State v. Landes, WD
| Decision Date | 11 October 1983 |
| Docket Number | No. WD,WD |
| Citation | 661 S.W.2d 596 |
| Parties | STATE of Missouri, (Respondent), v. Shirley E. LANDES, (Appellant). 34270. |
| Court | Missouri Court of Appeals |
Sean D. O'Brien, Asst. Public Defender, Kansas City, for appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before CLARK, P.J., and PRITCHARD and LOWENSTEIN, JJ.
Shirley E. Landes was convicted of stealing and fined $2500.00. On this appeal, she presents four points contended to demonstrate trial error. The last of the four, the sufficiency of the evidence to sustain the conviction, requires a survey of the evidence and that point will be discussed first.
Commencing in January, 1980, appellant was employed by Stevens Employment Service as a secretary. Included in her duties were the receipt of fees paid to the office by clients and the preparation of bank deposits. She issued receipts to those making payments and maintained the daily cash sheets and ledger accounts for each client. Actual bank deposits were made by appellant, Ann Stevens, owner of the business and, on one occasion, by Mrs. Stevens' husband.
In June of 1981, Mrs. Stevens discovered a disparity between the records of receipts issued to clients and money deposited to the agency bank account. An auditor was then engaged to review the records. He reported that the sum of $2406.48 was missing, that amount being the total of customer receipts for cash payments for which no corresponding bank deposit was recorded. The cash receipts not supported by bank deposits all bore appellant's initials.
A review of dates established the first shortage to have occurred two months after appellant commenced work. During October and November, 1980 when appellant was absent from work because of illness there were no shortages. Appellant was questioned about the cash discrepancy and told Mrs. Stevens she would borrow the money and would "take care of it." Appellant did not return to work after the cash shortage was discovered and she did not make restitution. This prosecution followed.
Appellant contends the case against her was based entirely on circumstantial evidence and that a judgment of acquittal should have been entered because the evidence did not exclude every reasonable hypothesis of Landes' innocence. She argues that the inference of her guilt fails to take account of the facts that other persons had access to the cabinet where the money was kept before bank deposit and that some collections were diverted to a petty cash fund. She also contends the state failed to prove the corpus delicti in that there was no proof any money was missing.
On review of a conviction contended not to be supported by substantial evidence, the appellate court considers all facts in evidence and all favorable inferences reasonably to be drawn therefrom in the light most favorable to the state and all evidence and inferences to the contrary are disregarded. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc. 1976). Inconsistencies are matters for the jury to consider but they do not support a charge of insufficiency of the evidence on appeal. State v. Linhart, 649 S.W.2d 530, 532 (Mo.App.1983).
The present case was not, as appellant characterizes it, one dependent wholly on circumstantial proof. Several conversations with appellant reported by Mrs. Stevens manifestly suggest an admission by appellant of responsibility for the thefts and an unfulfilled agreement to repay the sums taken. Apart from that evidence, however, the proof was sufficient to establish appellant's guilt as the thief.
Appellant argues that other persons could have taken the money from an unlocked cabinet, but the contention ignores the strong inference generated by the undisputed fact that money was only misappropriated on the days when appellant was at work. No other office employee during the period had a tenure of more than four months. It taxes the limits of credulity to speculate as to a combination of employees cooperating to take funds only when appellant was present. Moreover, since it was appellant who prepared the records, including the cash receipts she issued, any misappropriation by others would have been promptly discovered by appellant through an imbalance in bank deposits.
As the prosecution pointed out, the circumstances which underlay the hypothesis that only appellant was the culprit were: (a) no money was missing before appellant came to work, none was taken when she was absent and the thefts ceased after appellant left that employment; (b) there was no evidence of forced entry to the offices and no suggestion that any person other than an employee had access to the cash; (c) all missing cash had been accepted from clients by appellant and recorded on receipts issued to clients by her but omitted from the daily cash records maintained by appellant. This circumstantial proof is inconsistent with any reasonable theory of appellant's innocence and was sufficient to support the conviction.
Appellant's argument that the missing money could have been siphoned for petty cash, a fund which Mrs. Stevens acknowledges she maintained, is equally implausible. The daily cash record kept by appellant recorded money as received. The missing funds not only did not appear in the bank deposit slips prepared twice weekly but they were not recorded on the daily cash journal. If someone, presumably Mrs. Stevens, were taking the cash from the cabinet to use for petty cash, receipt of the funds would have been recorded by appellant on the daily cash journal and there would have been a discrepancy between that record and the bank deposits. Here, the daily cash record and the deposits balanced.
This latter contention as to the petty cash fund is used by appellant as a basis for argument that the state proved no corpus delicti, that is, no proof that money was taken. The argument has no merit or substance. To prove the body of the offense the state need only show at least circumstantial proof that the specific crime charged was committed by someone. State v. Rife, 619 S.W.2d 900, 903 (Mo.App.1981). The evidence which...
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