State v. Duran
| Decision Date | 10 January 1978 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 118 Ariz. 239,575 P.2d 1265 |
| Parties | STATE of Arizona, Appellee, v. Abelardo P. DURAN, Appellant. 2256. |
| Court | Arizona Court of Appeals |
The appellant, Abelardo P. Duran, was tried by a jury and convicted of 38 counts of altering public records, a felony, 37 counts of embezzling public funds, a felony, and one count of filing a false Arizona income tax return, a felony. Appellant was sentenced to a term of not less than 4 nor more than 5 years in the Arizona State Prison on each of the 38 counts of altering public records, the sentence for each count to run concurrently with the sentences on the remaining counts. Additionally he was sentenced to a term of not less than 9 nor more than 10 years on each of the 37 counts of embezzling, the sentence on each count to run concurrently with the sentences on the remaining embezzlement counts but consecutive to the sentences for altering public records. Appellant was further sentenced to a term of not less than 4 nor more than 5 years in the Arizona State Prison for the crime of filing a false Arizona income tax return, this sentence to run concurrently with the sentences imposed on the counts of altering public records.
During the years 1974 and 1975, appellant was employed by the State of Arizona as an Administrative Services Officer with the office of the Registrar of Contractors. As an Administrative Services Officer, appellant was responsible for the supervision of the collecting, depositing and accounting for various funds collected by the state agency.
Prior to appellant's accepting his position at the office of the Registrar of Contractors, the collecting and depositing of funds received by that office was done by various individuals, each of whom provided a check on the others to assure that all funds collected were properly accounted for and deposited with the office of the State Treasurer. However, soon after appellant took over as Administrative Services Officer, he consolidated the depositing and accounting functions in himself, despite recommendations to the contrary from the Auditor General's office. Consequently, instead of having separate individuals perform the various tasks of preparing deposit slips, depositing the funds, posting the deposits and balancing the books, appellant performed all these functions himself.
The funds received by the Registrar of Contractors were in the form of both checks and cash and were deposited with the State Treasurer's office two or three times weekly as large sums would accumulate. Both the cash and the checks would come to Mr. Duran, accompanied by a summary statement of receipts prepared by the licensing division. The statement of receipts was a standard form used by the Registrar of Contractors in preparing the first stage of a deposit to the State Treasurer's office, and had been in use for at least 16 years. Appellant would then complete a pay-in voucher (PIV), similar to a bank deposit slip, which would itemize the total cash and the total checks in each deposit, with a grand total encompassing both cash and check totals. The PIV was made up of an original and several copies for various accounting and cross-checking purposes. Appellant would then hand carry the deposits to the State Treasurer's office, where the cash would be verified and a validation number stamped on each PIV. The Treasurer's office would then deposit the funds with a bank depositary and would send a copy of the validated PIV to the State Department of Finance, which would provide the Registrar of Contractors with computer printouts of all funds received by them. These printouts would be sent back to the office of the Registrar of Contractors at regular periods for balancing and as a means of reporting to that agency all funds deposited to its account. Following the consolidation of accounting and bookkeeping functions in appellant, he was then responsible for verifying and balancing these periodic computer printouts.
Appellant's defalcations began when he failed to deliver to the State Treasurer seven separate PIVs. Appellant immediately appropriated to himself the cash from these PIVs, but held back the checks, which he later substituted for cash on different PIVs. When he would substitute these checks, appellant would alter the statements of receipts to reflect an increase in the amount of checks deposited but would decrease cash accordingly. Although the grand total remained the same on the altered statements of receipts, the total of the checks would be increased to reflect the deposit of the checks previously held back by appellant, who would then pocket in cash a sum equal to the amount of the checks.
The destruction or secreting of the seven original PIVs and the altering of 31 subsequent Statements of Receipts formed the basis for the 38 convictions under A.R.S. § 38-421, altering public records. The 37 embezzlement convictions resulted from 37 separate thefts of the cash, 7 times from the destroyed PIVs, and 30 times as a result of the altered statements of receipts. The conviction for filing a false Arizona income tax return arose during the tax year 1975 when appellant failed to include in his tax return approximately $20,000 in funds obtained through the foregoing scheme. Following sentencing, appellant timely brought this appeal, claiming that the trial court committed numerous errors.
Appellant first claims that the Attorney General of Arizona did not have lawful authority to prosecute appellant. The State, on the other hand, submits that the authority of the Attorney General to prosecute appellant was found in a written agreement 1 authorizing the Attorney General to submit appellant's case to the grand jury, and in the event of an indictment, to prosecute appellant.
The powers of the Attorney General with respect to the prosecution of criminal matters are set forth in A.R.S. § 41-193, which provides in part as follows:
Appellant argues that because the agreement between the County Attorney and the Attorney General did not set forth the reasons for the request, the requirement of necessity set forth in A.R.S. § 41-193(A)(5) was not met.
The powers of the Attorney General are derived solely from the legislature. Shute v. Frohmiller, 53 Ariz. 483, 90 P.2d 998 (1939). The question then becomes whether the written agreement between the Attorney General and the Maricopa County Attorney satisfied the requirements of A.R.S. § 41-193(A)(5).
If we were to accept appellant's argument that there must be an objective showing of necessity before a county attorney in Arizona could call upon the assistance of the Arizona Attorney General, this Court would have to determine each time the question was presented not only what reasons there were for such a request but whether or not such a request was warranted. There may be many reasons why a county prosecutor would request assistance from the Attorney General's office, including a shortage of available personnel, budgetary limitations, or as was probably the case here, lack of sufficient expertise in a very highly specialized area of prosecution. Whatever the reasons, the legislature has permitted the Attorney General's office to assist the county prosecutors "when deemed necessary". Without a more specific mandate from the legislature, this Court will not unduly hinder the administration of justice in this state by requiring the County Attorney on a case by case basis to justify his calling upon the assistance of the Attorney General. Thus, we find appellant's objection to prosecution by the Attorney General to be without merit.
Appellant next complains that A.R.S. § 38-421 is unconstitutionally vague. The statute in question provides as follows:
Appellant complains that, under a literal reading of the statute, no writing, note, rough draft, etc. can be altered, destroyed or removed without subjecting the one who does so to prosecution under the statute. Appellant further claims that the vagueness of the statute renders it susceptible to arbitrary and discriminatory enforcement at the unlimited discretion of the prosecuting authorities as to which persons to prosecute for what types of conduct. Moreover, any person given a writing prepared by a member of his department for editing or correcting risks a violation of the statute for any alterations or corrections which might be made.
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Arizona Contractors Ass'n, Inc. v. Napolitano
...A.R.S. § 41-193(A)(5). The Attorney General may prosecute crimes when requested by a county attorney. State v. Duran, 118 Ariz. 239, 242-43, 575 P.2d 1265, 1268-69 (Ct. App.1978). On the other hand, no Arizona court has held that the Attorney General "may, in his assistance, do every act" t......
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