State v. Granato

610 P.2d 1290, 1980 Utah LEXIS 923

• Court: Utah Supreme Court
• Decided: April 11, 1980
• Docket: 16365
• Status: Published

Opinions

SAM, District Judge:

Defendant Frank Granato appeals from his conviction by the court of an attempt to make a political contribution while employed as a representative of Old Mr. Boston, a liquor distillery.¹ Mr. Granato was fined $500.00.

Defendant contends that the judgment should be reversed as a matter of law on the following alternative grounds: that 32-4 — 22, U.C.A., 1953, is unconstitutional and void; and that the attempt provision set out at 76-4-101, U.C.A., 1953, of the Criminal Code is not applicable to an offense under 32-4-22 of the Liquor Control Act. In the alternative, the defendant seeks to have the denial of his motion to take depositions reversed, and the case remanded for a new trial.

The facts were stipulated. They reflect that on May 28, 1976, the defendant was a representative of Old Mr. Boston, a liquor distillery. He was also the owner of Grana-to Food Products and Frank Granato Importing Co., distributors of imported foods. Mr. Scott Matheson was at the time a candidate for the office of Governor of the State of Utah.

On two occasions prior to and again on May 28, 1976, Mr. Granato’s food distributing business prepared and delivered trays of imported foods to fund-raising functions for the campaign of Mr. Matheson. On all three occasions, Mr. Granato charged the Matheson for Governor committee at the regular prices. He had received an invitation, along with many others, to attend a fund-raising function for Mr. Matheson, to be held on the evening of May 28, 1976.

With the purpose of promoting good will and future sales of food to the Matheson campaign organization, Mr. Granato accepted the invitation. Upon arrival, Mr. Grana-to was told that the campaign was taking fifty dollar contributions from all invited guests. Mr. Granato handed over his fifty dollars and when asked to sign a roster so that the campaign would know to whom the offering should be credited, he declined. Later that evening, Mr. Matheson and his campaign manager reviewed all offerings received. Upon seeing the fifty dollar offering from Mr. Granato, the candidate stated that it would be inappropriate to accept the money, declined to accept it, and ordered that it be returned.

On the day of the trial, the state moved to reduce the offense charged to an attempt to violate Sec. 32-4-22, referred to above; and the case was submitted to the court for determination upon stipulation of the foregoing facts and that the defendant had no knowledge of the existence of the statute in question, nor of any legal prohibition against making campaign contributions. Upon consideration of the matter, the trial court found the defendant guilty.

A basic rule with respect to conviction of crime is that there must be some basis in the evidence upon which the fact trier (court or jury) could fairly and reasonably believe that the state had proved every essential element of the offense beyond a reasonable doubt; and unless that test is met, a conviction is not justified.

The State having chosen to charge the defendant with an attempt to commit a crime must prove that the defendant acted with the kind of criminal intent required for the commission of the offense, and which conduct constituted a substantial step towards its commission.²

The difficulty with the state’s case relates to the matter of criminal intent. It will be seen from the statute, which is quoted in the dissent, that this particular statute is not solely a malum prohibitum statute, but that it recognizes and provides for some mens rea or guilty knowledge in violating it to justify conviction for crime. This is said in awareness of the formula set forth in Sec. 76-2-304, also quoted in the dissent. It is true enough that under usual circumstances, an inference of guilty knowledge may have been drawn from the defendant’s declining to sign the roll. (Incidentally it may also have been to avoid getting on a list to be exploited for other causes or purposes, or for other reasons than a sense of guilt.) But under the particular and rare fact situation here, the state itself expressly negatived any such inference of criminal intent by its stipulation that the defendant had no knowledge of the prohibitory statute.

There is a further aspect of this alleged offense to be considered. There is nothing inherently wrong in a person making a contribution to assist another in his effort to be elected to public office. Even less so when it is expressly agreed that he did so without knowing it was wrong. Even if it were, it would seem that in order to make out the offense of making an unlawful contribution to a campaign fund, it would take two persons: the offerer and the acceptor. A fair and reasonable view of the stipulated facts is that the defendant, without any sense of wrong doing, handed his money to a functionary; and as soon as the intended recipient learned of that fact, he declined to accept the offer. Our statutes do not expressly make an attempt to violate Sec. 32-4-22 an offense.

It is perhaps understandable that the state desires to diligently police and prosecute any violations of the statute referred to in order to keep candidates and public officials from being involved with improper control, influence or corruption. That is indeed a commendable objective with which we are in entire accord. Notwithstanding that proposition, upon our consideration of the facts as discussed herein, it is our conclusion that the actions and the intent of the defendant, as stipulated herein, are not such as to justify reasonable minds as believing beyond a reasonable doubt that he was guilty of the offense.

With reference to the issue of constitutionality, this Court has held that it will not pass upon the constitutionality of a statute unless it is essential to the solution of the controversy before it. Having determined that such is not essential to the case at hand, there is no need to consider the constitutionality of the statute.³

Reversed. No costs awarded.

CROCKETT, C. J., and MAUGHAN, J., concur.

1 . In violation of 32-4 — 22, U.C.A., 1953.

2 . See 76-4-101, U.C.A., 1953.

3 . Heathman v. Giles, 13 Utah 2d 368, 374 P.2d 839 (1962).