State v. Atchison

950 S.W.2d 649, 1997 Mo. App. LEXIS 1363, 1997 WL 413639
CourtMissouri Court of Appeals
DecidedJuly 22, 1997
DocketNo. 21052
StatusPublished
Cited by2 cases

This text of 950 S.W.2d 649 (State v. Atchison) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Atchison, 950 S.W.2d 649, 1997 Mo. App. LEXIS 1363, 1997 WL 413639 (Mo. Ct. App. 1997).

Opinion

GARRISON, Judge.

Donna Atchison (Defendant) was charged, in a five count indictment, with the Class C felony of stealing a total of $4,141.96 (§ 570.030),1 from the City of Ava, Missouri (the City), where she was employed as the billing clerk in charge of the monthly utility bills issued to customers. She was convicted by a jury on all five counts, and on this appeal contends that the trial court erred in admitting evidence which had not been disclosed in discovery, in admitting evidence which was not properly qualified as business records, and in overruling her motion for a judgment of acquittal. We affirm.

The offenses were alleged to have occurred on December 2, 5, 12, 13 and 15, 1994, and involved funds received by the City in payment of customer’s utility bills. The utility bills sent to customers included a perforated stub (the “hard copy”), which they returned to the City when paying the bill. When the payment and the “hard copy” were received, the transaction was recorded on a cash register by employees using their individual identity codes. The cash register produced a receipt as well as an internal tape which documented each transaction. Each afternoon, an employee would match the hard copies paid since the prior afternoon with the City’s copy of the bills (“soft copies”), total the bills paid, count the cash and checks in the cash register, and retrieve the internal cash register tape which would include a total of the utility bill payments received (“z-tape”). The cash register tape was checked against the hard copies to be certain that each transaction was correctly documented on the tape. If all of these totals were the same, each individual utility transaction was fed into a computer by an employee using that person’s individual computer code. After being cheeked for accuracy, that information was stored in the computer by the employee, thereby giving the customers credit for their payment. The transactions fed into the computer on each such occasion were [651]*651collectively called a “batch.” A print-out of the batch was then produced and included in the City’s records.

At trial, the State’s theory was that Defendant had stolen the money by entering “voids” on the cash register, using the cash register codes assigned to her as well as other employees. There was evidence that those codes were available to other employees in the office. The “voids” equaled the total amount of money removed on each occasion. A batch would then be created in the computer in the amount of the money being taken to be certain that the customers received credit and did not continue to be billed. Those batches were entered under Defendant’s computer code as well as those of other employees. There was evidence, however, that Defendant was the only one of those employees who knew or had access to their individual computer identification codes. To complete the process, the City contended that the hard and soft copies of the bills were then removed and disposed of.

In Defendant’s first point relied on, she contends that the trial court erred, to her prejudice, in admitting exhibits which had not been previously disclosed to her in response to her discovery request. Prior to trial, Defendant served the State with a request to produce documents pursuant to Rule 25.03. Included was a request for “[a]ny books, papers, documents, ... which the State intends to introduce into evidence at the ... trial ...” The prosecutor responded by notifying Defendant’s attorney that the requested documents could be inspected and copied at his office on a certain date. A representative from Defendant’s attorney’s office appeared on the appointed day to find a box full of documents which were copied.

Without going into an inordinate amount of detail, it is accurate to say that the State’s evidence included a large number of detailed and complex documents. Our review of this case is complicated by the detailed nature of the evidence and the lack of clarity in the record, including the fact that the identity of the exhibits being discussed or objected to is unclear in some instances. Many of the exhibits consisted of computer printouts, cash register tapes, utility bills and receipts. Defendant’s attorney was accurate in arguing that the evidence was complex and difficult to assimilate and understand. Likewise, the prosecutor was accurate in saying that the evidence was “very complicated,” and that twenty-four hours per day for two weeks would not be sufficient to permit a review of all of it.

On the first day of trial, Defendant’s attorney notified the trial court that a computer programmer, called by the State, appeared to be testifying about “batches” containing Defendant’s code about which they had no advance notice. Defendant, however, made no objection to the documents when they were offered in evidence and preserved nothing for appellate review concerning them.

At approximately 2:00 P.M. on the second day of trial, the State called the City Clerk who identified the City’s attendance records for employees working at city hall during the year 1994, consisting of a folder with over eighty-five pages in it. Defendant objected that these records had not been disclosed prior to trial, a fact tacitly conceded by the prosecutor during argument on the matter, and requested that the evidence be excluded. The State argued that it intended to use these exhibits in connection with others to demonstrate that thefts other than those with which Defendant was charged had occurred in 1994, and that Defendant was the only one of the several employees who was at work each and every time a theft occurred. It argued, and the trial court preliminarily agreed, that they were relevant, even though they demonstrated offenses not charged, to show a common plan, scheme or design. The trial court also acknowledged that the case was complicated, that the evidence in question was “pretty important,” and that it should have been disclosed to Defendant. When the trial court indicated it did not think it was necessary to exclude the evidence, Defendant asked that either the evidence be limited to the days referred to in the indictment, or they be permitted to review the exhibits and then announce what relief they believed was necessary.

The trial court, with agreement from the State, offered to recess the trial until 9:00 A.M. the following day to permit Defendant’s [652]*652attorney to review the documents and prepare his cross-examination. It also indicated it would order the State to keep its witnesses at the courthouse and make them available for depositions that evening at the State’s expense, if Defendant desired, using the official court reporter. The prosecutor then revealed that he had just learned that although he thought he had all of the records for 1994 at the courthouse, he apparently only had those for December, 1994, and had requested that someone bring those for the other eleven months from Ava to Hartville where the case was being tried. Defendant’s attorney, however, indicated that the trial court’s suggested solution was insufficient, that a recess until 9:00 A.M. the next morning would not permit him to digest the records and prepare to meet them, and candidly told the court that if it was not going to grant the other sanctions requested, they might as well proceed with the trial.

The trial resumed when the prosecutor received the rest of the attendance records which were identified and offered in evidence by the State. Defendant renewed its previous objection to the documents and also argued that an insufficient foundation had been laid for their admission.

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Cite This Page — Counsel Stack

Bluebook (online)
950 S.W.2d 649, 1997 Mo. App. LEXIS 1363, 1997 WL 413639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-atchison-moctapp-1997.