State v. Follin, 3559.

• Citation: 573 S.E.2d 812,352 S.C. 235
• Decision Date: 28 October 2002
• Docket Number: No. 3559.,3559.
• Court: Court of Appeals of South Carolina
• Parties: The STATE, Respondent, v. Dale F. FOLLIN, Appellant.

352 S.C. 235

573 S.E.2d 812

The STATE, Respondent, v. Dale F. FOLLIN, Appellant.

No. 3559.

Court of Appeals of South Carolina.

Heard September 12, 2002.

Decided October 28, 2002.

Rehearing Denied December 19, 2002.

M.M. Weinberg, Jr., and M.M. Weinberg, III, of Sumter, for Appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Robert E. Bogan, Chief Attorney, State Grand Jury, all of Columbia, for Respondent.

ANDERSON, J.:

Dale F. Follin was convicted of aiding and abetting embezzlement, conspiracy, and obtaining goods and services by false pretenses. She was sentenced to ten years, suspended upon the service of four years and five years probation, for aiding and abetting embezzlement. On the conspiracy charge, she was sentenced to three years, to run concurrent with the aiding and abetting sentence. She was sentenced to three years for obtaining property by false pretenses, to run concurrently with the other sentences.

Follin argues on appeal that the trial court: (1) lacked subject matter jurisdiction; (2) punished her for exercising her right to a jury trial; (3) erred in denying her motion for judgment notwithstanding the verdict and motion in arrest of judgment as to the charges of criminal conspiracy, aiding and abetting embezzlement, and obtaining goods and services by false pretenses; and (4) erred in denying her motions for directed verdict as to the charges of criminal conspiracy, aiding and abetting embezzlement, and obtaining goods and services by false pretenses. We affirm.

FACTS/PROCEDURAL BACKGROUND

The charges against Follin stemmed from an investigation into the diversion of nearly $2.5 million from Sumter County School District 17 (District 17) by Adolph Joseph Klein, the Assistant Superintendent in charge of Financial Affairs for District 17. Follin, a travel agent and owner of Follin Travel, handled the travel arrangements for District 17 from 1988 to 1997. Follin dealt exclusively with Klein. She made a commission on every trip she booked which was actually taken.

Klein had two methods of diverting funds. First, with the assistance of James Benjamin "Benji" Adams, Klein directed over $1.5 million of District 17 funds as payment to fraudulent corporations created by Adams. Klein's second scheme involved having District 17 pay for nearly $1.5 million in personal travel expenses for Klein, his friends, and his family to travel to Mardi Gras, to go skiing in Colorado, to go on cruises, and to go to various sporting events around the country. As part of his travel scheme, from 1987 to 1995, Klein booked luxury vacations, which he termed "junket travel," through Follin for himself, friends, and people from out of state. He then filed a requisition of funds form with District 17, which appeared to request payment for legitimate District 17 business. No invoice for this travel existed. After District 17 issued a check to Follin Travel without an invoice number listed on it, Klein attached a note instructing Follin to apply those funds to an invoice number representing Klein's junket travel.

In 1995, Klein learned that if travel plans made one week were cancelled before the Friday of that same week, no payment would be required on the trip, the invoice would be voided, and the invoice number would no longer appear in Follin's computerized accounting system. He began using invoices to get District 17 to pay for his junket travel. Klein would request an invoice from Follin for what appeared to be legitimate travel for a school group or a District 17 employee. Klein would then request that Follin void the invoice prior to the Friday of that week. Follin would cancel the trip in her computer and stamp "void" on her copy of the invoice. However, Klein submitted his clean copy of the invoice to District 17 for payment. Klein called these invoices "special invoices" for the junket travel. After the check was issued to Follin on the special invoice, Klein would attach a note to the check identifying for Follin the invoice number to which she should apply the check. The invoice number did not match the number on the special invoice submitted to District 17 for payment but matched the invoice number of another of Klein's junket trips.

Philip K. Davis, the accountant for District 17, assisted Klein in his scheme by not reporting the payments for junket travel. However, Davis' accounting firm's contract with District 17 ended after the 1994-95 school year and a new accounting firm was hired. Klein, as the person in charge of the district's financial matters, had sole approval of invoices and access to the check-signing machine, which generated his and the superintendent's signatures on the checks. Thus, the checks had the appearance of being approved by both parties.

The investigation began in September 1997 when District 17 officials learned that Klein approved travel and funding for School Board member Ione Dwyer to travel to New York to watch the chorus perform. Because the School Board had previously refused Dwyer's request for funding, District 17 Superintendent Dr. Andrena Ray investigated Klein. The investigation revealed that Klein approved invoices requesting travel funds for school groups and individuals working within District 17. However, after questioning the sponsors of the school trips, Dr. Ray learned that, despite the fact that District 17 paid Follin Travel for the trips, many of the school groups never went on the trips. An auditor began reviewing Klein's travel files for 1997.

Klein learned of the audit and contacted Follin at her home on a Sunday in October 1997. The two met at Follin's office. At Klein's request, Follin created false, back-dated records which indicated that District 17 was owed a credit of approximately $70,000 because several of the school-related trips paid for by the district were cancelled. Klein and Adams later delivered several cashier's checks to Follin totaling $52,000. Follin put the cashier's checks in her safety deposit box at her bank.

Sumter High School Principal Kay Raffield and District 17 attorney Bruce Davis went to Follin's business to discuss various invoices amounting to nearly $70,000 for school trips in 1997 that were never taken. Follin admitted District 17 had a $70,000 credit. She told Raffield and Davis that whenever a trip was paid for but later canceled, Klein would inform her to keep the money as a credit towards future District 17 travel. Follin agreed to give the money back to District 17 but informed Davis that she did not have access to it at the moment because it was in a separate account. After the meeting, Follin retrieved the cashier's checks from her safety deposit box and deposited them into her business account. District 17 did have a legitimate credit owed to them from Follin Travel. However, the cashier's checks and the genuine credit did not amount to the $70,000 owed to the district. Thus, Follin transferred $17,000 from her grandmother's IRA account to her business account. She then wrote District 17 a "refund" check of $70,389.10.

After further investigation, Klein, Follin, and other individuals connected to the scheme were indicted by the State Grand Jury. Klein and most of the other individuals charged in the scheme pled guilty to the charges. Follin proceeded to trial.

LAW/ANALYSIS

I. SUBJECT MATTER JURISDICTION

Follin argues the State Grand Jury¹ was without power to issue the indictments against her because the investigation lasted longer than two years and was transferred from one State Grand Jury to two subsequent State Grand Juries in violation of the statute. Thus, she asserts, the indictments were invalid and the trial court lacked subject matter jurisdiction. We disagree.

The extensive investigation by the State Grand Jury into this matter began in 1997 and numerous people were ultimately indicted for defrauding District 17. The investigation against Follin was before several different panels of the State Grand Jury. The 1998 State Grand Jury heard evidence in the case, but was discharged in 1999 before issuing an indictment. On October 13, 1999, Follin was initially indicted for criminal conspiracy by the 1999 State Grand Jury. The State Grand Jury issued a first superseding indictment on January 11, 2000, charging Follin with criminal conspiracy; larceny by trick; embezzlement; obtaining goods and services by false pretenses; receiving stolen goods; and obstruction of justice.

Follin, along with two co-defendants, moved to quash the indictment. She argued the General Assembly intended a particular State Grand Jury to investigate allegations of criminal conduct for up to two years before it must be discharged. Follin maintained the legislature did not intend for an investigation to be transferred from one grand jury to a successive grand jury if the initial panel could not issue an indictment upon an investigation. She complained the grand jury that heard her testimony on May 5, 1998, did not issue an indictment, and the subsequent grand jury which issued indictments in October 1999 and January 2000 did not hear her testimony. The trial court denied the motion to quash.

Follin contends the trial court erred in failing to find that the statute governing the State Grand Jury does not allow a subsequent grand jury to issue an indictment if the original grand jury failed to issue one at the expiration of its term.

Although there have not been any recent cases discussing the rules regarding the transfer of investigations to a subsequent county grand jury, the common law allows such transfers. In Fitch v. State, 11 S.C.L. (2 Nott & McC.) 558 (Ct.App.1820), the defendant appealed the referral of the investigation against him to a new grand jury after the initial grand jury returned a "no bill." The Court noted:

As a legal principle, there can be no doubt but that a prosecutor may prefer a new bill where a grand jury has returned "no bill." 4 Black. 305,

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