State v. Moss

127 So. 3d 979, 2013 WL 6087430, 2013 La. App. LEXIS 2372
CourtLouisiana Court of Appeal
DecidedNovember 20, 2013
DocketNo. 48,289-KA
StatusPublished
Cited by4 cases

This text of 127 So. 3d 979 (State v. Moss) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moss, 127 So. 3d 979, 2013 WL 6087430, 2013 La. App. LEXIS 2372 (La. Ct. App. 2013).

Opinion

CARAWAY, J.

11 Tammy Moss was convicted of one count of felony theft over $500, in violation of La. R.S. 14:67, and sentenced to five years’ imprisonment, with all but 60 days suspended. Moss appeals her conviction and sentence. We affirm.

Facts

On May 10, 2010, Tammy Moss (“Moss”) was charged by bill of information with felony theft over $5001 based upon acts alleged to have occurred between January 1, 2007, and January 18, 2010, while Moss was employed as an office manager and in-house biller for Dr. Regina Fakner, M.D., LLC.2

Moss pled not guilty and waived her right to a jury trial. A bench trial commenced on April 4, 2012. The defense stipulated to the authenticity of the documentary evidence submitted by the state in support of its case with a reservation of the right to object to hearsay information contained therein. The stipulation pertained to the LLC’s bank and tax records and documentation from Office Depot.

Dr. Regina Fakner testified on behalf of the state. She stated that she hired Moss in 2007 as an in-house biller and office manager for her medical practice. Moss was tasked with staff management, bill payment, patient billing, payroll administration and the purchasing of office supplies. Although initially pleased with Moss’s work, Dr. Fakner later discovered 12that she had made a number of unauthorized purchases from Office Depot. Dr. Fakner testified that by the time Moss quit her job (January 18, 2010), she had begun questioning Moss about cash flow issues that had arisen regarding the crediting of patients’ accounts. She had also discovered that office bills were going unpaid.

Dr. Fakner explained that part of Moss’s duties included making purchases at Office Depot for office supplies, including only toner, paper, pens and markers. She stated that Moss was never authorized to purchase personal items or a home computer for work purposes. Dr. Fakner testified that it was her practice to give Moss a blank check made out to Office Depot with her signature on it. She instructed Moss to purchase certain items and return the sales receipt to her. Moss eventually stopped returning the receipts. When Dr. Fakner questioned her about the missing receipts and large office supply bills, Moss gave various excuses.

Dr. Fakner explained that her office was part of a rewards program at Office Depot that gave credit for eligible purchases. As she grew suspicious of Moss, Dr. Fakner accessed her online rewards program ac[982]*982count, which included lists of purchases. At trial she identified those printouts and the checks used to pay for the purchases as follows:

1) January 17, 2009, (S — 8) totaling $2,607.49:
Dr. Fakner identified several items, including photo frames, speakers, a webcam, backpack, crayons, workbook, animal stickers and scented crayons which were not authorized purchases. Additionally, from the printout, Dr. Fakner identified unauthorized purchases of a computer for $429.99 and 14 gifts cards totaling $1049.50.
liiDr. Fakner identified a copy of a check dated January 19, 2009, in the amount of $2,607.49 (S — 7), signed by her and made out to Office Depot for payment of the total purchases reflected on the rewards printout.
2) February 9, 2009 (S — 10) totaling $817.03:
Dr. Fakner identified unauthorized purchases of 9 gift cards in the amount of $648.80.
Dr. Fakner identified an electronic check (S-9) dated February 11, 2009, in the amount of $817.03 and payable to Office Depot for the total amount reflected on the rewards printout.
Dr. Fakner testified that she never authorized the use of electronic checks which have no signature on them.
3) March 21, 2009 (S — 12) totaling $1,919.14:
Dr. Fakner identified numerous purchases on the printout which were not authorized by her including $1,678.35 for 13 gift card purchases.
Dr. Fakner identified a copy of a check to Office Depot in the amount of $1,919.14 (S — 11) which was signed by her and dated March 21, 2009. She noticed that the check was originally made out in the sum of $19.00 but marked out and initialed by Moss.
4) May 8, 2009 (S-14) totaling $1,235.46:
Dr. Fakner identified unauthorized purchases on the rewards printout including $890.65 for 7 gift card purchases.
Dr. Fakner identified a check made out to Office Depot for the sum of $1,235.46 (S — 13) on May 8, 2009. She identified her signature on the check, but testified that she did not necessarily authorize the amount.
5) December 16, 2009 (S — 16) totaling $579.78:
Dr. Fakner identified 9 unauthorized purchases for gift cards in the amount of $534.65.
Dr. Fakner identified an electronic check dated December 18, 2009, in the amount of $579.78 made out to Office Depot (S-15).
146) December 24, 2009 (S-18) totaling $902.31.
From the printout, Dr. Fakner identified various purchases which were unauthorized including 9 gift cards totaling $684.70.
Dr. Fakner also identified an electronic check which was charged to her business account number and dated December 28, 2009, for the amount of $902.31 (S — 17).

Dr. Fakner testified that she never authorized Moss to buy office supplies at an Albertson’s grocery store. She identified a check made out to Albertsons for $37.75, indicating that the purchase was for office supplies (S-19). Dr. Fakner was able to identify Moss’s handwriting on the check.

Dr. Fakner stated she did not authorize any of the aforementioned purchases, and she specifically denied that the gift cards could have been purchased as gifts for her [983]*983employees because she gave Christmas bonuses to her employees by check. Dr. Fakner also testified that she never authorized the use of electronic checks in her account and would only allow Moss to buy office supplies with signed paper checks.

Dr. Fakner explained that for about a year before Moss left her employment, issues began to arise regarding unpaid bills. When she requested money from Moss for a personal paycheck, Moss informed her that there was no money. Moss changed the bank password on the office computer. Because of her suspicions, Dr. Fakner authorized the bank to send monthly statements to her home. However, while she was out of town, Moss called the bank and had the statements sent back to the office. At some point, Dr. Fakner went to a storage site to look for receipts from | ¡¡Office Depot. She found only an empty box. As a result of the actions of Moss, Dr. Fakner estimated a loss of over $54,000.3

Margarie Parr, a licensed practical nurse employed by Dr. Fakner since 1997, also testified. She confirmed that Dr. Fakner did not have a practice of awarding employees with gifts or bonuses in the form of gift cards. Parr recalled that Moss had given gift cards for birthdays. However, she did not testify that she ever received a card for her birthday.

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Related

State v. Lewis
260 So. 3d 1220 (Louisiana Court of Appeal, 2018)
State v. Minor
254 So. 3d 1278 (Louisiana Court of Appeal, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
127 So. 3d 979, 2013 WL 6087430, 2013 La. App. LEXIS 2372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moss-lactapp-2013.