State v. Brown

572 S.E.2d 920, 212 W. Va. 397, 2002 W. Va. LEXIS 181
CourtWest Virginia Supreme Court
DecidedNovember 4, 2002
DocketNo. 30403
StatusPublished

This text of 572 S.E.2d 920 (State v. Brown) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 572 S.E.2d 920, 212 W. Va. 397, 2002 W. Va. LEXIS 181 (W. Va. 2002).

Opinion

PER CURIAM.

This ease is before this Court upon appeal of a final order of the Circuit Court of Mo-nongalia County entered on May 2, 2001. In that order, the appellant and defendant below, Susan Brown, was sentenced to three concurrent terms of one-to-ten years in the penitentiary for her convictions of falsifying accounts, larceny by embezzlement, and larceny by fraudulent scheme. However, the appellant’s sentences were suspended and she was placed on probation for five years and ordered to pay restitution to her employer. In this appeal, the appellant claims that her right of protection from double jeopardy was violated. She also contends that the circuit court erred by allowing a witness for the State to comment upon her pre-arrest silence.

[399]*399This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is reversed, and this case is remanded to the circuit court with (Erections to enter new orders of conviction and sentencing consistent with this opinion.

I.

FACTS

The appellant was employed by the West Virginia University Wise Library in Morgan-town, West Virginia, from 1990 until 1996 as an accountant. Her duties included handling payroll, sick leave, and vacation time. In addition, the appellant managed deposits from satellite offices, recording them and making consolidated deposits in the West Virginia University Bursar’s Office.

During the appellant’s employment, library employees were permitted to cash personal checks in cash boxes kept in the library vault. In 1996, one of the appellant’s coworkers discovered that the appellant and a student worker had cashed several personal cheeks in the vault, but the checks, some which were six months old, had never been deposited in the Bursar’s Office. The coworker reported his discovery to the appellant’s supervisor who began an investigation.

Although the cheeks found in the cash boxes were deposited and cleared within a few days, the appellant’s supervisor decided to conduct an informal audit. Her audit revealed discrepancies in the library’s financial records. Thereafter, a full scale audit was performed by Fred McCartney, a senior auditor at West Virginia University. Mr. McCartney determined that $28,509.84 had been embezzled from the library between 1993 and 1996.

On January 6, 2000, the appellant was indicted by a Monongalia County grand jury on charges of falsifying accounts, larceny by embezzlement, and larceny by fraudulent scheme. She was found guilty of all three charges on July 13, 2000. Thereafter, she was sentenced to one-to-ten years imprisonment on each count with the sentences to run concurrently. However, the sentences were suspended and she was placed on probation for five years and ordered to pay restitution to the Library of not less than $200.00 monthly. This appeal followed.

II.

STANDARD OF REVIEW

The first issue in this case concerns an alleged violation of the double jeopardy clause set forth in Article III, Section 5 of the West Virginia Constitution.1 This Court has held that “a double jeopardy claim [is] reviewed de novo.” Syllabus Point 1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996).

The second issue presented in this appeal involves the admission of certain testimony at trial. The appellant did not object to the testimony at trial, and thus, the testimony will be reviewed only for “plain error.” The “‘plain error’ standard of review requires error that is clear or obvious and that affects substantial rights which in most cases means that the error is of such great magnitude that it probably changed the outcome of trial.” State v. Omechinski, 196 W.Va. 41, 47, 468 S.E.2d 173, 179 (1996), citing State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). With these standards in mind, we now address the issues before us.

III.

DISCUSSION

As set forth above, the appellant assigns two errors in this appeal. Both issues are discussed below. However, we only find [400]*400merit in the appellant’s double jeopardy claim.

A Double Jeopardy

The appellant first contends that her convictions of larceny by fraudulent scheme and larceny by embezzlement violate her constitutional protection against double jeopardy. This Court has held that:

“The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.” Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).

Syllabus Point 2, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992). Relying upon this Court’s recent decision in State v. Rogers, 209 W.Va. 348, 547 S.E.2d 910 (2001), the appellant argues that her convictions for both larceny by fraudulent scheme and larceny by embezzlement arising out of the same act or transaction constitute multiple punishments for the same offense in violation of the double jeopardy clause.

In Syllabus Point 9 of Rogers, this Court held that:

In the absence of proof that a defendant obtained “services” by a fraudulent scheme, every element necessary for a conviction of larceny by fraudulent scheme under West Virginia Code § 61-3-24d (1995) (Repl.Vol.2000) is also an element for conviction of an agent or employee for larceny by embezzlement under West Virginia Code § 61-3-20 (1929) (Repl.Vol. 2000).

The appellant says that there is no evidence that she obtained “services” by a fraudulent scheme, and therefore, her convictions for both larceny by fraudulent scheme and larceny by embezzlement violate the double jeopardy clause. She requests reversal of her convictions and a new trial.

In response, the State concedes that the appellant’s convictions for both larceny by fraudulent scheme and larceny by embezzlement violate the double jeopardy clause. However, the State contends that the remedy for this violation is re-sentencing, and not a new trial, in accordance with Rogers. We agree.

In Rogers, this Court determined that a new trial was not necessary even though the defendant has been convicted of four larceny charges in violation of the double jeopardy clause. The defendant, Thomas Rogers, was convicted of larceny by false pretense and larceny by fraudulent scheme for illegally selling licensed inventory computer software to a beer company. Rogers was also convicted of larceny by fraudulent scheme and larceny by embezzlement for selling the software without the software company’s consent.

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Related

Jenkins v. Anderson
447 U.S. 231 (Supreme Court, 1980)
State v. Browning
485 S.E.2d 1 (West Virginia Supreme Court, 1997)
State v. Miller
459 S.E.2d 114 (West Virginia Supreme Court, 1995)
State v. Rogers
547 S.E.2d 910 (West Virginia Supreme Court, 2001)
State v. Marple
475 S.E.2d 47 (West Virginia Supreme Court, 1996)
State v. Gill
416 S.E.2d 253 (West Virginia Supreme Court, 1992)
State v. Koton
202 S.E.2d 823 (West Virginia Supreme Court, 1974)
State v. Walker
533 S.E.2d 48 (West Virginia Supreme Court, 2000)
State v. Omechinski
468 S.E.2d 173 (West Virginia Supreme Court, 1996)
State v. Sears
468 S.E.2d 324 (West Virginia Supreme Court, 1996)
Conner v. Griffith
238 S.E.2d 529 (West Virginia Supreme Court, 1977)

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Bluebook (online)
572 S.E.2d 920, 212 W. Va. 397, 2002 W. Va. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-wva-2002.