Howard v. State

• Decision Date: 09 September 1988
• Docket Number: 86-238,Nos. 86-237,s. 86-237
• Citation: 762 P.2d 28
• Parties: Edith HOWARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) (Two Cases).
• Court: Wyoming Supreme Court

Page 28

762 P.2d 28

Edith HOWARD, Appellant (Defendant), v.The STATE of Wyoming, Appellee (Plaintiff)(Two Cases).

Nos. 86-237, 86-238.

Supreme Court of Wyoming.

Sept. 9, 1988^*.

Dissenting Opinion Sept. 23, 1988.

Rehearing Denied Nov. 8, 1988.

Ronald L. Brown of Ronald L. Brown, Attorney at Law, P.C., and Burton W. Guetz, of Burton W. Guetz, Attorney at Law, P.C., Casper, for appellant.

Joseph B. Meyer, Atty. Gen. John W. Renneisen, Deputy Atty. Gen., and Karen A. Byrne, Asst. Atty. Gen., for appellee.

Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, J., Retired.^**

URBIGKIT, Justice.

AppellantEdith Howard, Natrona County Treasurer, was charged with embezzlement and presenting false vouchers in two separate informations of ten counts, and convicted of one count of embezzlement, one count of larceny, one count of failure to account, and three counts of submitting false vouchers.We affirm in part and reverse in part with minimal effect since the sentences provided concurrent penal confinement.

I.FACTS

Howard, while in office as County Treasurer, was charged in the two separate informations with having failed to account for some funds collected by her office, converting some of those funds to her own use, and submitting false vouchers for the purchase of a battery and for out-of-town travel.While some of the money may have come from miscellaneous lien searches, the large part came from either postage fees or county charges for repayment of insufficient-fund checks.Two special-fund handling arrangements had permitted these funds to be separately received, retained, and used without the utilization of a proper accounting system.

As County Treasurer, Howard established a system allowing purchase of license plates by mail.During the time when new tabs for auto licenses were used, the County would pay the mailing postage; however, when actual plates were mailed, the County required postage reimbursement, and these payments were converted to cash in the County Treasurer's office.Another cash system was established in 1981 for collection of fees for insufficient-funds checks ranging from $5 to $20 for each bad check.When the County residents who had written uncleared checks covered their obligations, the County would also back-charge the bad-check fee, in addition to the check amount, as a collection expense.Although all monies received by the County were supposed to be written up and handled as miscellaneous receipts, it became obvious upon audit that postage and bad-check monies were neither properly recorded nor deposited.

Generally these funds were collected in cash, and if not in cash, converted into cash by the office employees, and then at some time given to Howard.Some amounts were expended for office postage without any office vouchering or record-keeping procedure.Unfortunately for Howard and unknown to her, one of the two primarily involved deputies who generally processed some of the money maintained records of what had been given to Howard by entry in a "green book" ledger.Another employee also retained a portion of the total funds as periodically used for office expenditures.The remaining cash balance was delivered to Howard upon retirement of that employee.

Prosecution was based upon an extended CPA audit analysis.A convoluted, confused, and inexact receipt-and-expenditure process without following any normalized governmental budgetary-expenditure system was found by the auditors to have been the process used in the office to handle these specialized receipts.

II.CHARGES

Following the audit and resulting investigation, Howard was charged in Criminal Action InformationNo. 9691:

Count I: On or about December 27, 1982 to March, 1983, Howard failed to account for $16,037.64 in violation of W.S. 6-7-306(now W.S. 6-5-111, 1983 Replacement, effective July 1, 1983).Convicted and sentenced 18 to 36 months confinement.

Count II: On or about December 27, 1982 to March, 1983, Howard converted to her own use $7,037.64 in violation of W.S. 6-7-305(now W.S. 6-5-109, 1983 Replacement, effective July 1, 1983).Acquitted.

Count III: On or about July 2, 1984 through July 30, 1984, Howard converted to her own use $3,420.79 in violation of W.S. 6-3-402(b)(1983 Replacement).Convicted and sentenced 18 to 36 months; fined $7,500; and ordered to pay restitution of $3,420.79.

Count IV: On or about April 23, 1984 through July 30, 1984, Howard failed to account for $4,343.79 in violation of W.S 6-5-111(1983 Replacement).Convicted and sentenced 12 to 18 months.¹

Count V: On or about March 1, 1983, Howard submitted a false claim or voucher of $61.20 for a battery in violation of W.S. 6-8-102(now W.S. 6-5-303, 1983 Replacement).Convicted and sentenced 12 to 18 months with restitution of $61.20.

Criminal Action InformationNo. 9692 charged:

Count I: On or about January 17-24, 1985, Howard submitted a false voucher for $1,089.58 in violation of W.S. 6-5-303(b)(1983 Replacement).Acquitted.

Count II: On or about February 11-28, 1985, Howard submitted a false voucher for $505.25 in violation of W.S. 6-5-303(b)(1983 Replacement).Convicted and sentenced 12 to 18 months with restitution of $505.25.

Count III: On or about March 8-21, 1985, Howard submitted a false voucher for $388.43 in violation of W.S. 6-5-303(b)(1983 Replacement).Convicted and sentenced 12 to 18 months with restitution of $388.43.

Count IV: On or about April 12-23, 1985, Howard submitted a false voucher for $273.59 in violation of W.S. 6-5-303(b)(1983 Replacement).Acquitted.

Count V: On or about May 16, 1985, Howard submitted a false voucher for $863.11 in violation of W.S. 6-5-303(b)(1983 Replacement).Acquitted.

Howard was convicted of six counts consisting of three counts of failure to account-embezzlement, and three counts of submitting false vouchers.All confinement sentences were to be served concurrently.We affirm five convictions and reverse one.

III.ISSUES ON APPEAL

Although ordered differently than presented by Howard, the issues on appeal are:

1.Error in not requiring the State to elect between Counts I and II, and between Counts III and IV of InformationNo. 9691, or otherwise declare a merger of the offenses.

2.Error by permitting joinder of all ten counts.

3.Counts I, II, III, and IV of InformationNo. 9691 should have been joined in one count.

4.Insufficient evidence to support conviction and judgment:

(a) Proving a demand was made upon Howard as required to sustain a conviction under Counts I and IV of InformationNo. 9691.

(b) For submitting a false voucher, Count V, InformationNo. 9691(battery purchase).

(c) For submitting false vouchers, Counts II and III, InformationNo. 9692(Denver trips).

IV.MERGER, MULTIPLICITY AND DOUBLE JEOPARDY

Howard contends the double-jeopardy clauses of the United States Constitution and the Wyoming Constitution were violated in denying merger of Count I with Count II and Count III with Count IV.Because Howard was acquitted of Count II, this analysis deals only with Howard's argument about merger of Count III and Count IV.We agree.

The double-jeopardy provision in the Fifth Amendment of the United States Constitution, reads, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."The double-jeopardy provision of Wyo. Const. art. 1, § 11 reads, "nor shall any person be twice put in jeopardy for the same offense."In addition, equal protection is provided by Wyo. Const. art. 1, § 11:

No person shall be compelled to testify against himself in any criminal case, nor shall any person be twice put in jeopardy for the same offense.If a jury disagree, or if the judgment be arrested after a verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.

"The double jeopardy clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment."Birr v. State, 744 P.2d 1117, 1119(Wyo.1987)(citingBenton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707(1969)).The clause extends its protections to prohibit a second prosecution for the same offense after acquittal, to prohibit a second prosecution for the same offense after conviction, and to prohibit multiple punishment for the same offense.North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656(1969).It is the third protection that is implicated here.

The ban on double jeopardy has its roots deep in the history of occidental jurisprudence."Fears and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization."

Id. at 733, 89 S.Ct. at 2093, Douglas, J., concurring (quotingBartkus v. People of the State of Illinois, 359 U.S. 121, 151-55, 79 S.Ct. 676, 695-97, 3 L.Ed.2d 684, reh. denied360 U.S. 907, 79 S.Ct. 1283, 3 L.Ed.2d 1258(1959), Black, J., dissenting).Society has more than a legitimate interest in assuring that the government does not violate the rights of its individual citizens and in preventing abusive postures by the government as seen in King v. United States, 69 App.D.C. 10, 98 F.2d 291(D.C.Cir.1938).

"The Government's brief suggests, in the vein of The Mikado, that because the first sentence was void appellant'has served no sentence but has merely spent time in the penitentiary;' that since he should not have been imprisoned as he was, he was not imprisoned at all."

North Carolina, 395 U.S. at 721, n. 17, 89 S.Ct. at 2078-79, n. 17(quotingKing, 98 F.2d at 293-94).

The prohibition against double jeopardy when an information charges a single offense in several counts is often termed multiplicity.C. Wright, Federal Practice and Procedure: Criminal2d § 142 at 469(1982).SeeUnited States v. Kimberlin, 781 F.2d 1247, 1252-55(7th Cir.1985), cert. denied479 U.S. 938, 107 S.Ct. 419, 93 L.Ed.2d 370(1986).The multiplicity doctrine is based upon the...