Fowler v. United States

374 A.2d 856, 1977 D.C. App. LEXIS 451
District of Columbia Court of Appeals·Decided April 11, 1977·No. 8738·Published·Cited by 8 cases

Opinions

YEAGLEY, Associate Judge:

Appellant was charged with having perpetrated a series of “flimflam” schemes designed to defraud four women individually on a total of seven occasions of substantial sums of money. He was charged in a 21-count indictment consisting of seven counts of grand larceny, seven counts of larceny after trust and seven counts of false pretenses. Of these, appellant was convicted of five counts of grand larceny and five counts of false pretenses.1 Each [858] count of false pretenses was based on the same transaction as one of the grand larceny counts. After conviction, appellant was sentenced to concurrent terms of imprisonment for two to six years on each of the grand larceny counts, and to terms of one to three years on each of the false pretenses counts, to run concurrently with each other but to run consecutively to the sentences on the five grand larceny counts. He argues on appeal (1) that the trial court erred by denying his motion to sever the indictment for separate trial of the charges as they relate to each of the four complainants; (2) that the trial court erred by permitting convictions of both false pretenses and grand larceny on each of the fraudulent transactions proved at trial; and (3) that the trial court could not order him to serve consecutive sentences for charges of false pretenses and grand larceny arising out of the same transaction. We affirm.

First raised is the motion to sever. Super.Ct.Cr.R. 8(a) permits joinder if the offenses charged are of the same or similar character or are based on two or more acts or transactions constituting parts of a common scheme or plan. Appellant based his motion on Super.Ct.Cr.R. 142 claiming he was prejudiced by the joinder. We think his point is not well taken. We have held that “[t]he decision to sever counts is committed to the sound discretion of the trial judge.” Coleman v. United States, D.C.App., 298 A.2d 40, 42 (1972), cert. denied, 413 U.S. 921, 93 S.Ct. 3070, 37 L.Ed.2d 1043 (1973). As we shall see, this record does not indicate that the trial judge abused his discretion in denying the motion.

The various offenses which congealed in the indictment were all of a piece in that, taken together, they composed the elements of a common scheme of deception which ultimately separated all four victims from their money. Each of the victims was a woman. Appellant made romantic advances to three of the four. He proposed marriage to two of the four. Appellant told all four that he was an experienced businessman and that they could reap substantial financial gain by joining him in a business relationship. He was able to obtain money from all four by telling each she would have some interest in his business and that the money would be used to pay a tax lien or some other debt of the business venture. The individual fraudulent schemes were probative of each other and evidence of each would have been admissible in a trial of the others had they been tried separately.3 Whatever prejudice the appellant may have suffered from the join-der did not outweigh the considerations of economy and expedition in judicial administration. We consequently find no abuse of discretion committed in the decision to proceed on the unsevered indictment.

Appellant argues next that the court should have instructed the jury that it could not return a guilty verdict for both grand larceny and false pretenses for each of the seven transactions set forth in the indictment as the two crimes are legally inconsistent. In Skantze v. United States, 110 U.S.App.D.C. 14, 288 F.2d 416, cert. denied, 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261 (1961), the United States Court of Appeals concluded that the two offenses are not inconsistent but may give rise to separate convictions on the same transaction. An inconsistency would arise only if appellant had been convicted of larceny after trust in violation of D.C.Code 1973, § 22-2203 in addition to grand larceny or false pretenses. In that situation a conviction of larceny after trust would require a finding that the defendant’s original acquisition of the vic[859] tim’s property was legal and did not involve an unlawful taking. Reed v. United States, D.C.App., 239 A.2d 156 (1968). See also United States v. Gay, 133 U.S.App.D.C. 337, 410 F.2d 1036 (1969). It would then necessarily be inconsistent for a jury also to find him guilty of larceny or false pretenses because both offenses require the jury to conclude that the original acquisition of property was unlawful. The trial court apparently was alert to this problem since it instructed the jury that if it found the appellant guilty of grand larceny it should without further consideration find him not guilty of larceny after trust.

Finally, appellant Fowler argues that the trial court could not properly order that the sentences entered on the false pretense counts run consecutively to the sentences entered on the grand larceny counts. The authority of the trial court to order consecutive sentences for offenses arising out of the same transaction is found in D.C.Code 1973, § 23-112, which provides:

A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence shall expressly provide otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not.

In applying the section to the instant case, we must consider the elements of the two offenses and determine whether each requires proof of a fact which the other does not. See Hammond v. United States, D.C.App., 345 A.2d 140 (1975).

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Fowler v. United States, 374 A.2d 856, 1977 D.C. App. LEXIS 451 (D.C. 1977).

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Fowler v. United States
374 A.2d 856 (District of Columbia Court of Appeals, 1977)