Richard Carl Bohling v. State , 388 P.3d 502 ( 2017 )

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 7
OCTOBER TERM, A.D. 2016
January 25, 2017
RICHARD CARL BOHLING,
Appellant
(Defendant),
v. S-16-0144
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Albany County
The Honorable John R. Perry, Judge
Representing Appellant:
Tim Newcomb, Attorney at Law, Laramie, Wyoming; Linda Devine, Devine Law
Office, Laramie, Wyoming. Argument by Ms. Devine.
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Christyne M. Martens, Senior Assistant Attorney General.
Argument by Ms. Martens.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.
[¶1] Appellant Richard Bohling was convicted of four felony counts of obtaining
property by false pretenses and one misdemeanor count of official misconduct. On
appeal, he claims that in order to have been convicted of obtaining property by false
pretenses, the State was required to prove that title to the property in question passed
from Albany County to him. He contends that the State failed to prove that it did.
[¶2] We have examined Wyo. Stat. Ann. § 6-3-407 (LexisNexis 2015), which
establishes the crime of obtaining property by false pretenses. Our interpretation of this
statute leads to the unremarkable conclusion that the charge of obtaining property by
false pretenses requires that the victim consensually part with both title and possession in
reliance on the defendant’s false representations. We have also carefully reviewed the
record and can only conclude that there was insufficient evidence to prove beyond a
reasonable doubt that Bohling committed the crime of obtaining property by false
pretenses. Consequently, we must reverse those four felony convictions.
[¶3] We decline to consider Bohling’s claim regarding the misdemeanor conviction of
official misconduct, due to his failure to provide cogent argument on this issue. As a
result, the misdemeanor conviction is affirmed.
ISSUES
[¶4] We consider the following two questions to be dispositive of this appeal:
1. Does the crime of obtaining property by false pretenses under Wyo. Stat. Ann. §
6-3-407 require that the victim part with both title and possession?
2. Was the evidence presented sufficient for a reasonable jury to find beyond a
reasonable doubt that Bohling committed the crime of obtaining property by false
pretenses?
FACTS
[¶5] Bohling was the Albany County and Prosecuting Attorney from 2003 through
2014. His responsibilities included managing his office’s budget and overseeing the
purchases of items it required. It is Bohling’s purchases of certain cameras and electronic
equipment with county funds between 2008 and 2012 that are at the heart of this matter.
[¶6] When items were purchased for the office with county funds, a voucher was
submitted to the Albany County Commissioners for approval. A voucher is formatted
like a cover sheet, with the name of the creditor that the county needs to pay, and it is
submitted to the county commissioners with the relevant receipts attached. The voucher
1
includes an affidavit from an elected official or department head, like Bohling, who must
sign to certify that the charge to be paid is correct. After review and approval of the
expenditure, a county commissioner will sign off on the voucher. The county treasurer
will then pay the charge. This same process is followed in Albany County regardless of
whether the expense is a charge directly with a vendor, or if it is a purchase made on a
county credit card issued to the elected official.
[¶7] Concerns over some of Bohling’s purchases with county funds began in 2012,
when the office manager of the county attorney’s office brought certain purchases
involving camera equipment to the attention of Albany County Commissioner Tim
Sullivan, who was chairman of the Commission at the time. After reviewing the
purchases with Albany County Clerk Jackie Gonzales, Commissioner Sullivan decided
not to refer the matter to law enforcement.
[¶8] About two years later, in 2014, another employee in Bohling’s office raised a
similar concern about his purchases of cameras and electronic equipment with county
funds. Commissioner Sullivan worked with Albany County Sheriff David O’Malley and
County Clerk Gonzales to look into those purchases. They contacted the Wyoming
Division of Criminal Investigation (DCI). DCI agents investigated and concluded that
Bohling had used a number of cameras and some electronic equipment purchased with
county funds as his own personal property.
[¶9] Based upon the evidence gathered by DCI, the State1 filed an information
consisting of nine counts against Bohling. Counts I through IV of the information
charged him with felony larceny by bailee under Wyo. Stat. Ann. § 6-3-402(b).2 These
counts were based on Bohling’s alleged conversion of the cameras and electronics to his
own use. Count V charged a felony for wrongfully taking or disposing of property in
violation of Wyo. Stat. Ann. § 6-3-403(a). Count VI also charged a felony for submitting
false vouchers in violation of Wyo. Stat. Ann. § 6-5-303(b). Counts VII through IX were
misdemeanor charges pursuant to Wyo. Stat. Ann. § 6-5-107(a)(i), § 6-5-110 and § 9-13-
105, respectively.
[¶10] A few months later, the State amended the information. It decided to change
Counts I through IV from larceny by bailee to obtaining property by false pretenses in
1
Because Bohling was the Albany County and Prosecuting Attorney, the Wyoming Attorney General’s
Office stepped in to prosecute the case against him. Bohling filed a petition for writ of review claiming
that the Attorney General needed to provide evidence of its lawful authority to prosecute him. We denied
his petition. See Bohling v. State, No. S-15-0245 (October 20, 2015), available at https://efiling.courts.
state.wy.us/public/caseView.do?csIID=18458.
2
Subsequently, Wyo. Stat. Ann. § 6-3-402 was amended in 2013 to combine larceny and larceny by
bailee into subsection (a). See 2013 Wyo. Sess. Laws ch. 191, §§ 2,3. As a result, subsection (b) is now
repealed. Id. Wyo. Stat. Ann. § 6-3-407 remained unchanged.
2
violation of Wyo. Stat. Ann. § 6-3-407(a) and (a)(i).3 These first four felony counts
charged that Bohling knowingly obtained property valued over $1,000.00 from Albany
County by false pretenses with the intent to defraud it. Count V remained a felony
wrongful taking or disposing of property charge pursuant to § 6-3-403(a). Count VI also
remained the same, charging a felony for submitting false vouchers in violation of Wyo.
Stat. Ann. § 6-5-303(b). Counts VII through IX, the misdemeanor charges, remained
substantively the same. The district court dismissed Count IX, misuse of office, on the
State’s motion.
[¶11] Bohling moved for a bill of particulars. The State acceded to the request and
provided a bill which indicated, inter alia, that in regards to Counts I through IV, Bohling
had submitted vouchers to the Board of Albany County Commissioners for the purchase
of certain cameras and other electronics for his own personal use, thereby using falsehood
to induce the county to pay for the items.4
[¶12] The case proceeded to trial in due course. At the close of the State’s case-in-chief,
Bohling moved pursuant to W.R.Cr.P. 29 for a judgment of acquittal on the four felony
counts of obtaining property by false pretenses and the felony count of submitting false
vouchers. With regards to the four felony false pretenses counts, he argued that title to
the property in question had to pass from the county to him, and that the evidence did not
establish that it did. The State countered by arguing that passage of title was not required
to sustain a charge of obtaining property by false pretenses, and that even if it was, the
State had provided sufficient evidence of it.
[¶13] After considering the parties’ positions, the district court denied Bohling’s motion.
Bohling then presented his case. The jury convicted him of Counts I through IV, the four
felony counts of obtaining property by false pretenses, and Count VII, the misdemeanor
charge of official misconduct. He was acquitted of the charges in Counts V, VI and VIII.
[¶14] Bohling renewed his motion for judgment of acquittal after the verdict was
returned. He argued essentially the same grounds as he had earlier, and the State
responded with the same arguments it had made before. The district court denied
Bohling’s renewed motion.
[¶15] Bohling was sentenced to two to four years of incarceration and fined $10,000 for
each felony count of obtaining property by false pretenses. The sentences were to run
3
A range of dates were added in Counts I through III. Date ranges in Counts IV through VIII were also
adjusted.
4
As briefly mentioned above, see ¶6, and as discussed in greater detail in ¶40, the items were either
purchased on a county charge account opened with a vendor or on the county credit card issued to
Bohling in his official capacity. In other words, Bohling never used his own money to buy these items
and thus never sought personal reimbursement from the county.
3
concurrently. On the misdemeanor conviction, he was fined $5,000. Bohling then timely
perfected this appeal.
[¶16] Additional pertinent facts will be set forth below in our discussion of the second
issue concerning the sufficiency of the evidence.
DISCUSSION
Elements of Obtaining Property by False Pretenses
[¶17] The first step in resolving this matter is to determine whether the crime of
obtaining property by false pretenses under Wyo. Stat. Ann. § 6-3-407 requires that the
victim not only gives possession to the defendant, but passes title as well. The parties’
positions on this issue are polar opposites. Bohling asserts that title must be transferred,
while the State clings to the contention that it is not necessary for title to pass in order to
convict of the charge.
[¶18] Statutory interpretation is a question of law requiring de novo review. Adekale v.
State, 2015 WY 30, ¶ 12, 344 P.3d 761, 765 (Wyo. 2015). Criminal statutes are to be
strictly construed, meaning that they are not to be enlarged by implication or extended by
inference or construction. Mraz v. State, 2016 WY 85, ¶ 71, 378 P.3d 280, 296 (Wyo.
2016). A statute is clear and unambiguous if the words are such that reasonable minds
are able to agree on its meaning in a consistent and predictable fashion. Mendoza v.
State, 2016 WY 31, ¶ 9, 368 P.3d 886, 891 (Wyo. 2016). Ambiguity arises if the statute
is vague or uncertain and subject to varying interpretations. Id. Divergent opinions
among parties as to the meaning of a statute may be evidence of ambiguity, but the fact
that opinions may differ as to a statute’s meaning is not conclusive of ambiguity.
Campbell Cty. Sch. Dist. v. Catchpole, 6 P.3d 1275, 1285 (Wyo. 2000). If we determine
that the language of a statute is ambiguous, only then will we proceed to the next step;
that is, the application of general principles of statutory construction to the language of
the statute in order to construe any ambiguous language to accurately reflect the intent of
the legislature. Powder River Basin Res. Council v. Wyoming Oil & Gas Conservation
Comm’n, 2014 WY 37, ¶ 19, 320 P.3d 222, 229 (Wyo. 2014).
[¶19] Title 6 of Wyoming’s statutes establishes the Wyoming Criminal Code.5 Our
analysis must begin by examining the statute creating the offense of obtaining property
by false pretenses. It states:
5
The statutes provide that “[c]ommon-law crimes are abolished. No conduct constitutes a crime unless it
is described as a crime in this act or another statute of this state.” Wyo. Stat. Ann. § 6-1-102 (LexisNexis
2015).
4
§ 6-3-407. Obtaining property by false pretenses;
penalties.
(a) A person who knowingly obtains property from another
person by false pretenses with intent to defraud the person is
guilty of:
(i) A felony punishable by imprisonment for not more
than ten (10) years, a fine of not more than ten thousand
dollars ($10,000.00), or both, if the value of the property is
one thousand dollars ($1,000.00) or more; or
(ii) Repealed by Laws 1984, ch. 44, § 3.
(iii) A misdemeanor punishable by imprisonment for
not more than six (6) months, a fine of not more than seven
hundred fifty dollars ($750.00), or both, if the value of the
property is less than one thousand dollars ($1,000.00).
Wyo. Stat. Ann. § 6-3-407 (emphasis added).
[¶20] The word in the statute that is critical to our conclusion in this case is “obtains.”
While it seems to be straightforward at first glance, the term has created consternation in
the context of this crime, and we find it ambiguous. As one authoritative secondary
source confirms: “The wording of the typical false pretenses statute—requiring that the
defendant ‘obtain’ property by false pretenses—is quite ambiguous on the issue of
whether he must obtain title to, or possession of, the property, or whether he must obtain
both title and possession.” 3 Wayne R. LaFave, Subst. Crim. L. § 19.7(d) (2d ed., Oct.
2016 update). Fortunately, there is a great deal of precedent and persuasive authority for
us to consult in construing the language to accurately determine our legislature’s intent.
[¶21] To understand the elements of the crime of obtaining property by false pretenses
under § 6-3-407, it is helpful to consider the crime’s genesis. It was created by the
British Parliament in 1757 to plug a loophole left by the crime of larceny. See Adekale, ¶
28, 344 P.3d at 768; see also People v. Williams, 305 P.3d 1241, 1246 (Cal. 2013); State
v. Sabins, 127 N.W.2d 107, 108 (Iowa 1964). Back then, while a person who obtained
possession but not title to another’s property by false representations was guilty of
larceny,6 one who obtained title to the property was not guilty of larceny, and there was
no crime to fill the void. See 3 LaFave, supra, § 19.7(a). Parliament stepped in and
adopted a statute which punished one who knowingly and designedly by “false pretence
or pretences, shall obtain from any person or persons, money, goods, wares or
6
Historically called larceny by trick. See 3 LaFave, supra, § 19.7(a).
5
merchandises, with intent to cheat or defraud any person or persons of the same.” Id.
(emphasis added).
[¶22] This newly enacted crime was considered a statutory offense separate and distinct
from the common law crime of larceny. See Williams, 305 P.3d at 1246. A principal
difference between the offenses was that the crime of obtaining property by false
pretenses involved acquiring title to the property, and not just possession. Id.; 3 LaFave,
supra, § 19.7(d); 3 Charles E. Torcia, Wharton’s Criminal Law § 428 (15th ed., Sept.
2016 update). Both crimes eventually made their way into the early criminal laws of the
American states, and the distinction has existed ever since.
[¶23] In 1876, the Wyoming Territory codified the crime of obtaining property by false
pretenses:
Obtaining Goods Under False Pretenses
Sec. 139. If any person or persons shall knowingly and
designedly, by any false pretense or pretenses, obtain from
any other person or persons, any chose in action, money,
goods, wares, chattels, effects, or other valuable thing
whatever, with intent to cheat or defraud any such person or
persons of the same; every person so offending shall be
deemed a cheat, and, upon conviction, shall be fined in any
sum not exceeding one thousand dollars, and imprisoned in
the penitentiary not exceeding one year, and shall be
sentenced to restore the property, so fraudulently obtained, if
it can be done.
Wyo. Comp. Stat. Chap. XXXV, § 139 (J. R. Whitehead 1876) (emphasis added). The
territorial Supreme Court had occasion to scrutinize the statute and made clear that “[t]he
distinction between larceny and false pretenses is well settled, and consists in the fact
whether or not the owner intended or consented to part with the title to property.” Haines
v. Territory, 3 Wyo. 167, 175, 13 P. 8, 13 (Wyo. Terr. 1887).
[¶24] The crime continued to have a place in Wyoming’s statutes after statehood, and its
substance, including the use of the word “obtain,” remained unchanged. See Wyo.
Comp. Stat. Ch. 9, § 5143 (Van Orsdel & Chatteron 1899).7 In 1908, we took another
7
The crime of obtaining property by false pretenses as set forth in Wyoming’s 1899 statutes is as follows:
OBTAINING GOODS BY FALSE PRETENSES.
Sec. 5143. If any person or persons shall knowingly and designedly, by
false pretense or pretenses, obtain from any other person, or persons any
6
look at the crime in Martins v. State, 17 Wyo. 319, 98 P. 709 (1908). Our interpretation
was again that the statute required the accused to obtain title to the property from the
owner. Id. at 330, 98 P. at 712. We cited an authoritative source that put the requirement
plainly: “To constitute an obtaining of property, defendant must in the first place acquire
at least a voidable title to the property; that is, the owner must intend to invest him with
the title, as distinguished from the mere custody or possession of the goods.” Id. Based
upon this interpretation, we concluded that the facts of that case did not fit the charge of
false pretenses as set out in the information because the one parting with the money was
not the actual owner of it, and thus he could not pass title. Id.
[¶25] Over the next hundred-plus years, Wyoming’s false pretenses statute did not
change in substance, and it has always included the word “obtain.” See Wyo. Stat. Ann.
§ 6-3-407 (LexisNexis 2013); Wyo. Stat. Ann. § 6-3-407 (LexisNexis 2009); Wyo. Stat.
Ann. § 6-3-407 (LexisNexis 2005); Wyo. Stat. Ann. § 6-3-407 (LexisNexis 2001); Wyo.
Stat. Ann. § 6-3-407 (Michie 1997); Wyo. Stat. Ann. § 6-3-407 (Michie 1988); Wyo.
Stat. Ann. § 6-38 (Michie 1957); Wyo. Comp. Stat. Ann. § 9-907 (1945); Wyo. Comp.
Stat. Ann. § 32-908 (Courtright 1931); Wyo. Comp. Stat. Ann. § 7305 (Swainson 1920);
Wyo. Comp. Stat. Ch. 9, § 5143 (Van Orsdel & Chatteron 1899); Wyo. Comp. Stat. Ch.
XXXV, § 139 (J.R. Whitehead 1876). Indeed, we previously noted that the different
iterations of the statute define the identical offense of obtaining property by false
pretenses and the elements have remained the same. See Lopez v. State, 788 P.2d 1150,
1152 n.2 (Wyo. 1990).
[¶26] Throughout the decades, we have had quite a few occasions to revisit the statute
defining the crime of obtaining property by false pretenses and its distinction from other
offenses—larceny in particular. See, e.g., Sweets v. State, 2013 WY 98, ¶ 15, 307 P.3d
860, 866 (Wyo. 2013); Nguyen v. State, 2013 WY 50, ¶ 14, 299 P.3d 683, 687 (Wyo.
2013); Powell v. State, 2012 WY 106, ¶ 6, 282 P.3d 163, 164 (Wyo. 2012); Maycock v.
State, 2011 WY 104, ¶ 9, 257 P.3d 20, 22 (Wyo. 2011); Perritt v. State, 2005 WY 121, ¶
10, 120 P.3d 181, 186-87 (Wyo. 2005); Lopez, 788 P.2d at 1152; Miller v. State, 732 P.2d
1054, 1062 (Wyo. 1987); Driver v. State, 589 P.2d 391, 393 (Wyo. 1979); Anderson v.
State, 27 Wyo. 345, 352-53, 196 P. 1047, 1048 (1921). In none of our opinions
concerning this crime have we ever said that the term “obtain” means that the wrongdoer
only needs to acquire possession and not title; we have always said the contrary. A ruling
chose in action, money, goods, wares, chattels, effects, or other valuable
thing whatever, with intent to cheat or defraud any such person or
persons of the same, every person so offending shall be deemed a cheat,
and upon conviction, where the value of such chose in action, money,
goods, wares, chattels, effects or other valuable thing shall be twenty-
five dollars-or more, shall be imprisoned in the penitentiary for a period
not more than ten years.
Wyo. Comp. Stat. Ch. 9, § 5143 (Van Orsdel & Chatteron 1899) (emphasis added).
7
that only possession must be obtained would destroy the distinction from larceny: if the
owner of the goods intends to keep title but part with possession, the crime is larceny, but
if the owner intends to part with both title and possession, the crime is false pretenses.
To this day, the distinction is preserved by the structure of our criminal code, which
defines larceny in § 6-3-402 and obtaining goods by false pretenses in a separate section,
§ 6-3-407.
[¶27] In Miller, we explained that to establish the crime of obtaining property by false
pretenses, it is necessary that the victim pass title to his property to the accused. 732 P.2d
at 1063. Similarly, in Perritt, our analysis focused on the requirements of § 6-3-407, and
in doing so we quoted Martins, where we explained: “To constitute an obtaining of
property, defendant must in the first place acquire at least a voidable title to the property;
that is, the owner must intend to invest him with the title, as distinguished from the mere
custody or possession of the goods.” Perritt, ¶ 16, 120 P.3d at 188. Our opinion in
Perritt correctly surmised:
The crime of false pretenses has deep roots in Anglo-
American law. That crime is defined in slightly different
ways in the various jurisdictions but as a general rule has five
elements: (1) a false representation of a material present or
past fact (2) which causes the victim (3) to pass title to (4) his
property to the wrongdoer, (5) who (a) knows his
representation to be false and (b) intends to defraud the
victim.
Id. ¶ 15, 120 P.3d at 188 (citing 3 LaFave, supra, § 19.7). More recently, in Powell v.
State, we again examined the difference between larceny and false pretenses and
explained the key to the latter “is that, having been deceived by the thief, the victim
consensually parts with both possession and title.” 2012 WY 106, ¶ 10, 282 P.3d at 166.
[¶28] Additional precedent this Court unearthed is consistent with our other cases and
confirms our conclusion today. Unfortunately, neither party cited the following two
cases, which we believe to be important. In Neel v. State, this Court explained:
[W]e affirmed the conviction of defendants on a charge of
grand larceny. They have petitioned for rehearing, asserting
they were not proved guilty of a theft; that if they were to be
charged with any crime, it should have been the crime of
obtaining property under false pretenses; and that the
evidence necessary to prove the charge of obtaining property
under false pretenses is different from the evidence required
to prove the charge of theft.
8
It is well settled that where a person by trick or fraud
obtains possession of property intending at the time of
obtaining the property to convert it to his own use, and does
so convert it, the fraud is the equivalent of a felonious taking
and the offense is larceny. In the instant case the jury was
expressly instructed to this effect.
Our grand larceny statute, § 6-132, W.S. 1957, appears
to have been taken from the laws of Indiana, and that state has
repeatedly held possession of property obtained by fraud with
the intent to steal the same constitutes larceny when there is a
felonious appropriation.
In “larceny” owner of the property has no intention to
part with title therein to the person taking it although he may
intend to part with possession, while in “false pretenses”
owner intends to part with both his possession and title but
such are obtained from him by fraud.
If only the possession of the thing of value is obtained
and it is then converted by the accused, the crime involved is
larceny and not false pretense. Otherwise stated, one test for
distinguishing between larceny and obtaining property by
false pretenses is to determine whether the offender could
confer good title upon another by sale and delivery of the
property. If he could not, the offense is larceny.
454 P.2d 241, 242-43 (Wyo. 1969) (citations and emphasis omitted). Subsequently, in
Otte v. State we reaffirmed that
[i]n denying a petition for rehearing in Neel v. State, we said:
It is well settled that where a person by trick or fraud
obtains possession of property intending at the time of
obtaining the property to convert it to his own use, and
does so convert it, the fraud is the equivalent of a
felonious taking and the offense is larceny.
* * *
Fraud vitiates the consent of the victim if the other
elements of the crime are present. State v. Jesser, 95 Idaho
43, 501 P.2d 727, 735. It was said in Jesser, quoting from a
9
“landmark” Massachusetts decision (Commonwealth v. Barry,
124 Mass. 325, 327 (1878):
If the possession is fraudulently obtained, with intent
on the part of the person obtaining it, at the time he
receives it, to convert the same to his own use, and the
person parting with it intends to part with his
possession merely, and not with his title to the
property, the offence is larceny.
We agree with the rule expressed by the court in
Commonwealth v. Barry and consider it applicable to the fact-
situation in the case at hand. We have said essentially the
same thing in Neel v. State, supra, where we said:
In “larceny” owner of the property has no intention to
part with title therein to the person taking it although
he may intend to part with possession, . . . .
563 P.2d 1361, 1364 (Wyo. 1977) (citations and emphasis omitted).
[¶29] Our case law is clear that the word “obtain” in the statute defining the crime of
false pretenses has always been interpreted to mean that the wrongdoer must obtain both
title to and possession of the victim’s property.8 If only possession passes, the crime is
larceny if all the elements can be proven under Wyo. Stat. Ann. § 6-3-402.
8
Two points merit mentioning about title as it applies in the false pretenses context. First, title is
synonymous with ownership. Martins, 17 Wyo. at 330, 98 P. at 712; Williams, 305 P.3d at 1248-49; Reid
v. Com., 781 S.E.2d 373, 375 (Va. App. 2016). Thus, title in this context does not always mean formal
title, such as to a vehicle, rather the simple concept of ownership equates to title. See id.; see also People
v. Long, 294 N.W.2d 197 (Mich. 1980) (explaining that the defendant, by distracting cashiers and asking
for various amounts of change received ten dollars more than he had given, was guilty of false pretenses
rather than larceny, because the cashier intended to transfer both possession and title). Second, the type
of title that is obtained by the accused through his use of false pretenses is at most voidable title.
Shropshire v. Com., 577 S.E.2d 521, 523-28 (Va. App. 2003); In re Newpower, 233 F.3d 922, 929 (6th
Cir. 2000); State v. Mermis, 20 P.3d 1044, 1049 (Wash. App. 2001); 3 Wharton’s Criminal Law § 428; 35
C.J.S. False Pretenses § 27. The requirement for a false pretenses claim that title be obtained does not
mean absolute title because such a requirement would make it impossible for the crime to be
consummated. Martins, 17 Wyo. at 330, 98 P. at 712; Whitmore v. State, 298 N.W. 194, 195 (Wis.
1941); Chappell v. State, 25 N.E.2d 999, 1001 (Ind. 1940). When, because of his fraud, the accused
obtains voidable title to property, he may sell them to a good-faith purchaser for value; he just does not
have superior title to that of the true owner. Wyo. Stat. Ann. § 34.1-2-403 (LexisNexis 2015) (“A person
with voidable title has power to transfer a good title to a good faith purchaser for value.”); cf. Kenyon v.
Abel, 2001 WY 135, ¶ 13, 36 P.3d 1161, 1166 (Wyo. 2001); Roberson v. Manning, 268 P.3d 1090, 1095
(Alaska 2012); West v. Roberts, 143 P.3d 1037, 1043-44 (Colo. 2006).
10
[¶30] Secondary sources also support this unavoidable conclusion. LaFave states that
“the crime of false pretenses requires that the defendant, by his lies, obtain title to the
victim’s property. If he obtains possession without title by means of his lies, his crime is
larceny.” 3 LaFave, supra, § 19.7(d). Similarly, Wharton’s explains:
Over the years, the pertinent statutes and decisions relating to
the crime of false pretenses have commonly spoke in terms of
the defendant “obtaining” property or causing the victim to
“part with” or “surrender” his property. Despite this
generality of language, it has traditionally been required, for
the crime to be committed, that the defendant obtain
possession of and title to the victim’s property.
3 Wharton’s Criminal Law § 428; see 35 C.J.S. False Pretenses §§ 2, 27; see also 32
Am.Jur.2d False Pretenses § 3; Wyo. Criminal Pattern Jury Instructions 34.07, Use Note
(2014).
[¶31] Consistent with our long-standing precedent, we again conclude the elements for
the crime of obtaining property by false pretenses pursuant to Wyo. Stat. Ann. § 6-3-407
consist of (1) the pretenses; (2) their falsity; (3) the fact of obtaining property by reason
of the pretenses; (4) the knowledge of the accused of their falsity; and (5) the intent to
defraud. The third element, that the accused obtains property, means that the accused
must obtain both title to and possession of the victim’s property.9
Sufficiency of the Evidence on Felony Convictions
[¶32] Now that we have found, as we have in the past, that the crime of obtaining
property by false pretenses pursuant to Wyo. Stat. Ann. § 6-3-407 requires that the victim
consensually parts with both title and possession, we must decide whether there was
9
Regarding the State’s interpretation of the false pretenses statute, it takes an austere approach and says
that because the term “title” is not contained in the statute, proof of it is not required. While § 6-3-407
does not refer to title, that omission is not meaningful. The word “obtain” is a term of art requiring that
title and possession of the property must pass. This was required at statehood and beyond, and remains a
requirement to the present day. To accept the State’s literal reading would render other requirements
unnecessary and produce absurd results. See Hede v. Gilstrap, 2005 WY 24, ¶ 6, 107 P.3d 158, 163
(Wyo. 2005). For example, reliance on the misrepresentation is not expressly required by the statute.
Nevertheless, in Maycock, we made it clear that “[i]ndispensable to the establishment of this crime is
proof that the victim relied on the alleged false pretense; that is, proof the alleged false pretense was the
controlling factor which induced the victim to part with his property.” 2011 WY 104, ¶ 9, 257 P.3d at 22;
see also Miller, 732 P.2d at 1062. If we were to accept the State’s approach, it would not have to prove
reliance by the victim on a representation because the statute does not expressly require it. We do not
believe that the legislature intended the absurd result that a defendant could be convicted of a felony
based on a misrepresentation upon which the alleged victim did not rely.
11
sufficient evidence to convict Bohling of that crime. Even applying the very deferential
standard that governs our review, we cannot say that there is.
[¶33] When reviewing a sufficiency of the evidence claim, we must accept as true the
State’s evidence and all reasonable inferences which can be drawn from it. Sweets, ¶ 14,
307 P.3d at 865. We cannot consider conflicting evidence presented by Bohling. Id.
“We do not substitute our judgment for that of the jury; rather, we determine whether a
jury could have reasonably concluded each of the elements of the crime was proven
beyond a reasonable doubt.” Id.
[¶34] Because of the State’s mistaken belief that passing of title was not required for a
charge of obtaining property by false pretenses, its case went awry10 when it amended the
information on the first four felony counts.11 The State’s theory on these charges is still
somewhat opaque, as it is still not entirely clear to this Court whether the property
claimed to have been obtained by deception was the cameras and electronic equipment,
or if it was instead the county money used to pay for those items.
[¶35] The amended information says in a general fashion in Counts I through IV that
Bohling “did knowingly obtain property from Albany County, Wyoming by false
pretenses with the intent to defraud . . . .” The bill of particulars sheds some light on the
State’s theory, explaining that:
As to Count One, the crime of Obtaining Property by
False Pretenses was committed by Defendant . . . when he
purchased a Nikon D7000 camera and accessories and
submitted voucher number 78883 to the Board of County
10
We do not speculate as to whether the State could prove the elements of larceny by bailee. It is only
clear that passage of title is an element of false pretenses, while transfer of possession suffices for larceny.
Larceny by bailee had additional elements beyond possession, including “intent to steal or deprive.”
Wyo. Stat. Ann. § 6-3-402(b); § 6-3-401(a)(i) (LexisNexis 2009).
11
This Court is mindful that the technical distinctions between false pretenses and larceny make it
difficult for a prosecutor to determine the correct charge. This case is a fine example of the important
intricacy. One possible approach for prosecutors to avoid this circumstance may be to join counts for each
crime in a single information. Of course, there are dangers in this as well, because the jury could convict
on the wrong charge and acquit on the correct one. Another avenue would be for our legislature to
consolidate the crimes into one, perhaps collectively called “theft,” if it deemed fit to do so. See 3
LaFave, supra, § 19.8(c)-(d). The Colorado legislature found it necessary to do just that, see Colo. Rev.
Stat. Ann. § 18-4-401 (LexisNexis 2015), and made its statutory intent clear: “If any law of this state
refers to or mentions larceny, stealing, embezzlement (except embezzlement of public moneys), false
pretenses, confidence games, or shoplifting, that law shall be interpreted as if the word “theft” were
substituted therefor; and in the enactment of sections 18-4-401 to 18-4-403 it is the intent of the general
assembly to define one crime of theft and to incorporate therein such crimes, thereby removing
distinctions and technicalities which previously existed in the pleading and proof of such crimes.” Colo.
Rev. Stat. Ann. § 18-4-403.
12
Commissioners for Albany County, thereby falsely inducing
them to pay $2,499.60.
As to Count Two, the crime of Obtaining Property by
False Pretenses was committed by Defendant . . . when he
purchased a Nikon D7000 camera body and caused the
submission of voucher number 79028 to the Board of County
Commissioners for Albany County, thereby falsely inducing
them to pay $1,204.35.
As to Count Three, the crime of Obtaining Property by
False Pretenses was committed by Defendant . . . when he
purchased a Nikon D5100 camera and accessories and
submitted voucher number 81396 to the Board of County
Commissioners for Albany County, thereby falsely inducing
them to pay $1,555.77.
As to Count Four, the crime of Obtaining Property by
False Pretenses was committed by Defendant . . . when he
purchased the items detailed in Exhibit A . . . and either
caused the submission of vouchers or submitted vouchers to
the Board of County Commissioners for Albany County,
thereby falsely inducing them to pay approximately
$29,000.00.
[¶36] During the trial, prosecutors at times told the jury that the case was all about the
cameras and related electronic equipment: “And again, ladies and gentlemen, this case is
about that property that the defendant purchased with the county’s money. It’s about the
property. It’s about who bought it, who paid for it, who used it, and what it was used
for.” Yet at other times, prosecutors seemed to suggest that the case was about the
county money that was used to pay for those items: “The whole reason to talk about
cameras is to figure out where the money went and how the defendant benefitted. Sure,
the money didn’t go straight to his pocket, but it went to property that was for his
personal benefit.”
[¶37] In an apparent effort to avoid any ambiguity, the verdict form listed each camera
and related piece of electronic equipment in relation to the false pretenses counts to
which they pertained. The form required the jury to determine which were obtained by
false pretenses. If the jury did not select the items as being obtained by false pretenses, it
was to find Bohling not guilty of the charge. Thus, from the verdict form it appears that
the cameras and related items were the property, not the money. By way of example, the
verdict form states with regard to Count I:
13
COUNT ONE – OBTAINING MONEY BY FALSE PRETENSES
As to the charge in Count I of Obtaining Property by False
Pretenses, before you deliberate as to your ultimate verdict, you must
answer the following question. As with all other deliberations in cases of
this nature, your answer must be based upon your unanimous, collective
opinion and must be determined beyond a reasonable doubt.
Please indicate which, if any, of the items of property listed
below was obtained by false pretenses by the defendant, as discussed in
Count I:
√ Camera Nikon D7000 with 18-105 lens
√ Nikon 35 mm 1.8G lens
√ Nikon speedlight unit SB-400 x 2
√ Nikon 55-200 mm lens
√ Nikon 50 mm lens
√ Shipping expense
(If you have selected none of the above items, you must find the
defendant “Not Guilty” of the charge of Obtaining Property by False
Pretenses, however you must continue to deliberate on the other charges.
If, on the other hand, you have selected any of the above items,
you must continue to deliberate and determine your ultimate verdict in
accordance with all of the instructions.)
However, at oral argument, this Court asked the State what the property alleged to have
been obtained by false pretenses was, to which counsel responded that the money was the
property.
[¶38] Because it remains unclear what the property at issue actually was under the
charges in question, we will examine the evidence relating to both the physical items and
the county money used to pay for them. With respect to the cameras and other electronic
equipment, the only evidence presented by the State regarding the county’s intention to
give title, or ownership, of the items to Bohling comes from the testimony of several
county commissioners. Unfortunately for the State, the commissioners testified that the
county never intended to transfer title or ownership of the items to Mr. Bohling.
Commissioner Sullivan testified as follows:
Q. [A]ll the property that we’ve talked about, cameras and so
forth, who owns that?
14
A. The county.
Q. Albany County, Wyoming?
A. That’s correct.
* * *
Q. So the Board of County Commissioners never relinquished
ownership of any county item to Mr. Bohling, correct?
A. That’s correct.
Q. So all the cameras, all the tablets, hard drives, all owned
by the county; correct?
A. That’s correct.
Commissioners Chestnut and Kennedy also testified that the items purchased with the
county’s money were owned by the county.
[¶39] Even if the above evidence was disregarded—despite the fact that the
commissioners were called to testify by the State—there is no evidence in the record
supporting the position that ownership of the cameras and related electronic equipment
passed from the county to Bohling. The State simply did not prove that the county,
having been deceived, intended to transfer title (ownership) of the items in question.
[¶40] The State’s theory that the property obtained was the county money used to pay
for the items fares no better. There is no question that the cameras and other equipment
were purchased by Bohling in two specific ways. He either charged the items on a
county credit card that was issued to him in his official capacity, or he charged the items
to an account that the county maintained with a vendor, such as Sam’s Club. Once the
vouchers were submitted, the county commissioners reviewed and approved them, and
the county treasurer then directly paid the credit card company or vendor.
[¶41] Nevertheless, the State says that because the county parted with its money for
Bohling’s benefit, the false pretenses charges were correct, and there was sufficient
evidence to convict. We must disagree. First, there is no evidence that the county gave
Bohling any money with the expectation of never getting it back from him. This is not a
situation where Bohling personally paid for the items and the county then gave him
money as reimbursement. There is no plausible way Bohling could have obtained title to
it under the facts of this case.
15
[¶42] Second, we question how the evidence could possibly have shown that Bohling
obtained possession of the money in question. While there is no dispute that he obtained
possession of the cameras and other equipment, the record does not reveal any instance
where he obtained possession of any county money which paid for these items.
[¶43] Lastly, assuming arguendo that the county had given Bohling money for the
specific items purchased, “[i]t is generally held that where the victim hands money to the
wrongdoer with the understanding that the latter is to spend it only for a particular
purpose (thus creating an agency or trust, it would seem) title does not pass to the
wrongdoer – he has only a power to pass title by spending it for the specified purpose.” 3
LaFave, supra, § 19.7(d)(2); see Reid v. Com., 781 S.E.2d 373, 376 (Va. App. 2016).
[¶44] In sum, the fatal flaw in the State’s case is that it failed to produce any evidence
that the county intended to pass title of any of the claimed property to Bohling. Even
when viewed in the most favorable light possible to the State, the evidence it presented
could not establish beyond a reasonable doubt that Bohling obtained the property in a
manner made unlawful by Wyo. Stat. Ann. § 6-3-407. Consequently, Bohling’s four
felony convictions must be reversed.
Misdemeanor Conviction
[¶45] Bohling argues that his misdemeanor conviction for official misconduct ought to
be overturned based on the same theory he argues as to the felony counts. However, he
provides no cogent argument or citation to supporting authority for that proposition.
Consequently, we will not consider the issue and construct an argument for him. See
Willey v. Willey, 2016 WY 116, ¶ 30, 385 P.3d 290, 299 (Wyo. 2016) (“We decline to
consider this issue. It is vague and undefined and, to the extent we can decipher the
argument, it is not supported by any cogent argument or authority.”); Hamburg v.
Heilbrun, 889 P.2d 967, 968 (Wyo. 1995) (“We need not consider issues which are not
supported by proper citation of authority and cogent argument or which are not clearly
defined.”). Bohling’s misdemeanor conviction for official misconduct is, therefore,
affirmed.
CONCLUSION
[¶46] The elements for the crime of obtaining property by false pretenses under Wyo.
Stat. Ann. § 6-3-407 consist of (1) the pretenses; (2) their falsity; (3) the fact of obtaining
property by reason of the pretenses; (4) the knowledge of the accused of their falsity; and
(5) the intent to defraud. With regard to the third element, it requires that the accused
obtain title to and possession of the victim’s property.
16
[¶47] There was insufficient evidence to sustain Bohling’s convictions for the crime of
obtaining property by false pretenses. The case is remanded to the district court with
direction that the judgment and sentence be vacated as to Counts I through IV.
[¶48] The misdemeanor conviction for official misconduct on Count VII is affirmed.
17