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LaParle v. State (4/17/98) ap-1585
NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made prior
to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GERARD R. LaPARLE, )
) Court of Appeals No. A-6414
Appellant, ) Trial Court No. 4FA-95-3417 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1585 - April 17, 1998]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Donald D. Hopwood, Judge.
Appearances: John M. Murtagh, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Gerard R. LaParle, a Fairbanks lawyer, represented another
lawyer, Dennis Bump, in a divorce action. Acting in collusion,
LaParle and Bump concealed marital assets from Bump's wife, then
split the money between themselves after the property settlement was
final. For his part in this affair, LaParle was convicted of scheme
to defraud, AS 11.46.600(a)(2), first-degree theft, AS 11.46.120(a),
and perjury, AS 11.56.200(a). LaParle now appeals these
convictions. We conclude that LaParle's jury was misinstructed on
the elements of scheme to defraud, and we therefore reverse
LaParle's conviction for that crime. However, we affirm LaParle's
convictions for first-degree theft and perjury.
Facts of the case scheme to defraud and theft
Dennis Bump had been putting income from his law practice
into four bank accounts that his wife did not know about. When
Bump's wife filed for divorce, LaParle counseled Bump to disclose
three of these accounts to his wife, so that she would think that
Bump was dealing honestly with her. At the same time, Bump would
close the fourth account (which contained almost $78,000) and give
the money to LaParle as a "retainer" for his services in the
divorce. LaParle assured Bump that he would invoke the attorney-
client privilege to prevent disclosure of the source or the amount
of this "retainer". After the divorce was concluded, LaParle would
return the unused portion of this "retainer" to Bump. Bump would
then enjoy the money free of any claim by his former wife.
Bump decided to follow LaParle's advice. He closed the
undisclosed fourth bank account and transferred the proceeds
$77,850.02 to LaParle.
Bump and his wife ultimately settled the divorce action
without going to trial. Bump's wife remained ignorant of the fourth
bank account and the $78,000 "retainer" when she negotiated the
settlement. After the case was concluded, LaParle subtracted his
fee and then returned the unused "retainer" $67,814.71 to Bump.
Was the jury correctly instructed on the elements of
scheme to defraud?
In the jury instruction defining the elements of the crime
of scheme to defraud, the jury was told that LaParle was guilty of
this crime if he either "intended to defraud [Bump's former wife]
or acted recklessly with regard to the purpose of the scheme or the
means used to advance the scheme". This instruction was incorrect.
As we recently held in Knix v. State, 922 P.2d 913, 920-21 (Alaska
App. 1996), the crime of scheme to defraud requires proof that the
defendant acted with intent to defraud. It was not sufficient for
the State to prove that LaParle recklessly disregarded the
possibility that Bump was trying to defraud his wife.
The error in the jury instruction was exacerbated by the
prosecutor's summation to the jury:
[The statute is violated if LaParle] acted
recklessly with regard to the purpose of the scheme, ... or,
alternatively, recklessly with respect to the means used to advance
the scheme[.] Was his conduct ... when he reviewed or didn't review
the discovery responses, [or] when he participated or didn't
participate in the settlement negotiations, reckless ... with
respect to those means? Was his conduct reckless with respect to
accepting the check and not making sure that that money was
disclosed? Was his conduct reckless when he returned the sum of
$67,000 without giving any notice to either Ms. Bump, by now the
former Ms. Bump, or her lawyer, that he had made those returns, with
the refund of that amount of money?
Because the jury was told (both in the erroneous jury
instruction and in the prosecutor's summation) that they should
convict LaParle of scheme to defraud if they found that LaParle was
merely reckless concerning the possibility that Bump was scheming
to defraud his wife, we must reverse LaParle's conviction of this
offense.
Was the money in Bump's undisclosed bank account the
"property of another" for purposes of the theft statute?
The $78,000 in Bump's undisclosed bank account represented
earnings from his law practice during his marriage. This money
therefore constituted a marital asset. See, e.g., Bousquet v.
Bousquet, 731 P.2d 1211, 1215 (Alaska 1987). In effect, the money
was jointly owned by both Bump and his wife (even though Bump's wife
remained ignorant of its existence).
LaParle argues that, because this money was jointly owned
by Bump and his wife, Bump could not steal this money from his wife.
More generally, LaParle contends that co-owners of property can not
steal from each other that, as between co-owners of property, the
commonly-held property is not "property of another". LaParle
asserts that Bump, as co-owner of the bank account, had a complete
right to control or dispose of the money. LaParle concedes that
Bump might commit fraud with regard to this money, but he contends
that Bump could not commit "theft" of the money. Thus, LaParle
concludes, since he was charged with theft as Bump's accomplice, if
Bump was not guilty of theft, LaParle could not be found guilty of
theft under a complicity theory.
LaParle's argument is based on the common-law rule that
a person can not commit larceny of property that the person holds
in common with others. This rule appears to be derived directly
from the elements of common-law larceny. At common law, larceny
required proof of a trespassory taking. R. Perkins & R. Boyce,
Criminal Law (3rd edition, 1982), p. 292, 303-04.
To prove larceny, the government not only had
to prove that the defendant intended to use someone's property for
purposes inconsistent with the owner's rights, but also had to prove
that the defendant had no right to take possession of the property
that the defendant committed a trespass by the very act of laying
hands on the property.
Strother v. State, 891 P.2d 214, 224 (Alaska App. 1995); see also
891 P.2d at 224 n.5. Because each co-owner of property normally has
equal right to possession of the property, a co-owner's asportation
of the property would not constitute a trespass and thus would not
constitute common-law larceny, even if done with intent to deprive
the other co-owners. Perkins & Boyce, supra, at 302.
However, as noted in Perkins & Boyce, "Modern legislation
has tended ... to move in the direction of providing a penalty for
the co-owner who wrongfully appropriates ... property to which
others are equally entitled". Id. Alaska has enacted such
legislation.
Under the general definition of theft in AS 11.46.100(1),
the State must prove that the defendant "obtain[ed] the property of
another". The question thus becomes whether Bump and LaParle
obtained the "property of another", as that phrase is defined in
Alaska law, when they hid and made off with the $78,000 that Bump
had earned from practicing law during the marriage.
The phrase "property of another" is defined in
AS 11.46.990(12). The pertinent part of this statutory definition
reads:
"property of another" means property in
which a person has an interest which the defendant is not privileged
to infringe, whether or not the defendant also has an interest in
the property[.]
The $78,000 was concededly a marital asset; it should have been
included among the marital property that was divided between Bump
and his wife when the marriage ended. By concealing the existence
of this $78,000 and appropriating this money to themselves, Bump and
LaParle deprived Bump's wife of her marital interest in the money,
something that Bump was not privileged to do. It therefore appears
that, under AS 11.46.990(12), the money in the undisclosed bank
account was "property of another", and that Bump and LaParle
therefore committed theft when they concealed this money and later
appropriated it to their own purposes.
This conclusion is supported by the Criminal Code Revision
Subcommission's commentary to the draft definition of "property of
another". The Subcommission's proposed definition was essentially
the same as the definition ultimately adopted by the legislature:
"property of another" was "property in which [another] person has
an interest which the actor is not privileged to infringe". See TD
11.46.990(8). In their commentary, the drafters clearly declared
their intention to change the common-law rule; they stated that
"[their] definition embodie[d] the policy that co-owners of property
should be as well protected against depredations by other co-owners
as they are against outsiders." See Alaska Criminal Code Revision,
Tentative Draft, Part 3, p. 21.
Our conclusion that "property of another" includes the
undivided property rights of co-owners is also bolstered by
decisions from other states. See People v. Llamas, 60 Cal.Rptr.2d
357, 361-62 (Cal. App. 1997) (holding that a spouse can be convicted
of theft for taking community property); Commonwealth v. Mescall,
592 A.2d 687, 690-91 (Pa. App. 1991) (same); People v. Kahanic, 241
Cal.Rptr. 722, 723 (Cal. App. 1987) (holding that a spouse can be
convicted of vandalism for destroying community property); State v.
Webb, 824 P.2d 1257, 1262-63 (Wash. App. 1992) (same). See also
State v. Kuntz, 875 P.2d 1034, 1036 (Mont. 1994) (a partner can
commit theft of partnership assets if he uses the assets for non-
partnership purposes without the consent of the other partners);
State v. Sylvester, 516 N.W.2d 845, 849 (Iowa 1994) (a partner can
be convicted of embezzling partnership assets); State v. Larsen, 834
P.2d 586, 590-91 (Utah App. 1992) (same).
Based on the wording of AS 11.46.990(12), the commentary
that accompanied the tentative draft of this provision, and the
decisions of other jurisdictions cited in the preceding paragraph,
we conclude that the commonly-held property of a married couple can
constitute "property of another", even as between the two spouses.
That is, it is legally possible in Alaska for a spouse to commit
theft of marital property.
This is not to say that a husband or wife commits theft
whenever they spend funds from a joint checking account without the
other spouse's knowledge or permission, or whenever they use common
funds to make a purchase or an investment that the other spouse does
not approve of. Before a husband or wife can be convicted of
stealing marital property, AS 11.46.990(12) requires the government
to prove that the defendant "[was] not privileged to infringe" the
other spouse's interest. In most instances, both spouses have equal
right to possess, use, or dispose of marital property. Thus, one
spouse's unilateral decision to draw funds from a joint checking
account or to give away or sell a marital possession normally will
not constitute theft, because the actor-spouse will have had a
privilege to infringe the other spouse's interest in the property.
We confronted a similar problem in Strother v. State, 891
P.2d 214 (Alaska App. 1995). Strother presented the issue of
whether, in the absence of a child-custody decree awarding primary
custody to one spouse, a husband or wife could be convicted of
custodial interference for absconding with the couple's child. We
held that "[even] when a child is entrusted to joint custodians"
who both possess an undifferentiated right of custody, one of the
joint custodians can commit the offense of custodial interference
by "tak[ing] exclusive physical custody of the child in a manner
that defeats the rights of the other joint custodian." Id. at 223.
At the same time, however, we noted that if a joint custodian is
charged with custodial interference, "the actus reus of the crime
must be examined with care". Id.
When parents are joint custodians of a child,
they repeatedly take exclusive physical control of the child on a
temporary basis for any number of reasons. ... A parent who
remains a joint custodian can take the child away from home even
outside the state without violating the custodial interference
statutes, because such an act generally does not deprive the other
joint custodian of his or her custody rights.
Strother, 891 P.2d at 224.
This same principle applies to cases in which one spouse
is charged with stealing property held in common by the two marriage
partners. Because each spouse normally has wide-ranging authority
to use or dispose of marital property, "the actus reus of the
[alleged theft] must be examined with care". One can imagine
situations in which it would be difficult to determine whether the
defendant-spouse was privileged to defeat the property interest of
the other spouse. However, LaParle's assertion is that, under
Alaska law, a spouse can never commit theft of marital property.
That assertion is wrong.
Moreover, even though one can imagine difficult cases, the
act of theft committed by Bump and LaParle is at the core of the
statutory prohibition. Knowing that Bump's marriage was about to
end and that the property of the marriage was to be inventoried and
divided between the spouses, Bump and LaParle conspired to conceal
the existence of $78,000 in marital assets; having successfully done
this, they waited until after the property settlement was final and
then they divided the money between themselves. The avowed purpose
of these acts was to defeat the wife's interest in this money, and,
under these facts, Bump was not privileged to defeat his wife's
interest. The concealed $78,000 was therefore "property of another"
under AS 11.46.990(12), and Bump and LaParle committed theft when
they took this money.
Facts of the case perjury
In his final contention on appeal, LaParle challenges his
conviction for perjury. LaParle was charged with perjury for his
complicity in a false sworn statement signed by Bump and filed with
the superior court during the divorce proceedings.
During the discovery phase of the divorce proceedings, the
attorney representing Bump's wife served Bump with various
interrogatories and requests for production. In Request for
Production No. 3, Bump was asked to produce "all checking account
statements[,] including all canceled checks and deposit slips, [and]
all savings account statements[,] including all deposit and
withdrawal slips", for any account to which Bump had made deposits
or from which he had made withdrawals during the preceding five
years. This request encompassed the bank account with the $78,000
that Bump and LaParle were conspiring to conceal.
Bump signed and filed a document responding to the various
requests for production. With regard to Request for Production
No. 3, Bump responded that all of the requested documents were
already in his wife's possession. At the end of this document, the
following statement appeared:
DENNIS BUMP deposes and says that he has read
the foregoing answers to Interrogatories [sic], and has signed the
same, and acknowledges that [these] answers are true to the best of
his knowledge.
Bump was at this time actively conspiring to hide the $78,000 from
his wife; he therefore apparently knew that his answer to Request
for Production No. 3 was false. Nevertheless, Bump signed this
statement in front of a notary public, and the notary public then
signed a certification (a "jurat" [Fn. 1]) that Bump had signed and
sworn to the truthfulness of the document in her presence.
Was Bump's response to Request for Production No. 3
a "false sworn statement"?
Under AS 11.56.200(a), a person commits perjury "if the
person makes a false sworn statement which the person does not
believe to be true." Viewing the evidence in the light most
favorable to supporting the jury's verdict, Bump's sworn response
to Request for Production No. 3 appears to fit this definition.
LaParle argues that the government presented insufficient
evidence that Bump engaged in intentional falsehood. He notes that
Bump (testifying as a government witness at LaParle's trial)
repeatedly asserted that he believed his response to Request for
Production No. 3 was truthful. The question of whether Bump engaged
in conscious falsehood was a matter for the jury to decide, and
there was ample circumstantial evidence to rebut Bump's testimony.
LaParle also argues that even if Bump was guilty of
conscious falsehood, LaParle did not aid or abet Bump's crime.
LaParle asserts that he failed to "carefully evaluate [Bump's]
responses", and he therefore remained unaware that Bump had falsely
responded to Request for Production No. 3. This, too, was a matter
for the jury.
LaParle next asserts that even though Bump signed the
document in front of the notary public, Bump did not really mean to
certify his answers under oath. LaParle points out that Bump's
concluding statement refers to "[i]nterrogatories", not requests for
production, and LaParle further points out that Alaska Civil Rule
34(b) does not require responses to requests for production to be
submitted under oath. From these two facts, LaParle deduces that
Bump's concluding statement (and the notary public's jurat that
follows it) must have been included by mistake or inadvertence, and
that Bump did not really mean to swear to the correctness of his
responses to the requests for production when he signed the document
in front of the notary public. LaParle suggests instead that Bump
believed he was signing (and swearing to the truth of) a duplicate
copy of his interrogatory answers.
Again, Bump's understanding of the document and his
intentions when he signed it were matters for the jury to decide.
There was substantial evidence to support a finding that Bump
understood that he was swearing to the correctness of his responses
and that, when he did so, he believed that his response to Request
for Production No. 3 was false.
Finally, LaParle argues that, as a matter of law, the
inclusion of a jurat at the end of a document does not convert that
document into a "sworn statement". LaParle points out that the
first page of the document does not contain prefatory language
indicating that what follows is being asserted under oath, and he
argues that Bump's statement at the end of the document and the
notary public's accompanying jurat are legally insufficient to make
the document an "affidavit".
LaParle relies on the rule that a document can constitute
an "affidavit" a sworn statement even when the document contains
no concluding jurat (that is, no concluding certification by a
notary public), so long as the document bears other indications that
the assertions in it were, in fact, made under oath. Knix v. State,
922 P.2d 913, 917 (Alaska App. 1996). From this, LaParle derives
the purported converse rule that the inclusion of a jurat is legally
insufficient to prove that a document is an affidavit. This does
not follow.
The fact that a document can qualify as a sworn statement
even though a concluding jurat is omitted does not mean that the
presence of a jurat is irrelevant. A jurat is an explicit
certification by a notary public that the person signing the
document appeared before the notary and swore or affirmed that the
assertions in the document were true. When a document ends with a
jurat, this would seem to be prima facie evidence that the document
is in fact an affidavit.
Moreover, in the present case, Bump's response to the
requests for production ends with more than simply a jurat.
Directly above the jurat, the document contains Bump's own written
statement and signature; in this statement, Bump "deposes and says
that he has read the foregoing answers" and that those answers "are
true to the best of his knowledge".
The inclusion of these two certifications Bump's
personal assertion that he affirmed the truth of his answers, and
the notary's assertion that Bump signed the document and swore to
the truth of the answers in her presence are sufficient to prove
that the document is a "sworn statement" for purposes of the perjury
statute. "No particular form of oath or affirmation is required by
Alaska law[.]" Anchorage Sand & Gravel Co. v. Wooldridge, 619 P.2d
1014, 1016 (Alaska 1980), quoted in Knix, 922 P.2d at 916.
Conclusion
For the reasons explained in this opinion, LaParle's
conviction for scheme to defraud is REVERSED, while LaParle's
convictions for theft and perjury are AFFIRMED.
FOOTNOTES
Footnote 1:
Jurat: "[A] statement or certification added to an
affidavit, telling when, before whom, and, sometimes, where the
affidavit was made". Webster's New World Dictionary of American
English (Third College Edition, 1988), p. 734. See Knix v. State,
922 P.2d at 917; H.A.M.S. Company v. Electrical Contractors of
Alaska, Inc., 563 P.2d 258, 260 (Alaska 1977).
