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Perritt v. State9/23/2005
f record materials and exhibits. Yet, we are unable to discern in this material the evidentiary facts required to fulfill the basic elemental requirements of the crime of obtaining money by false pretenses. It would not enhance our jurisprudence in this regard, or serve the interests of justice, to attempt to force the facts proven at this trial into a mold that clearly will not contain them. When the statute is read in a logical manner, and in light of the more than five centuries worth of incrustations left by the common law, Perritt simply did not run afoul of the law that protects society from those who would obtain money by false pretenses with the intent to defraud.
[ ] Here, Perritt made a statement to the effect that her husband did not live in her home, and/or that he did not have "access to the children" placed in her care. The prosecution's argument to the jury appeared to be that Perritt would be guilty of obtaining the money by false pretenses if the jury found she lied on the initial application for certification, or if she lied in her application to become eligible to serve DFS clients, or if she lied in each of her applications to DFS for payments. There was no special verdict form, so we are left to guess as to which of these the jury might have agreed upon unanimously. There was some evidence that she made a false statement, and perhaps certainly a less than candid statement, but the proof that it was false cannot be said to be proof beyond a reasonable doubt. The evidence is even more infirm that the information was withheld with the intent to defraud DFS of property.
[ ] Moreover, it is clear that if there were false pretenses at all, it was only in her actual applications for the payments. That application did not require her to identify any household member who may have been convicted of a felony, but rather only those household members "who had access to the children." The State appeared to have proved that Perritt's husband frequented her home. His frequent presence does not conflict with the statements Perritt made, given that he was father to one of Perritt's children and shared custody of that child with her, and was stepfather to her other two children. Perritt presented credible evidence that the two of them were separated, and that they were attempting to work out their marital problems while living apart. The State did not meaningfully contradict that evidence. When viewed in the most favorable light conceivable under these circumstances, the State's evidence placed Husband at Perritt's home on several occasions, but never under circumstances where he had unsupervised access to the children. The State's evidence did not establish beyond a reasonable doubt that Perritt's statements were either false pretenses, as contemplated by the governing statute, or that they were intended to have the effect of defrauding DFS of child care moneys, as the meaning of the phrase "with intent to defraud" is contemplated by the governing statute.
[ ] Because we hold that the evidence was not sufficient in this regard, we need not further address other matters raised by Perritt with respect to the sufficiency of the evidence. However, because we reverse, the sentence, and the provisions for restitution, are also reversed. In this regard, we would be remiss if we did not comment that we would have been compelled to reverse the restitution portion of the sentence on the basis that the State did not prove "actual pecuniary damage resulting from the defendant's criminal activity." Wyo. Stat. Ann ยง 7-9-103(b) (LexisNexis 2005); Bush v. State, 2003 WY 156, -15, 79 P.3d 1178, 1183-85 (Wyo. 2003). Certainly we do not condone in any way Perritt's lack of candor or her attempt to ra
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