State Of Mo. v. Middlemist

• Decision Date: 31 August 2010
• Docket Number: No. SD 29803.,SD 29803.
• Parties: STATE of Missouri, Plaintiff-Respondent,v.Vicki L. MIDDLEMIST, Defendant-Appellant.
• Court: Missouri Court of Appeals

319 S.W.3d 531

STATE of Missouri, Plaintiff-Respondent,
v.
Vicki L. MIDDLEMIST, Defendant-Appellant.

No. SD 29803.

Missouri Court of Appeals,
Southern District,
Division One.

Aug. 31, 2010.

319 S.W.3d 532

COPYRIGHT MATERIAL OMITTED

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Alexa I. Pearson, Columbia, MO, for Appellant.

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Chris Koster, Attorney General, and Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for Respondent.

DON E. BURRELL, Judge.

Vicki Middlemist (“Defendant”) was convicted following a jury trial of stealing more than $25,000, a violation of section 570.030. ¹ Defendant now timely appeals her conviction in five points relied on that allege: 1) her conviction was not supported by sufficient evidence; 2) the trial court plainly erred when it delivered to the deliberating jury a document that had not been received into evidence; 3) the trial court plainly erred when it informed the parties about the contents of a written note a juror had given the court's bailiff; 4) the trial court abused its discretion when it denied Defendant's pre-trial motion seeking to compel the State to produce certain bank statements and software records; and 5) the trial court abused its discretion when it admitted evidence of a garnishment and two electronic bank transfers.² Finding no merit in any of Defendant's claims, we affirm.

Sufficient evidence supported Defendant's conviction.

“A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” Section 570.030.1. The offense is a “B felony if the value of the property or services equals or exceeds twenty-five thousand dollars.” Section 570.030.7. Proof of the offense may be based upon circumstantial evidence. See State v. Grim, 854 S.W.2d 403, 405-06 (Mo. banc 1993).

In reviewing a challenge to the sufficiency of the evidence we “must determine whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt.” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). In so doing, we view the evidence adduced at trial in the light most favorable to the jury's verdict and give the State the benefit of all reasonable inferences that may be drawn from that evidence. Id.; State v. Langdon, 110 S.W.3d 807, 811 (Mo. banc 2003). Any evidence or inference contrary to the verdict is disregarded. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). The following summary of the evidence is in accord with these governing principles.

Defendant worked for JLD Tech Services which operated a business in Buffalo known as PIP Internet Service (“PIP”). PIP provided internet service to customers and also sold computer parts and equipment. Defendant was hired on October 10, 2005, by Raymond Keeling, PIP's operations manager, to replace Jewell Smith, who was retiring from her full-time position with the business. Keeling was looking for someone “to strengthen our accounting processes and controls, internal management. Things like cash and inventory.” Defendant's resume indicated that she had a bachelor's degree in business administration. Keeling also believed that

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Defendant had “used QuickBooks Pro, done invoicing and accounts receivable and accounts payable.” Defendant worked at PIP from October 10, 2005, through June 23, 2007.

Smith stayed on at PIP long enough to train Defendant and then worked with her again on a couple of occasions when Smith came back to fill in. Smith said it was originally supposed to take her four days to train Defendant, but she “only worked with [Defendant] three, she caught on very quickly.” Smith trained Defendant to write out receipts for customers when they made payments, enter those payments into PIP's billing program, then physically mark the receipts with a “check” when the information they contained had been entered into the billing program.

The receipts given to customers came from books of receipts that were pre-numbered and “self-carboning,” thus leaving a copy for PIP when the receipt the customer received was created. The receipts showed the customer's name, the amount paid, whether the payment was made by cash or check (as some customers using checks also requested receipts), and the signature of the employee who had prepared the receipt.

The business kept cash on hand to make change, reimburse employees for gas purchases (before the business switched to a fuel card), make incidental purchases, provide customers with refunds, and cash checks for employees. PIP began using a fuel card after Defendant suggested doing so would allow her not to have to pay the “fuel tickets” from PIP's cash drawer. In regard to the business's cash drawer, Smith told Defendant “that the money was [Defendant's] responsibility, and that nobody else was to get into the money.” Defendant's duties also included preparing the business's bank deposits and tracking the forms used for expense reimbursements. Keeling would typically take the deposits to the bank, but Defendant would occasionally do so.

Defendant was at her desk most of the time, but other employees would occasionally accept cash payments from customers and issue them receipts if Defendant was not available. Keeling testified that, “To one degree or another any employee might have access to the cash drawer on any given day.” But if another PIP employee had received a payment from a customer, that employee would deliver the funds and receipt book to Defendant or place them on her desk. If a receipt was issued to a customer but not entered into the billing program, the customer's account would not be credited, the charge would continue to bill, and the customer would eventually complain about receiving an additional bill or having his internet service interrupted for the alleged non-payment of an amount he had already paid.

In June 2007, Keeling began to suspect that something untoward was happening with the business's cash after there was not enough cash in the cash drawer on a few occasions to refund money to customers or to purchase something that an employee needed. Keeling began looking at “how much cash was actually coming in the door, versus total receipts.” He concluded “that there was a lot more cash that came in the door, than that [sic] went to the bank” and that it had been going on “pretty much” during the period of time that Defendant had worked at PIP. During the course of her employment, Defendant never told Keeling that any money was missing from the cash drawer.

Part of Keeling's investigation included comparing the total amount of cash received for internet services as recorded in the computer billing system with the cash shown as deposited on PIP's bank statements. Keeling also consulted PIP's accountants

319 S.W.3d 536

and investigated his own records in preparing a summary of the information he had collected.

Dallas County Sheriff Deputy Kyle Heidler investigated the matter and interviewed Defendant. Deputy Heidler testified that Defendant told him she was in charge of bookkeeping, receiving payments, and preparing the deposits. According to Deputy Heidler, Defendant told him that “very little” cash came through the business.³

At trial, Keeling testified about particular instances when the records he had reviewed reflected that cash had been received but not deposited. Keeling testified that he then verified that the cash had not been deposited into any other bank accounts associated with PIP. Keeling testified that he believed approximately $28,000 in cash was missing and that he had prepared a document that summarized over the course of Defendant's employment at PIP the receipts Defendant had issued for cash payments from customers, the company's petty cash disbursements, and the cash actually deposited into the bank. This summary was received into evidence as Exhibit 18. Exhibit 18 revealed that during the time period Defendant had worked for PIP: 1) Defendant had issued receipts for cash totaling $35,936.63; 2) $6,168.00 had been disbursed from petty cash; and 3) only $2,119.03 in cash had actually been deposited with the bank. Based on Exhibit 18, the jury could reasonably infer that $27,649.60 in cash that should have been deposited never made it to the bank.

Defendant's own expert witness, Stan Schmidt, a certified public account, concluded that “[b]ased on the records that were provided, ... you could sort of track the track [sic] the cash from receipt to the bank. Or whether or not it made it to the bank.” He also conceded that “quite a bit of cash came into the building.” Schmidt concluded that “[b]ased on the records that [he] was provided it appeared that not all of the cash made it to the bank.”

Another exhibit, Exhibit 19, was a summary Keeling had prepared which covered cash received for computer parts and other non-internet-service purchases recorded on different receipts and included cash payments receipted by PIP employees other than Defendant. Exhibit 19 was also received into evidence. Exhibit 19 showed that at the end of September 2005, before Defendant began working for PIP, actual cash deposits were $207.18 less than the total cash available for deposit. In contrast, by June 23, 2007-Defendant's last day at PIP-Exhibit 19 showed that actual cash deposits were $48,052.39 less than the total cash which should have been available for deposit. Based on Exhibits 18 and 19, and the testimony recited above, the jury could reasonably infer that the cash that should have been deposited into PIP's bank account was stolen by Defendant. It could also infer that Defendant urged PIP to switch to a fuel card so that a larger pool of PIP's cash would be available to her on a more consistent basis.

Defendant did not contest the admissibility of any of the above-recited evidence. Instead, Defendant simply argues that other PIP employees had access to...