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August 8, 1985


Hall, Chief Justice, wrote the opinion. WE Concur: I. Daniel Stewart, Justice, Michael D. Zimmerman, Justice. Howe, Justice: (Concurring). Durham, Justice, concurs in the Concurring opinion of Justice Howe.

The opinion of the court was delivered by: Hall

HALL, Chief Justice: Defendant appeals a conviction of theft by deception, a second degree felony. U.C.A., 1953, § 76-6-405(1). Defendant contends that the evidence introduced at trial was insufficient to establish the crime of theft by deception. We affirm.

In 1978, the State's primary witness, David Rail, sold a life insurance policy to Miriam Marlowe's husband. The Marlowes and Rail subsequently became good friends. In July 1981, Marlowe's husband died in a swimming accident. In March of 1982, Rail informed Marlowe that her husband's life insurance policy was still in force and that she was entitled to the proceeds as the named beneficiary. Under the provisions of the policy, Marlowe was entitled to approximately $50,000. Rail told Marlowe, then a resident of California, that she would receive the entire $50,000 from the policy. However, only $38,000 would be paid initially because California law required one-fourth of the proceeds to be retained pending final settlement of the estate.

During the time Rail was processing the claim, he mentioned the $50,000 in insurance proceeds to John Walton, a friend who had an office in the same building. Defendant learned of the claim while present during a Discussion of the matter between Rail and Walton. Several days later, defendant approached Rail and asked Rail if he would be interested in convincing Marlow to invest the insurance proceeds. Defendant told Rail that he had a friend who worked for the State Department and had access to gold in Brazil. The gold could be purchased in Brazil for $100 an ounce and sold in the United States for approximately $300 an ounce. Rail discussed the wisdom of the investment with an attorney, who advised him not to invest the money unless some form of security was obtained.

After the insurance claim was processed, Rail flew to California and personally delivered the check for $38,000 to Marlowe. At the same time, Rail related to Marlowe defendant's story about the South American gold connection. Rail explained that if Marlowe invested some of her insurance proceeds, she would double her money within 90 to 120 days. Rail and defendant would divide any remainder as payment for their services. Marlowe agreed to invest $25,000 if she could get some security for her money.

Defendant offered a building lot located in Sherwood Hills in Provo as security. Defendant represented to Rail that he owned the lot free and clear. However, a title search performed at Rail's request revealed that the property was not free and clear as defendant had represented. There were two encumbrances: a $6,200 tax lien on the property and a default on a trust deed in the amount of $16,000. When Rail confronted defendant with this information, defendant assured Rail that the title would be cleared by the following Tuesday. Based upon this assurance, Rail agreed to invest Marlowe's money.

Rail contacted a title company and asked that documents be drafted for a transaction involving land used as security for a cash investment. On April 15, 1982, Rail and defendant met at the title company. However, defendant refused to sign the trust deed prepared by the title company insisting that the title company prepare a warranty deed instead. He told Rail that a warranty deed was better security than a trust deed. Although the use of a warranty deed under these circumstances was somewhat unusual, the deal was closed utilizing the warranty deed.

On the same day as the closing, defendant informed Rail that there had been a change of plan concerning delivery of Marlowe's money. Originally, both Rail and defendant were to fly to Brazil and give the money to the State Department official there. However, defendant now said that the State Department official's wife, who lived in Salt Lake City, was going to fly to Brazil to visit her husband. Defendant suggested that he would give the money to the wife for delivery and thus save the expense of flying to Brazil. Based upon these representations, Rail gave defendant a check made payable to JARCO *fn1 in the amount of $24,861 ($25,000 less the cost of the title search).

In July of 1982, Rail discovered that the property defendant had conveyed as security was in default and subject to a sheriff's sale. In an effort to preserve his client's equity interest in the security, Rail personally borrowed $16,000 and purchased the property for the amount of the default on the trust deed. *fn2 After repeated efforts to recover Marlowe's money from defendant had failed, Rail contacted the Utah County Attorney's Office.

The County Attorney's investigation revealed that on April 16, 1982, defendant had opened an account at the Midvale Branch of Tracy-Collins Bank in the name of Jeffrey McIntyre Roberts, d/b/a JARCO, and deposited Marlowe's money in this account. On April 17, defendant withdrew $12,500 cash from the account. Testimony at trial was conflicting as to what defendant used the money for. However, it was undisputed that no attempt was made to invest the money in Brazilian gold.

By the date of trial, none of Marlowe's money had been returned to her. She held title to the "security" property subject to the debt of $16,000 incurred by Rail to secure the title and $6,200 in tax liens.

Defendant's theory throughout trial was that the transaction between he and Marlowe was a sale of property, as evidenced by the warranty deed, where each party received value. At the end of the State's case, defendant moved for a directed verdict of not guilty based on insufficiency of the evidence. Defendant contended that the State had failed to prove that Marlowe had suffered any pecuniary loss. The trial court denied the motion.

At the close of the evidence, defendant requested the court to give instructions on pecuniary loss. The trial Judge refused to give any of those instructions. Counsel for ...

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