State v. Langston

• Decision Date: 26 July 2007
• Docket Number: No. 27900.,27900.
• Citation: 229 S.W.3d 289
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Florence A. LANGSTON, Defendant-Appellant.
• Court: Missouri Court of Appeals

229 S.W.3d 289

STATE of Missouri, Plaintiff-Respondent, v. Florence A. LANGSTON, Defendant-Appellant.

No. 27900.

Missouri Court of Appeals, Southern District, Division Two.

July 26, 2007.

Thomas D. Carver, Springfield, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

After a jury trial, Florence Langston (Defendant) was convicted of committing the class C felony of stealing in violation of § 570.030 RSMo (2000).¹ Her conviction was based upon a verdict-directing instruction which hypothesized that she could be convicted of felony stealing if "the property so taken had a value of at least Five Hundred Dollars...." One of the points she advances on appeal is that the submission of this instruction was plain error because it improperly allowed jurors to convict Defendant of felony stealing without finding that she had appropriated property worth at least $750, as required by the substantive law in effect at the time of the alleged offense. This Court agrees. Accordingly, the judgment is reversed and the cause is remanded for a new trial.

I. Factual and Procedural Background

Since 1970, Dr. Gene Langevin had practiced cardiovascular medicine in Joplin, Missouri. Dr. Langevin's wife, Judy Langevin (Mrs. Langevin), was the practice manager. In June 1998, Mrs. Langevin hired Defendant as an employee. Defendant worked in the insurance and business area of the practice.

When Defendant was first employed, there was an office procedure for handling a cash payment from a patient. The employee accepting the cash posted the payment to the patient's account on the office computer, printed out a receipt, initialed it and gave it to the patient. Employees were not required to log into the computer under their name in order to print a receipt for a patient. After a receipt had been prepared, the cash was taken to the insurance department. There, the amount of the cash payment was recorded on a day sheet and in a deposit book. The cash was placed into a bank bag for later deposit. While Defendant prepared the majority of the deposits, other employees were involved as well. During office hours, the bank bag was kept in a desk drawer in the insurance area. It was not locked up, and other employees besides Defendant had access to the bag. Deposits were made at the bank two or three times per week. If the bank bag remained at the office overnight, the person with the deposit book was supposed to lock the bag in the safe.

About one year into Defendant's employment, employees began using receipt books to acknowledge payments by patients, but the remainder of the cash-handling procedure remained the same. During the term of Defendant's employment, Dr. Langevin's practice suffered from a considerable turnover in personnel. According to Mrs. Langevin, approximately 16 employees were hired and then departed between January 1999 and June 2000. During that time frame, Mrs. Langevin acknowledged that five other employees besides Defendant handled cash, and three other employees besides Defendant were involved in accepting money, preparing receipts, taking the money to the insurance department, preparing the day sheets and deposit book entries and making deposits at the bank.

In late 1999, Mrs. Langevin became concerned that some cash payments from patients were not being posted to their accounts or deposited at the bank. She hired accountant Angela Morelock (Morelock) to conduct a review of the office procedures. After examining the practice's financial records for eight to ten sample days, Morelock found a shortage of approximately $300 in cash receipts. Morelock submitted this list of discrepancies to Defendant to see if she had an explanation for the shortages because "she's in the best position to be able to explain some of that stuff." Defendant faxed some documents to Morelock, but she did not believe the documents satisfactorily explained the discrepancies.

On June 21, 2000, Morelock met with Defendant for 90 minutes to discuss this issue. During the meeting, Defendant initially denied that she had taken any money. After further discussion, however, Defendant admitted that she had taken cash from the practice when she needed it for gas money or to pay for her husband's medication. Defendant also said that she believed other employees from the practice had taken money. Morelock advised Defendant that "she ought to write out a statement of what had happened and how much money—indicate how much money she believed that she was responsible for taking." In compliance with that request, Defendant prepared the following handwritten statement:

I have probably been responsible for about $400 to $500 for over a year or so of cash from Eugene Langevin's medical office. I have a very ill husband, and I made a big mistake. I shouldn't of used his illness for what I done. I would like to pay it back either in working hours or payments. I will resign my position right away if that's what is requested, or work until payment is made back to Dr. Langevin, and then resign. I also feel I am not the only employee for lost funds.

I only had cash copayments or on account payments; never any checks of any kind. I have also been short on my payroll checks for payment, vacation.

After preparing this statement, Defendant was immediately terminated from her employment. Thereafter, Mrs. Langevin requested that Morelock conduct a fraud investigation. During this investigation, Morelock reviewed the practice's financial records for a 30-month period and found further discrepancies in reconciling the cash receipts. Her examination of the day sheets, computer receipts and deposit slips for the time period between October 1999 and June 2000, revealed a cash shortage of $682.40. A comparison of the handwritten receipt books and patient receipts with accounts receivable revealed an additional sum of $608.83 that had not been credited to patient accounts during that same time frame. Morelock suspected that Defendant took the money because she was the "primary centralized collection point for all of the cash." That suspicion, however, was based upon the assumption that Defendant was essentially the only person at Dr. Langevin's office who accepted cash, wrote receipts for patients, posted payments to patients' computerized accounts, reconciled the day's receipts and prepared the bank deposit. Based upon that assumption, it was Morelock's opinion that Defendant was the only person at the office who had sufficient control over these different processes to steal the money. Morelock admitted, however, that other employees besides Defendant accepted money from patients and wrote receipts to them. Moreover, Morelock was not able to examine a number of the cash receipt books, which documented which employee accepted a patient's cash payment. As Morelock explained, "during a significant period of this time the cash receipt books are missing. There are none. They are gone." Finally, Morelock also conceded that other employees besides Defendant could post entries into patient accounts on the computer. During her investigation, she discovered that "[y]ou can actually go into their system and you can look at who entered various entries into the computer, but in our early testing we determined that they were using each other's user names and passwords, and we could not rely on who made what entries in the computer system."

In September 2002, Defendant was charged by information with committing the class C felony of stealing in violation of § 570.030. A copy of the original information was not included in the legal file. In March 2006, an amended information was filed. According to the amended information, Defendant allegedly committed this crime between October 1999 and June 2000 by appropriating at least $500 in cash from Gene Langevin. During that time frame, however, violation of § 570.030 was not a class C felony unless the value of the appropriated property or services was $750 or more. See § 570.030.3(1).²

In March 2006, Defendant's case was tried to a jury. Mrs. Langevin and Morelock testified for the State. The facts summarized above were drawn from their testimony. The State did not call any witnesses who actually observed Defendant take any cash whatsoever from her employer. The only witness directly linking Defendant to the missing money was Morelock. She suspected Defendant had stolen cash based on the results of the fraud investigation, and Morelock also had heard Defendant admit to taking $400 to $500 in cash from Dr. Langevin. Defendant's case was presented through her own testimony and that of her expert witness, Stan Schmidt (Schmidt). According to Defendant, at least half a dozen employees at the office handled cash. Whoever received the cash was supposed to write a note on it and place it in the bank bag. Besides Defendant, three other insurance clerks were able to post payments to patient accounts. They also kept the bank bag and made deposits at various times. Defendant disavowed the written statement she had given to Morelock and denied stealing any money. Defendant claimed she was pressured into giving the statement by Morelock's threats to report the matter and expose Defendant and her family to adverse press coverage. Schmidt, who was a certified public accountant, had examined the cash handling procedures at Dr. Langevin's office. Schmidt opined that Dr. Langevin did not have sufficient controls in place to prevent misappropriation from taking place and that it would be relatively difficult to pinpoint any one person who was responsible for the loss.

During the instruction conference, the prosecutor tendered Instruction No. 6. This verdict-directing instruction hypothesized that Defendant could be convicted of felony stealing if "the property so taken had a value of at least Five Hundred Dollars . . . ." At that point, the...