State of Utah v. Smith

State v. Smith

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

David Benjamin Smith,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010949-CA
 

F I L E D
(December 11, 2003)
 

2003 UT App 425

 

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Fifth District, St. George Department

The Honorable Anthony W. Schofield

Attorneys: Margaret P. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, and Matthew C. Miller, St. George, for Appellee

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Before Judges Bench, Davis, and Greenwood.

DAVIS, Judge:

Defendant challenges his conviction for communications fraud under Utah Code Annotated section 76-10-1801 (Supp. 1990)(1) (the communications fraud statute).

Defendant argues that the evidence introduced at trial was insufficient to sustain the jury's guilty verdict on the communications fraud count. "[W]e will reverse a jury verdict only when . . . we find that the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust." State v. Stringham, 2001 UT App 13,¶12, 17 P.3d 1153 (second alteration in original) (quotations and citations omitted).

To obtain a conviction under the communications fraud statute, the State must prove the following elements:

(1) Any person who has devised any scheme or artifice to defraud another or to obtain from another money, property, or anything of value by means of false or fraudulent pretenses, representations, promises, or material omissions, and who communicates directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice is guilty of:

. . . .

(d) a second degree felony when the value of the property, money, or thing obtained or sought to be obtained is more than $10,000 but does not exceed $100,000;

. . . .

(6) (a) To communicate as described in Subsection (1) means to bestow, convey, make known, recount, impart; to give by way of information; to talk over; or to transmit information.

(b) Means of communication include, but are not limited to, use of the mail, telephone, telegraph, radio, television, newspaper, computer, and spoken and written communication.

(7) A person may not be convicted under this section unless the pretenses, representations, promises, or material omissions made or omitted were made or omitted intentionally, knowingly, or with a reckless disregard for the truth.

Utah Code Ann. § 76-10-1801(1)(d), (6), (7). We review "the evidence and all inferences drawn therefrom in a light most favorable to the jury's verdict." State v. Holgate, 2000 UT 74,¶18, 10 P.3d 346.

Defendant argues that the evidence was insufficient to establish that he devised the fraudulent scheme and communicated it to the victim. See Utah Code Ann. § 76-10-1801(1), (6). Among other things, Defendant argues that because the victim learned of the investment scheme from Lance Hatch and Lee Walker, he did not devise, nor communicate, the investment scheme to the victim. However, the jury heard evidence that Defendant had knowledge of the investment scheme; was involved in the scheme; directly told the victim that he was running the investment; told the victim that the investment was "a sure thing"; instructed Walker to divert $50,000 of the victim's investment into Defendant's personal bank account without telling the victim that he diverted the $50,000 into his personal bank account; and spoke with the victim five or six times by telephone concerning payment on the victim's investment.

Defendant may disagree with the evidence presented, but "[he] is not entitled to reversal of [his] conviction simply because [his] version of the facts is different from the State's [version of the facts]." State v. Goddard, 871 P.2d 540, 544 (Utah 1994). "After reviewing the evidence presented against [Defendant], we are not convinced that it is so lacking as to '"make the [jury's] verdict plainly unreasonable and unjust."'" Stringham, 2001 UT App 13 at ¶30 (second alteration in original) (citations omitted).

Based on the foregoing, we affirm Defendant's conviction.

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James Z. Davis, Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Pamela T. Greenwood, Judge

1. We cite to the 1990 amendment to Utah Code Annotated section 76-10-1801 because both parties cite to this version.