State v. Williams

• Decision Date: 09 April 2008
• Docket Number: No. 24396.,24396.
• Citation: 2008 SD 29,748 N.W.2d 435
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Judy Lyn WILLIAMS, Defendant and Appellant.
• Court: South Dakota Supreme Court

748 N.W.2d 435

2008 SD 29

STATE of South Dakota, Plaintiff and Appellee, v. Judy Lyn WILLIAMS, Defendant and Appellant.

No. 24396.

Supreme Court of South Dakota.

Considered on Briefs November 6, 2007.

Decided April 9, 2008.

Rehearing Denied May 8, 2008.

Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Mark Kadi, Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

MEIERHENRY, Justice.

[¶ 1.] Judy Lyn Williams was convicted of Grand Theft for embezzlement from the Veterans of Foreign Wars Post (VFW) in Brandon, South Dakota. Williams appeals. We affirm.

FACTS

[¶ 2.] The State charged Williams with grand theft, claiming she converted VFW funds for her own use. The VFW hired Williams to manage its lounge in 2004. The lounge had a bar and several video lottery machines. As lounge manager, Williams managed the daily operations of the lounge, including accounting for all lounge proceeds, making bank deposits, handling lottery transactions, scheduling employees and taking care of facility rentals. Williams worked during the day, and other employees worked during the evening hours.

[¶ 3.] The VFW's process of handling the money and accounts involved an on-site safe, a till, three bank bags and two bank accounts. The three bank bags were used to segregate video lottery money from other lounge proceeds. One bank bag was used for video lottery. It contained $7,000 in cash to pay video lottery winnings, customer checks cashed to play the video lottery machines and winning tickets redeemed for cash. A second bank bag contained $1,000 in cash, checks and winning bar pull-tabs. The third bag contained $350 in cash used to make change at the bar. All the bags were kept in a safe located in the back office. Williams and all VFW officers possessed keys to the safe. The safe was left unlocked during hours of operation, but was locked at night. Before closing, the night staff gathered and organized the daily proceeds for Williams' review when she arrived at work the next morning. She then segregated the funds from the different sources and deposited them in the proper accounts. Williams then forwarded the daily totals and weekly receipts to Quartermaster Kevin Anderson, who then forwarded the information to the accountant, Ronald Parker, who prepared monthly audits.

[¶ 4.] The VFW maintained two bank accounts, the "general account" and the "lounge account." The bar, lottery and facility rentals were deposited in the general account. The reimbursement checks for video lottery pay-outs went into the lounge account. Williams deposited money in both accounts, but only had authority to draw checks on the lounge account.

[¶ 5.] The VFW leased its video lottery machines from Myrmoe Vending Company (Myrmoe Vending). Pam Myrmoe (Myrmoe) owned and operated Myrmoe Vending. Myrmoe Vending reimbursed the VFW for video lottery payouts by check. Part of Williams' responsibilities included depositing Myrmoe Vending payout checks into the lounge account. The VFW also obtained cash advances from Myrmoe Vending to pay video lottery winnings. The cash advances were to go directly into the video lottery bag. Myrmoe would then deduct the amount of the cash advances from the reimbursement/payout checks. Williams was authorized to request and receive the cash advances from Myrmoe Vending, but had no authority to use the advances for any purpose except video lottery payouts.

[¶ 6.] Myrmoe testified at trial that Williams requested an abnormal number of cash advances during 2004. Myrmoe testified that Myrmoe Vending advanced the VFW approximately $80,000 that year, the majority of which Williams had requested. Myrmoe also testified that because of the unusual amount of activity, she alerted the VFW Commander Ben Sunvold that "something funny was going on." After an audit, the VFW claimed Williams failed to report one of the cash advances, in the amount of $2,000. Two other advances totaling $3,000 were considered suspicious by the VFW because Williams took them before her vacation without stating a reason and the funds appeared to be missing while she vacationed.

[¶ 7.] Also during 2004, Williams reported two thefts of VFW cash to the Brandon Police Department—one in May and one in December. Williams reported that she suspected an employee was involved in the May theft. The VFW maintained one surveillance camera for the facility. Sergeant Wade Else of the Brandon Police Department investigated the May theft and reviewed the surveillance video but was unable to identify any criminal activity. In response to the May theft, the VFW installed two additional surveillance cameras near the video lottery machines and the safe.

[¶ 8.] Sergeant Else also investigated the December theft. This time he had videos from the three surveillance cameras for the twenty-two-hour time frame of the theft. Williams and Sergeant Else reviewed all the videos from the three cameras to try to identify who took the money. Williams was present for all of the viewing. Later when Sergeant Else copied the surveillance videos, he inadvertently deleted a thirty-three-minute segment.

[¶ 9.] Shortly after the December 2004 theft, Williams quit her job as lounge manager. She took a short vacation and did not return to work. An audit, completed in early 2005, revealed mishandling of VFW finances. The audit showed that Williams had deposited checks in the wrong bank account, overstated her deposit slips and video lottery payouts, and received three suspicious cash advances from Myrmoe, one of which went unreported. As a result, the State charged Williams with grand theft, specifically alleging that she had overstated video lottery payouts by $1,700, inflated check deposits by $3,266.44, failed to report a $2,000 cash advance from Myrmoe Vending in October of 2004, and took two suspicious cash advances totaling $3,000 from Myrmoe Vending in August of 2004. Williams admitted to depositing checks into the wrong account. She denied the State's other allegations and claimed that someone else may have taken the missing money from the safe.

[¶ 10.] A jury found Williams guilty of grand theft in violation of SDCL 22-30A-10 and SDCL 22-30A-17. Williams was sentenced to thirty days in jail, with work release authorized and credit for four days served. The trial court did not order restitution because the evidence indicated that Williams had in all probability redeposited the missing funds during her employment. Williams appeals and raises five issues.

ANALYSIS AND DECISION

1. Whether the trial court erred by not granting a mistrial because of conversations between a State witness and a jury member and between two sequestered State witnesses.

[¶ 11.] Williams claims that the trial court should have declared a mistrial because one State witness engaged in improper communications with a juror and two State witnesses had inappropriate communications with each other during the trial. Prior to trial, the court sequestered the witnesses. The court also instructed the jury not to discuss the case or to speak with witnesses when the court was in recess. The trial court charged the jury at the start of trial as follows:

During the proceeding of the trial, there will be times when you will be outside the courtroom for rest periods and other times when you will be allowed to separate. During all of those times that you are outside the courtroom, you must not talk about this case among yourselves or with anyone else. A violation of this order is serious.... Do not talk to the lawyers, defendant, or the witnesses. The lawyers, defendant and witnesses are not permitted to talk to you during the trial even in discussions which had no relation to the case would give a bad appearance. Should anyone attempt to talk to you about the trial, you should refuse and you should report the attempt to the bailiff or to the judge at first opportunity....

(Emphasis added). Throughout the trial, the court repeated a similar admonition to the jury. Outside the presence of the jury, the trial court cautioned the attorneys and Williams as follows:

It just occurred to me as we were going through the jury selection process that there's been several jurors that have connections with Brandon, and I know that we may have witnesses who have connections with Brandon, I'd encourage both sides, counsel on both sides to re-urge their witnesses to be cautious about not talking to the jurors or speaking to them in any fashion, even if it's about the weather or whatever. So that we don't run into problems that we sometimes run into in other cases.

(Emphases added).

[¶ 12.] Despite the court's admonitions, State witness, VFW Commander Ben Sunvold, had a conversation with a juror during a smoke break about the weather; and State witness, Pam Myrmoe, had a conversation with another State witness, Noelan Letcher. The Myrmoe-Letcher conversation involved a discussion concerning several mutual friends. Williams moved for a mistrial, and the trial court denied the motion.

[¶ 13.] We review the denying of motions for mistrial under the abuse of discretion standard. State v. Buchhold, 2007 SD 15, ¶ 17, 727 N.W.2d 816, 821; State v. Carothers, 2006 SD 100, ¶ 8, 724 N.W.2d 610, 615-16. "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." State v. Beckley, 2007 SD 122, ¶ 20, 742 N.W.2d 841, 847.

[¶ 14.] "Trial court's have considerable discretion in granting or denying a mistrial and to justify the granting of a mistrial, an actual showing of prejudice must exist." State v. Bousum, 2003 SD 58, ¶ 31, 663 N.W.2d 257, 265-66. Prejudice is an error, "which, in all probability, [ ] produced some effect upon the jury's verdict and is harmful to the substantial rights of the party assigning it." State v. Mollman, 2003 SD...