NO. 88-420
I N THE SUPREME COURT OF THE STATE OF M N A A
O T N
1989
STATE OF MONTANA,
P l a i n t i f f and Respondent,
-VS-
KATHY (DAVIS) KORANG ,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t o f t h e F i r s t ~ u d i c i a lD i s t r i c t ,
I n and f o r t h e County o f Lewis & C l a r k ,
The H o n o r a b l e Henry L o b l e , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Edmund F. S h e e h y , J r . , H e l e n a , Montana
F o r Respondent :
Hon. Marc ~ a c i c o t ,A t t o r n e y G e n e r a l , H e l e n a , Montana
P a t r i c i a J. S c h a e f f e r , A s s t . A t t y . General, Helena
~ i k McGrath, C o u n t y A t t o r n e y , H e l e n a , Montana
e
Leo G a l l a g h e r , D e p u t y C o u n t y A t t o r n e y , H e l e n a
S u b m i t t e d o n ~ r i e f s : March 3 1 , 1989
Decided: May 1 8 , 1 9 8 9
rl
1 . -.
'---- L'
c Clerk
Mr. Justice R. C. McDonough delivered the Qpinion of the
Court.
Kathy Davis Korang appeals from the judgment of the
District Court of the First Judicial District, Lewis and
Clark County, entered upon a jury verdict finding her guilty
of theft and tampering with public records, both felonies.
We affirm.
Korang presents three issues for review:
1. Whether the evidence is sufficient to sustain her
conviction.
2. Whether the District Court interfered with her right
to a fair trial by limiting her counsel's cross-examination
of the State's witnesses in order to conclude the trial
before a certain date.
3. Whether the District Court erred in its determination
of the amount of restitution that Korang was required to pay
as a condition of her suspended sentence.
Korang worked in the I;ewis and Clark County Clerk and
Recorder's Office from 1976 until she was suspended in June
of 1987. Beginning in 1980, her duties centered around the
operation of the "records counter." She recorded documents
in the official County records, as well as searching for and
making copies of previously recorded documents requested by
members of the public. She collected fees for these services
set by state law. The fees were rung up on a cash register,
with the various services assigned to different "code keys."
Fees for filing and recording documents were each assigned a
particular code key, an?. were also entered separately in a
"reception book." Miscellaneous small- transactions such as
makinq photocopies were assigned to key three, hut were not
entered in the reception book.
Korang also had bookkeeping responsibility for this
operation and deposited collected fees with the County
Treasurer's Office. During busy periods, she was assisted at
the counter by other members of the Clerk and Recorder's
staff. The deputy clerk did the books for Korang when she
was on vacation or ill.
In June of 1987, staff members Dori Kuhl and Marylin
Bracken met with Clerk and Recorder Sue Bartlett. They
expressed concern about problems with the books being kept by
Korang. Their concern stemmed from an incident several weeks
before. Both women had issued a large number of death
certificates one day and had rung up the fees for them on the
cash register. They were curious as to how much money their
effort had made for the County, and looked at the book entry
for such fees at the end of the day. Instead of an entry
approximating the $80 that the women had estimated, the book
showed that they had taken in only $8. They began keeping
track of amounts they collected when assisting at the records
counter, and checking them against the books. They concluded
that money was missing, and came to Bartlett.
Bartlett began her own investigation. She counted the
cash and photocopied the checks in the till at the end of
each day; monitored the register tape, books and deposits;
and observed Korang as she went about her work. After
several days, Bartlett also began to examine adding machine
tapes taken from Korang's waste basket at the end of each
day, and kept track of checks and money orders received by
mail. with requests for copies of birth and death
certificates, which Korang kept in her desk. The pattern
Bartlett discovered was roughly as follows: (1)
miscellaneous transactions entered on cash register key three
were voided later in the day; (2) cash in the amount of the
voided transactions was taken from the I ; ( 3 ) either
f i c t i t i o u s t r a n s a c t i o n s w e r e t h e n r u n g up on a n o t h e r c o d e key
and checks from Korang's desk substituted t o make up the
difference and b a l a n c e the books, or recording and filing
t r a n s a c t i o n s e n t e r e d i n t h e r e c e p t i o n book were n o t r u n g up
on t h e c a s h r e g i s t e r . I t a l s o a p p e a r e d t o B a r t l e t t t h a t when
t h e amount o f c a s h t a k e n from t h e t i l l d i d n o t e x a c t l y match
the amount o f t h e checks used t o replace i t , Korang would
make a n e n t r y on t h e c a s h r e g i s t e r t o make t h e t o t a l from t h e
r e g i s t e r t a p e f o r t h a t p a r t i c u l a r day match t h e c o r r e s p o n d i n g
d a i l y t o t a l i n t h e book.
When Bartlett became c o n v i n c e d t h a t Korang was t a k i n g
money, she suspended her without pa!7. Mary Craig, a
certified public accountant, was then hired to perform an
a u d i t o f t h e books. Based on R a r t l e t t ' s o b s e r v a t i o n s and t h e
r e s u l t s o f t h e a u d i t , Korang was c h a r g e d by i n F o r m a t i o n w i t h
two f e l o n i e s : t h e f t (common scheme) and t a m p e r i n g w i t h p u b l i c
records or in+ormation. She was tried before a jury and
convj-cted o f both charges. The District Court sentenced
Korang to two consecutive 10-year terms in the Women's
C o r r e c t i o n a l F a c i l i t y a t Warm S p r i n g s , hut. s u s p e n d e d a l l b u t
180 days of the terms on the condition that Korang make
restitution in the amount of $37,891.25. This appeal
followed.
I.
Korang f i r s t a r g u e s t h a t t h e e v i d e n c e p r e s e n t e d by t h e
S t a t e a t t r i a l was i n s u f f i c i e n t t o s u s t a i n h e r c o n v i c t i o n s .
The t e s t a p p l i e d by t h i s C o u r t t o d e t e r m i n e w h e t h e r e v i d e n c e
i s s u f f i c i e n t i s whether, a f t e r reviewing t h e evidence i n t h e
l i g h t most f a v o r a b l e t o t h e S t a t e , a n y r a t i o n a l t r i e r o f f a c t
c o u l d have found t h e e s s e n t i a l e l e m e n t s o f t h e c r i m e beyond a
reasonable doubt. If t h e e v i d e n c e c o n f l i c t s , i t i s f o r t h e
trier of fact to d e t e r m i n e which evidence is d i s p o s i t i v ~ .
S t a t e v. Tracy (Mont. J 9 8 8 ) , 7 6 1 P.?d 398, 45 St.Rep. 1705.
Korang was charged with theFt under 45-6-301, MCA,
which states in part:
(1) A person commits the offense of theft when
he purposely or knowingly obtains or exerts
unauthorized control over property of the owner
and :
(a) has the purpose of depriving the owner of
the property;
...
(6) ... A person convicted of the offense of
theft of property exceeding $300 in value ...
shall
be fined not to exceed $50,000 or be imprisoned in
the state prison for any term not to exceed 10
years, or both.
At trial, the State presented testimony by seven witnesses,
including Bartlett, Korang's co-workers, and CPA Mary Craig.
These witnesses described Korang's behavior at work and how
that behavior fit the pattern of missing money discovered by
Bartlett. The testimony included direct observation of
Korang voiding entries on the cash register and making other,
unusual entries; direct observation of Korang making unusual
calculations when balancing the books; and direct observation
of the results of Korang's work, which produced the altered
cash register entries and deposits.
Mary Craig testified that her audit confirmed the
pattern observed by Bartlett, and estimated that the money
missing as a result of the alterations to the bookkeeping
system amounted to approximately $6,000 per year. Her
testimony was accompanied by several exhibits, some of which
showed actual work done by Korang and some of which
summarized Korang's work. Craig also testified that her
audit showed irregularities in the bookkeeping system while
Korang was at work, but not when she was ill or on vacation.
Our review of the record shows that a rational trier of
fact could conclude from the State's evidence that Kathy
Korang purposely altered entries in the bookkeeping system
used by the Clerk and Recorder's Office in order to gain
control of moneys belonging to Lewis and Clark County.
Korang's counsel introduced evidence calling the State's
theory into doubt and attempting to explain the alterations,
but as we said in Tracy, it was for the jury to decide which
evidence was convincing. We therefore hold that there was
sufficient evidence to sustain Korang's conviction for theft.
The offense of tampering with public records or
information is d-efined in S 45-7-208, MCA:
(1) A person commits the offense of tampering
with public records or information if he:
(a) knowingly makes a false entry in or false
al-teration of any record, document, legislative
bill or enactment, or thing belonging to or
received, issued, or kept by the government for
information or record. . . .
As described above, the State introduced testimony including
firsthand observations of Korang altering the cash register
tapes and deposit slips in order to substitute checks from
her drawer for cash removed from the till. This evidence
could convince a rational trier of fact that Korang knowingly
made false entries or al-terations in financial records kept
by the Clerk and Recorder's Office. We therefore hold that
there was sufficient evidence to support Korang's con17iction
for tamperinq with public records or information.
Counsel for Korang next argues that the District Court
interfered with Korang's right to a fair trial by inhibitins
the cross-examination of State's witness Mary Craig. At
trial, counsel for Korang requested the court's permission to
cease his cross-examination of Ms. Craig, and reserve the
right- to recall her for further cross-examination after he
reviewed the evidence upon which he was basing his questions.
The court refused this request, citing the time being taken
by the trial and counsel's ample opportunity to exami.ne all
of the evidence before Ms. Craig took the stand.
The parties agree that the appli.cable rule of evidence,
Rule 611, M.R.Evid., authorized the court to exercise
reasonable control over the proceedings in order to avoid
"needless consumption of time." Korang cites our decision in
State v. Stafford (1984), 208 Mont. 324, 678 P.2d 644, in
which we stated that a trial judge must be careful to insure
that he remains impartial, and avoids becoming an advocate
for one side or the other through his behavior. We also said
in that case that the judge must be given sufficient latitude
to conduct the trial in an orderly and expeditious fashion.
Stafford, 678 P.2d at 648.
The transcript reveals that the court asked counsel for
the State if copies of the exhibits had been provided to
Korang's counsel prior to trial, and was told that they had.
It appears from the record that Korang's counsel had ample
opportunity to examine the exhibits prior to trial, and the
court was within its authority and discretion in denying
counsel ' s request to suspend cross examination in the
interests of avoiding needless consumption of time.
Korang's final argument takes issue with the restitution
ordered by the District Court in consideration for suspending
most of Korang's sentences. According to Korang, the
restitution order was improper for two reasons; the amount of
restitution went beyond the scope of the offenses charged,
and any claim for amounts taken more than two years prior to
the filing of the information was barred by the applicable
statute of ,-imitations. We disagree.
Korang claims that the restitution order went beyond the
scope of the offenses charged by exceeding the authority
granted bv Sfj, 46-18-241 through 46-18-249, P C A . Section
46-18-241, MCA, authorizes a court to require an offender to
make restitution to the victim of the offense. Under S
46-18-242, MCA, the amount of restitution is based on the
pecuniary loss suffered by the victj-m and the offender's
ability to pay. Section 46-18-243, MCA, defines "pecuniary
loss" as foll-ows:
(a) all special damages, but not general.
damages, substantiated by evidence in the record,
that a person could recover against the offender in
a civil. action arising out O F the facts or events
constituting the offender's criminal activities,
i-ncluding without limitation the money equivalent
of loss resulting from property taken, destroyed,
broken, or otherwise harmed and out-of-pocket
losses, such as medical. expenses; and
(b) reasonable out-of-pocket expenses incurred
by the victi-m in filing charges or i.n cooperating
in the investigation and prosecution of t.he
offense.
At the sentencing hearing, the District Court received
evidence concerning the County's losses resulting from
Korang's activities, Korang's ability to pay restitution and
the County's out-of-pocket expenses incurred in prosecuting
Korang. On appeal, Korang assigns error to the amount of
loss asserted by the County.
Korang points out that the information charging her with
theft and tampering with public records or information
alleged that she had committed both offenses between July of
1985 and June of 1987. The restitution ordered by the
District Court was based in part on the final. report of Mary
Craig's audit. Craig's report concluded that the pattern of
Korang's activities began in 1983 and continued until her
suspension in 198?, resulting in losses to the County
amounting to approximate1.y $30,250.00. Korang asserts that
this amount was not "substantiated by evidence in the record"
as required by the statute because she was not bei.ng tried
for her activities prior to July of 1985. In essence, Korang
argues that she has been sentenced for two years of "crimi.na1
activities" for which she was not convicted.
The sentencing hearing is part of the record reviewed by
this Court when considering an appeal in a criminal case. In
fact, by posing this issue, Korang's counsel requests that
our review of the record include the sentencing hearing in
this case. At the sentencing hearing, the State submitted
evidence of the County's loss resulting from Korang's common
scheme theft and attendant records tampering. The evidence
showed that Korang' s common scheme began in 1983, and gave a
figure for the total loss suffered by the County "arising out
of the facts or events" consti.tuting Korang ' s common
scheme--her "criminal activities." The court's restitution
order was based on pecuniary loss substantiated in the
record.
Korangls assertion that the statute of limitations bars
any claim for amounts taken more than two years prior to the
filing of the information is based on § 46-18-244, MCA. That
section allows an offender to raise any defense against
restitution that he could utilize in a civil action for the
losses sought as restitution. According to Korang, one
defense available to her was § 27-2-211, MCA, which imposes a
two-year period of limitations for an action for penalty,
forfeiture, or other statutory liability. We need not
address this contention, as Korang did not raise specifically
the statute of limitations before the District Court.
Section 46-20-701, MCA.
We affirm the decision of the District Court.
We C o n c u r :
A?
n-
, Chief J u s t i
I-, /