Hindering Secured Creditors

Facts:
James Doe (James) is a disabled veteran living on disability payments who had never defaulted on an auto loan prior to 2003. Discovery 13, 21. In April 2003, James Doe and his wife Jane Doe (Jane)—who was working as an assistant manager at Blockbuster Video, id.—purchased a van from Lake Country Auto Sales (the dealership) in James’s name. Id. at 21. After a few months, James and Jane had marital problems and separated. Jane stayed in Longview at 206 N. Lane Wells Dr., but James moved to Wood County. As part of their separation, Jane took the van and agreed to make the payments on it.

In December 2003, Jane had financial problems and ceased making payments on the van. Id. at 15. After three months of non-payment, the dealership received a check dated March 3, 2004. Id. at 25. The check was written in Jane’s handwriting but signed by James. Compare Jane’s Signature on id. at 18 and the writing on the check on id. at 25; compare also the checks signature on id. at 25 with the signature on the driver license on id. at 23. One month later, on April 12, 2004, the dealership sent a certified letter to 206 N. Lane Wells Dr. Jane received the letter and signed for it, even though James was living in Wood County at the time. Id. at 18. Jane called the dealership, notified it that James was living in the Lake Fork area, and gave it James’s pager number. Id. at 16. But even though it called the pager number Jane provided, the dealership never contacted James about the van or its demands that James pay the money he owed or return the van. Id.

The dealership reported the non-payment to the authorities, and a warrant was issued for James’s arrest. Id. at 6. On August 14, 2004, James was stopped for a traffic violation in Wood County and was arrested pursuant to the warrant. Id. at 3. But this was the first time James learned of the dealership’s request for him to return the van. And after his arrest, James returned the van to the dealership where he and his wife purchased it. The van was in good condition, and his obligation with the dealership was satisfied. Nevertheless, the Smith County District Attorney’s office has indicted James with Hindering Secured Creditors under Tex. Pen. Code Ann. § 32.33 (Vernon 2003).

The elements alleged in the indictment are

1. James Doe having therefore signed a security agreement

2. did conceal the van by failure to pay the part then due when payment was demanded and failure to deliver possession of secured property when return was demanded. (Actus Reus)

3. without the effective consent of Marie Womack

4. with the intent to hinder enforcement of the security agreement (Mens Rea).

The first and third elements do not pose any issues, but there are substantial issues concerning the second and fourth. I will address each in turn.

I. Actus Reus

Issue:

Did James conceal his van by failing to make on-time payments to satisfy his obligation under the security agreement between him and the dealership?

Short Answer:

No. To conceal property under section 32.33 of the Penal Code, (1) a person having signed a security agreement to obtain property must fail to make a payment on the security agreement; (2) the creditor must contact the person and request the return of the collateral property, and (3) the person, after having been contacted, must refuse to return the property or pay the money owed. See Anzaldua v. State, 696 S.W.2d 911, 912 (Tex. Crim. App. 1985); Montgomery v. State, 91 S.W.3d 426, 428, 430-31 (Tex. App.—Eastland 2002, pet. ref’d). James failed to make payments, but the dealership never contacted James to request that he make payments on the van or return the van. Rather, the dealership contacted James’s estranged wife, Jane, while James was living in another county. And the state has no evidence that James ever received the dealership’s requests. Because James never received the dealership’s request until after he was arrested, it was impossible for him to refuse to return the van because he did not know it was required of him.

Discussion:

For a person to be guilty of Hindering Secured Creditors under section 32.33 of the Penal Code, after signing a security agreement to obtain property, he must have “destroy[ed], remove[d] [taken the property out of State, Id. at § 32.33(a)(1)], conceal[ed], encumber[ed], or otherwise harm[ed] or reduce[ed] the value of the property.” Id. at § 32.33(b). James signed a security agreement to obtain a van and did not transfer the title of the car to his wife when they agreed that she would take it and make the payments for it. But James did not destroy the car, remove the car from the State, encumber the car, or harm it or reduce its value in any other way.

But the State alleges that James concealed the vehicle by failing to pay the part then due when payment was demanded and failing to deliver possession of the van when return was demanded. “Conceals” is not defined within the statute. In Anzaldua v. State, the Court of Criminal Appeals addressed the definition of “conceals” in the context of section 32.33 of the Penal Code. 696 S.W.2d 911, 912 (Tex. Crim. App. 1985). Anzaldua had borrowed money to purchase a weed eater, a lawnmower, a bicycle, and a ladder and used them as security for the loan. Id. at 911. Anzaldua defaulted on the loan, and his lender contacted him personally and demanded that he return the property. Id. Anzaldua refused. Id. He was charged by an information which alleged he concealed the property “by refusing to return [it].” Id. The Court of Criminal Appeals held that merely refusing to return collateral property upon the demand of the creditor is not “concealing” the property. Id. at 912. Rather, the refusal to return the property must harm the value of the property in some way for it to constitute “concealing” the property. Id. Therefore, the information failed to charge Anzaldua with an offense, and the case was dismissed. Id.

The recent case of Montgomery v. State further clarifies the definition of “conceal,” even though the court did not explicitly address it. See generally 91 S.W.3d 426 (Tex. App.—Eastland 2002, pet. ref’d). Montgomery obtained two loans, one for $20,500 secured by three cars and another for $38,000 secured by another six cars. Id. at 428. Montgomery defaulted on the loans, and when his lender contacted him personally and requested the return of the property, he refused to do so. Id. Montgomery was convicted, and the court upheld his conviction. Id. at 432. Like Anzaldua, Montgomery failed to return the property when his lender demanded its return, but unlike Anzaldua, the State proved the requisite “harm” to the value of the property to satisfy that he concealed the vehicles; that is, the failure to pay on-time harms the value of the property secured by a lien. Id. at 430-32.

Therefore, to conceal under section 32.33 of the Penal Code (1) a person having signed a security agreement to obtain property must fail to make a payment on the security agreement; (2) the creditor must contact the person and request the return of the collateral property, and (3) the person, after having been contacted, must refuse to return the property or pay the money owed. See Anzaldua v. State, 696 S.W.2d 911, 912 (Tex. Crim. App. 1985); Montgomery v. State, 91 S.W.3d 426, 428, 430-31 (Tex. App.—Eastland 2002, pet. ref’d).

Applying this definition of “conceal” to James’s situation, James did not “conceal” the van. He signed a security agreement when he purchased the vehicle, and like Anzaldua and Montgomery, he stopped paying for the van. But unlike Anzaldua and Montgomery, James never received the dealership’s request that he pay for the van or return it to the dealership. And the State has no evidence that he did (The certified letter was received and signed for by Jane who then called the dealership to inform them that James was living in Wood County, and the dealership never contacted James personally. Discovery 16, 18.) Because he did not receive the dealership’s request, James could not refuse to return the van or pay the money owed. It is impossible to refuse to do something without knowing someone asks you or requires you to do it.

Therefore, James did fail to make payments on the van, but he did not refuse to return the van or pay for it because he never knew it was required of him. And James did not “conceal” the van for purposes of section 32.33 of the Texas Penal Code.

II. Mens Rea

Issue:

Did James intend to hinder the enforcement of the lien on the van when he failed to make on-time payments to satisfy his obligation under the security agreement?

Short Answer:

No. Considering the facts surrounding James’s failure to pay on the security agreement, no rational trier of fact could find that he intended to hinder the enforcement of the security agreement on the van. Although the loan, which was in James’s name, was in default for several months and the van was not returned after the dealership requested it(1) James was not in possession of the van; (2) James did not drive the van during the time when Jane stopped paying for it; (3) when the dealership requested the return of the van, James was living in a different county than where the van was located; (4) James did not know Jane was not paying for the van until after he was arrested; (5) James did not know the dealership had requested that he return the van; (6) once James was arrested and learned the dealership had requested the return of the van, James returned the van to the dealership, and (7) like Bellamy, James fully cooperated with law enforcement and the demands of the dealership after his arrest.

Discussion:

Even if the court rejects James’s Actus Reus argument, James did not have the Mens Rea to have violated section 32.33 of the Penal Code. For him to be guilty of Hindering Secured Creditors under section 32.33 of the Penal Code, James must have acted with the intent to hinder the enforcement of the lien on his van when he failed to make on-time payments to satisfy his obligation under the security agreement. Tex. Pen. Code Ann. § 32.33(b). A person acts with intent to hinder the enforcement of the lien on his vehicle “when it is his conscious objective or desire to engage [in the concealment of property subject to a security agreement].” Id. at § 6.03(a). The State’s only evidence that James intended to hinder the enforcement of the lien on his vehicle is that he failed to make on-time payments for the van which was in his name. But James stopped making payments on the van when he and Jane separated. But it was not his conscious objective or desire that Jane also stop paying for the van. Instead, his conscious objective was for Jane to fulfill her promise to make regular, on-time payments in exchange for the use of the van. This was reasonable because Jane had a job working for Blockbuster Video. From the time of James and Jane’s separation to the time of his arrest, James had no reason to believe Jane was having problems making payments.

And James’s state of mind is evident in the facts surrounding this occurrence: (1) James was not in possession of the van; (2) James did not drive the van during the time when Jane stopped paying for it; (3) when the dealership requested the return of the van, James was living in a different county than where the van was located; (4) James did not know Jane was not paying for the van until after he was arrested; (5) James did not know the dealership had requested that he return the van; (6) once James was arrested and learned the dealership had requested the return of the van, James returned the van to the dealership, and (7) like Bellamy, James fully cooperated with law enforcement and the demands of the dealership after his arrest.

James did nothing to keep the dealership from enforcing its rights under the security agreement and did not intend to hinder its enforcement.

But the State will point out that the section 32.33 of the Penal Code allows a presumption that when a person fails to pay on a security agreement, it is presumed he acted with the intent to hinder the enforcement of the security agreement. Tex. Pen. Code Ann. § 32.33(c)(1). As long as a presumption in a criminal statute allows the trier of fact to accept or reject it, it is constitutional. Court of Ulster v. Allen, 442 U.S. 140, 157 (1979). But a statutorily created presumption does not relieve the State of proving an element of a crime beyond a reasonable doubt. Allen, 442 U.S. at 157; Willis v. State, 790 S.W.2d 307, 309-10 (Tex. Crim. App. 1990). And the fact finder must know it is free to accept or reject the presumption. Allen, 442 U.S. at 157; Tex. Pen. Code Ann. § 2.05(a)(2)(B); Willis, 790 S.W.2d at 310. In the present case, James failed to pay on the security agreement which was created when he purchased the van. And because he failed to pay on the security agreement, the presumption arises that he intended to hinder the enforcement of the lien on the van.

But a defendant can challenge the validity of a presumption as it applies to his individual circumstances. Willis, 790 S.W.2d at 311; Bellamy v. State, 742 S.W.2d 677, 684 (Tex. Crim. App. 1987). A presumption is invalid as applied to a defendant “if, under the facts of the case, there is no rational way the trier [of fact] could make the connection permitted by the inference.” Allen, 442 U.S. at 157; Willis, 790 S.W.2d at 311.

In Bellamy v. State, Bellamy was a professor at Stephen F. Austin University who also dealt in secondhand jewelry and silverware. 742 S.W.2d at 679. As he dealt in jewelry, a seventeen-year-old boy who had a continuing relationship with Bellamy as a seller of gold and silver items sold Bellamy property which the boy had taken in the course of a burglary. Id. at 680. Bellamy did not know the property was stolen. Id. at 684. Bellamy was charged with theft for having purchased stolen property knowing it was stolen. Id. at 678. The statute under which Bellamy was charged created a presumption that a person engaged in the business of buying and selling secondhand property knowingly purchases stolen property if at the time of the purchase, he fails to record the name, address, and physical description of the person selling him the property. Id. at 678 n.1. And using this presumption to prove Bellamy’s mental state, the State prevailed in convicting him. Id. at 678. The Court of Criminal Appeals enumerated the facts in favor of the presumption: The young man selling the property may have been too young to be selling the amounts of gold and silver to Bellamy as he did; Bellamy had equipment for the melting down of gold and silver, and Bellamy taught the boy about how to identify different grades of gold and silver. Id. at 680. But the court also listed the factors weighing against the presumption: Only a small portion of Bellamy’s gold and silver, two rings, was actually stolen property; Bellamy cooperated fully with the police, and Bellamy was paying a reasonable amount for the gold and silver he was purchasing. Id. at 681. Weighing these factors, the Court of Criminal Appeals held there was no rational way for a trier of fact could use the presumption to find Bellamy knowingly purchased stolen property beyond a reasonable doubt. Id. at 684.

And there is no rational way a trier of fact could find James intended to hinder the enforcement of the security agreement beyond a reasonable doubt. Although there are few similarities between Bellamy and James, it is possible to weigh the facts for and against the presumption that James intended to hinder the enforcement of the security on the van. The facts weighing in favor of the presumption are (1) the loan, which was in James’s name, was in default for several months, and (2) the van was not returned after the dealership requested it. The facts weighing against the presumption are (1) James was not in possession of the van; (2) James did not drive the van during the time when Jane stopped paying for it; (3) when the dealership requested the return of the van, James was living in a different county than where the van was located; (4) James did not know Jane was not paying for the van until after he was arrested; (5) James did not know the dealership had requested that he return the van; (6) once James was arrested and learned the dealership had requested the return of the van, James returned the van to the dealership, and (7) like Bellamy, James fully cooperated with law enforcement and the demands of the dealership after his arrest.

Weighing these facts, the facts opposing the presumption that James intended to hinder the enforcement of the security agreement which arose because he had not made on-time payments outweigh the facts supporting it. James had no motive to hinder the enforcement of the security agreement because he was receiving no benefit from it. And it is unlikely that James even cared whether Jane kept or lost the van. It was his estranged wife, Jane, who would have had a motive to prevent the van from being repossessed: She possessed the van and drove it. But Jane did not sign the security agreement and cannot be prosecuted.

Therefore, no rational trier of fact could rationally find James intended to hinder the enforcement of a security agreement beyond a reasonable doubt simply because he failed to make regular, on-time payments on it. And the presumption contained in section 32.33 of the Penal Code as applied to James is invalid.