WVC v. Decker

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West Valley City v. Decker. Filed April 6, 2000 IN THE UTAH COURT OF APPEALS

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West Valley City,
Plaintiff and Appellee,

v.

James W. Decker,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990029-CA

F I L E D
April 6, 2000 2000 UT App 97 -----

Third District, West Valley Department
The Honorable Ann Boyden

Attorneys:
Stephen G. Homer, West Jordan, for Appellant
Elliot R. Lawrence, West Valley City, for Appellee

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Before Judges Bench, Billings, and Orme.

BENCH, Judge:

Decker contends that the evidence adduced at trial was insufficient to support his convictions of attempted theft and theft by deception. We disagree that the evidence was insufficient to support Decker's attempted theft conviction. The evidence established that Decker removed some photographs from the City's file and hid them between two telephone books.(1) Decker then returned the file, minus the photographs. Decker later picked up the telephone books and left the building, unaware that City employees had retrieved the photographs while he paid for some copies. These facts sufficiently support the attempted theft conviction because they demonstrate that Decker "engage[d] in conduct constituting a substantial step toward the commission of the offense." Utah Code Ann. § 76-4-101(1) (1999). In other words, the evidence adequately established that Decker attempted to "obtain[] or exercise[] unauthorized control over the property of [the City] with a purpose to deprive [it] thereof." Id. § 76-6-404.

The evidence, however, was not sufficient to support the conviction of theft by deception because Decker deceived no one in his attempt to steal the photos. See State v. Jones, 657 P.2d 1263, 1267 (Utah 1982) (stating that "reliance by the victim [upon the deception] is an element of the crime of theft by deception"). The City employees saw Decker hide the photographs and then retrieved them when Decker left for a moment. Thus, we reverse Decker's theft by deception conviction because the statute does not include "situations where theft by deception might have happened, but, because of the victim's lack of reliance on the perpetrator's deception, did not occur." State v. LeFevre, 825 P.2d 681, 688 (Utah Ct. App. 1992).(2)

Decker also contends that the trial court erred in denying his motion for a bill of particulars. "We will not reverse the trial court's decision to deny a bill of particulars unless the trial court has abused its discretion." State v. Swapp, 808 P.2d 115, 117 (Utah Ct. App. 1991). In this case, Decker had the following: the Information; the City's objection to his motion wherein the City set out the facts that led to the charges; and open access to the prosecution's file. Given all that the City provided Decker, the trial court did not abuse its discretion in denying his request for a bill of particulars because it was "'sufficient information "so that he [could] know the particulars of the alleged wrongful conduct and [could] adequately prepare his defense."'" Id. at 117-18 (citations omitted).

Finally, Decker argues that the trial court erred in denying his request for a jury trial. Because the charges against Decker carried maximum prison terms of six months or less, Decker was not entitled to a jury trial. See West Valley City v. McDonald, 948 P.2d 371, 375 (Utah Ct. App. 1997). Moreover, "the trial court agreed to eliminate jail time from its sentencing options," and therefore, "it no longer was required under Utah law to grant [Decker's] request for a jury trial." Id. at 374.

Accordingly, we affirm the conviction of attempted theft and reverse the conviction of theft by deception.
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 

______________________________
Judith M. Billings, Judge
 

______________________________
Gregory K. Orme, Judge

1. Although not important to our analysis, the City apparently provided the telephone books free to the public.

2. Because the evidence was insufficient to support the theft by deception conviction, we need not address Decker's argument that the "single criminal episode" provision precludes prosecution of multiple offenses.  See Utah Code Ann. § 76-1-402 (1999).

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