State v. Korang, 88-420

• Decision Date: 18 May 1989
• Docket Number: No. 88-420,88-420
• Citation: 773 P.2d 326,237 Mont. 390
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kathy (Davis) KORANG, Defendant and Appellant.
• Court: Montana Supreme Court

Page 326

773 P.2d 326

237 Mont. 390

STATE of Montana, Plaintiff and Respondent, v. Kathy (Davis) KORANG, Defendant and Appellant.

No. 88-420.

Supreme Court of Montana.

Submitted on Briefs March 31, 1989.

Decided May 18, 1989.

Edmund F. Sheehy, Jr., Helena, for defendant and appellant.

Marc Racicot, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Mike McGrath, County Atty., Leo Gallagher, Deputy County Atty., Helena, for plaintiff and respondent.

McDONOUGH, Justice.

Kathy Davis Korang appeals from the judgment of the District Court of the First Judicial District, Lewis and Clark County, entered upon a jury verdict finding her guilty of theft and tampering with public records, both felonies. We affirm.

Korang presents three issues for review:

1. Whether the evidence is sufficient to sustain her conviction.

2. Whether the District Court interfered with her right to a fair trial by limiting her counsel's cross-examination of the State's witnesses in order to conclude the trial before a certain date.

3. Whether the District Court erred in its determination of the amount of restitution that Korang was required to pay as a condition of her suspended sentence.

Korang worked in the Lewis and Clark County Clerk and Recorder's Office from 1976 until she was suspended in June of 1987. Beginning in 1980, her duties centered around the operation of the "records counter." She recorded documents in the official County records, as well as searching for and making copies of previously recorded documents requested by members of the public. She collected fees for these services set by state law. The fees were rung up on a cash register, with the various services assigned to different "code keys." Fees for filing and recording documents were each assigned a particular code key, and were also entered separately in a "reception book." Miscellaneous small transactions such as making photocopies were assigned to key three, but were not entered in the reception book.

Korang also had bookkeeping responsibility for this operation and deposited collected fees with the County Treasurer's Office. During busy periods, she was assisted at the counter by other members of the Clerk and Recorder's staff. The deputy clerk did the books for Korang when she was on vacation or ill.

In June of 1987, staff members Dori Kuhl and Marylin Bracken met with Clerk and Recorder Sue Bartlett. They expressed concern about problems with the books being kept by Korang. Their concern stemmed from an incident several weeks before. Both women had issued a large number of death certificates one day and had rung up the fees for them on the cash register. They were curious as to how much money their effort had made for the County, and looked at the book entry for such fees at the end of the day. Instead of an entry approximating the $80 that the women had estimated, the book showed that they had taken in only $8. They began keeping track of amounts they collected when assisting at the records counter, and checking them against the books. They concluded that money was missing, and came to Bartlett.

Bartlett began her own investigation. She counted the cash and photocopied the checks in the till at the end of each day; monitored the register tape, books and deposits; and observed Korang as she went about her work. After several days, Bartlett also began to examine adding machine tapes taken from Korang's waste basket at the end of each day, and kept track of checks and money orders received by mail with requests for copies of birth and death certificates, which Korang kept in her desk. The pattern Bartlett discovered was roughly as follows: (1) miscellaneous transactions entered on cash register key three were voided later in the day; (2) cash in the amount of the voided transactions was taken from the till; (3) either fictitious transactions were then rung up on another code key and checks from Korang's desk substituted to make up the difference and balance the books, or recording and filing transactions entered in the reception book were not rung up on the cash register. It also appeared to Bartlett that when the amount of cash taken from the till did not exactly match the amount of the checks used to replace it, Korang would make an entry on the cash register to make the total from the register tape for that particular day match the corresponding daily total in the book.

When Bartlett became convinced that Korang was taking money, she suspended her without pay. Mary Craig, a certified public accountant, was then hired to perform an audit of the books. Based on Bartlett's observations and the results of the audit, Korang was charged by information with two felonies: theft (common scheme) and tampering with public records or information. She was tried before a jury and convicted of both charges. The District Court sentenced Korang to two consecutive 10-year terms in the Women's Correctional Facility at Warm Springs, but suspended all but 180 days of the terms on the condition that Korang make restitution in the amount of $37,891.25. This appeal followed.

I.

Korang first argues that the evidence presented by the State at trial was insufficient to sustain her convictions. The test applied by this Court to determine whether evidence is sufficient is whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. If the evidence conflicts, it is for the trier of fact to determine which evidence is dispositive. State v. Tracy (Mont.1988), 761 P.2d 398, 45 St.Rep. 1705.

Korang was charged with theft under Sec. 45-6-301, MCA, which states in part:

(1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:

(a) has the purpose of depriving the owner of the property;

. . . . .

(6) ... A person convicted of the offense of theft of property exceeding $300 in value ... shall be fined not to exceed $50,000 or be imprisoned in the state prison for any term not to exceed 10 years, or both.

At trial, the State presented testimony by seven witnesses, including Bartlett, Korang's co-workers, and CPA Mary Craig. These witnesses described Korang's behavior at work and how that behavior fit the pattern of missing money discovered by Bartlett. The testimony included direct observation of Korang voiding entries on the cash register and making other, unusual entries; direct observation of Korang making unusual calculations when balancing the books; and direct observation of the results of Korang's work, which produced the altered cash register entries and deposits.

Mary Craig testified that her audit confirmed the pattern observed by Bartlett, and estimated that the money missing as a result of the alterations to the bookkeeping system amounted to approximately $6,000 per year. Her testimony was accompanied by several exhibits, some of which showed actual work done by Korang and some of which summarized Korang's work. Craig also testified that her audit showed irregularities in the bookkeeping system while Korang was at work, but not when she was ill or on vacation.

Our review of the record shows that a rational trier of fact could conclude from the State's evidence that Kathy Korang purposely altered entries in the bookkeeping system used by the Clerk and Recorder's Office in order to gain control of moneys belonging to Lewis and Clark County. Korang's counsel introduced evidence calling the State's theory into doubt and attempting to...