Opinion
No. 1 CA-CR 12-0328
04-23-2013
STATE OF ARIZONA, Appellee, v. GERALD MELVIN CALMESE, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Linley Wilson, Assistant Attorney General Attorneys for Appellee Droban & Company, P.C. By Kerrie M. Droban Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-008080-001
The Honorable Daniel G. Martin, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Chief Counsel
Criminal Appeals/Capital Litigation Section
Linley Wilson, Assistant Attorney General
Attorneys for Appellee
Phoenix Droban & Company, P.C.
By Kerrie M. Droban
Attorneys for Appellant
Anthem DOWNIE, Judge ¶1 Gerald Melvin Calmese appeals his conviction and sentence for one count of fraudulent schemes and artifices. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Calmese was charged with one count of fraudulent schemes and artifices, six counts of theft of a credit card or obtaining a credit card by fraudulent means, and one count of aggravated taking the identity of another. The charges were based on Calmese's interactions with victims V.R., R.D., J.C., M.S., B.M., and R.F. The State's theory was that Calmese developed relationships with women he met online or in bars to gain access to their bank cards, which he would steal and use, and that he used aliases to prevent the victims from "track[ing] him down." ¶3 All six victims testified at trial. B.M. told the jury she met Calmese at a nightclub and saw him several times and that he came to her house to help her move. Once inside her home, Calmese said he was going to the store and would be right back, but he never returned. B.M. later discovered her ATM card was missing from her wallet. ¶4 R.F. and Calmese had lunch one day and returned to her home. R.F. left the room and returned to find Calmese looking through her book bag, where she kept her wallet. After Calmese left, R.F. learned her bank card had been used to rent a movie. She also discovered other unauthorized charges. According to R.F., Calmese acted "charming," saying she was a "great student" and acting "like he was so interested in what [she] was doing with [her] life." ¶5 R.D. also discovered a missing bank card after Calmese visited her home; her billing statement included charges she did not make. R.D. confronted Calmese, who admitted taking her card and making the purchases; he agreed to pay the charges. R.D. threatened to call the police if he did not follow through. Calmese responded, "Good luck finding me. Do you think I had ever given you my real name?" ¶6 J.C. testified that his sister, M.C., kept his bank cards while he was hospitalized. Unauthorized charges appeared on J.C.'s account after Calmese visited M.C.'s home. A drugstore employee identified Calmese as the individual who used the card. ¶7 M.S. met Calmese online, where they "chatted online for several months." They also talked on the phone and met in person for the first time at a park. M.S. left her purse in Calmese's vehicle while they took a walk. Calmese returned to the truck without M.S. and then said he had to leave. A short time later, M.S. was alerted to suspicious activity on her account. She discovered several unauthorized charges. When she checked her purse, her bank card was gone. Police officers obtained evidence linking Calmese to the use of M.S.'s card. ¶8 A detective testified that Calmese admitted making unauthorized charges to V.R.'s account. When asked "why he keeps doing this," Calmese responded that he "likes to take the easy way out." ¶9 After the State rested, Calmese moved for a judgment of acquittal on the fraudulent schemes and artifices charge pursuant to Rule 20, Arizona Rules of Civil Procedure ("Rule"), asserting that
simply giving a false name, presenting yourself as somebody who this person might like to date and then taking the opportunity of when their back is turned lifting a credit card out of the purse isn't a fraud scheme.Calmese argued the State failed to prove that his "deceit or trick" induced the victims to surrender their bank cards because they
testified that they didn't base their relationship with him on what he told them his name was. That's the false pretense is I am a different named person than who I'm actually telling you -- or I'm giving you a name that is not my true name.In opposing the Rule 20 motion, the State argued Calmese's use of aliases was just one aspect of its case and that
[t]he scheme is the entirety of what you have seen in this trial. It's the way this person lives his life in this period ofThe court denied the Rule 20 motion. The jury found Calmese guilty of seven of the eight charges, including the fraudulent schemes and artifices offense. ¶10 Calmese filed a post-trial motion for judgment of acquittal, which the court denied. After being sentenced to a term of imprisonment, Calmese timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A).
time, ingratiating himself with these women to trick them into letting him into their home so he can grab things out of their purses. . . . he lied to people about what his name is to hide himself so they can't track him down and stop him from committing this scam.
DISCUSSION
¶11 Calmese appeals only the denial of his Rule 20 motion regarding the fraudulent schemes and artifices charge, arguing there was "insufficient evidence to establish a fraudulent scheme." A judgment of acquittal is appropriate only when there is "no substantial evidence to warrant a conviction." Rule 20(a); see also State v. Henry, 205 Ariz. 229, 232, ¶ 11, 68 P.3d 455, 458 (App. 2003) ("Substantial evidence, which may be either circumstantial or direct, is evidence that a reasonable jury can accept as sufficient to infer guilt beyond a reasonable doubt."). We review a Rule 20 ruling de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011) (citation omitted). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at ¶ 16 (internal quotation marks omitted). ¶12 Under A.R.S. § 13-2310(A), a person "who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions is guilty of" fraudulent schemes and artifices. Specifically, the State must prove: (1) a scheme or artifice to defraud, (2) the defendant knowingly and intentionally participated in it, and (3) it was a scheme for obtaining money or property "by means of 'false or fraudulent pretenses, representations or promises.'" State v. Haas, 138 Ariz. 413, 419, 675 P.2d 673, 679 (1983). "Something is fraudulent when it is 'reasonably calculated to deceive persons of ordinary prudence and comprehension.'" Id. at 423, 675 P.2d at 683. ¶13 The State presented evidence that Calmese developed relationships with and feigned interest in the victims, gaining their trust and manipulating them into circumstances where he could steal their bank cards in order to obtain a financial benefit. The entire scheme, according to the State, was the false pretense that separates Calmese's conduct from "routine theft." See, e.g., State v. Johnson, 179 Ariz. 375, 377, 880 P.2d 132, 134 (1994) (fraudulent schemes and artifices can arise from a betrayal of trust when combined with evidence of "subterfuge, ruse, trick"). We agree. ¶14 The use of a premeditated and repetitive scheme of establishing ruse relationships and manipulating victims into situations where their bank cards were accessible also distinguishes this case from appellate decisions Calmese cites for the proposition that "betrayal of an implicit belief in the honesty of one's friends or employees, alone, does not support the misrepresentation element of fraud." Calmese also incorrectly suggests the State was required to prove that the victims relied on his conduct by turning over their bank cards. The statute expressly states that "[r]eliance on the part of any person shall not be a necessary element of the offense." A.R.S. § 13-2310(B); see also State v. Fierson, 146 Ariz. 287, 291, 705 P.2d 1338, 1342 (App. 1985) (section 13-2310 eliminates lack of reliance as a defense). ¶15 Finally, Calmese contends the State failed to prove that he "lacked conviction in his relationships with the women, or that he was insincere in his communications with each on line." But we agree with the State that reasonable jurors could infer such lack of "conviction in his relationships with the women" from the evidence, including Calmese's admission that his actions were motivated by a desire to "take the easy way out." Calmese's contention that a different inference could be drawn from the evidence -- i.e., that his "romantic interests had nothing to do with" stealing the bank cards -- may be true, but "a trial court must submit a case to the jury if reasonable minds can differ on the inferences to be drawn from the evidence." Henry, 205 Ariz. at 232, ¶ 11, 68 P.3d at 458.
CONCLUSION
¶16 We affirm Calmese's conviction and sentence.
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MARGARET H. DOWNIE,
Presiding Judge
CONCURRING: ______________
MAURICE PORTLEY, Judge
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PHILIP HALL, Judge