Stack-Thorpe v. State

• Decision Date: 08 December 2004
• Docket Number: No. A04A1971.,A04A1971.
• Citation: 608 S.E.2d 289,270 Ga. App. 796
• Parties: STACK-THORPE v. The STATE.
• Court: Georgia Court of Appeals

608 S.E.2d 289

270 Ga. App. 796

STACK-THORPE v. The STATE.

No. A04A1971.

Court of Appeals of Georgia.

December 8, 2004.

Waymon Harrell, Perry, for Appellant.

Kelly Burke, District Attorney, Jason Ashford, Assistant District Attorney, for Appellee.

ELLINGTON, Judge.

A Houston County jury convicted Sandra Stack-Thorpe of embezzling funds from the City of Perry from July 1997 through July 2000. Stack-Thorpe was also convicted of falsifying official documents and submitting false financial reports. She appeals from the denial of her motion for new trial, alleging the trial court made several erroneous rulings and arguing that she was entitled to a directed verdict of acquittal on the charges. Finding no error, we affirm.

The evidence presented at trial, viewed in favor of the jury's verdict,¹ showed that the funds at issue were payments made by citizens to the City of Perry Police Department on traffic tickets and other fines. When police department employees accepted a payment on a fine, they placed the money in an envelope, recorded the payment amount on the outside of the envelope, sealed the envelope, and locked it in a safe. They also recorded the payment in a separate receipt book.

Stack-Thorpe was employed in the finance department of the City of Perry from April 1995 until July 2000. She was solely responsible for collecting the fine payments from the police department, matching the envelopes to entries in the receipt book, opening the envelopes and counting the money, recording the total amount of fines collected, transporting the money to the tax and utility department to be deposited, and preparing financial reports about the fines collected. Stack-Thorpe usually took the payments to be deposited on the same day that she collected them from the police department, but she sometimes stored the payments in a safe near her office for a few hours during the day or overnight.

In early 2000, the city manager decided to rotate the department's employees among different jobs in order to cross-train the employees and to prevent them from abusing their positions. He testified that Stack-Thorpe had expressed reluctance to participate in the reorganization, arguing that her job was so complicated that it would be difficult to train the other employees and that she was the only one who would be able to answer auditors' questions about the financial records. The city manager testified, however, that Stack-Thorpe's job responsibilities were not complicated, difficult, or confusing, and Stack-Thorpe even admitted at trial that her job was "pretty simple [and] straightforward." When the city manager insisted that Stack-Thorpe participate in the employee rotation program, she quit her job. Shortly thereafter, following a routine audit, the city discovered that approximately $95,000 in fines paid to the police department had not been deposited or recorded as revenue between July 1997 and July 2000. The shortfalls abruptly stopped after Stack-Thorpe's resignation.

The Georgia Bureau of Investigation (GBI) investigated and found that Stack-Thorpe had deposited $24,920 in cash into a bank account she shared with her husband and that they had made several cash purchases during her employment with the city. A GBI agent also testified that Stack-Thorpe's total income during that period exceeded the combined reported net income of her and her husband by over $46,000 and that this additional income could not be attributed to any known source. According to the GBI, after Stack-Thorpe left her job in July 2000, her large cash deposits stopped. The GBI also investigated the other city employees who had access to the safe in Stack-Thorpe's office, where she sometimes stored the funds, but eliminated them from suspicion after finding no evidence that the employees had unusual financial transactions or that they were in any way involved in the thefts. These employees were still working for the city at the time of the trial.

The evidence also showed that, before the thefts started in 1997, Stack-Thorpe was struggling financially and was finding it difficult to provide for her newborn baby. Around June 2000, however, just before Stack-Thorpe left her job, she repeatedly remarked to a co-worker that she had an extra $1,000 to $3,000 in her bank account at the end of each month.

In October 2001, the State indicted Stack-Thorpe on one count of felony theft by taking, two counts of submitting fraudulent writings, and one count of income tax evasion. The State subsequently issued a superceding indictment on July 29, 2003, charging her with one count of theft by taking by a fiduciary (also a felony)² and the two fraud charges, but dropping the tax evasion charge. Stack-Thorpe filed a motion for plea in bar on the second indictment, contending the four-year statute of limitation had run on any unlawful transaction occurring before July 1999 and asking the court to dismiss any charges based upon those transactions. Although the trial court conducted a brief hearing on the motion during the trial, it never expressly ruled on the motion. A jury ultimately convicted Stack-Thorpe on all three counts of the indictment.

1. On appeal, Stack-Thorpe argues that the four-year statute of limitation³ barred the State from prosecuting her for any theft that occurred prior to July 1999. The indictment in this case, however, charged Stack-Thorpe with a single count of theft by taking by a fiduciary over a specific period of years, not with several counts of smaller, individual thefts. "[W]here there [has been] a continuous series of conversions of property of the owner entrusted to the defendant, the offense may be charged in a single count of the indictment. Such series of transactions constitute ... a single embezzlement." (Citation omitted.) Simmons v. State, 79 Ga.App. 390, 393-394, 53 S.E.2d 772 (1949) (finding that, otherwise, there might be almost as many counts as dollars embezzled).

Since the embezzlement was charged as a single crime, the remaining issue is whether the four-year statute of limitation had expired prior to the 2003 indictment. "The key to determining when the statute of limitation begins to run is to find when the offender or offense became known," because the statute of limitation is tolled until the offense is discovered. (Citation omitted.) State v. Brannon, 154 Ga.App. 285, 286-287(2), 267 S.E.2d 888 (1980). In this case, it is undisputed that the embezzlement was not discovered until mid-July 2000, after Stack-Thorpe resigned. Because the State indicted Stack-Thorpe within four years of this date, the prosecution on the indictment was not time-barred.⁴

2. Stack-Thorpe contends the trial court abused its discretion when it refused to allow her accounting expert to give his opinion, based upon his examination of the finance department's accounting records and procedures, that discrepancies in the records appeared to be due to accounting errors, not employee theft. One of Stack-Thorpe's defenses was that the funds at issue had not been stolen, but were simply lost as a result of poor accounting procedures and employee errors. During the State's case-in-chief, defense counsel thoroughly cross-examined the State's witnesses on the finance department's accounting procedures, discrepancies in the records, the alleged lack of oversight by department officials, and audit findings which appeared to conflict with other prosecution evidence. Then, during the defense's case, Stack-Thorpe's expert testified extensively about problems with the city's financial records and accounting procedures before giving his opinion, without objection, that the discrepancies in the records were more indicative of accounting errors than employee theft. The expert explained his opinion, testifying that certain fluctuations in the financial records appeared to be due to accounting errors and would not have occurred if an employee had been stealing money from the city. A few moments later, defense counsel restated the expert's opinion, then started to ask another question. The trial court interrupted, however, and it is unclear from the record what counsel was going to ask the witness.

During a brief bench conference, the court expressed concern that the expert's opinion testimony about whether the discrepancies were due to errors or theft would invade the province of the jury. The court told counsel, however, that he could continue questioning the expert about the discrepancies in the records and whether they appeared to be due to accounting errors. Counsel responded that he would "move on" and immediately changed his line of questioning.

Without deciding whether the expert's opinion testimony invaded the province of the jury or whether the trial court, in fact, prevented the expert from testifying, we find that Stack-Thorpe has failed to demonstrate an abuse of the court's discretion. Since the expert had just stated and explained his opinion on the "errors versus theft" issue, the allegedly excluded testimony would have been merely cumulative. Therefore, the trial court did not abuse its discretion in refusing to allow him to repeat his opinion. Garland v. State, 256 Ga.App. 313, 317(4), 568 S.E.2d 540 (2002) ("a trial court does not abuse its discretion in excluding cumulative evidence") (punctuation and footnote omitted).

3. Stack-Thorpe argues the trial court erred in allowing evidence that her husband had filed for bankruptcy in November 2000, just four months after Stack-Thorpe left her job with the city. A GBI investigator testified that Stack-Thorpe had told her about the bankruptcy during the theft investigation. Stack-Thorpe objected to the investigator's testimony, contending it was irrelevant and impermissibly placed her character in issue. The trial court found the evidence that Stack-Thorpe's husband was experiencing serious financial difficulties was relevant to her motive for embezzling the...