State of Vermont v. Ralph Bissonette, Jr.
Supreme Court of Vermont
145 Vt. 381; 488 A.2d 1231; 1985 Vt. LEXIS 305
February 1, 1985, Opinion filed


OPINION:  Defendant appeals his conviction, under 13 V.S.A. § 2002, of obtaining money or other property by false pretenses. We affirm.

Viewed in the light most favorable to the State, the evidence establishes the following facts: Mrs. Clara Carlson, age 93, shared her South Burlington home with her sister, Mrs. Nellie Irish, age 87. On July 6, 1982, the roof of her home was in good repair. That evening a truck drove up and parked nearby. A watchful neighbor saw three men emerge from it, including one whom he recognized as Norman Bevins. When the men disappeared up Mrs. Carlson's driveway, the neighbor called the police, but the men soon reappeared and drove off.

The following morning, another neighbor noticed several shingles missing from Mrs. Carlson's roof that had not been missing the day before. That morning, three men including the defendant and Norman Bevins visited the house and falsely stated that they had been working across the street and had noticed shingles missing from her roof. They said that immediate repair was necessary. Mrs. Irish told the men that no work could be done without the approval of Helen Lawrence, a younger woman who helped supervise the women's affairs and who had power of attorney for Mrs. Carlson. Mrs. Irish telephoned Mrs. Lawrence and repeated the men's recommendations, but Mrs. Lawrence refused to allow the men to make the repairs. She told Mrs. Irish to seek additional bids.

After Mrs. Irish hung up and informed the men of Mrs. Lawrence's instructions, they asked to speak directly to Mrs. Lawrence, so Mrs. Irish dialed Mrs. Lawrence again and handed the phone to defendant. Mrs. Lawrence's end of the line then went dead, but at the Carlson home,  in the presence of the two sisters, defendant pretended to discuss the repair with Mrs. Lawrence. He eventually hung up and falsely stated that Mrs. Lawrence had approved the work. Thereupon, Mrs. Carlson said, "all right," and went for her pocketbook. Mrs. Irish explained to her older sister that the men wanted $ 1800, which required a trip to the bank. Mr. Bevins drove the women to the bank, where, at his instruction, a certified check drawn to "James Blackmer" was issued. The check was given to Mr. Bevins and cashed later that day.

The State contended that defendant and his companions used Blackmer's name and driver's license in obtaining and cashing the check. The jury apparently disbelieved testimony by the real James Blackmer (a brother-in-law of Norman Bevins) that he alone had randomly driven down Mrs. Carlson's street, noticed her missing shingles, sought the job, done the work along with two strangers whom he hired for a few hours and never saw again, and then cashed the check.

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II.

Defendant next contends that the court erroneously denied his motion for acquittal, claiming there is no evidence of any false statement made by him on which Mrs. Carlson actually relied. The evidence is to the contrary.

In addition to uttering falsehoods regarding the job across the street and the need for immediate repair, the evidence establishes that defendant pretended to talk with the woman whose approval was needed and then misrepresented her approval. In immediate response to that misstatement, Mrs. Carlson went to the bank and withdrew money from her account. There can be no doubt that the victim acted in reliance on defendant's falsehoods.

Defendant maintains that it was not defendant's pretended phone conversation, but the directions given by Mrs. Irish to Mrs. Carlson after defendant said Mrs. Lawrence had approved the work, that induced Mrs. Carlson to part with her money. He cites several Texas decisions under former Texas statutes as support for the proposition that proof of reliance solely upon the false pretense is necessary for conviction. These cases require that the falsehood be the "inducing cause" for the release of property.

The Texas cases, however, are not factually analogous to this case. In each, the conviction was reversed because the victim had also performed and relied upon his own independent investigation. In contrast, Mrs. Irish's instructions to her sister in the case before us, which defendant argues were at least an "inducing cause," were at best repetitions, retransmissions or "translations" naturally resulting from defendant's misrepresentations.

One purpose of 13 V.S.A. § 2002 is to protect the weak and susceptible from being preyed upon. It is therefore sufficient that the evidence permitted the jury to conclude beyond a reasonable doubt that Mrs. Carlson acted in material reliance upon defendant's falsehood. We agree with the view expressed in State v. Cooke, 371 P.2d 39, 42 (1962): "It is well settled that the victim of fraud need not have relied solely upon the false representation in parting with his money, but only that he relied materially upon it."

Defendant also challenges the sufficiency of the evidence of reliance, arguing that Mrs. Carlson was not mentally competent to rely on his representations and that, absent such reliance, defendant could not be convicted. Mrs. Carlson did not testify at the trial, which took place six months after the event, her health having deteriorated in the interim. Defendant claims that he was prejudiced in his effort to prove her incapacity by the court's refusal to order that she undergo psychiatric examination.

Defendant did not present any evidence that an evaluation of Mrs. Carlson could measure her capacity for reliance at an earlier time. Defendant also offered no supporting authority for the proposition that a court may order psychiatric examination of a nontestifying victim. Even those states which permit a court to exercise its discretion, in the absence of a statute, to order psychiatric examination of the complainant in a rape case do not extend similar discretion regarding nontestifying witnesses in nonrape cases. Concluding, as we do, that the extrinsic evidence of reliance was clear, defendant's justification for a psychiatric evaluation is outweighed by the gross intrusion that would have been imposed upon Mrs. Carlson. In these circumstances, the trial court was justified in denying defendant's request.

The judge instructed the jury that the State must prove, beyond a reasonable doubt, "that there was reliance, that the person to whom the lie was delivered or sent relied on that statement." Defendant argues that his statement to Mrs. Irish cannot be used to convict him of defrauding Mrs. Carlson, to whom the false statement was not directed. Thus, he argues, criminal intent as to the victim is lacking. We find little merit in the argument that defendant never directed his statement to Mrs. Carlson. Even were his view of the facts accepted, that the statement was directed to Mrs. Irish, defendant would still be culpable where he knew and intended that the false statement would be passed on to Mrs. Carlson and where he intended thereby to induce her to part with her money.

Defendant also claims that the court's illustration, in which a statement was transmitted indirectly through an interpreter, ignored other elements essential for conviction. The example to which defendant objects was clearly delivered in the context of explaining only the element of communication. The court instructed in detail on every aspect of all the required elements of the crime, stressing that each was to be proven beyond a reasonable doubt; it highlighted individual elements with illustrations it felt would help the jury understand the law to be applied. In the context of its thorough instructions, the court was not required, each time it focused on one element, to clutter its illustrations with references to every other element. We find no error in the illustrations used in the court's charge.

Affirmed.