Opinion
Case No. 20050192-CA.
Filed June 22, 2006. (Not For Official Publication).
Appeal from the Fourth District, Provo Department, 031403948, The Honorable Steven L. Hansen.
Before Judges Greenwood, McHugh, and Orme.
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellant.
Margaret P. Lindsay, Orem, for Appellee.
MEMORANDUM DECISION
The State appeals the magistrate's refusal to bind George Wallace (Wallace) over on the charges of theft by deception, see Utah Code Ann. § 76-6-405(1) (2003), and issuing a bad check, see id. § 76-6-505(1) (2003). We affirm in part and reverse in part.
A magistrate's bindover decision is a mixed question of law and fact, see State v. Virgin, 2006 UT 29, ¶ 27, with magistrates having "some discretion in making their bindover decisions," id. at ¶ 34. Accordingly, we grant "limited deference to a magistrate's application of the bindover standard to the facts of each case." Id.
The State first argues that the magistrate erred by refusing to bind Wallace over on the charge of theft by deception. "A person commits theft if he obtains or exercises control over property of another by deception and with a purpose to deprive him thereof." Utah Code Ann. § 76-6-405(1). Thus, to commit theft by deception, a party must exercise control over another's property by means of a deception.
The magistrate found that the State did not present any evidence that Wallace, by words or conduct, ever "deceived" any representative of Morris Murdock Travel as that term is defined statutorily. See id. § 76-6-401(5) (2003). We agree. The State's witness testified that she dealt almost exclusively with Deborah Wallace, Wallace's wife. There was no testimony concerning any conversations she had with Wallace. As the magistrate stated: "[T]he State has failed to show that Mr. Wallace created, confirmed, or failed to correct a false impression of fact that Morris [Murdock] Travel would be repaid." Thus, because the State failed to present any evidence that Wallace exercised control over Morris Murdock Travel's property by means of deception, the magistrate did not err by dismissing the theft by deception charge.
Next, the State argues that the magistrate erred in failing to bind Wallace over on the charge of issuing a bad check to Tradewinds Estate. Utah Code section 76-6-505(1) states in relevant part:
Any person who issues or passes a check or draft for the payment of money, for the purpose of obtaining from any person, firm, partnership, or corporation, any money, property, or other thing of value or paying for any services, wages, salary, labor, or rent, knowing it will not be paid by the drawee and payment is refused by the drawee, is guilty of issuing a bad check or draft.
Utah Code Ann. § 76-6-505(1). The magistrate dismissed this charge against Wallace after noting that neither Wallace's motion to dismiss or the State's opposition memorandum discussed the charge, and accordingly, there were insufficient facts to determine the nature of the charge. However, at the preliminary hearing, the State offered evidence of the bad check at issue through testimony and through the affidavit of an unavailable witness. The testimony and affidavit clearly demonstrated that Wallace issued a check to Tradewinds Estate in the amount of $3096.84 on July 19, 2002, for the payment of rent. The check was returned for insufficient funds. The only real issue is whether Wallace issued the check "knowing" that it would not be paid. See id.
"`[I]ntent to commit a crime may be inferred from the actions of the defendant or from surrounding circumstances.'" State v. Wallace, 2006 UT App 232, ¶ 23 (quoting State v. Colwell, 2000 UT 8, ¶ 43, 994 P.2d 177); see also State v. Brooks, 631 P.2d 878, 881 (Utah 1981) ("Since the intent to commit a theft is a state of mind, which is rarely susceptible of direct proof, it can be inferred from conduct and attendant circumstances in light of human behavior and experience."). The circumstances surrounding the issuance of the check were sufficient to create a "`reasonable belief that an offense had been committed.'" Wallace, 2006 UT App 232 at ¶ 10 (quoting State v. Virgin, 2006 UT 29, ¶ 20). Only one day prior to the date Wallace issued the check to Tradewinds Estate, albeit from a different account, his wife had issued a check to Morris Murdock Travel with the understanding that there would be insufficient funds in the account to cover the check at that date. She requested that the check not be cashed for several days, thereby creating a reasonable inference that both she and Wallace knew they did not have sufficient funds in their accounts to cover the checks they were writing. When this is coupled with the fact that the Wallaces had previously issued 254 checks that were returned for insufficient funds, these attendant circumstances certainly create a reasonable belief that Wallace issued the check knowing that it would not be paid. Thus, the evidence presented was sufficient to bind George Wallace over on the charge of issuing a bad check. See id. at ¶¶ 25-28.
Accordingly, we affirm the magistrate's dismissal of the theft by deception charge, but reverse the magistrate's dismissal of the bad check charge and remand for further proceedings consistent with this decision.
Pamela T. Greenwood, Associate Presiding Judge, Carolyn B. McHugh, Judge, Gregory K. Orme, Judge, concur.