Remmick v. State

• Decision Date: 11 April 2012
• Docket Number: Case Number: S-11-0015
• Citation: 2012 WY 57
• Parties: HAILEY JACOBSEN REMMICK, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2012 WY 57

HAILEY JACOBSEN REMMICK, Appellant (Defendant),

v. THE STATE OF WYOMING Appellee (Plaintiff).

Case Number: S-11-0015

Supreme Court of Wyoming

Decided: April 11, 2012

APRIL TERM, A.D. 2012

This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

Appeal from the District Court of Campbell County

The Honorable Dan R. Price, II, Judge

Representing Appellant:

Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee:

Bruce Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Meri V. Geringer, Senior Assistant Attorney General. Argument by Ms. Geringer.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶1] Appellant, Hailey Jacobsen Remmick, challenges her conviction of six counts of receiving stolen property and one charge of conspiracy to commit larceny by a bailee. Ms. Remmick claims that pre-charging delay deprived her of due process of law and that there was insufficient evidence to support the jury's verdict. We affirm.

ISSUES

[¶2] Ms. Remmick presents two issues:

1. Was Appellant denied due process of law by pre-charging delay?

2. Was the jury verdict supported by sufficient evidence?

FACTS

[¶3] The charges against Ms. Remmick stemmed from actions taken by her mother, Julie Jacobsen, during 2002 and 2003. At that time, Ms. Jacobsen owned Better Bookkeeping and Accounting, which had a contract to perform bookkeeping duties for Fox Park Homeowners Association and Fox Park Service and Improvement District (Fox Park). The Fox Park entities were the governing and operating bodies of a trailer park subdivision in Gillette, Wyoming, and were overseen by a common Board of Directors (Board).

[¶4] As part of her duties, Ms. Jacobsen managed two bank accounts authorized by the Board, the money market account and the operating account. Money from tax assessments, state grants, and bank loans, as well as money earmarked for special improvements, was kept in the money market account. When payments from this account were authorized by the Board, Ms. Jacobsen filled out checks on this account and presented them for Board members' signatures. Two Board members' signatures were required on each check.

[¶5] On June 15, 2002, Ms. Jacobsen wrote a $3,000.00 check from the money market account to Ms. Remmick. The check on its face read "Fox Park" and bore the forged signatures of two Board members. Ms. Remmick accepted and endorsed the check. This check was the basis for Count I of the Information filed against Ms. Remmick.

[¶6] The operating account was funded through monthly dues paid by the Fox Park residents. This account was used to pay normal day-to-day operating expenses. Checks written on this account also had to bear the signatures of two Board members. When Ms. Jacobsen received Fox Park's bills at her business address, she filled out checks and presented them for Board members' signatures.

[¶7] On April 15, 2003, Ms. Jacobsen presented a check to her bank for $3,000.00, which she had written on the Fox Park operating account and made out to her business, Better Bookkeeping and Accounting. It bore the forged signatures of two Board members. Ms. Jacobsen kept $200.00 in cash and deposited the remaining $2,800.00 in her personal checking account.¹ That deposit increased her personal account balance from $334.23 to $3,134.23. On that same date, she wrote a $1,200.00 check to Ms. Remmick from that account. This check formed the basis for Count VII of the Information.

[¶8] Ms. Jacobsen also managed a third account, ostensibly in Fox Park's name. This account had not been authorized by the Board, and its members were unaware of its existence until law enforcement began investigating Ms. Jacobsen. Ms. Jacobsen was the only signatory on the unauthorized account, and she made various transfers of money from the Fox Park operating and money market accounts into this account. The checks for this account bore the name "Fox Park District."

[¶9] Ms. Jacobsen wrote four checks to Ms. Remmick from the unauthorized account: one on June 15, 2002, for $3,000.00 (Count II); one on January 21, 2003, for $1,200.00 (Count III); one on June 17, 2003, for $1,000.00 (Count IV); and one on November 4, 2002, for $300.00 (Count V). Each of the checks showed the name "Fox Park District" on the face of the check. Ms. Remmick endorsed the checks.

[¶10] On December 6, 2002, Ms. Jacobsen wrote a check for $2,600.00 to her business, Better Bookkeeping, from the unauthorized account. She deposited the check in her personal bank account, increasing her ledger balance from $1,714.50 to $4,314.50. This same day, she wrote a $2,000.00 check to Ms. Remmick from her personal account. Ms. Remmick endorsed that check. This check formed the basis for Count VI of the Information.

[¶11] In addition, on January 28, 2003, Ms. Jacobsen opened a $1,000.00 line of credit in Fox Park's name at Checker Auto Parts. She did so without authorization from the Board. The list of authorized users of this account included Ms. Jacobsen, Ms. Remmick, Ms. Remmick's sister, and a friend. Ms. Remmick later used this charge account, charging $65.39 worth of items and signing her name to the sales receipt. The receipt identified the charge account holder as Fox Park. This transaction served, in part, as evidence of the conspiracy alleged in Count V against Ms. Remmick.²

[¶12] Campbell County law enforcement began investigating Ms. Jacobsen in late 2003, and eventually notified federal investigators and prosecutors of the results of their investigation. A federal grand jury indicted Ms. Jacobsen on July 13, 2005 on tax evasion charges, to which she pled guilty. The federal court sentenced her on August 25, 2006, to serve a period of incarceration of eighteen months, followed by three years of supervised probation. At the request of the U.S. Attorney's Office, the Campbell County Attorney's Office deferred prosecuting Ms. Jacobsen during the pendency of the federal case. Three months after Ms. Jacobsen was released from federal custody, the Campbell County Attorney's Office filed charges of forgery and larceny against her. On October 23, 2009, the jury returned guilty verdicts on all ten counts that had been brought against Ms. Jacobsen. She was not present in court when the verdict was received, however, apparently because she had absconded from the jurisdiction.

[¶13] Although the prosecution of Ms. Remmick stemmed from events that occurred between June, 2002 and June, 2003, the charges against her were not brought until October 28, 2009, after Ms. Jacobsen had been found guilty. On March 3, 2010, Ms. Remmick filed a Motion to Dismiss for Prearrest Delay as a Denial of Due Process. Her contention was that, because the State had delayed her prosecution until after her mother had left the jurisdiction, her mother was no longer available to assist her in preparing a defense. After a hearing, the district court denied the motion. Trial was originally scheduled for May, 2010. Ms. Remmick, however, filed a motion for continuance seeking additional time to prepare for trial. She also filed a Waiver of Speedy Trial. The motion was granted and trial was held in August, 2010. After a two-day trial, the jury found Ms. Remmick guilty on all counts.

[¶14] The court imposed terms of imprisonment of four to nine years on each count, to be served concurrently with one another and consecutively to one imposed in a separate criminal case. The court suspended the period of imprisonment in favor of nine years of supervised probation. Ms. Remmick filed this timely appeal.

DISCUSSION

Pre-Charging Delay

[¶15] In her first issue, Ms. Remmick claims that the delay in bringing charges against her resulted in an infringement of her due process rights. Because this is a claim involving constitutional rights, our review of the district court's decision is de novo. Bush v. State, 2008 WY 108, ¶ 72, 193 P.3d 203, 221 (Wyo. 2008).

[¶16] In order to prevail on her claim, Ms. Remmick bears the burden of proving both "an intentional delay by the state to gain a tactical advantage over the accused and actual prejudice resulting from that delay." Id., ¶ 73, 193 P.3d at 221; Vernier v. State, 909 P.2d 1344, 1348 (Wyo. 1996). As we previously explained:

Wyoming has no statute of limitations for criminal offenses, and prosecution for such offenses may be commenced at any time during the life of the offender. Story v. State, 721 P.2d 1020, 1026, 65 A.L.R.4th 1011 (Wyo. 1986). However, when a delay in bringing charges results in prejudice to a defendant, due process considerations may arise. Id. at 1027; United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). In order to require dismissal of a charge, it is necessary that a preindictment delay cause "substantial prejudice to [appellant's] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." Story, 721 P.2d at 1027, quoting fromUnited States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971).

Phillips v. State, 835 P.2d 1062, 1069 (Wyo. 1992).

[¶17] To show prejudice, an appellant must demonstrate "the loss of a witness, exhibit or other evidence, the presence of which would probably bring a different result." Id., 835 P.2d at 1069. We have made it clear that only "actual prejudice, not possible prejudice," will suffice to establish that a delay in prosecution resulted in a due process violation. Ms. Remmick has failed to satisfy that burden.

[¶18] Ms. Remmick bases her claim of...