State v. James

• Decision Date: 02 November 1989
• Docket Number: No. 10744,10744
• Citation: 109 N.M. 278,1989 NMCA 89,784 P.2d 1021
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Darrin JAMES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1021

784 P.2d 1021

109 N.M. 278

STATE of New Mexico, Plaintiff-Appellee, v. Darrin JAMES, Defendant-Appellant.

No. 10744.

Court of Appeals of New Mexico.

Nov. 2, 1989.

Certiorari Denied Dec. 21, 1989.

[109 NM 279] Hal Stratton, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

J. Michael Norwood, L. Val Whitley, Pattie Swift, UNM Clinical Law Program, Albuquerque, for defendant-appellant.

OPINION

CHAVEZ, Judge.

Defendant appeals his conviction of embezzlement of over $100 but less than $2,500, contrary to NMSA 1978, Section 30-16-8 (Repl.Pamp.1984). He challenges the sufficiency of the evidence to support his conviction and the propriety of the aggravating circumstances used by the court to increase his sentence. Defendant raises two other issues pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), cert. denied, 394 U.S. 965, 89 S.Ct. 1318, 22 L.Ed.2d 566 (1969). We affirm defendant's conviction and remand for resentencing.

Defendant was employed by the Allsup's store in Clovis for two years, working his way up to manager. In April of 1987, he was fired for violating company secured cash handling policies. Jay Finnell, defendant's immediate supervisor, testified that he entered the store and found defendant had left more than $2,200 in cash on the counter, unsecured. After defendant was fired, another $2,400 in cash was found under the check stand behind some books and papers, instead of in the floor safe. Later, irregularities with the record keeping of the store for the month of April 1987 were noticed. Discrepancies were found between the amount of the receipts on daily sales reports and the amount on the bank deposit tickets. Also, Judith Gatley, office operations manager for Allsup's, testified that money orders were sold and not reported to the main office. An investigation of these irregularities implicated defendant.

Finnell and Gatley testified regarding company procedures for reporting daily sales. The daily sales report reflected daily receipts and was compiled from information on the bank deposit slip and the cash register readings. The report was then sent to the main office where the daily sales report was compared to the detailed cash register tape. The main office also verified deposit tickets to make sure that cash receipts were actually deposited. It was the responsibility of the store manager or the assistant manager to complete this paperwork for the store.

The evidence indicated that the manager and assistant manager were also responsible for sending money order logs to the main office. The money order logs contained the numbers of the money orders in the cash register. As money orders were sold, the person selling them listed the amount of the money order and placed his or her initials next to the number of the money order. For each money order sold, the store retained a copy reflecting the amount and number of the money order, and copies were attached to the log when it was sent to Allsup's main office.

SUFFICIENCY OF THE EVIDENCE

Defendant claims that the case against him is based solely on circumstantial evidence. Therefore, he argues, there is no substantial evidence to support his conviction. In reviewing the evidence for sufficiency, we view the facts in the light most favorable to the state, resolving all conflicts therein and indulging in all permissible inferences in favor of the verdict. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). The fact that the evidence is circumstantial makes no difference. State v. Brown, 100 N.M. 726, 676 P.2d 253 (1984). Circumstantial evidence is sufficient to establish the corpus delicti of a crime. State v. Bejar, 101 N.M. 190, 679 P.2d 1288 (Ct.App.1984). We do not reweigh the evidence on appeal, State v. Santillanes, 86 N.M. 627, 526 P.2d 424 (Ct.App.1974), nor do we consider whether there are explanations of the evidence consistent with innocence. State v. Brown.

The state presented evidence of discrepancies between the daily sales reports and deposit slips indicating shortages on six days in April 1987. It also presented evidence that during the month of April, the Allsup's store sold money orders that were not reported to the main office. Defendant contends the state did not establish beyond a reasonable doubt that he converted the missing money. He claims that other employees must have been responsible for the shortages or the shortages must have resulted from errors or machine malfunctions.

Evidence was presented that only the manager and assistant manager prepared the reports, counted the money, deposited the cash and had access to the floor safe. Defendant argues that there was evidence the assistant manager also prepared daily sales reports and money order logs. He argues that she had equal access to the money and that she prepared the daily sales reports on three of the occasions in question. The assistant manager, however, testified at trial and denied ever taking or converting Allsup's money for herself. Thus, the facts relied upon by defendant are not uncontroverted and consist of issues of credibility to be resolved by the jury as finders of fact. See State v. Clokey, 89 N.M. 453, 553 P.2d 1260 (1976).

Defendant argues that on two of the days when there were shortages, he was not present in the store, that although the evidence showed he signed the reports, he often signed the reports before they were final. The assistant manager testified that on several days when she noticed discrepancies, she called defendant to the store. On one day, he could not find the discrepancy because the cash was no longer available for counting. On another day, he claimed the assistant manager miscounted the money. On the other sales reports that did not match the deposit slips, defendant could not explain the discrepancies, but stated that it must have been an error and not willful conversion. He also suggested the discrepancies might have been due to a machine malfunction. The assistant manager testified, however, that she never noticed any such malfunction.

There was evidence of a $200 discrepancy on a money order defendant admitted selling. The original money order was for $210, but the white copy retained in the store's records was printed for only $10. Defendant's explanation was that he sold it to a clerk in his store who later reprinted the face original of the money order. There was also evidence, however, that the $200 discrepancy was not a reprint but was made at the time of the sale, thus implicating defendant.

There was evidence of other money orders sold for which there was no accounting. Defendant presented evidence that a clerk, whose initials appear on the log next to one of the missing money orders, quit the store upon learning of defendant's dismissal. He argues that her unexplained flight strongly suggests culpability. See State v. Hardison, 81 N.M. 430, 467 P.2d 1002 (Ct.App.1970).

All of this evidence created factual questions for the jury. The fact finder may reject defendant's version of events. See State v. Gattis, 105 N.M. 194, 730 P.2d 497 (Ct.App.1986). Conflicts in the evidence created by defendant's testimony do not make the state's evidence insubstantial. See State v. Mora, 81 N.M. 631, 471 P.2d 201 (Ct.App.1970). The question is not whether substantial evidence would have supported an opposite result but whether such evidence supports the result reached. See State v. Sutphin, 107 N.M. 126, 753 P.2d 1314 (1988). Based on the evidence presented, it was reasonable for the jury to reach the conclusion that defendant was responsible for at least a portion of the missing money. Defendant was found guilty of embezzlement over $100 but less than $2,500, a fourth degree felony. There was sufficient evidence to support the verdict. We affirm the trial court on this issue.

AGGRAVATED SENTENCE

After defendant was found guilty, the trial court held a sentencing hearing. At the hearing, the court heard from, among others, the prosecutor, defense counsel, the probation officer who prepared the presentence report, and defendant himself. The judge found aggravating circumstances warranting an increase of six months to the eighteen-month basic sentence provided by law. See NMSA 1978, Sec. 31-18-15.1 (Repl.Pamp.1987). The judgment entered by the court provided in applicable part:

Defendant is * * * sentenced to be imprisoned by the Department of Corrections for a term of two (2) years with the Court having found aggravating circumstances, to-wit: the Defendant refuses to admit any wrong doing and the Defendant having lied while under oath.

Execution of sentence is hereby suspended with the exception of twelve days already served, and Defendant is ordered placed on probation for a period of five (5) years * * * * [Emphasis added.]

If a court alters the basic sentence because of mitigating or aggravating circumstances, it must state its reasons for the alteration in the record. Sec. 31-18-15.1(A). Defendant argues the trial court's reasons for aggravating the sentence are improper. He claims that using suspected perjury as a sentencing factor impermissibly chills his right to testify and violates his due process rights because it is, in effect, punishment for a crime without the procedural safeguards of indictment, trial, and conviction. He also argues it is improper for a trial court to consider a defendant's failure to admit wrongdoing as this infringes on the fifth amendment privilege not to incriminate one's self.

Although the legislature has fixed basic sentences for non-capital offenses, NMSA 1978, Section 31-18-15 (Repl.Pamp.1987), sentencing judges have discretion to alter the basic sentence by one-third upon a finding of "any mitigating or aggravating circumstances surrounding the offense or concerning the offender." Sec. 31-18-15.1(A) (emphasis added). Among the factors that may be considered are "unusual aspects of the defendant's character, past conduct,...