By Richard Weatheringon
There are all kinds of ways for customers to try to con a pawnbroker. When a scam is used by a pawnshop employee, the pain and sense of betrayal is far harder to swallow. But such trickery doesn’t always go unpunished, as a shop employee recently discovered.
A man, whose first name was Michael, worked for an Arizona pawnshop. While employed there, Michael pawned six guns at his employer’s shop.
Michael filled out the pawn tickets and established his own loan amounts on those tickets, which far exceeded the real value of the guns.
Michael was later fired for other reasons and failed to repay the loans on the pawned weapons. After the pawn requirements were met, his guns were forfeited to the shop.
The pawnshop owner was not aware that Michael had pawned the guns until after he had been fired.
Michael was arrested, charged and convicted after a jury trial of third degree burglary and fraudulent scheme and artifice or trickery and sentenced to concurrent, mitigated prison terms, the longer of which was three years. Michael was acquitted of an additional count of third degree burglary as well as seven counts of trafficking in stolen property.
Michael then appealed his conviction to the Court of Appeals of Arizona, claiming that there was insufficient evidence to support his conviction of fraudulent scheme and trickery.
The Appeals Court first noted that it views the evidence in the light most favorable to upholding the jury’s verdict and reviews claims of insufficient evidence only to determine whether substantial evidence supported the jury’s decision.
Substantial evidence, noted the court, has been described as more than a mere scintilla of evidence; but it nonetheless must be evidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt. Substantial evidence may be circumstantial or direct.
The court said it would reverse a conviction only if there was a complete absence of provable facts to support the jury’s conclusion.
According to Arizona Statute Section 13-2310, a person commits a fraudulent scheme if he or she, “pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises, or material omissions.”
“Reliance on the part of any person,” however, “shall not be a necessary element of the offense.”
Michael argued that he did not obtain a benefit — the loan — “by means of” a false pretense. He reasoned, pointing to the 1990 case of State v. Rios, that because he didn’t use the falsified pawn tickets “to convince the pawn shop owner or any other employee … to give him the money,” his pawning of the guns at an inflated value was instead “merely a tool to cover up” his theft of money from the pawn shop.
The defendants in the Rios case were department store employees, who had created false refund vouchers that they subsequently exchanged for cash. As a result, they were convicted of, among other things, “theft by deception.”
The Kansas Supreme Court determined that to convict the defendants of theft by deception, “the State would have to prove that the defendants obtained control over the store’s money by means of a false statement or representation, that the false statement or representation deceived the store, and that the store relied in whole or in part upon the false statement in giving up control of the money to the defendants.”
Thus, because the employees were “the highest ranking … employees in their respective stores” with access to the safes, cash rooms, and vouchers, the vouchers were used only “to cover up the thefts, not to cause the corporation to part with the monies represented by the vouchers.”
The Arizona Appeals Court noted, however, that the Rios case was plainly distinguishable, because unlike Arizona’s Section 13 2310, the Kansas fraud statute required reliance — that is, a successful deception.
Statement was Dicta
The Appeals Court said it recognized that, in the 1994 case of State v. Johnson, the Arizona Supreme Court stated in relation to a charge of fraud that, “the false pretense must actually cause the victim to rely and, as a result, give property or money to the defendant.”
But, noted the Appeals Court, as it had observed in the 1998 case of State v. Proctor, that statement was dicta. Dicta are observations or comments made by a court that were not necessary to the case outcome and may go beyond the facts present in the case.
The Appeals Court noted that the Johnson court did not intend to hold, in direct contravention of the language of Section 13 2310 and the basic rules of statutory construction, that reliance was required to prove a fraudulent scheme and trickery.
The fact that the pawnshop owner in this case was unaware of Michael’s deception was not material to his guilt or innocence of fraudulent scheme and trickery. And, said the Appeals Court, the evidence plainly supported the jury’s conclusion that Michael used the pawn tickets containing falsified values to engineer improper loans by which he obtained cash, which clearly constituted “obtaining any benefit by means of false or fraudulent … representations” under Section 13 2310.
Nor did the evidence compel a conclusion, said the Appeals Court, that Michael had used the tickets to conceal a theft, rather than as a means of committing it.
Michael acknowledged during his testimony at the trial that he had pawned the guns using inflated values, but asserted he had obtained permission from the store owner to do so.
And he stated another employee, who had entered the loans into the computer at Michael’s request based on documents Michael had completed, had given him the money for those loans.
The jury, said the Appeals Court, was free to accept or reject the trial testimony, including Michael’s, in whole or in part.
The court noted that no rule has been better established than that the credibility of the witnesses and that the weight and value to be given to their testimony are questions exclusively for the jury.
Therefore, the Appeals Court, in an unpublished opinion on Dec. 11, 2012, ruled that Michael’s conviction for fraudulent scheme and artifice was affirmed.
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