Palmer v. State, 75956

• Decision Date: 06 April 1988
• Docket Number: No. 75956,75956
• Citation: 369 S.E.2d 38,186 Ga.App. 892
• Parties: PALMER v. The STATE.
• Court: Georgia Court of Appeals

Page 38

369 S.E.2d 38

186 Ga.App. 892

PALMER v. The STATE.

No. 75956.

Court of Appeals of Georgia.

April 6, 1988.

Rehearing Denied April 25, 1988.

Certiorari Denied June 1, 1988.

William Rhymer, Winder, Ellen Gettinger, Decatur, for appellant.

Timothy G. Madison, Dist. Atty., T. David Motes, Deborah Wilbanks, Asst. Dist. Attys., for appellee.

BIRDSONG, Chief Judge.

Appellant was convicted of theft of more than $500 from the Barrow County Probate Court between the period of April 1, 1985, and April 28, 1986. She appeals her conviction asserting six errors.

The probate court books were subjected to a general audit periodically. During this audit, the amount of money deposited in the bank by the office was balanced against the amount of money taken in by the office as documented in the office's cash receipt journal. Random checks were made of other files in the probate court to be sure that the amount of money associated with actual tickets received had been duly recorded in the cash receipt journal. The general audits revealed no discrepancies.

In April 1986, Judge Cape noticed that the ticket files appeared to contain a large number of tickets compared to the number of entries for the month contained in the cash receipt journal. Judge Cape made a cursory comparison between the amount of fines that should have been collected (based on the number of tickets actually received) and the amount of cash that should have been available for deposit in the bank (based on the receipts issued from and entries recorded in the cash receipt journal). The result of this comparison revealed a suspected $800 shortage. Judge Cape suspended the appellant from office duties. The day she was suspended, the appellant made two large cash deposits in the bank which reduced the shortage level to $92. The following Monday an envelope, which had not been in the cash drawer before, was found which contained the missing $92.

Subsequent investigative audit resulted in the detection of cash shortages in the total amount of $16,201.50. This audit also revealed that while the shortages had occurred over a period of approximately one year, at all times the cash receipt journal and the bank deposits balanced, so that the shortages were only detected when the actual tickets and bond forfeitures received were examined and the actual amount of money due from these sources was calculated. Thus, the certified public accountant concluded that a person could not commit this particular type of taking merely by grabbing handfuls of money indiscriminately from the cash drawer. Rather, it can be inferred, that the person taking the money must have had access to the cash receipt journal and known exactly how much money had not been duly receipted therein, otherwise the amount of money deposited from and contained in the cash drawer would not have balanced with the amount recorded in the cash receipt journal. The audit further determined that during the period in question certain checks had been deposited in the bank but the transaction had not been recorded in the cash receipt journal. As the cash deposits still balanced with the cash receipt book, it can be inferred that an amount of cash equal to the amount of unreceipted checks had been removed from the cash drawer. Handwriting analysis revealed that of the over 270 unreceipted tickets processed during the period in question, all but one had been processed by appellant. Judge Cape had processed one unreceipted ticket. Only the appellant and Judge Cape were working in the probate court office throughout the entire time period during which shortages of funds were occurring. Two other women performed clerical duties in the office, but neither of them was employed the entire time that losses occurred. The last unreceipted ticket was found on April 22, 1986, the appellant departed the office between 11:00 a.m. and noon that day, after being advised of a pending disciplinary action due to a minor matter unrelated to the missing funds. It was shortly thereafter that the loss initially was discovered.

The appellant denied committing the theft, and asserted that she was merely an innocent victim who had processed tickets received by someone else in the office without checking to see if the transaction had been duly recorded in the cash receipt journal. Appellant testified that Judge Cape would cash her personal checks from the cash drawer, and that sometimes her checks would be held for a prolonged period of time. The jury, however, found the appellant guilty as charged. Held:

1. Appellant's first three enumerations of error are that: the court erred in accepting a verdict that is contrary to law, is contrary to the evidence, and is strongly against the weight of the evidence. These assignments of error are without merit.

Appellant asserts, in part, that the State's evidence was circumstantial and failed to meet the statutory requirements of OCGA § 24-4-6. Appellant further asserts that "[t]here was no tangible evidence of the guilt of the accused, only circumstantial evidence which was purposefully slanted against the appellant."

To support appellant's conviction, the "[c]ircumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant's guilt." Smith v. State, 257 Ga. 381, 382, 359 S.E.2d 662. Viewing the evidence in the case at bar in a light most favorable to the verdict, we conclude that the jury could have found that it excluded every reasonable hypothesis except that of the appellant's guilt. Moreover, our review of the transcript "reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged." Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2. Appellant's fourth enumerated error is that the trial court erred in its admission, over timely objection, of inflammatory and prejudicial evidence.

Appellant asserts that the court "allowed into evidence matters which bore no relationship" to the appellant's guilt, and allowed the appellee to present "grossly enlarged charts and diagrams selected from part of the evidence ... with contrived and partial data made by the appellee to be placed on the charts and diagrams, and the conclusions ... in red to bias the jury." However, appellant in his brief fails to identify adequately which charts were "grossly enlarged," which data thereon was contrived and partial, which specific matters bore no relationship to appellant's guilt, and which specific charts and which specific portions thereof were printed in red. We find that Rule 15(c)(3), as to specific reference to support enumerated errors, has been violated. Accordingly, this portion of appellant's fourth enumeration of error is deemed to be waived and those assertions of error abandoned. See Winget v. State, 138 Ga.App. 433(11), 226 S.E.2d 608; see also Smith v. State, 202 Ga. 851(12), 45 S.E.2d 267 (no cause for reversal shown where "no attempt is made to describe or show the contents of the photographs in order that it might be determined whether they were ... prejudicial and hurtful to the defendant"), citing Clare v. Drexler, 152 Ga. 420(8), 110 S.E. 176. However, to comply with the spirit of OCGA § 5-6-48, and to insure that no fundamental unfairness has resulted, which would deprive this appellant of her right to fair trial (cf. Haywood v. Wooden Peg, 174 Ga.App. 806, 807, 331 S.E.2d 109), we have sua sponte examined each chart and diagram, which was introduced in evidence and contained in the trial record before us. We find that none of these exhibits is inflammatory on its face, and that each admitted chart merely was cumulative of other admissible evidence of record. Further, each admitted chart and diagram does not lack relevancy on its face and thus in the trial judge's discretion could be admitted "for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case." Smith v. State, supra at 866, 45 S.E.2d 267. We also note that the trial judge was most selective in determining which exhibits could accompany the jury into the jury room. Most charts and diagrams were not allowed to accompany the jury. We find the trial judge's ruling entirely compatible with the use of such exhibits solely for the legitimate purpose above discussed.

In this same broad assertion of error, appellant argues that prejudicial error occurred when, over timely defense objection, the State was allowed to provide the jury with "blazen orange markers to highlight the work product" of the certified public accountant. The accountant's "work product" apparently had been reproduced onto copies of summaries that had been distributed to the jurors. The record discloses that at trial appellant made a specific objection, which was overruled, to the use of the highlighters on the grounds that the color of the highlighters was improper because "[i]t tends to inflame the jury." This objection was overruled. The trial judge has inherent power to supervise the course of the trial ( Johnson v. State, 254 Ga. 591(11), 331 S.E.2d 578), and to prescribe the manner in which court business will be conducted. Jackson v. State, 154 Ga.App. 367(2), 268 S.E.2d 418; OCGA §§ 15-6-9(8); 15-1-3(4). The appellant has failed to establish that the trial judge abused his discretion in allowing the jurors to use colored highlighters.

We find appellant's fourth enumerated error to be without merit.

3. Appellant's fifth enumerated error is that the trial court erred in not allowing appellant's sole defense. Appellant appears to have asserted two specific errors in support of this one assignment of error.

First, the appellant alleges without further discussion that the trial court erred in refusing to admit the bank statements and tax returns of the appellant and her husband, as they related to the defense...