State v. Downen

952 S.W.2d 807, 1997 Mo. App. LEXIS 1737, 1997 WL 612786
CourtMissouri Court of Appeals
DecidedOctober 7, 1997
DocketNo. WD 53135
StatusPublished
Cited by5 cases

This text of 952 S.W.2d 807 (State v. Downen) 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. Downen, 952 S.W.2d 807, 1997 Mo. App. LEXIS 1737, 1997 WL 612786 (Mo. Ct. App. 1997).

Opinion

ELLIS, Presiding Judge.

Kimberly Downen was charged by information with 16 counts of the class C felony of stealing over $150, § 570.030.3(1),1 and one count of the class A misdemeanor of stealing, § 570.030, in the Circuit Court of Worth County. Ms. Downen was tried before a jury and was found guilty on all counts. The court suspended imposition of sentence on Counts 1 through 10, but sentenced Ms. Downen to one year in the Department of Corrections on each of the other counts, with the sentences to be served consecutively. Ms. Downen appeals.2

The record reveals that Ms. Downen was employed by the F.C. Grace Furniture Store in Denver, Missouri from November, 1992 to February, 1995. Her duties included handling sales and bookkeeping, running the cash register, and making bank deposits. The company’s bank deposit slips consisted of two parts, a white original and a yellow carbon copy. Donna Hiatt helped Ms. Dow-nen with sales and bookkeeping. Ms. Hiatt recorded the bank deposits in the daily journal and in the accounting ledger from the yellow copy of the bank deposit slip, and Ms. Downen deposited the money in the bank using the white copy.

In March, 1995, Ms. Hiatt found cash was missing from the bank deposits when the two copies of the deposit slips were compared. [809]*809Danny Marsh, the store accountant, also found discrepancies when the record was brought to his attention by Ms. Hiatt. As a result, law enforcement officials were contacted. Corporal Brian Jameson of the Missouri State Highway Patrol led an investigation which found 17 deposit slips containing discrepancies. All of these deposit slips were dated on or between September 19,1994 and January 31, 1995. The store’s record consists of four elements: a bank deposit slip; a carbon copy of the deposit slip; a daily journal page; and the accounting ledger. In each of the 17 incidents, cash was missing from the bank deposit slip when that slip was compared to either the carbon copy, the daily journal, or the accounting ledger. In four instances, the cash deposit was missing and additional checks were supplemented into the deposit so the overall totals on the original and carbon copies were equal. In two other incidents, cash was missing and additional checks were recorded on the bank slip, but the totals did not match the totals recorded on the carbon copy.

As part of the investigation, Corporal Jameson interviewed Ms. Downen. He advised her of her Miranda rights, which she understood and acknowledged by signing a waiver. The interview was not recorded nor otherwise memorialized. However, Corporal Jameson later testified that he questioned Ms. Downen about the discrepancies between the store record and the deposit slips. Ms. Downen initially denied having any knowledge about why the amounts differed, where the extra checks came from, or why cash was missing. However, after being shown numerous slips and having the discrepancies reflected therein pointed out to her, Ms. Downen admitted to taking the missing cash, which ranged from $100 to $1300. She said she only took the money as she needed it, because she was behind in her car payments. Ms. Downen also identified her own handwriting on the deposit slips.

In her first point, Ms. Downen claims the evidence is insufficient to prove she did not have the store owner’s consent to take cash from the deposits. In reviewing a challenge to the sufficiency of the evidence, an appellate court must view the evidence, including all favorable inferences, in the light most favorable to the State, and must disregard all evidence and inferences to the contrary. State v. Woodworth, 941 S.W.2d 679, 686-87 (Mo.App. W.D.1997). “We neither reweigh the evidence, nor determine the reliability or credibility of witnesses.” Id. (citing State v. Idlebird, 896 S.W.2d 656, 661 (Mo.App. W.D.1995)). Our function is to determine only whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). “Substantial evidence is evidence from which the trier of fact reasonably can find the issue in harmony with the verdict.” State v. Martin, 852 S.W.2d 844, 849 (Mo.App. W.D.1992).

Ms. Downen’s argument on this point is that the prosecutor did not specifically ask the store owner as to each of the 17 incidents whether Ms. Downen had permission to take money from the cash deposits. She contends that failure to do so is fatal to the State’s case because an essential element of the offenses with which she was charged was that she took the money without the owner’s consent. The assertion is devoid of merit.

At trial, F.C. Grace, the store owner, testified that Downen was never given permission to take money from the cash deposits. If she was never given permission to take money, it is axiomatic that she did not have permission to take money on any of the 17 occasions when she did so. In State v. Freeman, 489 S.W.2d 749 (Mo.App. S.D.1973) the defendant was convicted of stealing a motorcycle. On appeal, he argued that “the State never asked the owner if at the specific time [of] the acts complained of whether or not permission had been given” for him to take the motorcycle. Id. at 752. The owner of the motorcycle testified that he had never, at any time, given the defendant permission to use his motorcycle. Id. The Court found this testimony sufficient to establish the motorcycle was taken without the owner’s consent. Id. We likewise find Mr. Grace’s testimony sufficient to establish that Ms. Downen did not have permission to take the money. While it might have been better practice for the prosecutor to have Mr. Grace [810]*810testify that Ms. Downen did not have permission to take the money on each occasion as he was identifying the deposit slips, it was not essential. The general testimony by Mr. Grace that she “never” had permission was sufficient. Point denied.

As her second and fourth points, Ms. Dow-nen argues the trial court erred in excluding evidence regarding an alleged sexual harassment and assault toward her by her employer, and excluding evidence of discrepancies in deposit slips prepared prior to her employment. The State filed motions in limine to exclude this evidence from trial, an evidentia-ry hearing was conducted, and the motions were sustained by the court.

Ms. Downen has failed to include a transcript from the hearing as part of the record. The appellant has the burden of preparing the record on appeal. State v. Cleveland, 627 S.W.2d 600, 601 (Mo.1982). “A transcript on appeal must contain all of the records and proceedings necessary to a determination of the questions presented for decision, and where any such items are absent there is nothing for the appellate court to decide.” State v. Holland, 653 S.W.2d 670, 678 (Mo. banc 1983).

In addition, Ms. Downen did not preserve either claim for review. “A ruling in limine is interlocutory only and is subject to change dining the course of the trial.

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Bluebook (online)
952 S.W.2d 807, 1997 Mo. App. LEXIS 1737, 1997 WL 612786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-downen-moctapp-1997.