Wiggins v. State

• Decision Date: 14 April 1987
• Docket Number: 4 Div. 712
• Citation: 513 So.2d 73
• Parties: Jo Anne WIGGINS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 73

513 So.2d 73

Jo Anne WIGGINS, alias v. STATE.

4 Div. 712.

Court of Criminal Appeals of Alabama.

April 14, 1987.

Rehearing Denied May 12, 1987.

Certiorari Denied Aug. 28, 1987

Alabama Supreme Court 86-1120.

Frank J. Tipler, Jr., and John M. Pennington of Tipler & Tipler, Andalusia, for appellant.

Don Siegelman, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Jo Anne Wiggins, alias was indicted for first degree theft in violation of § 13A-8-3, Code of Alabama 1975. The jury found the appellant "guilty as charged". She was sentenced to eight years' imprisonment in the state penitentiary and ordered to pay $89,101.90 (sic) in restitution. Since the appellant does not raise the sufficiency of the evidence as an issue on appeal, the evidence presented at trial will be only briefly stated here.

The evidence presented by the State tended to show that the appellant, while an employee with The City of Andalusia, Utility Department, embezzled close to $90,000 from the department during a period of time which ran from April, 1982 until January, 1985.

The appellant was employed as a Cashier-Billing Clerk III and her duties included submitting monthly utility bills to customers and receiving payments for these bills. The State's evidence showed that the appellant submitted large bills to certain businesses and, when the bills were paid by the companies, a second bill for a lesser amount was made out and the difference between the two bills was retained by the appellant.

The evidence showed that, during the period of time in question, this appellant was the only person in the office who knew how to adjust this particular kind of account through the use of the computer.

In mid-January, 1985, another employee, Phoebe King, a bill clerk with the department, discovered a discrepancy between the amount of a check received from one of the companies and the accompanying bill stub amount. This was discovered while she was totaling up the receipts on the cash register for the bank deposit. After she discovered this discrepancy, Ms. King attached the cash register tape to the two bills and dropped them on the department manager's desk without saying anything about her findings.

The department manager, Joe Trawick, testified that, after Ms. King dropped the bills on his desk, he looked at them for a few minutes and then called Ms. King in his office. She explained her findings.

That afternoon, during the lunch hour, Mr. Trawick obtained a copy of a check which had been deposited in the bank. The check showed an amount higher than that which had been rung up on the register.

That evening Mr. Trawick went back to the office and searched through all of the employees' desk drawers. He found several bills stapled together in the appellant's desk drawer underneath a billing schedule. He made notes of them and put them back. The next day, during the appellant's lunch hour, he made copies of the bills which were still in her desk drawer.

Mr. Trawick testified that he found five pairs of bills. Each pair consisted of two bills, one showing a higher amount than the other, stapled together. The two bills in each pair were for the same account and had the same date. Along with these pairs of bills were seven of the appellant's daughter's utility bills.

The following day Mr. Trawick asked the appellant for a copy of the rate schedule which he had seen on top of these bills when he copied them. When she took the rate schedule out of her drawer, Mr. Trawick again saw the bills still in her desk. Mr. Trawick testified that later during that week he heard the appellant complain that someone had been rummaging through her desk drawer. The night after he heard the appellant complaining, Mr. Trawick again looked in the appellant's drawer for the bills, but they were gone. He also personally examined the utility bills on file in one business. He discovered that this customer's files showed larger billing amounts than those which were recorded in the city's billing history printout sheet.

Mr. Trawick then notified the mayor of Andalusia of the problem and asked the city auditor to investigate the matter. The appellant and the other three clerks in the office were then interviewed. During the appellant's interview, she stated that she did not know anything about the bills that had been found, and that "it must be a problem in the computer." (R. 82)

W.S. Rabren, Jr., a CPA hired by the City of Andalusia in March, 1985, testified that he examined the accounts of 13 different utilities department customers. Rabren testified that, during the years from April, 1982 to January, 1985, he discovered 132 instances where discrepancies existed between the amount shown on the utility bills in the possession of the customers, and the amount shown as billed to the same customers in the City's records. He determined that, sometime before the check was rung up on the cash register, a substitute bill for a lesser amount had been generated. When the check was then rung up, this lesser amount was used and the appellant removed the difference in cash. Rabren testified that the total of the bill stubs in the cash register always equaled the deposits, therefore, the excess must have been removed. The total dollar amount involved based on the 132 instances discovered was $89,101.97. (R. 269)

Rabren testified that in each case he compared the amount that the customer said he paid with the City's records. The checks paid by the customer were for an amount greater than the amount of cash receipts reflected in the City's records.

The State presented the testimony of several merchants and store clerks describing the appellant's spending habits during the period of time in question. Evidence was also presented that the appellant acquired approximately $50,000 in CDs during the years in question. (R. 324). The CDs were in the name of the appellant, her husband and her children until April of 1985 when, at that time, the appellant removed her name and her husband's name.

I

The appellant contends that the trial court erred in allowing the State to introduce evidence of the appellant's spending habits and possession of large amounts of cash during the years in question, including her acquisition of the CDs. Although the appellant frames this argument in terms of three separate issues in his brief, we deem it appropriate to consider them all here.

"It is generally held that the fact of a person's possession of money, without some fairly reasonable indication that the money was acquired from the particular source of the now-charged crime, is not provable for the purpose of showing that the accused acquired it from such particular source. The rationale for this is that the inference to be drawn from mere possession is too weak.

"The burden is upon the state to offer proof sufficient to give rise to a fair inference that the money held by the accused actually came from the charged crime. This can be accomplished by evidence that the money taken in the crime and that possessed by the accused both had identical markings or that they were of the same denomination. If the facts of amount, denomination and other circumstances reasonably indicate that the money was acquired in the course of the crime, then such facts are admissible.

"Another manner in which the state can meet its burden, for the purpose of proving the accused's possession of unexplained amounts of money, is by showing the accused's impecuniousness before the crime and his sudden affluence afterwards."

C. Gamble, McElroy's Alabama Evidence, § 50.01 (3d ed. 1977) (footnotes omitted); See Leath v. State, 132 Ala. 26, 31 So. 108 (1901); Turner v. State, 124 Ala. 59, 27 So. 272 (1900).

The trial court did not err in admitting this evidence. The State met its burden of showing the appellant's sudden increase in wealth thus giving rise to a fair inference that the money spent by the appellant was obtained as a result of the crime charged. See Leonard v. State, 115 Ala. 80, 22 So. 564 (1896); Martin v. State, 104 Ala. 71, 16 So. 82 (1893).

It was established that the appellant's salary during the time in question was only $6.96 per hour. The appellant and her husband's joint income for the year 1981 was reported as $24,821.23. Although it rose significantly over the next three years, the State established that it would have been impossible for the appellant and her husband to have saved $50,000 during this three-year period in light of the fact that they bought two new cars and made extensive home improvements during this period, in addition to the appellant's many other purchases.

Moreover, although the admission of this evidence alone, as proof of the accused's guilt, may be cause for reversal, where, as here, a substantial amount of other evidence exists to support the appellant's guilt, reversal is not warranted. See Samuel v. State, 455 So.2d 250 (Ala.Crim.App.1984).

The accountant's testimony in this case verified the scheme used to accomplish the theft at issue. The appellant was shown to be the only employee in the office who possessed the knowledge of the computer necessary to alter these particular accounts. Several of the pairs of bills used in the scheme were found in the appellant's desk drawer. The department manager verified that the group of bills, which included several of the appellant's daughter's, was visible in the appellant's desk when she opened the drawer in front of him at his request. After having found the bills, the department manager found the bottom half of a customer's check in the appellant's garbage can. The amount of the check was higher than the amount which had been run up on the cash register as having been paid by that same customer. See Hicks v. State, 99 Ala. 169, 13 So. 375 (bare possession of money not sole evidence in case).

In Leath v. State, supra, cited by the appellant in her brief, the Alabama Supreme Court held that...