State v. Holman

• Decision Date: 14 August 2007
• Docket Number: No. 28021.,28021.
• Citation: 230 S.W.3d 77
• Parties: STATE of Missouri, Respondent, v. David Michael HOLMAN, Appellant.
• Court: Missouri Court of Appeals

230 S.W.3d 77

STATE of Missouri, Respondent, v. David Michael HOLMAN, Appellant.

No. 28021.

Missouri Court of Appeals, Southern District, Division Two.

August 14, 2007.

Matthew Michael Ward, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Mary H. Moore, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

David Michael Holman ("Appellant") was convicted by the trial court of two counts of violating section 570.030 by stealing funds from the checking account of South Morgan Township ("the Township") in Dade County, Missouri.¹ Following a bench trial, the trial court suspended imposition of sentence as to Count I. The trial court then sentenced Appellant to three years imprisonment on Count II, but suspended the execution of the sentence and placed Appellant on probation for a term of five years. Appellant was also ordered to pay restitution in the amount of $8,570.20.² Appellant solely challenges his conviction under Count II.³

Viewing the evidence in the light most favorable to the trial court's verdict, State v. Shockley, 98 S.W.3d 885, 887 (Mo.App. 2003), the record reveals that in 1995 Appellant was elected as a board member of the Township. According to the testimony at trial, at bi-annual elections the Township voters would elect two board members, a trustee or treasurer, and a clerk and collector. At the time Appellant was elected as a board member, Wife was elected as clerk of the Township and Harold Dunn ("Mr. Dunn") was elected as trustee. There have been no other elections held in the Township since 1995. In 2001, Mr. Dunn found himself unable to continue to perform his duties as trustee and turned the Township books, including the check book and certain equipment, over to Appellant and Wife.

Deputy Max Huffman ("Deputy Huffman") of the Dade County Sheriff's Department testified that he was asked by the prosecuting attorney of Dade County to investigate the Township's financial records. He stated that in February of 2004 he met with Wife, who was "very cooperative" and "very friendly." Wife provided Deputy Huffman with the Township's checking account information as well as cancelled checks and check stubs. When Deputy Huffman spoke with Wife she stated she did not know the title of her official position with the Township, but that she "took care of the checking account and the books." She told the deputy that she was not sure of Appellant's title either, and that "they had just started doing things that needed to be done after Mr. Dunn had passed away." She stated that she "took care of the checkbook" and Appellant "always signed the checks."

At trial, Deputy Huffman testified as to the details of eight checks at issue which were written during the time period covered by Count II.⁴

In this connection, Deputy Huffman testified that check number 1744 was written on January 7, 2004, for $834.00 to Wife and the memo line indicated the payment was for "[p]apers, fill out and trustee."⁵ However, the check stub and check register relating to check number 1744 was blank.

Deputy Huffman also stated that check number 1746 was made payable to Appellant in the amount of $321.67. Wife told Deputy Huffman that Appellant "`signed the check and [she] wrote it. It was for both of [them] cleaning ditches. We both endorsed the check.'" The memo line on the check stated it was for "[l]abor," but the check register entry for this check was blank. The check was endorsed by both Appellant and Wife.

Deputy Huffman also testified that check number 1747 was made payable to Wife in the amount of $346.21 for "book-keeping." Wife explained to Deputy Huffman that the check was "for out-of-pocket expenses. [She did not] have any records or worksheets. [She] just didn't keep any. [She] wrote the check and [Appellant] signed it." The check register indicated that the check was made payable "to the Dadeville Road" for "[t]axes." Wife was unable to explain this apparent discrepancy to Deputy Huffman.

According to Deputy Huffman, check number 1748 was made payable to Wife "[f]or bookkeeping and ditch cleaning" in the amount of $821.42 on March 12, 2004. Wife told Deputy Huffman this check was for "ditch cleaning, piling brush and clean up of ditches before grading. It did not cover any bookkeeping. It was figured at $8 per hour for each of [them]." The check was endorsed by Wife and the accompanying check register entry was "completely blank."

Deputy Huffman also stated that check number 1751 was made payable to Appellant in the amount of $894.00. The memo line on the check indicated it was for "[l]abor" and the check was endorsed by Appellant. Wife told Deputy Huffman the check was "for brush hog and spraying . . . and fuel." The check register indicated the check "was payable to [Appellant] . . . for helping Allen work roads." Wife stated she did not have any receipts relating to this check. Wife was unable to explain to Deputy Huffman the discrepancy in the memo line and in the check register notation.

Deputy Huffman related that check number 1753 was made payable to Wife in the amount of $325.00 and was signed by Appellant. The memo line indicated the check was for "[p]icking up brush and hauling brush." The coordinating check register was empty of any notations relating to this check except that it indicated the check was for $225.00 instead of $325.00.

Deputy Huffman testified that check number 1754 was made payable to Appellant in the amount of $862.40. The check, which was signed by Appellant, stated it was for "cutting brush and tractor tires." The check register contained no notations relating to this check. There were no attendant receipts.

Deputy Huffman also stated that check number 1755 was made payable to Appellant and signed by Appellant. The check was executed in the amount of $327.41, and set out it was for "[d]igging tin horns." Wife told Deputy Huffman the check was "figured . . . at $10 per hour, labor, diesel and tractor." The check register for this check indicated its amount, but no other notations.

Deputy Huffman testified that in his review of the Township financial records it appeared that "[i]n 2002, the accounts seemed to be fairly complete or kept up complete in the check stubs and check register. As it continued on in 2003 and 2004, there . . . [were] more entries missing, totals were not carried forward, entries were not made at all." He stated that as time passed the number of checks written directly to Wife and Appellant "increased significantly, as well as the amounts of the checks."

At trial, Appellant testified that from 2002 to 2004 he was "on the board" of the Township, but related he did not know if he was a trustee. He stated that at that time Wife "was kind of clerk, treasurer, bookkeeper." He also related that he and Wife initially got involved with the Township after Mr. Dunn became ill and they agreed to take over "the books, the equipment and the headache." He stated he and Wife received no training in bookkeeping or in their responsibilities for the Township's finances. He related that Wife "pretty well tried to keep the books up, keep the bills paid" and he "took all the calls . . . . There is a limb in the road. There is a tree on the road, making sure the roads were graded, making sure the snow was pushed off, doing the FEMA work. Just whatever needed to be done." He stated his duties included finding someone to haul and spread chat on the roads as well as personally removing dead dogs from the roads, removing tree limbs, and arranging to have the roads graded. He was responsible for brush hogging the Township's property and right of ways with the Township's tractor or his own tractor. He stated there were between 19.5 miles and 22.3 miles of roads in the Township under his care. He stated he paid himself between $10.00 and $15.00 per hour depending on the particular job. Appellant also explained that sometimes he paid himself based on "how much profanity was used on what [he] did. If [he] was flagged down in the middle of the road, and it usually started with profanity and ended with profanity, [he] usually tacked a little extra on...." He stated he "pretty much told [Wife] what to write [his] checks for ..." and she did so.

Appellant also related that Wife typically filled out the checks and he signed them. When asked if he felt "odd writing any checks to [him]self," he stated that he did. He stated that when they first took over the finances in 2001, they went "to a meeting [with the county commissioners] . . . to discuss what [he] thought was probably financial statements. When [he] got over here, there was a discussion about somebody complained the brush was bad." He stated that when he left the meeting it was his understanding that he

was to take care of the roads and the right of ways, and if [he did] the work, [he] was pretty adamant that [he] didn't want to pay [him]self, but if [he] had to get out and do all of the running around on the roads and taking care of the roads, [he] was going to be compensated.

He related that when he left the meeting he felt like he had the consent of the county commission to write checks to himself for work he performed for the Township.

Appellant also stated that he felt like he and Wife "were doing what had been done before, taking care of the roads." He stated that Mr. Dunn "had always [written] the checks out and had done the work, paid himself...." He related that some of the checks at issue were reimbursements for money he and Wife had paid out of their own pocket for the Township's needs. He also stated that he "couldn't really pack that great big checkbook around with [him]. And if [he] had to run to ... pick up some parts or whatever ... [he] would pay for it and was reimbursed . . . ." He stated the memo lines on the checks were small and he could not "get a lot on there."

In explanation for the fact that the bookkeeping got progressively worse during his tenure with the...