State v. Campbell, 12703

• Decision Date: 12 July 1983
• Docket Number: No. 12703,12703
• Citation: 655 S.W.2d 96
• Parties: STATE of Missouri, Respondent, v. James Chalmers CAMPBELL, Appellant.
• Court: Missouri Court of Appeals

Page 96

655 S.W.2d 96

STATE of Missouri, Respondent, v. James Chalmers CAMPBELL, Appellant.

No. 12703.

Missouri Court of Appeals,

Southern District,

Division One.

July 12, 1983.

Robert P. Warden, Joplin, for appellant.

John Ashcroft, Atty. Gen., Melinda Corbin, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

A jury found appellant ("Campbell") guilty of the class C felony of stealing at least $150 in money, by deceit, § 570.030 RSMo 1978, and assessed punishment at 90 days imprisonment in the county jail, § 558.011.2, RSMo 1978, as amended by Laws 1979, p. 633. The jury also recommended that the trial court assess a fine "in lieu of any imprisonment." The trial court imposed the jail sentence assessed by the jury, but suspended execution and placed Campbell on probation, § 559.012, RSMo 1978, subject to sundry conditions including restitution, § 559.021.2(1), RSMo 1978, as amended by Laws 1981, p. 637. No fine was imposed.

The theft is alleged to have occurred during the period from November 12, 1980, through February 7, 1981, from Rural Missouri Incorporated ("RMI"), an organization which, during that time, administered "manpower training programs" under the Comprehensive Employment and Training Act of 1973 ("CETA"), Pub.L. 93-203, 87 Stat. 839, as amended. The program pertinent here was one in which employers were induced to hire persons previously unemployed or underemployed, the inducement being reimbursement to the employer for up to fifty percent of those persons' wages for a fixed period. The funds for reimbursement were supplied by the United States government to RMI, which administered the program in Campbell's locale through an agency called Ozark Gateway Council ("OGC").

The information alleged Campbell represented to RMI that (a) Joseph DeWalt ("DeWalt") was an employee of ABC Pest Control ("ABC") during the period in question, and (b) ABC was entitled to reimbursement of $854, knowing the representations were false.

Campbell's sole point on appeal is that the evidence is not "unequivically (sic) inconsistent" with his innocence, in that the evidence does not support a finding that he knew the hours represented as having been worked by DeWalt were not in fact so worked. Campbell asserts the trial court erred in denying his motion for judgment of acquittal at the close of the State's case, and in denying a similar motion at the close of all the evidence.

Campbell did not stand on his motion for judgment of acquittal at the close of the State's case. After the motion was denied, he introduced evidence in his own behalf, thereby waiving any error with respect to the denial of the motion. State v. Green, 476 S.W.2d 567, 569 (Mo.1972). Accordingly, the submissibility of the case will be determined upon the basis of all the evidence, including those portions of Campbell's evidence that favor the State. State v. Wood, 553 S.W.2d 333, 334 (Mo.App.1977). We view the evidence in the light most favorable to the State, accept all substantial evidence and all legitimate inferences fairly deducible therefrom which tend to support the verdict, reject contrary evidence, and disregard all evidence unfavorable to the State. State v. Leach, 633 S.W.2d 754, 755 (Mo.App.1982).

During the period in question, ABC, a corporation, maintained its office in Joplin, Missouri. Campbell was ABC's president and "major stockholder." He "ran the business."

ABC used "time sheets" to keep track of the hours its employees worked. Each sheet covered one employee for one week. At the beginning of each week, each employee put his name on a blank sheet, then filled in his hours each day. The sheets were kept on a "board" or in a box at ABC's office.

In an "employer contract" dated November 12, 1980, signed by Campbell, ABC, as employer, agreed with RMI and OGC to furnish employment and training for DeWalt beginning that date and continuing for 36 consecutive weeks, or until the training was successfully completed, whichever first occurred. The contract provided, inter alia, for ABC to submit to OGC, "by the 15th of each month," invoices for reimbursement for half of DeWalt's monthly wages, with RMI's liability not to exceed $100 per week.

Under date of December 3, 1980, ABC submitted to OGC a written "Request for On-Site Training Cost Reimbursement" for DeWalt's November wages. The Request signed by Campbell, showed DeWalt worked eight hours on each of these days: 12, 13, 14, 17, 18, 19, 20, 21, 24 and 25. Total wages were $400; ABC claimed $200 reimbursement. On December 22, 1980, RMI issued a check to ABC for the amount claimed, together with reimbursement for another CETA employee.

A similar procedure was followed regarding DeWalt's December wages. A Request, signed by Campbell and dated January 12, 1981, showed DeWalt worked eight hours on each of these December days: 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22 and 23. Total wages were $544; ABC claimed $272 reimbursement. RMI paid ABC the amount claimed, by check dated January 22, 1981.

ABC, over Campbell's signature, submitted a Request dated February 3, 1981, for DeWalt's January wages. The Request showed DeWalt worked eight hours on each of these days: 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29 and 30. Total wages were $704; ABC claimed $352. RMI reimbursed ABC that amount by check dated February 23, 1981.

Under date of March 4, 1981, ABC, over Campbell's signature, submitted a Request for DeWalt's February wages, showing DeWalt worked eight hours on each of these days: 2, 3, 4, 5 and 6. Wages of $160 were shown, with ABC claiming $80 reimbursement. RMI paid the claim by check dated March 19, 1981.

The Requests were supposed to be signed not only by the employer, but also by the trainee. The Requests for November and December showed DeWalt "unavailable." The Request for January bears a signature "Joseph E. DeWalt." At trial, DeWalt was not asked whether the signature was his. The Request for February showed DeWalt was "no longer employed here."

Records of the Greene County, Missouri, office of the Division of Family Services show DeWalt was at the office in Springfield applying for food stamps sometime between 8:00 a.m. and 5:00 p.m. December 11, 1980, one of the days for which ABC claimed wage reimbursement.

Records of the Springfield Police Department show DeWalt was arrested at 12:17 a.m. January 7, 1981, for inhaling solvents, and released at 10:20 a.m. the same day, another one for which ABC claimed reimbursement.

Records of the Hyland Plasma Center in Springfield show DeWalt arrived there to give blood at 2:00 p.m. January 19, 1981, and completed the procedure by 5:12 p.m. that day, another for which ABC claimed reimbursement.

By similar records, DeWalt was shown to have (a) applied for food stamps in Springfield January 27, 1981, between 8:00 a.m. and 5:00 p.m., (b) arrived at the Hyland Plasma Center in Springfield January 29, 1981, at 11:15 a.m. to give blood, completing the procedure at 1:13 p.m., (c) arrived at the Hyland Plasma Center at 11:15 a.m. February 2, 1981, giving blood at 1:18 p.m., (d) been "detained for drunk" in Springfield between 5:45 p.m. and 9:10 p.m. February 3, 1981, and (e) arrived at the Hyland Plasma Center at 11:15 a.m. February 5, 1981, departing at 12:50 p.m. that day. Each of these days is included among those for which ABC claimed wage reimbursement.

A "TERMINATION DATA/FOLLOW-UP" form maintained by RMI shows DeWalt was terminated by ABC on February 6, 1981, for "some health reason."

RMI's director in Jefferson City sent a certified public accountant from RMI's office to Joplin in June, 1981, to audit ABC's accounts. The Division of Manpower Planning had earlier sent someone to Joplin for the same purpose.

Joyce McGinthia worked for ABC in January and February, 1981, customarily arriving at the office around 7:00 a.m. and departing about 5:30 p.m. or thereafter. She testified Campbell was at the office almost every day, some days for an hour or two and other days for the entire day. Joyce never saw DeWalt the entire time she worked for ABC.

Joyce's husband, David, worked for a chimney sweeping company operated by Campbell for six months, beginning in September, 1980. That company's office was in a room at the ABC office. David testified DeWalt was not employed by ABC. David saw DeWalt at ABC's office "once or twice," sitting on the sofa watching television.

Billy Dean Reynolds began working for ABC in January, 1981, constructing a building "out in back" of ABC's office. He did not see DeWalt working at ABC in January or February of 1981. Reynolds testified that sometime around October, 1981, Campbell told Reynolds he did not want Reynolds "to tell the truth." According to Reynolds, Campbell said he "didn't want to go to jail or prison," and that Reynolds was the only one who could send him to jail. Reynolds recalled that a few days after this conversation, Campbell came to Reynolds' house and tried to get Reynolds to go to the office of Campbell's lawyer and "deny everything" Reynolds had said in an earlier statement at the prosecuting attorney's office. The "main gist" of Campbell's conversations with Reynolds was about Reynolds' employment at ABC. Campbell did mention DeWalt, but the "major conversation" was not about him.

At trial, Campbell produced one paycheck for DeWalt. It was for $100, and dated November 28, 1980.

Mary Christine Davis, a "stockholder" in ABC, recalled that an "investigation" of ABC was conducted in the spring of 1981. Mary told Campbell that "if he thought it would help," she would make a "rough sketch" of the "cash draws" DeWalt would have had to receive--going back to "before Christmas"--in order that DeWalt would have had no paychecks due on paydays. To do this, Mary had to know how much DeWalt should have drawn each payday. She helped Campbell and an "office employee" make the calculations, but "didn't put anything...