Cole v. State
| Decision Date | 20 June 1991 |
| Docket Number | No. A91A0612,A91A0612 |
| Parties | COLE v. The STATE. |
| Court | Georgia Court of Appeals |
Word & Flinn, Gerald P. Word, John W. Kilgo, for appellant.
William G. Hamrick, Jr., Dist. Atty., George F. Hutchinson III, Asst. Dist. Atty., for appellee.
Lurlie Cole was indicted on 16 counts of felony and misdemeanor theft by conversion. She was convicted of one felony count and five misdemeanor counts, and she appeals from the judgment and sentence thereon.
1. Appellant enumerates the general grounds as to Count II of the indictment regarding the conversion of the funds of Carrollton Medical Supply, Inc. (CMS) to her personal use in the purchase of a metal desk. Evidence was adduced that from April 1988 until October 1989, when she was fired, appellant was the office manager of CMS and had the authority to write checks on CMS's bank account for amounts up to $1,000. The State introduced an invoice from Riddle Office Products billed to CMS's account, authenticated by CMS's current office manager, Marilyn Manus, reflecting the June 22, 1989, sale of a metal desk. John Goza, a Riddle employee, testified he placed the desk on CMS's account on appellant's instruction and delivered the desk himself the next day to appellant's home. He testified that appellant told him she was doing work at home and needed the desk there. Appellant testified that she had the desk delivered to her home because there was no place to put it at CMS's office at the time and the sale price would have expired before CMS had relocated to its new office.
However, Tina Williams, a CMS employee from March to September 1989, testified that neither appellant nor any other employee at CMS got a new desk in the time she was there, including the period before and after the business relocated in late August. Manus, who has worked continuously at CMS since July 1989, also testified that no new desk has been delivered to CMS while she has worked there, including the period after appellant was fired. Although appellant places great emphasis upon the testimony of Goza about what desks he observed at CMS shortly before trial, it appears that while he saw there a desk of the same type as the one he delivered to appellant, due to the lack of identification numbers he could not say it was the same desk.
We find the evidence sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of theft by conversion of CMS funds for the purchase of a desk for herself under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Exley v. State, 180 Ga.App. 821-823(1), 350 S.E.2d 829 (1986).
2. Appellant contends the evidence was not sufficient to authorize her convictions on three counts regarding three CMS checks she issued to a fictitious employee called "Jan Pate." The checks all bore the endorsement of "Jan Pate"; appellant had co-endorsed one check. Several CMS employees working at CMS during the time frame in which appellant wrote the checks testified that no Jan Pate ever worked for CMS and that the business was small enough (five employees) that a new employee would have been noticed. Witnesses also testified that CMS used a rug cleaning service and that payment for that service was made out of the petty cash account. An acquaintance of appellant's, named Jan Pate, testified that she had applied to CMS for a job, but that she was not hired and never received any checks from CMS. Pate also testified she had lived in the Carrollton area for 24 years and had heard of no other woman in the area with her same name. Appellant testified that she made the checks out to another Jan Pate, whom appellant claimed had cleaned carpets for CMS.
" Rayburn v. State, 194 Ga.App. 676(1), 391 S.E.2d 780 (1990). Given the evidence adduced regarding how CMS operates and the number of its employees, plus the testimony of the other CMS employees contradicting appellant's testimony that a Jan Pate had worked for or cleaned carpets for CMS, we do not agree with appellant that the State was required to prove that it was impossible for the checks to have been written to another Jan Pate before the jury could have found she was guilty beyond a reasonable doubt under the standard set forth in Jackson, supra. We find that a rational trier of fact could reasonably have found proof of appellant's guilt beyond a reasonable doubt. Id.; Exley, supra.
3. In regard to the felony theft by conversion count, appellant asserts that the State failed to prove that she acted with criminal intent when she issued a check for $538 on CMS's account to pay Universal Discount Furniture (UDF) for various pieces of furniture for her own home. The State presented direct evidence that appellant wrote a check on CMS's account to UDF for $538 to pay on her personal account there for furniture she had purchased for her home. The State also presented evidence that UDF had initiated legal proceedings to collect on the account and that appellant had been served in that action approximately a month before UDF received the $538 check. A partner in CMS at the time of this transaction testified that appellant was not authorized to use CMS funds for personal matters.
Appellant admitted writing the check but testified that because she had personally paid for items needed by CMS while the business was relocating, rather than repaying herself directly by issuing a check in her own name for these sums, she reimbursed herself indirectly by paying UDF for the furniture with CMS funds. She testified that she saved the receipts for the purchases and had attached the receipts to UDF's paid invoice file at CMS. Appellant called the CMS employee...
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