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Fitch v. State8/31/2001
13A-8-2, Ala. Code 1975, as:
"A person commits the crime of theft of property if he:
"....
"(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property."
Theft of property in the first degree is defined as:
"(a) The theft of property which exceeds $1,000.00 in value, or property of any value taken from the person of another, constitutes theft of property in the first degree."
Section 13A-8-3(a), Ala. Code, 1975.
Deception is defined at § 13A-8-1, Ala. Code, 1975:
"(1) Deception occurs when a person knowingly:
"a. Creates or confirms another's impression which is false and which the defendant does not believe to be true; or
"b. Fails to correct a false impression which the defendant previously has created or confirmed; or
"c. Fails to correct a false impression when the defendant is under a duty to do so; or
"d. Prevents another from acquiring information pertinent to the disposition of the property involved; or
"e. Sells or otherwise transfers or encumbers property, failing to disclose a lien, adverse claim or other legal impediment to the enjoyment of the property when the defendant is under a duty to do so, whether that impediment is or is not valid, or is not a matter of official record; or
"f. Promises performance which the defendant does not intend to perform or knows will not be performed. Failure to perform, standing alone, however, is not proof that the defendant did not intend to perform."
Fitch argues that the State failed to prove that his conduct established theft by deception, under any definition, and argued that the precedent set forth in Chandler v. State, 615 So. 2d 100 (Ala.Crim.App. 1992), mandated his acquittal of the theft charges. In Chandler, Chandler was convicted of two counts of theft by deception and six counts of violating the ethics law, specifically that he used his official position to obtain for himself direct personal financial gain, in violation of § 36-25-5, Ala. Code 1975. On appeal he challenged the sufficiency of the evidence to sustain his convictions for theft by deception. Chandler was the mayor of the city of Vernan, Alabama. During his tenure as mayor, he voted, at a city counsel meeting, to appropriate public funds for the City to purchase land he owned on which to build a mental health facility. Chandler did not disclose to the city counsel his connection to the land.
Regarding the element of intent to deprive, this Court stated:
"However, while the appellant clearly `knowingly obtain by deception control over the property of another,' there is no evidence that the appellant intended to deprive the owner of his property. The record indicates that, in return for the $50,000, the appellant's property was deeded over to the Mental Health Center." 615 So. 2d at 105.
Chandler is distinguishable from the present case. In Chandler the State failed to prove the element of intent to deprive the State of its property. In other words, the City benefited from a fair bargain with Chandler. There is no such inference here. In addition to evidence indicating that Fitch took certain deceptive actions to facilitate receiving county funds, there was evidence presented from which the jury could have inferred that Fitch intended to deprive the County of its funds. In this case, Fitch permitted Edwards to take a leave of absence from his county job, thereby raising the County's cost of closing the landfill by making it possible for Edwards to receive more money due to his particip
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