State v. Phillips

• Court: Court of Appeals of South Carolina
• Decided: November 18, 2003
• Docket: 2003-UP-675
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Alison A. Phillips,        Appellant.

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Appeal From Greenwood County
Wyatt T. Saunders, Jr., Circuit Court Judge

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Unpublished Opinion No. 2003-UP-675
Submitted October 6, 2003 – Filed November 18, 2003

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AFFIRMED

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C. Rauch Wise, of Greenwood, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General David A. Spencer, all of Columbia; and Solicitor William Townes Jones; of Greenwood, for Respondent.

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PER CURIAM:  Alison Phillips was convicted of breach of trust with fraudulent intent.  Phillips appeals, arguing the trial court erred by: (1) denying her motion for a directed verdict; (2) failing to declare a mistrial based on the state’s allegedly improper cross-examination regarding her prior employment; and (3) failing to charge the jury as to the proper definition of circumstantial evidence.  We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Phillips worked as a bookkeeper for Jachat, Inc. (“Jachat”) for approximately four years.  Following her resignation, Ann Long, one of the owners of Jachat, and her new bookkeeper, Dana Henderson, found irregularities in Jachat’s books, including unauthorized, duplicate checks issued by and paid to Phillips. 

Thereafter, Phillips was convicted for breach of trust with fraudulent intent and sentenced to three-years imprisonment, suspended upon successful completion of four-years probation.  Additionally, as a term of probation, Phillips was required to pay a total of $5,571.60 in restitution.  Phillips appeals.  We affirm.

LAW/ANALYSIS

Phillips argues the circuit court erred by denying her motion for a directed verdict because the state failed to establish any substantial evidence of her fraudulent intent.  We disagree.

When ruling on a motion for directed verdict in a criminal case, the circuit court is concerned only with the existence of evidence, not its weight. State v. Saltz, 346 S.C. 114, 138, 551 S.E.2d 240, 253 (2001).  An appellate court reviewing a circuit court’s denial of a motion for directed verdict must view the evidence in the light most favorable to the state and determine whether any evidence exists that reasonably tends to prove the defendant’s guilt or with which her guilt may be logically deduced.  State v. Brazell, 325 S.C. 65, 77, 480 S.E.2d 64, 71 (1997).  Unless there is a total failure of competent evidence as to the charges alleged, refusal by the circuit court to direct a verdict of acquittal is not error.  State v. Massey, 267 S.C. 432, 443, 229 S.E.2d 332, 338 (1976).

Initially, we note, Phillips only argues the state failed to present evidence reasonably tending to prove fraudulent intent.  Phillips does not argue the state failed to prove the other elements of breach of trust with fraudulent intent.  See State v. Owings, 205 S.C. 314, 316, 31 S.E.2d 906, 907 (1944) (“Breach of trust [with fraudulent intent] is larceny after trust, which includes all of the elements of larceny or in common parlance, stealing, except the unlawful taking in the beginning.”); Bell v. Clinton Oil Mill, 129 S.C. 242, 253, 124 S.E. 7, 11 (1924) (“A breach of trust is where personal property of appreciable value and of which larceny may be committed is put into the possession of another; and when it is so put into his possession it becomes a trust, and while it so remains, if he conceives the purpose to convert that property to his own use, and does it with intention to deprive the owner of the use of that property, then that is a breach of trust with a fraudulent intent.”); State v. Scott, 330 S.C. 125, 130, 497 S.E.2d 735, 738 (Ct. App. 1998) (“The primary difference between larceny and breach of trust is that in ‘common-law larceny, possession of the property stolen is obtained unlawfully, while in breach of trust, the possession is obtained lawfully.’”  (quoting State v. McCann, 167 S.C. 393, 398, 166 S.E. 411, 413 (1932) (emphasis as in original))).  Thus, we limit our inquiry to whether evidence exists within the record reasonably tending to prove Phillips had a fraudulent intent.  See Saltz, 346 S.C. at 138, 551 S.E.2d at 253 (holding an appellate court must affirm the denial of a motion for directed verdict where evidence exists which reasonably tends to prove the defendant’s guilt or with which his guilt may be logically deduced). 

“[F]raudulent intent is a condition of the mind beyond the reach of the senses, usually kept secret, and can only be proved by unguarded expressions, conduct and circumstances generally.”  State v. Jordan, 255 S.C. 86, 90, 177 S.E.2d 464, 465 (1970); Cook v. Metropolitan Life Ins. Co., 186 S.C. 77, 84, 194 S.E. 636, 639 (1938) (“Fraud may be deduced not only from deceptive or false representations, but from facts, incidents, and circumstances which may be trivial in themselves, but decisive in a given case of the fraudulent design.”); see also State v. McDowell, 266 S.C. 508, 515, 224 S.E.2d 889, 892 (1976) (holding as a general rule, any act or conduct on the part of the accused is admissible as some evidence of consciousness of guilt).

Henderson, Jachat’s bookkeeper, testified she discovered Jachat’s payroll records had several irregularities following Phillips’ resignation.  Specifically, Henderson testified on several occasions, Phillips issued herself multiple paychecks, on the same day, for the same period of time.  Henderson also authenticated spreadsheets admitted into the record indicating Phillips issued herself in excess of sixty unauthorized checks, totaling over $8,000, during a two year time period. 

Furthermore, Henderson testified during the time she was working with Phillips at Jachat, Phillips called while on a business trip to New Orleans and told Henderson to draft a payroll check, payable to Phillips, from Jachat’s operations account.  The check was purported to be an advance paycheck for Phillips.  However, when Henderson subsequently reviewed Jachat’s payroll records, Henderson discovered Phillips issued herself a payroll check for that week, despite the advance she received while in New Orleans.

Moreover, Henderson testified on Phillips’ last day of employment with Jachat, Phillips took a copy of Jachat’s Quick Books software, a program used by the company for its payroll records.  When taking the records, Henderson testified Phillips said: “I am taking this to cover myself.”

Anita Nogai, a certified public accountant, also reviewed Jachat’s financial records.  Nogai stated Quick Books allows a user to alter the records of issued checks.

Following the state’s case, Phillips took the stand in her defense and admitted she received an advance on her paycheck while in New Orleans and issued herself an additional paycheck for the same period of time.  Furthermore, Phillips admitted she issued herself unauthorized checks totaling $1,297.  However, Phillips contended the unauthorized checks were issued mistakenly rather than with fraudulent intent.

In a light most favorable to the state, this evidence demonstrates Phillips issued multiple unauthorized checks to herself.  Furthermore, the evidence indicates Phillips believed she had a need to “cover herself.”  This evidence is sufficient to support a reasonable inference Phillips intended to fraudulently deprive Jachat of property.  See State v. Ezzard, 40 S.C. 312, 324-25, 18 S.E. 1025, 1029 (1894) (holding where an agent receives and wrongfully retains money he knows belongs to his principal, with intent to defraud his principal, the agent is guilty of breach of trust with fraudulent intent).  Consequently, we find no error in the trial court’s denial of Phillips’ motion for directed verdict.

As to Phillips’ other issues, we affirm pursuant to Rule 220(b)(2), SCACR, and the following authorities:  As to Issue II:  State v. Craig, 267 S.C. 262, 268, 227 S.E.2d 306, 309 (1976) (“[T]he consideration of whether there was any prejudice requires that a motion for mistrial be made after the trial judge attempts to cure the error.”); State v. Hale, 284 S.C. 348, 354, 326 S.E.2d 418, 422 (Ct. App. 1985) (holding an error is generally deemed cured if the court sustains a timely objection to testimony and gives the jury a curative instruction to disregard the testimony); State v. George, 323 S.C. 496, 510, 476 S.E.2d 903, 911-12 (1996) (holding where objecting party moves for a mistrial, and the trial judge gives a curative instruction, the objecting party must either object to the curative instruction or move for a mistrial again to preserve the error for appellate review).

As to Issue III:  State v. Grippon, 327 S.C. 79, 83-84, 489 S.E.2d 462, 464 (1997) (holding the appropriate circumstantial evidence charge is the following:  “Circumstantial evidence is proof of a chain of facts and circumstances indicating the existence of a fact.  The law makes absolutely no distinction between the weight or value to be given to either direct or circumstantial evidence.  Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence.”).

CONCLUSION

For the foregoing reasons, Phillips’ conviction is

AFFIRMED. [1]

STILWELL, HOWARD, and KITTREDGE, JJ., concur.

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[1] Because oral argument would not aid the Court in resolving any issue on appeal, we decide this case without oral argument pursuant to Rule 215, South Carolina Appellate Court Rules.