State v. Poundstone

880 P.2d 731, 179 Ariz. 511, 164 Ariz. Adv. Rep. 49, 1994 Ariz. App. LEXIS 93
CourtCourt of Appeals of Arizona
DecidedMay 10, 1994
DocketNo. 1 CA-CR 93-0237
StatusPublished
Cited by1 cases

This text of 880 P.2d 731 (State v. Poundstone) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Poundstone, 880 P.2d 731, 179 Ariz. 511, 164 Ariz. Adv. Rep. 49, 1994 Ariz. App. LEXIS 93 (Ark. Ct. App. 1994).

Opinion

OPINION

EHRLICH, Judge.

Ronald Eugene Poundstone (“defendant”) appeals from his convictions for one count of theft and two counts of fraudulent schemes and artifices, each with two prior felony convictions, and the sentences imposed. He asserts that the fraud convictions were based on insufficient evidence and that all three [512]*512convictions were tainted by the introduction of improper character evidence. For the reasons which follow, we affirm his convictions and modify his sentences.

FACTS1 AND PROCEDURAL HISTORY

The defendant submitted his resume to an employment agency for placement as a business manager/controller, certifying that the information on his resume was “true and correct.” The agency in turn referred the defendant to Habitat, Incorporated, an architectural design company, which was seeking an experienced controller. On January 31, 1990, Paul Brunoforte, Habitat’s vice president and general manager, hired the defendant for the position based on the strength of the defendant’s work history as portrayed in his resume and interviews.. The defendant had represented to Brunoforte and the employment agency that he had held two accounting-related positions between 1983 and 1987. However, during that time, the defendant was imprisoned.

Brunoforte was dissatisfied with the defendant’s job performance and, in July 1990, the defendant resigned at Brunoforte’s urging. In December 1990, Brunoforte discovered that Habitat’s general account was missing approximately $234,000. From March through June 1990, checks from the general account had been made payable in that aggregate amount to “H & P Contracting” and “Reliable,” companies which never rendered services to Habitat. In fact, the defendant had opened two bank accounts in those names; he was the authorized signatory on the accounts and also the person who had written the Habitat checks that were deposited in the accounts. The defendant then proceeded to spend the money in those accounts for his personal benefit.

Subsequently, the defendant was indicted for one count of theft, a class 3 felony, and two counts of fraudulent schemes and artifices, each a class 2 felony. The state alleged that the first of the two fraud counts was supported by the defendant’s diversion of Habitat’s funds for his benefit; the second was predicated on the defendant’s misrepresentation of his work history, which led to his employment by Habitat. The state also alleged that the defendant had nine prior felony convictions.

At the close of the state’s evidence at trial, the defendant moved for acquittal on all counts, claiming that the state had not met its burden of proving his guilt. The motion was denied. The defendant then rested without presenting any evidence. The jury found the defendant guilty as charged, whereupon the defendant admitted two prior felony convictions.

The court sentenced the defendant to a presumptive 11.25-year term on the theft conviction and to 15.75-year presumptive terms on each of the fraud convictions, with credit for 320 days served, each sentence concurrent with the others. The court further ordered the defendant to pay $313,000 in restitution and three $100 felony assessments. He timely appealed.

DISCUSSION

A. Sufficiency of the Evidence

The defendant first asserts that the evidence was insufficient to sustain his convictions for fraudulent schemes and artifices. We disagree. A person is guilty of this crime if, “pursuant to a scheme or artifice to defraud, [he] knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions----” Ariz.Rev.Stat.Ann. (“AR.S.”) § 13-2310(A). “The scheme need not be fraudulent on its face but ‘must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension.’ ” State v. Haas, 138 Ariz. 413, 418, 675 P.2d 673, 678 (1983) (quoting United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir.1978)) (other citations omitted). The term “fraudulent representations” has been explained as “deceitful statements or half-truths or even the concealment of material [513]*513facts,” Id. (citations omitted). We will set aside a jury verdict only if it clearly appears that “upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.” State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).

Regarding the first count of fraudulent schemes and artifices, the indictment alleged that, while employed as Habitat’s controller, the defendant knowingly obtained a benefit of $234,646.07 “by means of false or fraudulent pretenses, representations, promises or material omissions, the benefit obtained by means of the material omission to Habitat, Inc. by [the defendant] that he was diverting Habitat, Inc. money through the unauthorized issuance of checks to H & P Contracting and Reliable.” The defendant maintains that his failure to advise Habitat of his unauthorized diversion and use of its funds, which he claims was the state’s factual theory at trial, is insufficient to constitute a material omission as the term appears in section 13-2310.

An indictment is deemed conformed to the evidence. Ariz.R.Crim.P. 13.5(b). In this case, the facts adduced at trial established that, prior to issuing Habitat checks without authorization, the defendant opened two checking accounts in the names of “H & P Contracting, Supplies & Equipment (Ronald E. Poundstone)” and “Reliable e/o Ronald E. Poundstone.” Subsequently he transferred Habitat funds to these accounts for' his own use. To conceal this diversion, the defendant failed to reconcile the company’s bank statements, which was his responsibility as controller, and tampered with the check register. Even when later instructed to delegate the bank statement reconciliation responsibilities, the defendant released only the January and February 1990 statements; he had not begun to write unauthorized checks until March 1990. Additionally, the defendant convinced Habitat’s bookkeeper that he had investigated the inconsistencies in the check register which she had reported to him. This provided sufficient evidence from which the jury, properly instructed on the elements of fraudulent schemes and artifices, could have concluded that the defendant, according to a scheme and through misrepresentations, intended to mislead Habitat employees to knowingly obtain a financial benefit for himself.

The defendant next maintains that his conviction for a second count of fraudulent schemes cannot stand because it too was without adequate evidentiary support. Specifically he asserts that there was no evidence presented that the falsification of his resume was to defraud Habitat and that the intent of section 13-2310 is not to make illegal omissions and false representations on resumes.

Habitat sought an experienced controller; its vice president testified that the defendant’s purported work history suggested to him that the defendant had the requisite experience and he relied on the defendant’s resume in making his employment decision.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hess v. Ryan
651 F. Supp. 2d 1004 (D. Arizona, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
880 P.2d 731, 179 Ariz. 511, 164 Ariz. Adv. Rep. 49, 1994 Ariz. App. LEXIS 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-poundstone-arizctapp-1994.