Opinion
No. 5-751 / 04-1976
Filed November 23, 2005
Appeal from the Iowa District Court for Mills County, J.C. Irvin, Judge.
Donna Davis appeals from the district court's judgment and sentence after finding her guilty of first-degree theft, felonious misconduct in office, tampering with records, and ongoing criminal conduct. AFFIRMED.
Patrick O'Bryan, O'Bryan Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, Steve Reno, Assistant Attorney General, and Marci Prier, County Attorney, for appellee.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Donna Davis, former deputy treasurer for Mills County, was convicted following a bench trial of first-degree theft in violation of Iowa Code sections 714.1(1) and 714.2(1) (2003), felonious misconduct in office in violation of section 721.1(3), tampering with records in violation of section 715A.5, and ongoing criminal conduct in violation of sections 706A.1(5) and 706A.2(4). She appeals, challenging the sufficiency of the evidence supporting the court's findings of guilt. We affirm.
I. Background Facts Proceedings
Davis was hired to work in the Mills County Treasurer's Office in 1988. By the early 1990s, she was the deputy in charge of the auto department of the treasurer's office. Her responsibilities included issuing vehicle titles and training other personnel.
On July 16, 2001, another employee of the treasurer's office, Marilee Gayer, filled in for Davis during Davis's lunch hour. Gayer noticed a pile of one hundred dollar bills in the cash drawer. She counted twelve one hundred dollar bills; however, when she put the money away at the end of the day, she noticed that all of the one hundred dollar bills were missing. Later that evening, Gayer went to the home of the Mills County Treasurer, Janette Blackburn, to inform Blackburn of her concerns about the money she believed was missing from the cash drawer. During her discussions with Gayer, Blackburn remembered that she had placed four or five one hundred dollar bills in the cash drawer that same afternoon.
The next morning, Gayer and Blackburn searched the treasurer's office for the missing bills. After they failed to discover any missing money, they contacted the Mills County Attorney, the sheriff, and the Glenwood Police Department. Gayer, Blackburn, and a police officer went to the treasurer's office after business hours. They discovered two vehicle titles in a wastebasket under Davis's desk. They also found supporting documentation from two auto dealerships folded inside the titles, including manufacturer's origin statements, applications for titles, odometer statements, and damage disclosures. The documents recovered from the wastebasket should have been retained in a file, not thrown away.
The discarded titles were for a 2001 Hyundai Elantra sold by Edwards-Archer Hyundai to Mark and Sherry Ford and a 2001 Nissan sold by Lake Manawa Nissan to Tina Harrison. According to the certificates of title, there was no road use tax paid on either vehicle. In reality, neither purchaser had claimed eligibility for exemption from use tax, but $569.95 in use tax had been collected for the Elantra and $1,031.00 for the Nissan. An adding machine tape was also recovered from the wastebasket that displayed the figure $1,600.95, which was the sum of the total use tax collected for the two vehicles. Blackburn testified that there would be no reason to calculate the sum of only two use tax amounts.
When questioned about the discarded titles, Davis initially claimed to know nothing about them. However, the next day Davis told Blackburn that she probably knocked the titles off her desk into the wastebasket when she was speaking on the phone with a dealer and if a correction needed to be made on the titles, she would have created "in lieu" titles. Davis told Blackburn she did not have the original titles because they had been mailed to the lienholders. Blackburn then asked Davis to get the original titles back so that she could review them.
Davis testified that when a mistake is made on a title, a new title must be created. She stated that by law the county cannot charge use tax for the second title, so the new title would not have a use tax on it. The new title would override the old title, and the old title would be considered dead and be filed in a dead file in the back vault of the office.
Several days later, Davis showed Blackburn two titles that were supposed to be the original titles. Each title contained an error that required a correction. Both of the "original" titles displayed issue dates of July 13, 2001. However, the title numbers on the "original" titles were higher than the title numbers shown on the "in lieu" titles, which were dated July 16, 2001, and purportedly had been generated to fix the errors in the "originals." Blackburn testified that the "in lieu" titles could not have been issued later than the alleged "original" titles because of the lower title numbers appearing on the "in lieu" titles.
Vehicle titles issue from the Department of Transportation in mandatory sequential order. The title numbers cannot be altered, but the date that the titles were issued may be changed.
The Division of Criminal Investigation became involved in the investigation and asked the State Auditor's Office to review the procedures of the Mills County Treasurer's Office auto department. Annette Campbell, Director of the Division of Performance Investigations, oversaw the review. The review covered the time period of July 1, 1999, through July 27, 2001. The Auditor's Office uncovered 114 transactions within the range of dates reviewed where titles were recorded as exempt from use tax despite the fact that use tax had been collected and submitted to the county. Fees that were collected from auto dealers were paid by check; once the check went into the cash drawer, if the title was recorded as exempt from tax, that difference could be removed from the drawer in cash and still permit the drawer and the cash transaction report to balance at the end of the day. The 114 transactions discovered by the Auditor's Office revealed that $118,480.55 of the taxes collected by the Mills County Treasurer's Office were not deposited.
The Auditor's Office reviewed personnel records and discovered that on every single day but one when money was collected but not deposited, Davis was present at work. Davis's bank records were subpoenaed and examined by the State Auditor to determine if she had made any large cash deposits during the July 1999 to July 2001 time period. The examination of the bank accounts revealed that Davis had deposited more than $108,000 in cash into the accounts over the same period of time that use taxes collected by the treasurer's office were not deposited. During that same time period, Davis was earning approximately $28,000 per year as a Deputy Mills County Treasurer.
On June 2, 2003, the State filed a trial information charging Davis with first-degree theft, felonious misconduct in office, tampering with records, ongoing criminal conduct, and forgery. Davis waived her right to a jury trial, and the case was tried to the court commencing September 14, 2004, with Judge J.C. Irvin presiding. On September 29, 2004, the court found Davis guilty on all charges except forgery. On November 15, 2004, the court sentenced Davis to a term of ten years for the theft charge, twenty-five years for ongoing criminal conduct, five years for felonious misconduct in office, and two years for tampering with records. The court ordered the sentences to be served concurrently and suspended them, placing Davis on probation for five years and ordering restitution. Davis now appeals.
II. Scope Standards of Review
We review Davis's claim that there is insufficient evidence to support her convictions for the correction of errors at law, and we will uphold the verdict if substantial evidence supports it. State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). Evidence is substantial if it would convince a rational fact-finder to "find guilt beyond a reasonable doubt." State v. Robinson, 288 N.W.2d 337, 341 (Iowa 1980). When we determine the sufficiency of the evidence supporting Davis's convictions, we consider all the evidence in the record, not just the evidence supporting her guilt. State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005) (citing State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005)). However, when we make this determination, we consider all the evidence in the light most favorable to the State, and we include legitimate inferences and presumptions that may be reasonably deduced from the evidence in the record. Id. III. Discussion
On appeal, Davis claims the record contains insufficient evidence to support her four convictions.
To prove Davis committed first-degree theft, the State had to show that between July of 1999 and July of 2001, she took possession of more than $10,000 in cash from the Mills County Treasurer's Office with the intent to deprive that office of the money.
To prove Davis engaged in ongoing criminal conduct, the State had to show that she committed "acts of specified unlawful activity" (indictable thefts) on a continuing basis for financial gain.
To prove Davis committed felonious misconduct in office, the State had to show that between July of 1999 and July of 2001, she was a public employee and falsified certificates of title by issuing them as tax exempt when the transactions were actually taxable.
To prove Davis tampered with records, the State had to show that she falsified motor vehicle titles, without the privilege to do so, to show exemption from use tax when the transactions were actually taxable.
We first address the State's contention that Davis may not have preserved error on her sufficiency of evidence challenges to her convictions for felonious misconduct in office and tampering with records because her brief only makes passing reference to those convictions. Although Davis's brief does not address each conviction separately, her appellate arguments call into question the sufficiency of the evidence for each conviction. Accordingly, we will address the merits of her claim.
In support of her challenge to the sufficiency of the evidence to support her convictions, Davis argues that no one saw her remove money from the treasurer's office and points out that other employees had frequent access to the auto department's cash drawer. Davis also contends that she offered a variety of plausible explanations at trial for the substantial cash deposits to her bank accounts. She asserts the cash deposits came from tax refunds, rent from her rental property, cash from the sale of horses and appliances, contributions from her former husband, life insurance proceeds, and gambling winnings. Davis claims it was her practice to cash all the checks she received, pay her bills in cash, and re-deposit the remaining cash to her bank accounts. The trial court found that her explanations of the cash deposits were not credible.
Davis was able to recall the sources of her deposits in detail, but she provided little documentation of her cash transactions.
The fact that no one saw Davis take money does not defeat the State's case because circumstantial evidence is equally as probative as direct evidence. Iowa R. App. P. 6.14(6)( p); State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). When viewed in the light most favorable to the State, the evidence substantially supports a finding that Davis committed first-degree theft, felonious misconduct in office, tampering with records, and ongoing criminal conduct. Based on the evidence presented at trial, a rational fact-finder could reasonably conclude that Davis stole approximately $118,000 from the Mills County Treasurer's Office over a period of about two years by repeatedly issuing falsified tax-exempt titles when tax had actually been paid and then removing a corresponding amount of cash from the cash drawer. In assessing the sufficiency of the evidence, we note that it is the trial court's duty to evaluate the credibility of witnesses. See State v. Thorton, 498 N.W.2d 670, 673 (Iowa 1993). Upon careful review of the record, we find no reason to disturb the assessments of credibility made by the district court in this case. See State v. Kostman, 585 N.W.2d 209, 211 (Iowa 1998) (finding credibility assessments should be left to the trier of fact unless the testimony is so impossible, absurd, and self-contradictory that it should be deemed a nullity).
Because the evidence supports the district court's findings and conclusions, we affirm the defendant's convictions.