#24396-a-JKM
2008 SD 29
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JUDY LYN WILLIAMS, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JOSEPH NEILES
Judge
* * * *
LAWRENCE E. LONG
Attorney General
ANN C. MEYER
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.
MARK KADI
Office of the Public Advocate Attorneys for defendant
Sioux Falls, South Dakota and appellant.
* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 6, 2007
OPINION FILED 04/09/08
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MEIERHENRY, Justice
[¶1.] Judy Lyn Williams was convicted of Grand Theft for embezzlement
from the Veterans of Foreign Wars Post (VFW) in Brandon, South Dakota.
Williams appeals. We affirm.
FACTS
[¶2.] The State charged Williams with grand theft, claiming she converted
VFW funds for her own use. The VFW hired Williams to manage its lounge in 2004.
The lounge had a bar and several video lottery machines. As lounge manager,
Williams managed the daily operations of the lounge, including accounting for all
lounge proceeds, making bank deposits, handling lottery transactions, scheduling
employees and taking care of facility rentals. Williams worked during the day, and
other employees worked during the evening hours.
[¶3.] The VFW’s process of handling the money and accounts involved an
on-site safe, a till, three bank bags and two bank accounts. The three bank bags
were used to segregate video lottery money from other lounge proceeds. One bank
bag was used for video lottery. It contained $7,000 in cash to pay video lottery
winnings, customer checks cashed to play the video lottery machines and winning
tickets redeemed for cash. A second bank bag contained $1,000 in cash, checks and
winning bar pull-tabs. The third bag contained $350 in cash used to make change
at the bar. All the bags were kept in a safe located in the back office. Williams and
all VFW officers possessed keys to the safe. The safe was left unlocked during hours
of operation, but was locked at night. Before closing, the night staff gathered and
organized the daily proceeds for Williams’ review when she arrived at work the next
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morning. She then segregated the funds from the different sources and deposited
them in the proper accounts. Williams then forwarded the daily totals and weekly
receipts to Quartermaster Kevin Anderson, who then forwarded the information to
the accountant, Ronald Parker, who prepared monthly audits.
[¶4.] The VFW maintained two bank accounts, the “general account” and
the “lounge account.” The bar, lottery and facility rentals were deposited in the
general account. The reimbursement checks for video lottery pay-outs went into the
lounge account. Williams deposited money in both accounts, but only had authority
to draw checks on the lounge account.
[¶5.] The VFW leased its video lottery machines from Myrmoe Vending
Company (Myrmoe Vending). Pam Myrmoe (Myrmoe) owned and operated Myrmoe
Vending. Myrmoe Vending reimbursed the VFW for video lottery payouts by check.
Part of Williams’ responsibilities included depositing Myrmoe Vending payout
checks into the lounge account. The VFW also obtained cash advances from
Myrmoe Vending to pay video lottery winnings. The cash advances were to go
directly into the video lottery bag. Myrmoe would then deduct the amount of the
cash advances from the reimbursement/payout checks. Williams was authorized to
request and receive the cash advances from Myrmoe Vending, but had no authority
to use the advances for any purpose except video lottery payouts.
[¶6.] Myrmoe testified at trial that Williams requested an abnormal number
of cash advances during 2004. Myrmoe testified that Myrmoe Vending advanced
the VFW approximately $80,000 that year, the majority of which Williams had
requested. Myrmoe also testified that because of the unusual amount of activity,
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she alerted the VFW Commander Ben Sunvold that “something funny was going
on.” After an audit, the VFW claimed Williams failed to report one of the cash
advances, in the amount of $2,000. Two other advances totaling $3,000 were
considered suspicious by the VFW because Williams took them before her vacation
without stating a reason and the funds appeared to be missing while she
vacationed.
[¶7.] Also during 2004, Williams reported two thefts of VFW cash to the
Brandon Police Department – one in May and one in December. Williams reported
that she suspected an employee was involved in the May theft. The VFW
maintained one surveillance camera for the facility. Sergeant Wade Else of the
Brandon Police Department investigated the May theft and reviewed the
surveillance video but was unable to identify any criminal activity. In response to
the May theft, the VFW installed two additional surveillance cameras near the
video lottery machines and the safe.
[¶8.] Sergeant Else also investigated the December theft. This time he had
videos from the three surveillance cameras for the twenty-two-hour time frame of
the theft. Williams and Sergeant Else reviewed all the videos from the three
cameras to try to identify who took the money. Williams was present for all of the
viewing. Later when Sergeant Else copied the surveillance videos, he inadvertently
deleted a thirty-three-minute segment.
[¶9.] Shortly after the December 2004 theft, Williams quit her job as lounge
manager. She took a short vacation and did not return to work. An audit,
completed in early 2005, revealed mishandling of VFW finances. The audit showed
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that Williams had deposited checks in the wrong bank account, overstated her
deposit slips and video lottery payouts, and received three suspicious cash advances
from Myrmoe, one of which went unreported. As a result, the State charged
Williams with grand theft, specifically alleging that she had overstated video lottery
payouts by $1,700, inflated check deposits by $3,266.44, failed to report a $2,000
cash advance from Myrmoe Vending in October of 2004, and took two suspicious
cash advances totaling $3,000 from Myrmoe Vending in August of 2004. Williams
admitted to depositing checks into the wrong account. She denied the State’s other
allegations and claimed that someone else may have taken the missing money from
the safe.
[¶10.] A jury found Williams guilty of grand theft in violation of SDCL 22-
30A-10 and SDCL 22-30A-17. Williams was sentenced to thirty days in jail, with
work release authorized and credit for four days served. The trial court did not
order restitution because the evidence indicated that Williams had in all probability
redeposited the missing funds during her employment. Williams appeals and raises
five issues.
ANALYSIS AND DECISION
1. Whether the trial court erred by not granting a mistrial because
of conversations between a State witness and a jury member
and between two sequestered State witnesses.
[¶11.] Williams claims that the trial court should have declared a mistrial
because one State witness engaged in improper communications with a juror and
two State witnesses had inappropriate communications with each other during the
trial. Prior to trial, the court sequestered the witnesses. The court also instructed
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the jury not to discuss the case or to speak with witnesses when the court was in
recess. The trial court charged the jury at the start of trial as follows:
During the proceeding of the trial, there will be times when you
will be outside the courtroom for rest periods and other times
when you will be allowed to separate. During all of those times
that you are outside the courtroom, you must not talk about this
case among yourselves or with anyone else. A violation of this
order is serious. . . . Do not talk to the lawyers, defendant, or
the witnesses. The lawyers, defendant and witnesses are
not permitted to talk to you during the trial even in
discussions which had no relation to the case would give a
bad appearance. Should anyone attempt to talk to you about
the trial, you should refuse and you should report the attempt to
the bailiff or to the judge at first opportunity . . . .
(Emphasis added). Throughout the trial, the court repeated a similar admonition to
the jury. Outside the presence of the jury, the trial court cautioned the attorneys
and Williams as follows:
It just occurred to me as we were going through the jury
selection process that there’s been several jurors that have
connections with Brandon, and I know that we may have
witnesses who have connections with Brandon, I’d encourage
both sides, counsel on both sides to re-urge their witnesses
to be cautious about not talking to the jurors or speaking
to them in any fashion, even if it’s about the weather or
whatever. So that we don’t run into problems that we
sometimes run into in other cases.
(Emphases added).
[¶12.] Despite the court’s admonitions, State witness, VFW Commander Ben
Sunvold, had a conversation with a juror during a smoke break about the weather;
and State witness, Pam Myrmoe, had a conversation with another State witness,
Noelan Letcher. The Myrmoe-Letcher conversation involved a discussion
concerning several mutual friends. Williams moved for a mistrial, and the trial
court denied the motion.
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[¶13.] We review the denying of motions for mistrial under the abuse of
discretion standard. State v. Buchhold, 2007 SD 15, ¶17, 727 NW2d 816, 821; State
v. Carothers, 2006 SD 100, ¶8, 724 NW2d 610, 615-16. “An abuse of discretion
refers to a discretion exercised to an end or purpose not justified by, and clearly
against reason and evidence.” State v. Beckley, 2007 SD 122, ¶20, 742 NW2d 841,
847.
[¶14.] “Trial court’s [sic] have considerable discretion in granting or denying
a mistrial and to justify the granting of a mistrial, an actual showing of prejudice
must exist.” State v. Bousum, 2003 SD 58, ¶31, 663 NW2d 257, 265-66. Prejudice
is an error, “which, in all probability, [ ] produced some effect upon the jury’s verdict
and is harmful to the substantial rights of the party assigning it.” State v.
Mollman, 2003 SD 150, ¶23, 674 NW2d 22, 29 (citation omitted). However, when
improper juror contact “has taken place in a criminal case there arises a rebuttable
presumption of prejudice, and the burden is on the state to show the harmless effect
of the communication.” State v. Swallow, 350 NW2d 606, 610 (SD 1984).
[¶15.] Williams claimed that the Sunvold-juror conversation about the
weather bolstered Sunvold’s credibility. She claimed that the conversation
established a common ground with the juror because both Sunvold and the juror
were from the City of Brandon, which was the location of the alleged embezzlement.
The State argued that the communication was harmless and had no effect upon the
juror’s impartiality. The trial court agreed and determined that the brief
pleasantry concerning the weather was harmless and caused no prejudice to
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Williams. Although the communication was improper, a review of the entire record
supports the trial court’s ruling on lack of prejudice.
[¶16.] Williams next argued that the Myrmoe-Letcher communication about
mutual friends was prejudicial because it was part of a cumulative progression of
the State tampering with evidence and the trial process. Williams specifically
pointed to the erased segment of the surveillance video and to materials that she
claimed should not have been admitted because they were altered and lacked
trustworthiness. As to the missing segment of the surveillance video, the trial court
determined that (1) Williams presented insufficient evidence that the video
contained exculpatory evidence to be prejudicial, and (2) at most, Sergeant Else’s
deletion of the video segment was “sloppy” not intentional. We agree with the trial
court. Williams viewed the entire surveillance video with Sergeant Else, including
the subsequently deleted thirty-three minutes when Sergeant Else was
investigating the May, 2004 theft. Neither Williams nor Sergeant Else remembered
anything of significance on the missing segment that would have exonerated
Williams or implicated a third party. Had the missing segment shown a third
person stealing money, both Sergeant Else and Williams conceivably would have
identified the thief.
[¶17.] The other challenged materials were Myrmoe Vending checks that had
white-out and re-written information on the memo line, and other documents used
in the audit process that contained notes and markings added by Myrmoe or other
people doing the audit. At trial, the relevant witnesses explained when and why
they had made the notes and changes. The court found that their explanations
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were sufficient to establish trustworthiness for admissibility. Further, the court
determined that the Myrmoe-Letcher conversation was not prejudicial since they
had not discussed their testimony or anything else concerning the trial. We agree.
Williams failed to show prejudice or that the court abused its discretion in denying
her motion for a mistrial.
2. Whether the trial court erred by allowing two of the State’s
witnesses to give testimony regarding VFW accounting practices
and another witness to testify as a rebuttal witness.
[¶18.] The State presented testimony from VFW Commander Ben Sunvold
and past Commander Noelan Letcher about the bookkeeping practices and specific
audits of the VFW lounge. Williams claimed that their testimony and opinions
lacked proper foundation. Proper foundation requires testimony “that a document
has been prepared or kept in the ordinary course of regularly-conducted business
activity.” Dubray v. Dep’t of Soc. Serv., 2004 SD 130, ¶15, 690 NW2d 657, 662-63
(citation omitted); SDCL 19-16-10. “We review a trial court’s ruling on the
admissibility of evidence under an abuse of discretion standard.” State v. Williams,
2006 SD 11, ¶8, 710 NW2d 427, 430.
[¶19.] Letcher testified that he was a long-standing member and past
Commander at the VFW, and that he and another member created the bookkeeping
system for the VFW. Further, he testified that he conducted weekly “mini-audits”
and had been active in the VFW’s bookkeeping practices for approximately eight
years. Letcher trained Williams for approximately six weeks on the bookkeeping
practices, including how to handle the books and conduct a daily accounting.
Letcher testified about procedures for deposits and withdrawals from the bank
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accounts and the arrangement of obtaining cash advances from Myrmoe Vending.
Further, Letcher identified three cash advances that Williams obtained from
Myrmoe that, in his opinion, were without sufficient justification.
[¶20.] Sunvold testified that during the period in which the alleged thefts
occurred, he was Senior Vice-Commander of the VFW. Sunvold was actively
involved in hiring Williams. He and Letcher conducted the October 15, 2004 audit
that uncovered some of the alleged wrongdoings by Williams, including the funds
deposited in the wrong account and the cash advances from Myrmoe Vending.
Sunvold also testified that Myrmoe contacted him in July, 2004, because she
believed there was “something funny going on” with respect to the unusually high
number of cash advances. Sunvold and Letcher both testified that their audit
uncovered that Williams overstated her video lottery payouts by $1,700, inflated her
check deposits by $3,266.44, and failed to report or misappropriated $5,000 in cash
advances from Myrmoe Vending.
[¶21.] Williams claims that the testimony of Letcher and Sunvold was
inadmissible because they were unqualified to testify to the accounting practices at
the VFW because neither were accountants. The record, however, indicates that
Letcher and Sunvold were sufficiently familiar with the VFW’s bookkeeping
practices to testify as to its procedures. The State laid the proper foundation for
Letcher and Sunvold’s testimony regarding the audits they conducted and their
findings. Letcher and Sunvold explained to the jury how they conducted the audits
and the meaning of the markings they had made on receipts and documents while
conducting the audits. Additionally, the evidence showed that Letcher and Sunvold
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prepared and kept the records from the audits in the course of regularly conducted
VFW business. See Dubray, 2004 SD 130, ¶15, 690 NW2d at 662-63; SDCL 19-16-
10. Williams fails to show that the trial court abused its discretion in allowing the
testimony.
[¶22.] Williams also claims that the trial court improperly admitted rebuttal
testimony from Quartermaster Kevin Anderson. Trial court judges have “wide
discretion in permitting the State to introduce additional evidence after it has
closed its case.” State v. Stuck, 434 NW2d 43, 54 (SD 1988). This also applies when
the testimony admitted is rebuttal evidence to contradict the defendant’s version of
the facts. Id. Williams’ testimony raised questions about whether she had done the
VFW’s books on August 12, 2004, before she left for vacation because “Kevin
[Anderson] has writing just like me.” She testified that she could not recall if she
had deposited money in the VFW’s lounge account or taken any cash advances on
the twelfth of August. The State called Anderson, who testified that he had done
the books while Williams was on vacation and had prepared a daily worksheet on
August 13, 2004, for the preceding day. His testimony also rebutted Williams’ claim
that the alleged missing $3,000 of cash advances was most likely in the safe. He
described how he had opened the safe and accounted for all the funds. Thus, the
court did not abuse its discretion by allowing Anderson to rebut Williams’ testimony
about the bookkeeping, deposits, cash and cash advances. See State v. Fowler, 1996
SD 78, ¶17, 552 NW2d 92, 95-96; SDCL 23A-24-2(4).
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3. Whether the trial court erred in denying Williams’ motion to
dismiss based on the destruction of evidence.
[¶23.] We review the trial court’s denial of a motion to dismiss under an
abuse of discretion standard. Carothers, 2006 SD 100, ¶8, 724 NW2d at 615-16.
The State’s duty to preserve the evidence is “limited to evidence that might be
expected to play a significant role in [a] suspect’s defense.” Moeller v. Weber, 2004
SD 110, ¶15, 689 NW2d 1, 7 (emphasis in original). The United States Supreme
Court in Brady v. Maryland set forth the test to determine whether a defendant is
entitled to a new trial when the State withholds exculpatory evidence. 373 US 83,
87, 83 SCt 1194, 1196-97, 10 LEd2d 215 (1963). The Court held “that the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 SCt at
1196-97, 10 LEd2d 215; see also Strickler v. Greene, 527 US 263, 280-81, 119 SCt
1936, 1948, 144 LEd2d 286 (1999) (stating “that the duty to disclose [exculpatory]
evidence is applicable even though there has been no request by the accused”). This
Court has stated that Brady violations are analyzed under the three-part test set
forth by the United States Supreme Court: (1) whether the evidence at issue was
“favorable to the defendant because it is exculpatory or impeaching”; (2) whether
the evidence was “suppressed by the State either willfully or inadvertently”; and (3)
whether prejudice resulted. State v. Piper, 2006 SD 1, ¶19, 709 NW2d 783, 795
(citations omitted).
[¶24.] Prior to trial, Williams moved to dismiss claiming a due process
violation under Brady. Williams claimed that the thirty-three minutes of missing
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surveillance footage, prepared by Sergeant Else, constituted State suppression of
exculpatory evidence, requiring dismissal of the charges. Sergeant Else testified
that he did not know why a segment of the video was missing and that the video
was supposed to have been copied in its entirety. He further testified that he could
not remember what was on the missing segment. Williams argued that the missing
segment of the video could have shown another employee removing money from the
safe. 1 Part of her defense was that if money was missing, someone else must have
taken it. The rest of the surveillance video was in evidence, some of which showed
other employees accessing the safe.
[¶25.] Williams also filed a motion for a new trial on the same basis at the
conclusion of trial. Under the materiality prong of the Brady test, Williams had to
show that “there [was] a reasonable probability that [the] conviction or sentence
would have been different had these materials been disclosed.” Strickler v. Greene,
527 US 263, 296, 119 SCt 1936, 1955, 144 LEd2d 286 (1999). In State v. Leisinger,
we held that in order for suppressed evidence to require a new trial, the defendant
must demonstrate that the evidence was favorable or helpful to the defense and
that prejudice resulted from its suppression. 2003 SD 118, ¶14, 670 NW2d 371, 375
(citation omitted). Williams, who had personally viewed the missing segment before
it was erased, did not establish that the erased thirty-three-minute segment
contained exculpatory evidence. Thus, Williams failed to establish there was a
reasonable probability she would not have been convicted had the missing video
1. Another employee pleaded guilty to theft from the VFW women’s auxiliary at
the same time these allegations arose. The other employee denied all
involvement with any alleged theft from the Brandon VFW.
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been available. The trial court did not abuse its discretion in denying Williams’
motions to dismiss.
4. Whether the trial court erred in denying Williams’ motion for
judgment of acquittal based on insufficiency of the evidence.
[¶26.] Williams was convicted of violations of SDCL 22-30A-10 and SDCL 22-
30A-17. SDCL 22-30A-10 provides the elements of embezzlement of property
received in trust:
Any person, who has been entrusted with the property of
another and who, with intent to defraud, appropriates such
property to a use or purpose not in the due and lawful execution
of his or her trust, is guilty of theft. A distinct act of taking is
not necessary to constitute theft pursuant to this section.
At the time of the offense, SDCL 22-30A-17 defined grand theft as theft of property
exceeding $500 in value. 2 Williams argues the State failed to present evidence that
she “appropriated money to a use or purpose not in the due course of lawful
execution of her trust” with a value greater than $500. SDCL 22-30A-10. She
alleges that the trial court erred by denying her motion for acquittal. Specifically,
Williams argues the State failed to provide evidence of the nature of the alleged
trust, the requisite intent to appropriate funds, the conversion of funds to Williams’
own use and the total amount of money taken, as evidenced by the court’s inability
to order restitution.
2. Effective July 1, 2006, SDCL 22-30A-17 was amended to increase the amount
required for grand theft from $500.00 to $1000.00. At the time of the
commission of the offense the statute provided as follows: “Theft is grand
theft, if: (1) The value of the property stolen exceeds five hundred dollars; . . .
Theft in all other cases is petty theft.”
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[¶27.] We analyze the sufficiency of the evidence by determining whether
there is evidence in the record, which if believed by the jury, “is sufficient to sustain
a finding of guilt beyond a reasonable doubt.” State v. Mulligan, 2007 SD 67, ¶7,
736 NW2d 808, 812-13. The jury is “the exclusive judge of the credibility of the
witnesses and the weight of the evidence.” Id. A jury verdict will only be set aside
if “the evidence presented, including the favorable inferences drawn therefrom,”
does not provide “a rational theory that supports the jury’s verdict.” State v.
Motzko, 2006 SD 13, ¶13, 710 NW2d 433, 439.
[¶28.] Although the State’s evidence is not overwhelming, a review of the
evidence and the favorable inferences drawn therefrom indicates sufficient evidence
to sustain the verdict. Clearly the VFW entrusted Williams to handle and account
for all the cash taken in and paid out while she served as manager. She was
allowed to receive cash advances from Myrmoe Vending when video lottery payouts
approached $7,000 in order to have enough cash on hand to cover future video
lottery payouts for one week, Thursday to Wednesday. She was entrusted to settle
accounts with Myrmoe each Thursday, including commission for the use of the
machines, video lottery payouts and repayment for any cash advances taken the
previous week. Her duties also included accounting for and depositing of proceeds
into the VFW bank accounts. She had authority to withdraw funds from the lounge
account but not the general account. The State’s evidence, if believed by the jury,
sufficiently established the requisite entrustment with VFW property pursuant to
SDCL 22-30A-10.
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[¶29.] The State also presented sufficient evidence that Williams converted
funds for her own use. Some of the conversion claim derived from the excessive
cash advances Williams requested from Myrmoe Vending. Williams requested
several cash advances in 2004, totaling more than the amount of video lottery
payouts and causing a negative account balance with Myrmoe Vending. The
October 15, 2004 audit, prompted by Myrmoe’s concerns about the excessive
number of Williams’ cash advances, revealed that Williams received but failed to
account for two cash advances from Myrmoe Vending totaling $3,000. The day
before the audit, Williams had filled out a deposit ticket for the lounge account in
the amount of $648.25. The Bank’s records showed that Williams actually
deposited $2,648.25 and then wrote a check for cash in the amount of $2,648.25.
The State’s theory was that Williams used the $2,000 to replenish the lottery bag
for money she had previously taken.
[¶30.] Additionally, the State presented evidence that Williams altered her
daily bookkeeping worksheets by increasing the amount actually paid out in video
lottery winnings and by improperly depositing general account funds into the
lounge account and immediately withdrawing the same. The daily worksheets for
the six video lottery machines showed overstated payouts in increments of $1,000,
$2,000 or $3,000. Williams then deducted these overstated payouts noting the
correct payouts on the final worksheet for the week. There was also evidence of
improper deposits into the lounge account – the account on which Williams could
write checks. The deposits included checks from commissions and rentals that
belonged in the general account -- the account on which Williams could not write
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checks. The evidence revealed that Williams made the improper deposits then
wrote checks and received cash.
[¶31.] Williams claimed the deposits in the wrong accounts were merely
mistakes and did not prove that she intended to embezzle. The requisite intent for
grand theft embezzlement pursuant to SDCL 22-30A-10 is the “intent to defraud.”
SDCL 22-30A-10; State v. DeWall, 343 NW2d 790, 791-92 (SD 1984). Intent is
defined in SDCL 22-1-2(1)(b) as “a specific design to cause a certain result . . . .” To
prove intent, the State presented evidence that shortly before Williams went on
vacation she received $3,000 in cash advances from Myrmoe Vending that she failed
to put into the video lottery bag and misrepresented another $2,000 cash advance.
The State also established her intent by her overstated video lottery payouts on her
daily records and her erroneous deposit of funds into the account on which she was
authorized to write checks for cash. If believed by the jury, the State’s evidence,
along with favorable inferences therefrom, was sufficient to establish intent to
defraud.
[¶32.] Although the State did not present direct evidence on how she used the
converted funds, the evidence was sufficient for the jury to conclude that she
converted it for her own use. The evidence showed that she was in sole possession
of the VFW funds for periods of time without authorization. The audits revealed
that Williams deposited funds into the wrong bank account, and improperly
accounted for and withdrew these unauthorized funds for no legitimate business
purpose. Furthermore, Myrmoe testified regarding the excessive number and
amount of cash advances during Williams’ tenure as lounge manager. The
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inference is that Williams took the funds for her own use for a period of time even
though she may have ultimately replaced the funds. This circumstantial evidence,
if believed by a reasonable jury, was sufficient under our standard of review to
establish that Williams converted the funds, at least temporarily, for her own use.
See Mulligan, 2007 SD 67, ¶7, 736 NW2d at 812-13; see also State v. Shaw, 2005 SD
105, ¶45, 705 NW2d 620, 633 (“All elements of a crime, including intent . . ., may be
established circumstantially.”) (citations omitted).
[¶33.] Finally, Williams argues that the State failed to establish that the
value of the stolen property exceeded $500. Hundreds of receipts and financial
report documents showing the misappropriation of funds were presented at trial.
The documents indicated that during periods in 2004, money in excess of $500 was
misappropriated/missing. Testimony of overstated video lottery payouts of $1,700,
Williams’ inflated check deposits by $3,266.44, and unreported or misrepresented
cash advances from Myrmoe Vending of $5,000 established a value over $500.
Based on all the evidence, the trial court did not err in denying Williams’ motion for
judgment of acquittal.
5. Whether the trial court erred in failing to instruct the jury on
the lesser-included offense of petty theft.
[¶34.] Williams argues the court erred in refusing her proposed lesser-
included-offense instruction for petty theft. “A lesser-included-offense instruction
should be given when (1) the elements test is met and (2) some evidence in support
of such instructions exists in the record.” State v. Giroux, 2004 SD 24, ¶5, 676
NW2d 139, 141 (quoting State v. Hoadley, 2002 SD 109, ¶64, 651 NW2d 249, 264).
“If evidence has been presented which would support a conviction of a lesser charge,
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refusal to give the requested instruction would be reversible error.” State v.
Heumiller, 317 NW2d 126, 132 (SD 1982) (citation omitted). We apply de novo
standard of review to the refusal of proposed lesser-included instruction. Giroux,
2004 SD 24, ¶4, 676 NW2d at 140-41.
[¶35.] There is no dispute that under the elements test, petty theft is a lesser-
included offense of grand theft. The issue here is whether there was some evidence
in support of a petty theft instruction. To justify the lesser-included instruction,
Williams must proffer some evidence that would tend to support the lesser charge.
As this Court stated in Giroux, “[t]he defendant is only required to present some
evidence for the lesser included offense to be presented to the jury.” 2004 SD 24,
¶16, 676 NW2d at 145. We review the factual evidence “in the light most favorable
to the defendant, which would justify a jury in concluding that the greater offense
was not committed and that a lesser offense was, in fact, committed.” State v. Wall,
481 NW2d 259, 264 (SD 1992) (citations omitted).
[¶36.] The State’s evidence was that Williams overstated lottery payouts by
$1,700, inflated check deposits by $3,266.44, failed to report a $2,000 cash advance
from Myrmoe Vending, and received another $3,000 in cash advances allegedly for
her personal use. Any one of these was sufficient to establish the monetary
requirement of grand theft. Based on the evidence, the trial court concluded that
the jury could only find guilt of grand theft or acquit. Williams’ only argument for a
petty theft instruction is based on her own testimony that she once made a mistake
and incorrectly rang up a $100 instead of $1.00 for the cigarette lighter. However,
her claimed error in ringing up an incorrect charge did not figure in any of the
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State’s allegations of theft. Williams did not testify she converted these funds to
her own use or misappropriated them in anyway; she merely testified that one
potential discrepancy in the audits could have been due to her mistake. The trial
court concluded that the evidentiary requirements for a lesser-included instruction
were not met. We agree. The record is devoid of evidence that would support the
lesser charge of petty theft.
[¶37.] We affirm on all issues.
[¶38.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and
ZINTER, Justices, concur.
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