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COURT OF APPEALS DECISION DATED AND FILED June 17, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEALS from judgments of the circuit court for Milwaukee County:� DAVID A. HANSHER, Judge.� Affirmed.
����������� Before Curley, P.J., Fine and Brennan, JJ.
�1������� BRENNAN, J. David Phillip Foley appeals judgments of conviction entered after a jury found him guilty of one count of theft by fraud, as party to a crime, one count of issuing a worthless check greater than $2500, and two counts of bail jumping.[1]� He argues that there was insufficient evidence to support the jury�s verdict as to the theft-by-fraud count.� We disagree and affirm.
BACKGROUND
�2������� On May 24, 2011, the State filed a complaint, charging Foley, as relevant to this appeal, with theft by fraud, contrary to Wis. Stat. � 943.20(1)(d) (2011-12),[2] for �intentionally � obtain[ing] title to the property of Anchor Bank, to wit:� $7,000 in the form of an Official Check, by intentionally deceiving Anchor Bank with a false representation which he knew to be false, made with intent to defraud.�� The parties agree that the following facts were shown at trial.
�3������� In February 2011, Foley wrote two separate personal checks to Dr. Anthony Krausen to pay for an elective surgical procedure, a face lift, performed by Dr. Krausen.� Both checks were returned because the accounts from which they were to be drawn were closed.
�4������� Sometime in March 2011, after his checks to Dr. Krausen were returned, Foley wrote a $10,000 check from his E*Trade account made payable to his business, Sport �N Cuts barbershop.� Thereafter, Foley gave the $10,000 check to his business partner Rick Bystra, who, on March 17, 2011, deposited the check in the Sport �N Cuts account at Anchor Bank.� Foley told Bystra not to spend any of the money right away because he had bills he had to pay first.� The E*Trade account never had sufficient funds to cover the $10,000 check Foley wrote to Sport �N Cuts.� Foley concedes that it is reasonable to infer that he knew that there were insufficient funds in the E*Trade account to cover the $10,000 check.
�5������� On March 21, 2011, Foley asked Bystra to write him a check for $7000 from the Sport �N Cuts account.� Bystra did so.� On March 22, 2011, Foley returned to Anchor Bank and completed two transactions.
�6������� First, Foley cashed the $7000 check Bystra had written him from the Sport �N Cuts account at Anchor Bank. �While the Sport �N Cuts account contained more than $10,000 at the time Foley cashed the check, that balance included the $10,000 E*Trade check deposit Bystra had made on March 17, 2011.� Prior to the E*Trade deposit, the account never had a balance in excess of $2900.� Second, Foley used the $7000 check Bystra issued Foley from the Sport �N Cuts account to obtain a cashier�s check from Anchor Bank payable to Dr. Krausen.
�7������� Foley presented the check to Dr. Krausen who cashed it.� Anchor Bank claimed that it suffered a loss of $5380.72, that is, the amount of the overdraft caused by the $7000 cashier�s check after the $10,000 E*Trade check bounced.
�8������� The jury convicted Foley of one count of theft by fraud, as party to a crime.� Judgment was entered accordingly, and Foley appeals.
DISCUSSION
�9������� Foley argues that there is insufficient evidence to support the jury�s conclusion that he committed theft by fraud against Anchor Bank because: (1) he �made no false representation to Anchor Bank,� rather, he only made false representations to Bystra; and (2) Anchor Bank lost nothing because the $7000 check Bystra issued to Foley left Bystra with a �legal obligation � to pay [the amount of] the check even if it were dishonored.�� His arguments are entirely without merit.
�10����� When reviewing an insufficiency-of-the-evidence claim, we give great deference to the jury�s determination and view the evidence in the light most favorable to the State. �See State v. Hayes, 2004 WI 80, �57, 273 Wis. 2d 1, 681 N.W.2d 203. �If more than one inference can be drawn from the evidence, we must adopt the inference that supports the conviction. �State v. Hamilton, 120 Wis. 2d 532, 541, 356 N.W.2d 169 (1984). �We will not substitute our own judgment for that of the jury unless the evidence is so lacking in probative value and force that no reasonable jury could have concluded, beyond a reasonable doubt, that the defendant was guilty. �State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).� Under this standard of review, we conclude that the record is sufficient to uphold the conviction in this case.
�11����� Theft by fraud, as defined in Wis. Stat. � 943.20(1)(d), is committed by one who:
[o]btains title to property of another person by intentionally deceiving the person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made.� �False representation� includes a promise made with intent not to perform it if it is a part of a false and fraudulent scheme.
Theft by fraud requires the State to prove, by evidence beyond a reasonable doubt, the following seven elements: (1) the named victim was the owner of the property; (2) the defendant made a false representation to the owner; (3) the defendant knew the representation was false; (4) the defendant made the representation with intent to deceive and to defraud the owner; (5) the defendant obtained title to the property of the owner by the false representation; (6) the owner was deceived by the representation; and (7) the owner was defrauded by the representation.� Wis JI�Criminal 1453A.
�12����� Foley first challenges the sufficiency of the evidence to prove the second element, to wit, that he �made a false representation to� Anchor Bank.� Foley argues that the only representation he made to Anchor Bank was the presentation of the $7000 check that Bystra made out to Foley from the Sport �N Cuts account.� Because the check was not a forgery, Foley contends that he did not make any misrepresentations to Anchor Bank.� However, he admits that he made false representations to Bystra to convince Bystra to issue him the $7000 check.
�13����� It is well-established law that a defendant need not directly communicate with the victim of his fraudulent scheme to be guilty of theft by fraud.� State v. Timblin, 2002 WI App 304, �31, 259 Wis. 2d 299, 657 N.W.2d 89.� In fact, Wis JI�Criminal 1453A provides for just such a situation, stating that:
It is not required that the defendant directly communicated with the owner [of the stolen property].� The defendant is responsible for a statement made to a third person if the defendant intended or had reason to expect that the statement would be repeated to, or its substance communicated to, the owner [of the stolen property] and that it would influence the owner�s conduct in the transaction.
Id. at 1-2.
�14����� In his brief to this court, Foley admits: (1) that he gave Bystra a $10,000 check from the E*Trade account, knowing that there were insufficient funds to cover the check; (2) that Bystra gave Foley a $7000 check from the Sport �N Cuts account, at Foley�s request, because Bystra was falsely led to believe that the $10,000 E*Trade check was valid; (3) that Foley presented this $7000 check to Anchor Bank, knowing that it was not backed by sufficient funds; and (4) that Foley then used the $7000 check made out to him by Bystra from the Sport �N Cuts account to obtain a $7000 cashier�s check from Anchor Bank.� It was reasonable for the jury to find, based on these facts conceded by Foley, that Foley�s representation to Bystra�primarily that Foley had sufficient funds to pay the $10,000 check written to Sport �N Cuts from Foley�s E*Trade account��would be repeated to� Anchor Bank and be used to influence Anchor Bank to issue Foley a $7000 cashier�s check despite a lack of funds in the Sport �N Cuts account.
�15����� Foley also claims that there was insufficient evidence to support the jury�s verdict that he defrauded Anchor Bank because Bystra, having written the $7000 check upon which the cashier�s check to Foley was issued, was liable to Anchor Bank for the $7000.� To begin, Foley�s argument in that regard is wholly undeveloped.� �A party must do more than simply toss a bunch of concepts into the air with the hope that either the � court or the opposing party will arrange them into viable and fact-supported legal theories.�� State v. Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999).� Second, Foley fails to respond to the State�s argument that, as a general matter, the fact that a fraud victim might somehow be made whole by civil law remedies has no bearing on whether the victim in fact was the victim of a theft.� Unrefuted arguments are deemed admitted.� See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979).
�16����� In sum, we conclude that the record is sufficient to uphold the conviction.
By the Court.�Judgments affirmed.
Not recommended for publication in the official reports.
[1] The jury found Foley guilty of theft by fraud, as party to a crime, and of issuing a worthless check greater than $2500 in Milwaukee County Circuit Court Case No. 2011CF2291.� The jury found Foley guilty of two counts of bail jumping in Milwaukee County Circuit Court Case No. 2011CF5654.� The cases were joined before the trial court, and Foley filed a notice of appeal as to each case.� We granted Foley�s motion to consolidate the cases for appeal.� However, the only issue Foley raises before this court is whether there was sufficient evidence to support his conviction for theft by fraud in Case No. 2011CF2291.
[2] All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.