State v. Brown

689 S.W.2d 63, 1985 Mo. App. LEXIS 4006
CourtMissouri Court of Appeals
DecidedFebruary 5, 1985
DocketNo. WD 35405
StatusPublished
Cited by2 cases

This text of 689 S.W.2d 63 (State v. Brown) 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. Brown, 689 S.W.2d 63, 1985 Mo. App. LEXIS 4006 (Mo. Ct. App. 1985).

Opinion

CLARK, Presiding Judge.

Marquita Brown was charged and convicted of the offense of stealing more than $150.00 and she was sentenced to serve a term of three years. On this appeal, she contends the judgment should be reversed and she should be discharged, first because the evidence was insufficient to support the conviction and, second because documentary evidence obtained as a product of an unlawful search and seizure was admitted over appellant’s objection. Affirmed.

Appellant’s challenge to the sufficiency of the proof made against her and the nature of the case as one dependent on circumstantial evidence require a detailed recapitulation of the facts. In so doing, we cast the evidence in the light most favorable to the state. State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983). So defined, the evidence was as follows.

Appellant was in the employ of the City of Kansas City and was engaged in the duties of head cashier in the water department. In April, 1982, City officials became alerted to the possibility of irregularities in the water department by reason of com[65]*65plaints by customers who received delinquent account notices when in fact their bills had been paid. Preliminary inquiry to trace the cause of the complaints disclosed that documents were missing from the water department and an imbalance existed between recorded receipts and bank deposits. A detailed audit was then commenced.

Attention focused on the payment processing operation of the water department cashiers. The period of March 15 to March 26, 1982 was subjected to detailed audit and cash shortages ranging from $600.00 to $1243.95 were discovered on each of these dates. Randomly chosen also were the dates of August 21 and September 24, 1981. On August 21 the cash shortage was $690.30 and on September 24 the shortage was $611.51. The shortages were all in the account of the head cashier, a position occupied by appellant during the respective times.

Three cashiers were in the employ of the water department during the time in question, appellant in the position of head cashier and two assistant cashiers who worked under appellant’s supervision. It was the responsibility of the cashiers to process water bill payments as received and to credit customer accounts accordingly. Appellant prepared the daily bank deposit of payments received, including those processed by her and by the two assistant cashiers. As to the latter, they would total their receipts, consisting of cash and checks, and give them to appellant who would verify the balances. Appellant would then combine those with receipts she had processed that day and place the deposit in a bank bag to be picked up by a messenger service.

As was noted above, the existence of discrepancies first came to the attention of supervising personnel in the water department because customers who had verified payment records complained of receiving delinquency notices. Centering on this problem, the audit disclosed substantial delays between the date on which a customer’s payment was received and the date on which the account was credited with the payment. Some thirty-three accounts tabulated during the audit span of eleven days showed delays of three weeks or longer from payment clearance to account credit. According to the auditor, the combination of daily shortages and the delayed credit of large payment checks to customer accounts suggested that an embezzlement scheme known to the accounting profession as “lapping” was in progress.

In a lapping fraud, a cashier pilfers currency from payment receipts and covers the shortage by showing later payments made by other customers as credits to the pilfered accounts. This, in turn, creates a need to cover the misapplied credits and further pilferage accumulates. As more and more credits to accounts must be manipulated, the delay between the date a customer’s payment is received and the date on which that account is satisfied lengthens. The use of this scheme was confirmed by the audit of the daily bank deposits during the test period. On each day, although the total deposit agreed with the record of total receipts for the day, the deposit was composed of a larger amount of checks and a smaller amount of cash than the validating tapes showed had cleared through the cashiers’ windows.

In implementing a lapping scheme, it is necessary that the thief have access to substantial amounts of cash and also be able to arrange the credit of payments made by checks to cover the misappropriated cash. Here, only appellant had that opportunity. The assistant cashiers were allowed to maintain only a minimum cash drawer balance of $100.00 apart from such cash as came to them in account payments. Appellant, conversely, was permitted a cash balance of $5,000.00. Moreover, the assistant cashiers had no opportunity to manipulate check and cash payments because any diversion would have been immediately discovered, assuming no confederacy on the part of appellant, when appellant combined and verified the daily tallys in preparing the bank deposit. There was, however, no corresponding check to preclude appellant’s manipulation.

[66]*66Further evidence adverse to appellant included the following circumstances. Audit was made of receipts on July 24, 1981, a date selected because appellant was not at work that day. There was no cash shortage. Although appellant’s salary was reflected in a bi-weekly paycheck of $819.00, regular cash deposits were made to her personal bank account in amounts from $200.00 to $500.00 as frequently as twice a week. Appellant consistently intruded upon work outside the cashier’s office in an apparent effort to gain access to mail containing large payment checks for commercial water accounts. Despite express direction to stay away from the mail room, appellant persisted in opening mail marked by the envelope color as likely to contain sizable checks of as much as $50,000.00 or $60,000.00. Of the thirty-three delayed credits to customer accounts paid by check during the audit period, all bore validation stamps indicating they were processed by appellant.

The first customer complaint about a delayed or omitted credit for an account payment made by check, the ultimate result of which was the audit described above, was given to appellant for resolution. She failed to obtain or present any explanation. When presented with these complaints, which became so numerous they created a major problem in the office, appellant became very nervous and excited. When it appeared that the audit investigation was centering on her, appellant left work without notice or explanation and never returned.

In a circumstantial evidence case, the facts and circumstances relied on to prove the guilt of the accused must be inconsistent and irreconcilable with any reasonable hypothesis of innocence. State v. Easley, 662 S.W.2d 248, 250 (Mo. banc 1983). The circumstances need not be absolutely conclusive of guilt or demonstrate impossibility of innocence and the mere existence of other possible hypotheses is not enough. State v. Mandina, 675 S.W.2d 113, 114 (Mo.App.1984). It is not necessary that the state’s proof exclude every hypothesis of innocence. State v. Brown, supra.

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Bluebook (online)
689 S.W.2d 63, 1985 Mo. App. LEXIS 4006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-moctapp-1985.