 647, 651-52 (1956).  The
court did not err by refusing to set aside the verdict and enter judgment of
acquittal for count two.
                                     IV.
     Defendant also argues that the court's denial of his motion for a new
trial, in which he claimed that defense counsel had failed to disclose that
at the time of the trial she was negotiating for employment with a firm
representing two prosecution witnesses, denied him his constitutional right
to counsel.  We disagree.
     In June of 1987, a hearing was held on defendant's motion for a new
trial, which alleged that defense counsel failed to pursue her defense
obligations with proper diligence because of her desire to curry favor with
her future employer, a firm representing two prosecution witnesses.  Upon
conclusion of the hearing, the court found that defense counsel was unaware
that her potential employer represented prosecution witness Nancy Dumas,
defendant's personal secretary, but was aware that the firm represented
prosecution witness David Royea, the buyer of Raintree Insurance.  The court
also found that defense counsel developed her trial strategy with the
concurrence and to the satisfaction of defendant before she was approached
by her potential employer, and that defense counsel and her potential
employer never discussed the Poutre trial.  Finally, the court found that
there was no evidence that defense counsel ineffectively assisted defendant,
had divided loyalty, or was motivated by anything other than the best
interest of her client.
     We agree with the State that the cases cited by defendant in support of
his argument are inapposite because they address situations where one
attorney had represented co-defendants with conflicting interests.  In the
instant matter, defense counsel represented only defendant; therefore,
defendant must show that an actual conflict of interest adversely affected
his counsel's performance.  See, e.g., United States v. Horton, 845 F.2d 1414, 1418 (7th Cir. 1988).
     We conclude that the evidence presented by defendant does not
constitute such a showing as a matter of law.  See id. at 1418-20 (defense
counsel's position as finalist for Office of United States Attorney during
representation of a criminal defendant did not constitute actual conflict of
interest); Smith v. White, 815 F.2d 1401, 1405 (11th Cir.) (mere proof that
a criminal defendant's counsel previously represented a prosecution witness
does not establish actual conflict of interest), cert. denied, 484 U.S. 863
(1987).  The record provides no evidence of inconsistent interests. Defense
counsel was not even aware that Nancy Dumas was a client of her future
employer.  Moreover, despite defendant's contrary contention, David Royea
had no financial interest in the outcome of the trial since he was buying
the accounts payable and receivable on renewal, and thus would be unaffected
by any obligation defendant might have to repay monies that Raintree
Insurance owed.  Indeed, defendant has failed to show that Mr. Royea was a
crucial witness whose cross-examination was central to his defense.  Though
it is conceivable that an attorney might "pull punches" when cross-examining
a client of a future employer, it cannot stand as the basis for a per se
rule of actual conflict.  See Horton, 845 F.2d  at 1419-20.
     Further, even assuming a potential conflict of interest existed, we
agree with the trial court that defendant has failed to show that defense
counsel's performance lacked diligence or was ineffective.  See id. at 1420-
21; Myrick v. Maschner, 799 F.2d 642, 647-48 (10th Cir. 1986).  The court
did not abuse its discretion in denying defendant's motion for a new trial.
                                     V.
     Lastly, defendant argues for the first time on appeal that he was
wrongly convicted of embezzlement since the evidence presented justified at
most a larceny charge, in response to which he could have proffered the
defense that he had no fraudulent intent to deprive the owners of the monies
taken.  Specifically, defendant asserts that since he is separate from the
corporate entity, Raintree Insurance, he was never in possession of the
appropriated funds and cannot be guilty of embezzlement.  We reject this
argument.
       The record clearly shows that defendant and Raintree Insurance were
one in terms of access to insurance funds.  Defendant was the owner of the
company and exercised exclusive control over its activities.  Under these
circumstances, the corporate entity cannot shield defendant from an
embezzlement conviction.  See State v. Holdren, 143 Mont. 103, 112, 387 P.2d 446, 450-51 (1963) (corporate entity that operated agency to collect debts
owed to second corporation could not shield entity's president-manager from
embezzlement charge for not paying over debts collected; corporate entity
may not be used to "defend crime"); see also State v. Joy, 149 Vt. 607, 608,
549 A.2d 1033, 1034 (1988) (president of collection agency with exclusive
control over agency convicted of embezzlement for failure to forward pay-
ments to client).  Defendant's references to State v. Ward, 151 Vt. 448,
562 A.2d 1040 (1989) and State v. Rathburn, 140 Vt. 382, 442 A.2d 452
(1981) are unavailing, inasmuch as the defendants in those cases were
employees who took money from their employers.  The evidence in this case
supports the embezzlement conviction.
     Affirmed.





                                 FOR THE COURT:


                                 __________________________________________
                                 Associate Justice