Appeal from the Superior Court, Third Judicial District, Kenai, Peter G. Ashman, Judge. Trial Court No. 3KN-09-1800 CR
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]
A jury found Edward Gaylord Byford Jr. guilty of three offenses: scheme to defraud, first-degree theft (by deception), and deceptive business practices.  The superior court merged these three verdicts into one conviction (for scheme to defraud), and the court then sentenced Byford to 6 years' imprisonment with 3 years suspended.
In this appeal, Byford argues that there was insufficient evidence to support the jury's verdict on the charge of deceptive business practices. Byford also challenges the jury's verdict on the scheme to defraud charge. The statute defining this crime encompasses (1) schemes to defraud five or more persons and (2) schemes to fraudulently obtain $10, 000 or more. Byford's trial judge told the jurors that they did not have to be unanimous as to which of these theories the State had proved, and Byford contends that this was error. For the reasons explained in this opinion, we conclude that there is no merit to these claims.
Byford also challenges his sentence. First, he contends that the superior court improperly found two aggravating factors: that Byford's conduct was among the most serious encompassed by the charging statutes, and that Byford's conduct was designed to obtain substantial financial gain while running only a slight risk of prosecution. Second, he contends that his sentence - 3 years to serve - is excessive. For the reasons explained in this opinion, we uphold Byford's sentence.
In addition, the State has filed a cross-appeal, challenging the superior court's decision to merge the three jury verdicts into a single conviction. For the reasons explained here, we agree with the State that Byford should have received a separate conviction and sentence for the crime of deceptive business practices.
Byford was charged with scheme to defraud, and a related count of first-degree theft by deception, for defrauding nine people over the course of two and a half years (between October 2004 and February 2007) - by promising to build log homes for these people, and by asking them to pay him a substantial portion of the money up front, but then never building the houses, and never refunding the money. All told, Byford's victims paid him hundreds of thousands of dollars for buildings that never materialized.
Byford was also charged with a separate count of deceptive business practices. This charge was based on the allegation that, in 2009, Byford established and maintained a website under the name of his company, "Prefab Log Homes". This website advertised Byford as a builder of log homes, and it displayed photographs of log cabins that he purportedly had built. However, these cabins had in fact been built by other people - not Byford or his company.
The sufficiency of the evidence to support the jury's verdict on the deceptive business practices charge
Byford contends that the evidence presented at his trial was insufficient to support the jury's finding that he was guilty of the deceptive business practices charge. Byford concedes that his company's website was deceptive - that it would lead people to falsely believe that Byford's company had built the log cabins depicted in the photographs. But Byford argues that the evidence showed that the deceptive website was set up by his girlfriend (whom he employed as his bookkeeper). Byford contends that the State failed to show that he personally participated in establishing the website, or that he personally condoned the website's contents.
When a defendant challenges the sufficiency of the evidence to support a criminal conviction, this Court assesses the evidence (and all reasonable inferences to be drawn from it) in the light most favorable to the jury's verdict, and we then determine whether this evidence would be sufficient to convince reasonable jurors that the State had proved the charge beyond a reasonable doubt. 
Here, the evidence showed that Byford was the president of Prefab Log Homes, and that the website in question falsely purported to display examples of cabins built by Prefab Log Homes.
According to the evidence, two people worked directly on the website: Seth Crosby, a web developer and designer, and Lorraine Woitel, who was both Byford's girlfriend and the bookkeeper of Prefab Log Homes.
Crosby testified that when he designed the website for Prefab Log Homes, he worked primarily with Woitel, and it was Woitel who gave him the photographs that were used on the website.
Crosby recalled that he participated in three to five meetings with Woitel, and that Byford was present for two of these meetings. With regard to these two meetings where Byford was present, Crosby testified that Byford actively participated in one of them. With regard to the other meeting, Crosby acknowledged that Byford did not take an active role in the discussion, but Byford sat near to Crosby and Woitel (at a second desk), and he could hear their entire discussion. It was during this second meeting that Crosby and Woitel actively discussed the content to be included on the website.
From this evidence, the jurors could reasonably infer that even if Byford did not actively participate in the second meeting, he was following the discussion, he was aware of the photographs that Woitel provided to Crosby for the website, and he was aware that he had not built the cabins depicted in those photographs.
These inferences were circumstantially bolstered by other evidence in the case - evidence showing that, on at least four occasions, Byford personally engaged in similar face-to-face deception of customers. According to this evidence, Byford had prospective customers go and view log buildings in the area - to convince these people to sign contracts with Byford and give him partial payments up front. Byford falsely claimed to have built these log houses when, in fact, the houses were built by other contractors.
We acknowledge that the evidence was conflicting on the question of who was responsible for the content of the website. In particular, Woitel took the stand and claimed total responsibility for the website's contents. But the question is whether the jury's verdict is adequately supported if the evidence is viewed in the light most favorable to that verdict. In other words, could the jurors reasonably reject Woitel's exculpatory testimony? Given the evidentiary record as a whole, we conclude that reasonable jurors could reject this testimony and could find, instead, that Byford was aware of the website's deceptive contents.
For these reasons, we conclude that the evidence is sufficient to support the jury's verdict on the deceptive business practices charge.
Whether the jurors were required to reach unanimous agreement as to whether Byford's scheme was designed (1) to defraud five or more people or (2) to fraudulently obtain $10, 000 or more
The offense of scheme to defraud is defined in A S 11.46.600(a). Under this statute, a person commits the crime of scheme to defraud if the person "engages in conduct constituting a scheme":
(1) to defraud five or more persons or to obtain property or services from five or more persons by false or fraudulent pretense, representation, or promise ...; or
(2)to defraud one or more persons of $10, 000 or to obtain $10, 000 or more from one or more persons by false or fraudulent pretense, representation, or promise ...and if the person "obtains ...