State v. Lihosit

2002 NMCA 006, 38 P.3d 194, 131 N.M. 426
CourtNew Mexico Court of Appeals
DecidedNovember 29, 2001
Docket21,996
StatusPublished
Cited by82 cases

This text of 2002 NMCA 006 (State v. Lihosit) is published on Counsel Stack Legal Research, covering New Mexico 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. Lihosit, 2002 NMCA 006, 38 P.3d 194, 131 N.M. 426 (N.M. Ct. App. 2001).

Opinion

OPINION

BUSTAMANTE, Judge.

{1} Defendant appeals her conviction on 133 counts of embezzlement. Her sole issue on appeal is the propriety of the trial court’s approval of the jury’s request for a calculator for use during deliberations. She contends that the use of the calculator injected extraneous material into the jury’s deliberations. We disagree. We conclude that the trial court properly allowed the jury to have access to a calculator in this case.

BACKGROUND AND FACTS

{2} Defendant was employed in the office of Ballard Bus Company, a business which contracted with the schools in Carlsbad to transport students, both locally and out of town. Defendant was given authority to write and sign checks and make deposits for the company, along with the owners, Harley and Debby Ballard. In 1994 Defendant assumed responsibility for keeping the check registry and giving money to the drivers for out-of-town trips. Defendant also kept the trip logs. Sometime in 1999 Defendant left the company to care for her sick father. Shortly thereafter, Mr. Ballard discovered that the company had a zero balance in its checking account and was bouncing checks.

{3} Mr. Ballard testified that he visited Defendant in order to discuss the money situation, and that she admitted taking money from the company for “a very, very long time.” A Carlsbad police detective investigated the matter. In so doing, he collected all the original checks, check registers, check stubs, and trip documents from the company. He also collected financial information, including deposit slips, from Defendant. With this information he constructed several spread sheets. Those spread sheets document the instances where Defendant wrote a check, indicating that it was for an owner’s withdrawal, but where that amount of money was deposited in her own checking account; where she wrote checks for trips that were either never taken or for which reimbursement was much less than the cheek; where she wrote checks for cash and then deposited the money in her own account; and where she made deposits for the company less cash received by her. Evidence was also presented that Defendant wrote her own payroll checks and that she paid herself $1000 every two weeks. Mr. Ballard testified that her salary was supposed to be $1300 per month.

{4} Defendant was charged with 148 counts of embezzlement, some for amounts between $100 and $250, and some for amounts between $250 and $2500. Through the testimony of the detective, the State presented evidence showing the manner of Defendant’s embezzlement. Defendant wrote checks for money for out-of-town trips, but only part of the money was given to the drivers and the rest was deposited in Defendant’s checking account. She made deposits for the company less cash for herself. She wrote checks for cash and deposited the money in her own account. For each count of embezzlement, evidence was presented in the form of the check written by Defendant. In the instances of the bus trips, the amount of the check was compared with the trip logs. In many instances, evidence was also presented of a deposit made into Defendant’s checking account, either on the same day or the one following the check writing. Each count related to a particular check written by Defendant on a particular day. On many of the charges, in order to determine the amount embezzled, mathematical calculations were required to be made.

{5} Shortly after the jury began its deliberations, it requested a calculator from the court. Defendant objected on the basis that the jury should be able to come to its decision based on the evidence presented and that any outside help would necessarily contaminate that process. Defendant recognized that an adding machine does nothing but add, but argued that that could be done by hand. The State responded that the calculator would not give the jury any additional information, but would simply assist the jury in organizing it. The State pointed out that courts have traditionally provided paper and markers to a jury to assist it in organizing the evidence. The trial court allowed the calculator, stating that he believed that with the number of figures and counts of embezzlement involved, it was a “courtesy to the jury”

{6} Defendant was convicted of 133 of the 148 counts presented. She appeals arguing only that the jury should not have been allowed to have a calculator during its deliberations.

DISCUSSION

{7} This is not a case involving juror misconduct. Thus we do not review the case under the standards set forth in State v. Mann, 2000-NMCA-088, 129 N.M. 600, 11 P.3d 564. Instead, we review the trial court’s determination upon the jury request for an abuse of discretion. See State v. Valles, 83 N.M. 541, 543, 494 P.2d 619, 621 (Ct.App.1972) (holding that the trial court is given discretion in handling requests from the jury); see also Zenda Grain & Supply Co. v. Farmland Indus., Inc., 20 Kan.App.2d 728, 894 P.2d 881, 897 (1995) (holding that allowing jury to use calculator is within the discretion of the trial). “ “We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.’ ” State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994) (quoting State v. Litteral, 110 N.M. 138, 141, 793 P.2d 268, 271 (1990)).

{8} Here, we cannot say under the facts and circumstances of this case, which involved 148 counts of embezzlement supported by a number of pieces of evidence and a variety of numbers relating to each count, that it was an abuse of discretion to allow the jury to have a calculator for use during its deliberations. A calculator is nothing more than a machine used to do mathematical calculations quickly and accurately. As early as 1963, the Tenth Circuit allowed the jury the use of an adding machine during its deliberations. Imperial Meat Co. v. United States, 316 F.2d 435 (10th Cir.1963). In so doing, the court stated that it was “only a machine which accomplished the same result that the jury would have with pens and pencils which it can be safely assumed they had in their possession.” Id. at 439. We believe the same holds true for a calculator. It was not a device that allowed the jury to perform tests or experiments or create evidence that was not already before them. It was nothing more than a modern substitute for pencil and paper, making calculations from the numbers input.

{9} Contrary to Defendant’s argument, the jury was not creating evidence by its use of the calculator. Rather, it was taking the evidence, the numbers presented by the State, and testing it to see if the State had proved the amount charged. There is no suggestion that anything other than numbers taken from the evidence presented were used by the jury. Defendant appears to be arguing that it was the State’s burden to present the final calculations to the jury. We disagree.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Peo v. Martinez
Colorado Court of Appeals, 2024
Poppe v. Siefker
735 N.W.2d 784 (Nebraska Supreme Court, 2007)
Fisher v. State
139 S.W.3d 815 (Court of Appeals of Arkansas, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
2002 NMCA 006, 38 P.3d 194, 131 N.M. 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lihosit-nmctapp-2001.