State v. Bledsoe

• Decision Date: 11 October 2005
• Docket Number: No. WD 63846.,WD 63846.
• Citation: 178 S.W.3d 648
• Parties: STATE of Missouri, Respondent, v. Rhonda Ann BLEDSOE, Appellant.
• Court: Missouri Supreme Court

178 S.W.3d 648

STATE of Missouri, Respondent, v. Rhonda Ann BLEDSOE, Appellant.

No. WD 63846.

Missouri Court of Appeals, Western District.

October 11, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 22, 2005.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.

Virgil D. Rodgers II, Tipton, MO, for Appellant.

Before HOWARD, P.J., and SMART and NEWTON, JJ.

VICTOR C. HOWARD, Presiding Judge.

Defendant, Rhonda Bledsoe, was charged with twenty counts of forgery in violation of section 570.090.¹ A jury convicted Defendant of nine of the counts, acquitted her of ten of the counts, and was unable to reach a verdict on one count.

Defendant raises three points on appeal. Her first two points are premised on her argument that the State improperly charged her with twenty counts of the same forgery that were part of a scheme and not separate offenses. In her third point on appeal, Defendant argues that the trial court erred in imposing different sentences on the nine counts of forgery for which she was convicted, because the sentences resulted in cruel and unusual punishment.

For the reasons set forth below, we dismiss Defendant's appeal as it relates to Counts 13, 15, and 16, because we lack jurisdiction to consider Defendant's appeal from the trial court's suspended imposition of sentences on those counts. We affirm the convictions on all other counts.

Background

Defendant does not challenge the sufficiency of the evidence. Viewed in a light most favorable to the verdict, the following evidence was adduced at trial.

In 2000 and 2001, Defendant served as the elected treasurer of the Olean Jaycees in Olean, Missouri. During that time, Defendant was an authorized signatory on the Jaycees' bank account, which had a balance of $13,310.68 when Defendant took office. Karla Montavy, who was secretary of the Jaycees in 2000 and 2001, and her husband, Kendall Montavy, were also authorized signatories. All checks drawn on the Jaycees' account required two signatures. If a member expended his or her own funds for club business, the member would present a receipt at a board meeting, and the board would approve reimbursement.

In 2002, members of the Jaycees' board became concerned with the minimal balance of $12.70 in the Jaycees' checking account, so the board formed an audit committee to investigate. The audit committee members were Donna Whittle, 2002 president; Gary Thompkins, 2002 treasurer; and Gayle Bledsoe, who was treasurer before Defendant and was also Defendant's sister-in-law. The audit committee repeatedly requested that Defendant turn over the banking records and checkbook documenting Defendant's financial dealings during her tenure as treasurer. Defendant stalled, but she eventually provided a computerized printout listing checks with some explanations of their purpose, some receipts, and some, but not all, bank statements.

The audit committee reviewed the documentation provided by Defendant and determined that Defendant had written at least 144 checks by signing her own name and Karla Montavy's name. Ms. Montavy had not authorized Defendant to sign Ms. Montavy's name on the checks. In January 2002, the audit committee met with Defendant to discuss the checks. Defendant offered a sufficient explanation with receipts for many of the checks, but she was unable to provide what the audit committee considered a sufficient club-related explanation for at least twenty of the checks she wrote during the years 2000 and 2001, when she served as treasurer. Thus, the audit committee contacted the police.

The State charged Defendant by Information with twenty counts of forgery — one count for each of the twenty unauthorized checks. Prior to trial, Defendant moved to quash the Information, alleging it was improper to charge twenty separate forgery counts, because the Information presented a "showing of a common scheme." Defendant argued that each check was the same kind of instrument drawn on an account from the same bank and that, except for a change in the date, the counts were all the same. The trial court overruled the motion.

A jury trial began on October 23, 2003. The State presented testimony from members of the audit committee concerning their investigation and each of the twenty checks that were determined to be unauthorized. Ms. Montavy also testified concerning the appearance of her signature on each of the checks, which she had not signed or authorized. In addition, several of the Jaycees testified that none of the checks in question had been presented for approval at any of the Jaycees' club meetings.

In her defense, Defendant presented testimony from Lori Kiso, who was president of the Jaycees in 2001. Ms. Kiso testified that she was present when Karla Montavy told Defendant that in preparation for the June 2001 "Testicle Festival,"² which was the Jaycees' annual fundraiser, Defendant could sign her name on the checks when the Montavys — the other authorized signatories — were out of town for a week. Defendant testified in her own defense that she signed each of the checks at issue with Ms. Montavy's permission. Defendant explained the club-related purpose for some of the checks and indicated that she had documentation to support her explanations, but she did not have that documentation with her at trial. Defendant could not remember the purpose for some of the checks, but she testified that she never stole or took money from the Jaycees that was not in the form of reimbursement.

The trial court overruled Defendant's objections at the instruction conference to the charging of twenty separate counts for each of the allegedly forged checks, and the jury was instructed on twenty counts of forgery as charged. For each count, the jury was asked to determine whether Defendant, with the purpose to defraud, completed the check so that it purported to have been made by another. The jury found Defendant not guilty of ten of the counts; it was unable to reach a unanimous verdict on one count, so the trial court declared a mistrial; and it found Defendant guilty of the remaining nine counts. In summary form, the following evidence against Defendant, and Defendant's corresponding explanations for the expenditures, were offered at trial for those counts on which she was convicted:

Count 9 (check number 652, dated January 8, 2001, for $200), and Count 10 (check number 653, dated January 12, 2001, for $150). Both checks were payable to "Cash" and endorsed by "R. Neth." (Defendant's maiden name was Rhonda Neth.) Defendant explained that the checks were for "change" for the club. Club members testified that the Jaycees had no January events that would require change.

Count 13 (check number 698, dated June 7, 2001, for $1,500) was payable to Defendant. Defendant explained that the check was for reimbursement for items sold at the Testicle Festival, which she had ordered from "The Mate" and paid for with a personal check. The Mate's longtime bookkeeper testified that she only received payments from the Jaycees' checking account. The Mate had not been paid with cash or from personal funds that would require reimbursement.

Count 14 (check number 699, dated June 8, 2001, for $200) was also payable to Defendant and endorsed by Defendant. Defendant explained that the check was to reimburse her for "start-up" cash she supplied for the Testicle Festival.

Count 15 (check number 720, dated June 26, 2001, for $777) was payable to and endorsed by Defendant. Defendant explained the check was to reimburse her for supplies, meats, and t-shirts for the Testicle Festival.

Count 16 (check number 725, dated July 1, 2001, for $700) was payable to the Missouri State Credit Union and was endorsed by Defendant "for deposit only" in her account. The Jaycees had no accounts or debts at the Missouri State Credit Union. Defendant explained that the check was to reimburse her for some expenses.

Count 17 (check number 728, dated July 9, 2001, for $815.75) was payable to and endorsed by Defendant. Defendant could not remember what the check was for.

Count 19 (check number 705, dated June 6, 2001, for $112.62) and Count 20 (check number 736, dated July 7, 2001, for $112.62). Both checks were payable to "R.F. Inc." Defendant testified that she and her husband owned a "time share" in R.F. Inc., and the checks were for fliers that she bought as advertising director for the Testicle Festival. The members that testified were not familiar with R.F., Inc. and did not recall seeing that many fliers in either month.

The jury recommended sentences of a fine and no imprisonment for Counts 9, 10, 14, 19, and 20, but it could not reach an agreement on punishment for the remaining four counts (13, 15, 16, and 17). The trial court imposed a fine of $2,000 for Counts 9, 10, 14, 19, and 20. The trial court entered sentences of seven years imprisonment on the remaining four counts. For three of those counts (13, 15, and 16) the trial court suspended imposition of the sentences and placed Defendant on five years probation. On the remaining count (17), the trial court entered its sentence pursuant to section 559.115 ("shock incarceration").

This appeal follows.

Points I and II

In her first two points on appeal, Defendant challenges the trial court's instruction of the jury on each of the twenty counts of forgery. In her first point, Defendant argues that the separate instructions subjected her to double jeopardy "in that all counts were part of a scheme and were not separate offenses." In her second point, Defendant argues that the instructions on the separate counts were improper, "because the completion of each check was not a separate criminal offense but a continuous course of conduct in [that] the act of completing the check instruments was a sole criminal act of a continuous nature and only one act should have been submitted to the jury in the form of a...