People v. Artman

• Decision Date: 13 August 1996
• Docket Number: Docket No. 168170
• Citation: 553 N.W.2d 673,218 Mich.App. 236
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jean Dolores ARTMAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 673

553 N.W.2d 673

218 Mich.App. 236

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jean Dolores ARTMAN, Defendant-Appellant.

Docket No. 168170.

Court of Appeals of Michigan.

Submitted April 3, 1996, at Detroit.

Decided Aug. 13, 1996, at 9:00 a.m.

Released for Publication Sept. 27, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Anne Yantus), Detroit, for defendant on appeal.

Before MARK J. CAVANAGH, P.J., and MARILYN J. KELLY and J.R. JOHNSON, ^* JJ.

PER CURIAM.

Defendant pleaded nolo contendere to a charge of attempted embezzlement by an agent of over $100, M.C.L. § 750.92; M.S.A. § 28.287, M.C.L. § 750.174; M.S.A. § 28.371. The trial court sentenced defendant to one to five years' imprisonment. Defendant appeals as of right, and we affirm.

In 1984, Ethel Scarborough, was awarded approximately $219,000 after the settlement of a wrongful death lawsuit. In June of that year, defendant, who was Scarborough's attorney, deposited the money in a client trust account pending the resolution of a probate matter. Defendant also placed monies belonging to other clients in the account.

The probate matter was concluded in September 1985 after this Court denied leave to appeal in the case. However, defendant did not disburse the funds to Scarborough at that time. Defendant made mortgage payments on behalf of Scarborough from the trust account, totaling approximately $20,000, from 1985 through 1990. From 1985 to 1991, defendant apparently also transferred money from the trust account into her own account. Defendant sent letters to Scarborough in 1987 and 1988 claiming that final release of the funds was being delayed by a "higher court." In 1991, the client trust account was closed because of a lack of funds.

On April 22, 1992, a warrant was issued for defendant's arrest on a charge of embezzlement by an agent of over $100. Defendant waived preliminary examination. Defendant subsequently filed a motion to dismiss the charge, claiming that the six-year period of limitation had expired. Defendant argued that the act of embezzlement occurred when she failed to distribute the trust funds in September 1985. The trial court ruled that the statute of limitations issue was a jury question and denied defendant's motion.

On June 8, 1993, defendant pleaded nolo contendere to a charge of attempted embezzlement by an agent of over $100. In exchange for the plea, the original charge of embezzlement by an agent of over $100 was dismissed. As part of the plea agreement, defendant reserved her right to appeal the trial court's ruling regarding the statute of limitations issue.

I

Defendant argues that the trial court erred in ruling that whether the statute of limitations barred this prosecution was a jury question. This is a question of law that we review de novo on appeal. People v. Nance, 214 Mich.App. 257, 258, 542 N.W.2d 358 (1995).

Questions of law in criminal cases are for the determination of the court, whereas questions of fact are for the jury. Otherwise stated, the resolution of conflicts in the evidence is a matter lying within the province of the jury. People v. Wright, 161 Mich.App. 682, 685, 411 N.W.2d 826 (1987). Factual disputes involving a statute of limitations issue arising under M.C.L. § 767.24; M.S.A. § 28.964 are properly submitted to a jury. Wright, supra at 685, 411 N.W.2d 826.

The parties agree that the question of when an offense occurred is one of fact for the jury when the facts are in material dispute. Defendant argues, however, that there is no factual dispute in this case because both parties agree regarding the dates that money was deposited and withdrawn from the trust account. The only point debated by the parties was when the statutory crime of embezzlement occurred.

We conclude that the trial court did not err in ruling that the issue whether the period of limitation had expired was a jury question. Even though the parties did not dispute the factual question of when the appeal ended in the underlying probate matter or the factual information regarding defendant's bank accounts, defendant has not shown that the only conclusion that can be drawn from those facts is that the embezzlement occurred before April 22, 1986.

II

Defendant also argues that the trial court erred in denying her motion to dismiss because the prosecution was barred by the statute of limitations. Defendant maintains that the offense date should be September 1985, or at least no later than April 21, 1986, when the balance of the account was approximately $102,000.

The prosecutor argues that holding money in a trust account, even past the time when the client should presumably receive the funds, is not in itself a conversion or theft. Instead, the act of embezzlement in this case occurred when defendant transferred money from the trust account to other accounts. The prosecutor contends that as of April 22, 1986, the trust account still held approximately half of Scarborough's money and that the acts of embezzlement for which defendant was prosecuted were transactions that occurred after that date.

There are two distinct forms of embezzlement recognized under M.C.L. § 750.174; M.S.A. § 28.371. The first occurs when an individual fraudulently disposes of or converts to his own use money or personal property of his principal. The second occurs when an individual conceals with intent to convert to his own use money or personal property without the consent of the principal. People v. Wood, 182 Mich.App. 50, 53, 451 N.W.2d 563 (1990).

In the present case, the charge is based on the former. Accordingly, the requisite intent to defraud must exist at the time of the conversion or appropriation of the property to defendant's own use. Id. The embezzlement statute specifically provides that an agent's or trustee's failure to pay over or refund to his principal money or property entrusted to his care upon demand shall be prima facie proof of an intent to embezzle. However, such matters as a refusal to pay at a time provided by contract or on demand are only circumstances bearing on an intent to embezzle. People v. Jones, 182 Mich.App. 668, 670-671, 453 N.W.2d 293 (1990). The mere failure to pay over monies belonging to another, without fraudulent intent, is not embezzlement. People v. Douglass, 293 Mich. 388, 391, 292 N.W. 341 (1940).

Thus, the mere fact that defendant did not give the trust funds to Scarborough in September 1985 does not establish fraudulent intent on the part of defendant. Rather, that fact is merely one factor to be considered in determining defendant's intent. Therefore, defendant's assertion that there is no issue of fact regarding whether the period of limitation expired in September 1985 is without merit.

We now turn our attention to whether there was a factual dispute regarding the question whether all of Scarborough's funds were converted to defendant's use before April 22, 1986. According to the exhibits provided by the parties, at least $219,000 belonging to Scarborough was placed in a client trust account in 1985. In 1985, defendant made mortgage payments in excess of $5000 on behalf of Scarborough. The balance in the trust account remained above $200,000 until April 16, 1986, when $105,000 was transferred to defendant's business checking account. There were no additional transactions before April 22, 1986. The balance in the account was still over $100,000 when defendant again began making mortgage payments on behalf of Scarborough in August 1986. In September 1986, defendant began transferring the funds in the trust account to other accounts.

Defendant argues that reversal is required because the crime in this case should not be treated as a continuing offense. In support of her argument, defendant cites United States v. Beard, 713 F.Supp. 285 (S.D.Ind.1989). ¹ Defendant notes that no Michigan court has addressed this issue and urges this Court to hold that embezzlement is not a continuing offense. We decline to address this question, however, because the prosecutor is not proceeding under a continuing offense theory. The prosecutor is not attempting to use a taking that occurred before April 22, 1986, and to bring it within the statute of limitations as a continuing offense that extended beyond that date. Rather, the prosecutor is arguing that each act of conversion constitutes a separate embezzlement. ²

Defendant also argues that this Court should, as a matter of law, adopt a "first in-first out" method of analyzing her bank account activity. Under this approach, defendant suggests that this Court should find that she took the money deposited into the trust account in 1984 and used it to cover shortages for other clients before April 22, 1986. If the transactions are not considered on a "first in-first out" basis, defendant asserts that any attempt to determine which funds were withdrawn at any given time becomes purely arbitrary.

We reject defendant's argument. The question in this case is not what type of accounting method should be adopted for commingled trust funds. Rather, the pertinent issue is what defendant's specific practice was with respect to the trust account. Because defendant made mortgage payments on Scarborough's behalf after April 22, 1986, it is clear that defendant was not following a "first in-first out" method of accounting with respect to the commingled trust funds.

In sum, we find that the prosecution of defendant for embezzlement was not barred by the statute of limitations.

III

Next, defendant argues that the federal and state double jeopardy prohibitions preclude prosecution because she was previously subjected to punishment for the same offense in the form of disbarment by the attorney disciplinary board....