Andreasen v. State

• Decision Date: 14 June 1983
• Docket Number: No. 81-955,81-955
• Citation: 439 So.2d 226
• Parties: Lou Ann ANDREASEN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 226

439 So.2d 226

Lou Ann ANDREASEN, Appellant, v. The STATE of Florida, Appellee.

No. 81-955.

District Court of Appeal of Florida,

Third District.

June 14, 1983.

Rehearing Denied Nov. 9, 1983.

Highsmith & Strauss and Philip Glatzer, Miami, for appellant.

Jim Smith, Atty. Gen., for appellee.

Before HENDRY, NESBITT and FERGUSON, JJ.

PER CURIAM.

This appeal is from a conviction after trial by jury on charges of grand theft.

The information alleges that defendant, in her capacity as Finance Director for the City of Opa Locka, between May 4, 1979 and October 19, 1979, permanently deprived the city of cash, having a value of at least $100 but less than $20,000, in violation of Section 812.014, Florida Statutes (1981).

Procedurally, appellant was given a flawless trial. The challenges in this appeal go only to the sufficiency of the evidence to support the jury verdict. The issue as framed by appellant is whether the court erred by denying her motions for judgment of acquittal and for a new trial. The grounds for the motions, as further stated, were (1) the evidence at trial was insufficient to establish the corpus delicti of grand theft, and (2) the state's case, based entirely on circumstantial evidence, failed to exclude every reasonable hypothesis consistent with innocence.

A detailed recitation of the facts is unnecessary; suffice it to say that the evidence of guilt pointed to the defendant to the exclusion of any other city employee. The state proved that the defendant had access to certain cash which was sent to her as Finance Director from the Department of Utilities; that instead of depositing the cash into appropriate accounts at Coral Gables Federal Savings and Loan Association, she diverted it elsewhere and then attempted to "cover-up" the missing cash by depositing into the Coral Gables Federal account four checks totalling $16,000 from the Clerk of the Circuit and County Courts of Dade County, which should have been deposited into an account at Florida National Bank; that she then improperly deposited seven other checks totalling approximately $16,000 into the account at Florida National Bank to cover the $16,000 in circuit and county court checks. Appellant's statements that she did not make certain improper deposits, was not present at work on the date of another questioned deposit, and had acted on the instructions of the city manager with reference to the handling of other receipts, were shown to be false testimony. The task of making bank deposits had formerly been that of the Opa Locka Police Department, but this practice was discontinued by appellant who then undertook to make the deposits herself.

The testimony came from a certified public accountant who audited the city's financial records for the period in question, a state investigative accountant, and defendant's co-workers. The investigative accountant testified that, based on defendant's financial records which had been made available to him, her bank deposits and expenditures exceeded her salary earned during the same period by over $7,000. What proved to be the most damaging testimony to defendant was her own explanation of how she came to spend, during the period of the offense, more than she had earned. On direct examination she testified that she had received a $15,000 insurance settlement during the year. On cross-examination it was established that the proceeds from the insurance award were not paid until after the dates of her ostentatious cash expenditures.

The argument made here is similar to one rejected by the supreme court in Tibbits v. State, 146 Fla. 69, 200 So. 373, 374 (1941) where it was held:

[Defendant's] explanation ... was evidently not believed by the jury. They chose to believe that he appropriated ... money belonging to the City and sought to veil his criminal conduct behind an alleged ... situation ... which allowed unknown persons an opportunity to steal the money without his knowledge. [cite omitted]. Circumstantial evidence is relied on by the state to prove that the appellant converted the allegedly embezzled funds to his own use...

The evidence submitted to the jury in regard to the financial condition of the appellant, his salary or income and his financial obligations, together with the testimony of all the witnesses, was sufficient, if the jury believed it, to sustain the verdict.

The court properly denied appellant's motion for acquittal made at the conclusion of the state's case. A defendant in a criminal prosecution, moving for a directed verdict of acquittal, admits facts in evidence adduced and every conclusion favorable to the state fairly and reasonably inferable therefrom. Victor v. State, 141 Fla. 508, 193 So. 762 (1939); Weldon v. State, 287 So.2d 133 (Fla. 3d DCA 1973), appeal dismissed, 298 So.2d 419 (Fla.1974); Dancy v. State, 284 So.2d 452 (Fla. 3d DCA 1973); Dixon v. State, 180 So.2d 681 (Fla. 2d DCA 1965), cert. dismissed, 188 So.2d 318 (Fla.), appeal dismissed, 188 So.2d 810 (Fla.1966). The test to be applied in reviewing the denial of a motion for acquittal is whether the jury might reasonably conclude that the evidence, assuming all of it to be true, fails to exclude every reasonable hypothesis but that of guilt. Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974). The trial court's determination that there was sufficient evidence upon which a jury could find the defendant guilty is supported by the record. See Adams v. State, 138 Fla. 206, 189 So. 392 (1939). Further, the defendant's false exculpatory statements, when considered as substantive evidence, as is permitted, see, e.g., United States ex rel. Royster v. McMann, 292 F.Supp. 116 (E.D.N.Y.1968), aff'd, 433 F.2d 1013 (2d Cir.1970); Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); Mackiewicz v. State, 114 So.2d 684 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960); Brown v. State, 391 So.2d 729 (Fla. 3d DCA 1980), established guilt by overwhelming evidence.

The contention that the evidence at trial was insufficient to establish the corpus delicti of grand theft is without merit.

Affirmed.

HENDRY, Judge, dissenting.

I must respectfully dissent. At trial, the state offered evidence to show that Lou Ann Andreasen was Finance Director of the City of Opa Locka during the period in which the alleged crime was committed; that she had access to certain cash money which was sent to the City's Department of Finance from the Department of Utilities; that Lou Ann Andreasen from May, 1979 through October, 1979, stole cash money from the City in lieu of depositing it into the appropriate accounts at the Coral Gables Federal Savings and Loan Association, and then attempted to "cover up" the missing cash by depositing four checks totalling approximately $16,000 which had been received by the City from the office of Richard P. Brinker, Clerk of the Circuit and County Courts, Dade County, Florida, into the Coral Gables Federal account where the cash money from the Department of Utilities was supposed to be deposited; and that she then attempted to cover up the missing Brinker checks by depositing seven other checks totalling approximately $16,000 into the City's bank account at Florida National Bank where the Brinker checks were supposed to be deposited.

The state called as an expert witness Joseph Shore, C.P.A., who testified that after auditing the City's financial records for the fiscal year 1978-1979, he discovered that approximately $44,000 was "unaccounted for". Homer Cline, the state's investigative accountant, testified, over the objection of counsel for the appellant, that his review of the City's financial records for the fiscal year 1978-1979 revealed that an amount of cash money in excess of $16,000 was never deposited into the City's bank accounts.

The state also presented testimony of co-workers of the appellant at the Department of Finance. Their testimony showed that they had the same access to the cash and checks as did the appellant. Cash and checks were held in the safe, sometimes for periods of a week or more, before deposits were made. The safe was kept unlocked during the day and was accessible to all employees of the department.

Mr. Cline testified from the limited financial records pertaining to the appellant that he had determined, based upon deposits in her bank account, that she had deposited and/or expended approximately $7,000 more than she had received from her salary during the period of the alleged crime.

At the conclusion of the state's case, counsel for appellant moved the trial court for a judgment of acquittal on the grounds that the state had failed to establish the corpus delicti of the crime of grand theft and that in its purely circumstantial case against the defendant the state had failed to exclude every reasonable hypothesis consistent with her innocence because there was evidence showing that other persons could have stolen the funds she was charged with stealing. The motion for judgment of acquittal was denied.

The defendant put on her defense wherein testimony from bank personnel was adduced showing that other department employees, as well as the defendant, made bank deposits for the City at both banks during the period in which the alleged crime was committed.

The defendant took the stand and testified that she did not steal any money from the City of Opa Locka. She and other witnesses on her behalf explained the sources of income which she had in excess of her salary during the period in question. Specifically, the defendant testified that she had been repaid a family obligation by her brother of some $2,500, that she had deposited an insurance reimbursement check for her daughter's hospitalization of approximately $1,000, that her ex-husband had sent her money to buy a car and make car and insurance payments (her ex-husband also testified), and that both her son and his friend...