State v. Pilousek

747 S.W.2d 766, 1988 WL 26313
CourtMissouri Court of Appeals
DecidedMarch 29, 1988
DocketNo. 52759
StatusPublished
Cited by5 cases

This text of 747 S.W.2d 766 (State v. Pilousek) 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. Pilousek, 747 S.W.2d 766, 1988 WL 26313 (Mo. Ct. App. 1988).

Opinion

SMITH, Judge.

Defendant appeals from her conviction by a jury of two counts of stealing without consent and one count of forgery. She was given a sentence of six months concurrent jail time and $1000 fine on each count. The execution of the sentence was suspended and defendant was placed on five years probation conditioned upon 120 hours community service and restitution of $1,200 to Jefferson County.

Defendant raises four issues on appeal. One involves a challenge to the sufficiency of the evidence to support the convictions but only as that evidence relates to the ownership of the funds stolen. Defendant was an employee in the office of the assessor of Jefferson County. She began working for the assessor, Oscar Kasten, in 1954. In 1980 she became Kasten’s second in command. She shared an office with him and spent most of the working day in his presence.

Beginning in the 1970’s various cities in the county utilized the assessor’s office to provide copies of county assessments for use by the cities in assessing their own taxes. These arrangements were made orally with Kasten. There was evidence that defendant participated in making these arrangements. In some cases oral advice of the charges was given to the cities but generally billing was accomplished through invoices from the assessor’s office. These invoices requested that payment be made to specific named individuals. The reason given for this request was that the individuals were those doing the work on their own time and if the checks were payable to Kasten he would have to pay income tax on the amounts received. The specified individuals were persons who did not work in the assessor’s office or persons who did or [768]*768had but had no connection with providing the copies. Among the individuals were defendant’s son and daughter and invalid mother, and the children of several other employees. All copying of the records was done on an Address-o-graph machine which only defendant, sometimes with the assistance of Kasten, operated. Defendant would be copying the records when employees arrived at work at 8:30 and would continue until the arrival of Kasten between 9 and 9:30, at which time defendant would join him in their office. When the checks were received, employees, usually the relative of the person to whom the check was payable, would be told by Kas-ten to endorse the check and cash it at the bank nearby. The employee would then return and give the money to Kasten. The money was not given to the employees named as payees. Defendant was present in the office shared with Kasten when some of these occurrences happened. There was evidence that on some occasions the invoices were prepared by defendant.

Defendant was specifically charged with having, appropriated the proceeds of two checks. The first was a check from the City of Festus dated October 13, 1983, made payable to C. Sullivan. The second was a check from the City of Crystal City dated October 11,1983, made payable to C. Sullivan. Both were for $600. The forgery count was based upon an endorsement placed upon the Crystal City check by defendant when she knew that the endorsement of C. Sullivan was made by someone other than the payee. Handwriting expert testimony established that the endorsement of “C. Sullivan” was made by Shirley Wall, an employee in the assessor’s office. The defendant’s endorsement was made by defendant. Cheryl Sullivan had worked part-time in the assessor’s office but was in college at Rolla, Missouri, in October 1983. She testified she did not endorse either check, was unaware of the checks, and gave nobody authority to endorse checks for her. The instructions submitted to the jury premised defendant’s guilt on accessory responsibility.

Defendant’s challenge to the sufficiency of the evidence as to the stealing counts is that the money appropriated did not belong to Jefferson County. The prosecution relied upon Sec. 53.071.3, RSMo 1978, which provides:

“In counties of the first class not having a charter form of government [Jefferson County] in which the assessor has entered into a contract with a city providing for the assessment of property in the municipality by the county assessor, all fees for this service received from the city pursuant to the contract shall be paid into the county treasury ...”

The statute goes on to provide that the assessor may be compensated for the service performed in an annual amount to be determined by the governing board of the county. Defendant contends that pursuant to Sec. 432.070, RSMo 1986, the contracts between the county and the municipalities were void because they were oral and that therefore Jefferson County was not the owner of the funds. Sec. 570.030 provides that a person commits the crime of stealing if he appropriates property “of another” with the purpose to deprive him of it. Sec. 570.010(9) defines, “of another.” It states in pertinent part that property is that “of another” if any governmental subdivision or instrumentality other than the actor, has “a possessory or proprietary interest” therein.

The cases relied upon by defendant involve attempts to enforce contracts which did not comply with the statutory requisites of Sec. 432.070. See for example Lalumondier v. County Court of St. Francois County, 588 S.W.2d 197 (Mo.App.1979) [5]. They involve parties to the contracts. In Casterline v. Stuerman, 588 S.W.2d 86 (Mo.App.1979) [2] we stated that the purpose of the statute is to protect the county; “it was not designed to insulate individuals from liability for their tortious acts.” Nor, we will add, from their criminal acts. Whether the county could have legally enforced the agreement between the assessor and the municipalities is irrelevant to this criminal prosecution. The municipalities honored the agreement and voluntarily [769]*769paid for the services rendered. The services were performed, at least in part, during working hours, utilizing a county employee and county equipment and supplies. Upon delivery of the municipal checks to the assessor’s office, the county had a posses-sory interest in the proceeds thereof and that property interest was appropriated by the actions of Kasten and defendant. It would be a strange concept of law indeed that governmental employees are entitled to appropriate money received by them for the use of their employer where the money is not the product of a legally enforceable obligation. We decline to accept such a concept. The evidence sufficiently established that the proceeds of the checks were the property of Jefferson County.

Defendant challenges the admission of the evidence of billing statements, purchase orders, and cancelled checks pertaining to diversions of municipal payments other than the two charged in the information. The main criterion in determining the admissibility of evidence of a potentially prejudicial or inflammatory nature is relevance. State v. Bextermueller, 643 S.W.2d 292 (Mo.App.1982) [11, 12]. Evidence of other crimes is admissible if it tends to prove motive, intent, absence of mistake or accident, or common scheme embracing commission of two or more crimes related to each other, with proof of one tending to establish the other. State v. Evans, 699 S.W.2d 514 (Mo.App.1985) [1-3].

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Cite This Page — Counsel Stack

Bluebook (online)
747 S.W.2d 766, 1988 WL 26313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pilousek-moctapp-1988.