People v. Morise

859 P.2d 247, 17 Brief Times Rptr. 152, 1993 Colo. App. LEXIS 25, 1993 WL 17636
CourtColorado Court of Appeals
DecidedJanuary 28, 1993
DocketNo. 91CA0427
StatusPublished
Cited by2 cases

This text of 859 P.2d 247 (People v. Morise) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Morise, 859 P.2d 247, 17 Brief Times Rptr. 152, 1993 Colo. App. LEXIS 25, 1993 WL 17636 (Colo. Ct. App. 1993).

Opinion

Opinion by

Judge CRISWELL.

Defendant, Robert Morise, appeals from the judgment convicting him of nine counts of embezzlement. Because we conclude that the trial court committed prejudicial error in the admission of evidence, we reverse and remand for a new trial.

Defendant was charged with a violation of § 18-8-407, C.R.S. (1986 Repl.Vol. 8B), which prohibits any “public servant” who comes into possession of any public moneys or property from knowingly converting the same “to his own use or to any use other than the public use authorized by law.”

The evidence here was that defendant, a member of a local board of education, while at a board of education conference in Las Vegas, Nevada, used the credit card issued to him by the school district to obtain nine cash advances totalling over $3,700. It is undisputed that these funds were not, in fact, used for any school purpose.

At the trial, defendant’s evidence, presented through the testimony of another witness, implied that he had obtained the cash advances in order to attempt to purchase sound, lighting, and technical equipment for the school district from musicians who were then on strike in Las Vegas, but that he was not successful in doing so. The funds received by him were later repaid to the district.

However, the superintendent of the school district testified that, upon hearing of the charges made to the district’s credit card and contacting defendant with respect to the subject, defendant told him that he had obtained the cash advances to purchase costumes for his own theater company and that he had mistakenly used the wrong credit card. The superintendent also testified that, while defendant promised to repay the sums received by him, he failed to do so in a timely fashion.

This witness also testified that, because of previous problems with the use of the district’s credit cards, the board of education had included certain provisions within the district’s written policy on expenditures regulating the use of such cards. This policy, introduced as an exhibit, authorized “full reimbursement” to board members attending conferences “of actual and necessary expenses, including transportation, room, registration, meals, and miscellaneous expenses.” It specifically provided that credit cards were to be provided to board members, but that they were required to be stored in the district’s office when the board members for whom the card had been issued were not “in a travel situation,” and that such cards were not to be used “for nonconference or nontravel related expenses.”

I.

Defendant first contends that the evidence is insufficient to sustain his conviction. We disagree.

A.

The evidence here established that, while in Las Vegas, defendant received nine cash [249]*249advances over a period of two days, all in an even amount of $200, $300, or $500. Upon defendant’s return to Colorado and the discovery of these advances by the school district, a demand was made upon him for reimbursement. However, it was only after the passage of nearly a month from the time that this demand was made and after he had initially delivered two checks to the district that would not have been honored by the bank had they been presented, that defendant finally repaid the district.

Given these circumstances, the jurors well could have determined that the reason for defendant’s delay in reimbursing the district was because he had spent the cash for his own personal use, and it was, therefore, not available to be given back to the district. While defendant’s evidence might also have supported an inference that defendant’s delay in reimbursing the district resulted from an innocent error, the jury was not bound to accept this explanation.

B.

As an alternative theory of guilt, the prosecution argued that, even if the cash received by defendant was not used by him for his own personal purposes, it was used for a purpose not authorized by law. Contrary to defendant’s contention, we find sufficient evidence to support a guilty verdict on this theory.

The Colorado Constitution requires the Colorado General Assembly to provide for the organization of local school districts and for a board of education in each district which shall have the control of instruction in such district. Colo. Const, art. IX, § 15. In carrying out this mandate, the General Assembly has granted to each local board of education the power to procure supplies and equipment for musical and dramatic programs, § 22-32-110(l)(q), C.R.S. (1988 Repl.Vol. 9), to provide for the reimbursement to a board member of his or her necessary expenses, § 22-32-110(l)(n), C.R.S. (1988 Repl.Vol. 9), and to adopt policies, rules, and regulations for the administration of the affairs of the district. Section 22-32-109(1)(b), C.R.S. (1988 Repl.Vol. 9).

The evidence here established that the board of which defendant was a member had established a specific policy that the district’s credit cards could not be used for any “nonconference or nontravel related expenses.” And, the evidence presented by the People would support the inference that defendant had actual knowledge of this restriction upon the use of the district’s credit cards.

In order for a public official to commit the crime of embezzlement that was charged there, there need be no proof of a fraudulent intent. People v. McKnight, 39 Colo.App. 280, 567 P.2d 811 (1977). Under § 18-8-407, the only mens res requirement is that the actor knowingly convert the property.

Thus, even if defendant’s implied explanation for his use of the credit card, that he obtained cash advances to attempt to buy musical equipment, was accepted, such use would nevertheless be one not authorized by the district’s policy and would, therefore, be a use “other than the public use authorized by law” within the meaning of § 18-8-407. If defendant knew of the restriction upon use of the credit card and used the card in violation of the restriction, a violation of § 18-8-407 would occur.

The evidence presented, therefore, was sufficient to sustain a conviction under this alternate theory as well.

II.

We do agree with defendant that the trial court erred in receiving into evidence three newspaper articles that attributed certain statements to defendant.

The three articles were published in November 1989 and January 1990 in the Rocky Mountain News and the Denver Post. Each article contained the by-line of a staff writer. The first reported on the investigation of defendant’s use of the credit card, and the other two reported the filing of the charges against him.

[250]*250The first article purported to quote statements made by the defendant to the effect that the cash withdrawals resulted from an accidental “mix up” with his own credit card. The later two articles summarized statements from the defendant that he obtained cash advances in an attempt to acquire equipment for the school district from striking musicians.

The prosecutor made clear to the trial court that these news accounts were being offered for the substantive purpose of proving that defendant did, in fact, make the. statements attributed to him in these articles. And, for this purpose, the prosecutor subpoenaed each of the staff writers whose names appeared on the by-lines of the articles.

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Cite This Page — Counsel Stack

Bluebook (online)
859 P.2d 247, 17 Brief Times Rptr. 152, 1993 Colo. App. LEXIS 25, 1993 WL 17636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-morise-coloctapp-1993.