Seaton v. State

• Decision Date: 14 May 1991
• Docket Number: No. 90-118,90-118
• Citation: 811 P.2d 276
• Parties: Kathleen SEATON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 276

811 P.2d 276

Kathleen SEATON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 90-118.

Supreme Court of Wyoming.

May 14, 1991.

Robert A. Hampe, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Karen A. Byrne, Hugh Kenny, Sr. Asst. Attys. Gen., for appellee.

Before URBIGKIT, C.J., THOMAS and GOLDEN, JJ., ROONEY and BROWN, Retired JJ.

URBIGKIT, Chief Justice.

Appellant, Kathleen Seaton, seeks reversal of her larceny conviction under W.S. 6-3-402(b). ¹ She argues the district court erred in failing to instruct the jury with specificity on the subject of circumstantial evidence and that the evidence was insufficient to sustain the conviction.

We affirm the conviction on those issues. On our own motion, we have reviewed the judgment and sentence of the district court and find it necessary to strike those portions relating to assessed costs and monetary penalties which cannot be sustained by the record on appeal.

I. FACTS

Seaton was charged with taking $3,000 worth of traveler's checks from her employer, Travel Management Agency, Inc. (TMA). The record provides no question that Seaton obtained those traveler's checks from her employer's stock, completed the instruments, and negotiated them for cash. The larceny charge addressed contentions that after obtaining the checks, she failed to pay the purchase cost. Eventually, TMA was required to repay American Express. Seaton testified she paid for the traveler's checks with a personal check in the amount of $535 and with cash in the amount of $2,465, and that another employee in the organization took her payment, including her personal check, as well as all other evidence that the sale had been made to Seaton. Her alleged personal check was never negotiated for payment.

Seaton was hired as the manager for TMA's Cheyenne, Wyoming office on September 12, 1988. From the very beginning, Seaton established a pattern of regularly purchasing traveler's checks from her employer including first a $400 purchase on September 16, 1988, $300 on September 23, 1988, $1,200 on September 27, 1988, $600 on October 8, 1988, and $2,000 on October 9, 1988. The disposition of these traveler's checks is not disclosed by the record. However, Seaton began spending traveler's checks totaling $3,000 on October 11, 1988, and it was this last batch of checks for which the criminal charge of non-payment was made. At trial, Seaton testified she used traveler's checks to protect her personal funds from falling into her husband's hands and to prevent him from knowing what she was doing with her own money. As a criminal charge defense, she claimed she paid for the last $3,000 worth of traveler's checks (and presented evidence as to how she obtained the cash to purchase them). Her theory of defense was that a fellow employee must have taken the money from TMA's cash drawer, to which everyone in the office had access. All other employees denied ever seeing, or taking, the cash about which Seaton testified.

Her testimony included the further statement that the cash laid in the cash drawer "for several days, pretty close to a week," before it disappeared. Seaton also testified that after the disappearance of the money, she spoke to the employee who she suspected of taking the cash. Even though she further testified that the co-worker denied the transaction existed, Seaton never made a report to anyone at TMA or to law enforcement authorities.

II. DISCUSSION

A. Circumstantial Evidence Instruction

Seaton asserts that a separate and distinct circumstantial evidence instruction should have been given in this case because the evidence presented against her was largely circumstantial. Citing Mulligan v. State, 513 P.2d 180 (Wyo.1973) [overruled sub nom. Blakely v. State, 542 P.2d 857 (1975) ], she proposes that the following instruction should have been given:

In order to convict on circumstantial evidence, it is necessary not only that the circumstances all concur to show that the defendant committed the crime, but that they all be in consistent [sic] with any other rational conclusion. The evidence must lead to the conclusion so clearly and strongly, where the evidence is purely circumstantial, as to exclude every reasonable hypothesis consistent with innocence.

Seaton concedes that no instruction along these lines was offered in the district court, but claims fundamental or plain error on the part of the district court for failure to have, sua sponte, given this instruction. Before we directly answer the issue raised, we must first ascertain whether our plain error test has been met. The test is this:

"First, the record must be clear as to the incident which is alleged as error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced."

Ramos v. State, 806 P.2d 822, 827 (Wyo.1991) (quoting Bradley v. State, 635 P.2d 1161, 1163-1164 (Wyo.1981)). See W.R.A.P. 7.05.

Putting aside the question of whether Seaton was, indeed, convicted on the basis of circumstantial evidence, this court has long since abandoned the position taken in Mulligan. Circumstantial evidence possesses the same stature as direct evidence. Jozen v. State, 746 P.2d 1279, 1283 (Wyo.1987); Blakely v. State, 542 P.2d 857, 861-863 (Wyo.1975). The failure to give the proposed instruction does not violate a clear and unequivocal rule of law and, thus, this asserted error is not subject to review under the plain error doctrine. The district court did give a standard jury instruction on the subject of direct and circumstantial evidence.

Seaton does not clearly identify why this case provides a circumstantial evidence conviction concept. A common definition for circumstantial evidence is provided in Black's Law Dictionary 221 (5th ed. 1979), and in pertinent part states:

Testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. * * * The proof of certain facts and circumstances in a given case, from which jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. * * * Indirect evidence.

The only thing circumstantial in evidentiary status here is either the money did not exist or, if it did, how it disappeared. Seaton took the traveler's checks and cashed them for face amount funds. She said that she paid, which was directly denied by the involved fellow worker. She said that she saw the money in the cash drawer, which was also directly denied by the co-worker and other employees. Without question, funds did not reach the employer's depository account. Either Seaton did not pay or, if she did, someone stole the money from the business repository. The direct evidence relative to existence of the payment and the defense was tested and resolved by the resulting jury verdict. Primary relevance by the prosecution in this case was in denial of evidence. People v. Wright, 52 Cal.3d 367, 276 Cal.Rptr. 731, 756, 802 P.2d 221, 246 (1990).

B. Sufficiency of the Evidence

In addition to characterizing the proof as circumstantial, Seaton claims that the evidence was not sufficient to sustain her conviction. "Our standard of review is simple and established when a determination is challenged on the basis of the sufficiency of the evidence. We examine whether the evidence most favorable to the State is sufficient to infer reasonably that a statute was violated as charged." Rathbun v. State, 802 P.2d 881, 882 (Wyo.1990). See Mendicoa v. State, 771 P.2d 1240, 1243 (Wyo.1989). There are two stages in this process. First, we review the record to examine " 'all the evidence in the light most favorable to the [s]tate * * *;' " and second, after drawing into the open only the evidence adverse to the defendant, we examine whether that evidence permits the jury's conclusion beyond a reasonable doubt that the defendant violated the elements of the statute as charged. Rathbun, 802 P.2d at 882-83 (quoting Mendicoa, 771 P.2d at 1243).

Seaton claims the State only proved that she was employed by TMA and that she had been unable to get along with either her subordinates or her managerial superiors. On the contrary, that was Seaton's defense, not the State's case. As a part of cross-examination, Seaton brought out testimony that her subordinates had complained to TMA's executives about Seaton's management abilities. Seaton goes on to argue that the State put on all of TMA's other Cheyenne employees and had them testify that they had not taken the traveler's checks and, hence, Seaton must have been the one who did. Again, this was really Seaton's only defense, not the State's theory of the case. Seaton apparently hoped to create a doubt in the minds of the jury as to whether she had paid for the traveler's checks, and then that money, as well as all the other evidence of the sale, was stolen by a fellow employee. Obviously, the jury did not accept the defense as sufficient to create a reasonable doubt.

There is no question that Seaton used the traveler's checks--the principal question is: Did she pay for them? Seaton cites authority for the proposition that opportunity alone cannot serve as evidence of guilt. King v. State, 718 P.2d 452 (Wyo.1986). That case is not in point here. In King, the defendant was convicted of burglary (including the element of unlawful entry) on the strength of possession of stolen property and the fact that he lived near the site of the burglaries. We held that the fact that King had the opportunity, i.e., was in the vicinity, in the most general sense, was not sufficient to sustain the burglary conviction. The circumstances are considerably different here....