Opinion
112,079.
08-14-2015
STATE of Kansas, Appellee, v. Lecrisha BRYAN, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Kerwin L. Spencer, county attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Kerwin L. Spencer, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Lecrisha Bryan argues that she should get a new trial because the judge admitted evidence in her felony theft and making a false writing trial that she had been fired from her job because she had lied on her time cards. Because the evidence was admitted for the limited purpose of refuting Bryan's claim that her boss had trumped up this theft charge in order to avoid paying unemployment compensation and the jury was so instructed on its limited admission, its admission was not unduly prejudicial. We hold there was no error. We affirm her convictions.
Additionally, we are not persuaded that the court abused its discretion when it ordered Bryan to pay $4,000 restitution. The court took Bryan's financial circumstances into account before making this order; it is less than the amount Bryan took, and the court did not require her to pay court costs and attorney fees.
Bryan made daily bank deposits for a drug store.
Bryan began working for Caldwell Pharmacy in 2011. At that time, a different employee prepared and made the daily deposit. After that employee left, Bryan became responsible for preparing and making the daily deposit every morning. Bryan did so from March until June 2012.
After the close of business each day, the pharmacist, Rory Linn Shaffer, used his cash register to compute the total sales for the day and list them by the different departments in the store. The machine also listed how payments were made by customers—cash, check, or credit card.
Each night, Shaffer counted the cash and confirmed the amount against the machine's record. Shaffer then put the cash, checks, and receipts from the day in a bank bag. The next morning, Bryan made out a deposit slip based on the contents of the bag and again confirmed it against the machine's record. Bryan then took the deposit to the bank. Shaffer believed Bryan kept the deposit receipts in her desk drawer.
In July 2012, Shaffer fired Bryan after he discovered she had lied about the number of hours she worked on her time cards. Not long after this, while gathering and reviewing the deposit receipts to give to his accountant as part of the normal course of Caldwell Pharmacy's business, Shaffer noticed several large discrepancies between the cash register readings and actual deposit amounts. Shaffer was familiar with Bryan's handwriting. He noted that the days with missing money were days Bryan prepared and made the deposit. Shaffer and his wife then pored through all the records from April through June 2012. Based on this review, the Shaffers determined Bryan had stolen over $4,800 from the deposits. Shaffer believed that figure was higher, but Shaffer and his wife eventually stopped looking at their records for additional missing money. Shaffer also believed Bryan altered the June deposit slips to make it look like she had deposited the correct amount. The Shaffers compiled their findings on spreadsheets for each month and submitted them to the Caldwell Police Chief.
The State charged Bryan with one count of felony theft based on two or more thefts under a common scheme or, in the alternative, 41 counts of misdemeanor theft. The State also charged Bryan with two counts of making a false information.
Why Shaffer fired Bryan came into evidence during her trial.
Shaffer testified about hiring Bryan, her increasing responsibilities, how deposits were made, and ultimately discovering the missing money. Though the State elicited from Shaffer that he fired Bryan prior to discovering the missing money, the State did not ask about Shaffer's reason for firing Bryan.
On cross-examination, defense counsel pressed Shaffer at length about Bryan's application for unemployment benefits, Shaffer's objection to having Bryan's unemployment benefits charged to Caldwell Pharmacy, and Shaffer's subsequent discovery of Bryan's theft. Defense counsel's questioning indicated skepticism that Shaffer would not discover $5,000 was missing immediately. But Shaffer readily admitted he was not a savvy accountant or financial officer. Bryan's attorney's questioning inferred that Shaffer's objections to having the unemployment benefits credited to his business was linked to the later discovery of theft.
On redirect examination, the prosecutor's first question to Shaffer was why he fired Bryan. Shaffer testified he fired Bryan because she lied on her time cards about the hours she worked. The prosecutor had not asked the trial court to determine if defense counsel had opened the door to letting this prior bad acts evidence be admitted. And defense counsel did not contemporaneously object.
At this point, the trial court interrupted the State's redirect examination of Shaffer, dismissed the jury, and held a brief hearing. The court questioned whether Shaffer's testimony regarding Bryan lying on her time cards was admissible under K.S.A.2014 Supp. 60–455. The prosecutor argued that the tenor of defense counsel's questioning—implying Shaffer was trying to get out of paying Bryan's unemployment benefits—allowed the State to present evidence of Shaffer's reason for firing Bryan and then subsequently objecting to paying her unemployment benefits.
The court admonished the prosecutor for failing to ask for a recess to discuss whether defense counsel had opened the door to the admission of prior bad acts testimony prior to “unilaterally injecting it into ... evidence.” Defense counsel then moved for a mistrial. The prosecutor argued defense counsel's line of questioning attempted to present Shaffer's motives for reporting the thefts as something nefarious—simply to get out of paying Bryan unemployment benefits. Defense counsel denied this, instead claiming he simply asked if Bryan still worked for Caldwell Pharmacy when Shaffer initiated his investigation. The trial court took a recess to review the testimony before ruling.
After the recess, the trial court agreed with the prosecutor that the “general tenor” of the questioning implied that Shaffer needed to concoct a reason in order to prevent paying Bryan's unemployment benefits. The court ruled the State ought to be able to present Shaffer's reasoning for firing Bryan. The court decided the prior bad acts testimony was admissible. It found the evidence relevant to rebut the evil motive—just drumming up a reason to get out of paying unemployment benefits—for reporting the missing money propounded by the defense. The court also weighed the probative nature of the evidence against the prejudicial effect and determined the testimony was not unduly prejudicial. The court denied Bryan's motion for a mistrial.
The trial court instructed the jury on felony theft or, alternatively, 40 counts of misdemeanor theft (the court left out 1 count), and 2 counts of making a false information. The court also gave a limiting instruction regarding the evidence of Bryan lying about the hours she worked on her time cards.
The jury convicted Bryan of felony theft or, alternatively, 39 counts of misdemeanor theft and 2 counts of making a false information. The jury found Bryan not guilty of one alternative count of misdemeanor theft. The court denied Bryan's motion for acquittal or for a new trial. The court sentenced Bryan to a suspended 8–month term in prison and 18 months' supervised probation.
The State requested Bryan pay $4,000 in restitution, an amount less than the amount the jury convicted Bryan of stealing. Bryan made no statement and offered no evidence in mitigation of punishment. Her attorney requested a lower amount. Her attorney indicated Bryan was an unemployed single mother of two children. But Bryan indicated she had not tried to find a job prior to the trial because she was awaiting the result. Bryan acknowledged the difficulty she would face finding employment with these convictions, but she acknowledged she could find minimum wage employment.
The court ordered Bryan to pay $4,000 in restitution to Caldwell Pharmacy. However, the court found it would be a hardship for Bryan to pay back attorney fees in addition to restitution. The court offered a further hearing to consider Bryan's financial situation further, but neither party requested one.
Bryan raises two points in her appeal. She contends the court abused its discretion by refusing to grant a mistrial when the State admitted the evidence of her prior bad acts. Second, Bryan argues the $4,000 restitution order is unworkable and should be vacated.
We list the rules we follow when making this decision.
We review a trial court's decision denying a mistrial for an abuse of discretion. Judicial discretion is abused if the judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) based on an error of fact. See State v. Armstrong, 299 Kan. 405, 441–42, 324 P.3d 1052 (2014).
In Kansas, when evaluating a motion for mistrial under K.S.A. 22–3423(1)(c), the district court must first decide if there is prejudicial conduct, in or outside of the courtroom, such that it created a fundamental failure in the proceeding. If so, the district court must next decide whether the conduct made it impossible to continue the trial without injustice, whether the damaging effect could not be cured or mitigated, and, if not, whether the degree of resulting prejudice denied a party a fair trial and required the court to declare a mistrial. See State v. Santos–Vega, 299 Kan. 11, 23, 321 P.3d 1 (2014).
To determine whether an error makes it impossible to proceed with the trial without injustice and requires a mistrial, a court must assess whether the fundamental failure affected a party's substantial rights under the harmless error statutes, K.S.A.2014 Supp. 60–261 and K.S.A. 60–2105, if a right guaranteed by the United States Constitution is not implicated; but if a constitutional right is implicated, the error must be assessed under the constitutional harmless error standard in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1987). Santos–Vega, 299 Kan. at 23.,
Was this evidence properly admitted?
In order for us to decide whether the trial court abused its discretion in denying Bryan's motion for a mistrial, we must review the trial court's determination that the K.S.A.2014 Supp. 60–455 evidence of Bryan lying about her work hours was properly admitted. Generally, all relevant evidence is admissible. See K.S.A. 60–407(f). But a judge has the discretion to exclude otherwise admissible evidence if it is unduly prejudicial to the party against whom it is offered. See K.S.A. 60–445 ; State v. Smith, 296 Kan. 111, 123–24, 293 P.3d 669 (2012).
In our evidence code, K.S.A.2014 Supp. 60–455(a) precludes the admission of evidence of prior bad acts, (other crimes or civil wrongs) for the purpose of creating the inference that the person committed the offense at issue. But such evidence can be admitted when relevant to prove some other material fact, such as those listed in the statute, e.g., motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. K.S.A.2014 Supp. 60–455(b). Smith, 296 Kan. at 123, directs that when evaluating the admissibility of prior bad acts evidence, the trial court must determine that
(1) the evidence be relevant to prove a material fact;
(2) the material fact be disputed; and
(3) the probative value of the evidence not be substantially outweighed by the risk of undue prejudice.
If K.S.A.2014 Supp. 60–455 type evidence is admitted, the trial court must give a limiting instruction to ensure the jury considers the evidence only for the specific reason or reasons it is admitted. See Smith, 296 Kan. at 124 ; cf. K.S.A. 60–406.
At Bryan's trial, the trial court followed the proper procedure before determining if the K.S.A.2014 Supp. 60–455 evidence was admissible. First, the court determined defense counsel's questioning implied that Shaffer needed to concoct a reason to prevent paying Bryan's unemployment benefits. Therefore, the court determined Shaffer's motive for investigating Bryan for theft was material and relevant to that point and the first requirement for admission was satisfied.
Next, the general tenor of defense counsel's questioning suggested this motive on Shaffer's behalf. But Shaffer's testimony indicated Bryan's firing and the subsequent theft investigation were entirely separate—Shaffer did not want to pay Bryan's unemployment benefits because she was fired for lying on her time cards, and the theft was discovered during routine accounting work. Clearly the issue was disputed and the second element was met.
Finally, the trial court extensively discussed the probative value versus the prejudicial nature of the evidence that Bryan was fired for lying on her time cards. The court determined defense counsel's suggested evil motive was “pretty incendiary.” The court determined the State should be able to respond to defense counsel's implied motive. The court determined the information was not unduly prejudicial. The court determined Bryan should not have been surprised by the information coming in after relentlessly pressing Shaffer to create the inference that Shaffer was just concocting a reason to get out of paying unemployment benefits. Defense counsel should have seen it coming that the State would want to establish Shaffer's true motive for objecting to paying Bryan's unemployment benefits, even though the State may not have followed the preferred procedures. All of the elements required for admission were thus satisfied.
Finally, the court then gave a prophylactic limiting instruction to the jury as required by the law.
We find no abuse of discretion in the trial court's denial of Bryan's motion for a mistrial.
We find no abuse of discretion in the restitution order.
Bryan argues the trial court erred by ordering her to pay $4,000 in restitution to her former employer because the amount is unworkable in light of her financial circumstances. This court reviews the amount of restitution ordered by a trial court for an abuse of discretion. State v. Alcala, 301 Kan. 832, 836, 348 P.3d 570 (2015).
Under K.S.A.2014 Supp. 21–6604(b)(1), trial courts are instructed to order defendants to pay restitution to the victims of their crimes unless compelling circumstances make paying restitution unworkable. Accordingly, restitution is the rule and a finding that restitution is unworkable is the exception. Furthermore, the burden is on the defendant to come forward with evidence of compelling circumstances that render the restitution plan unworkable. Alcala, 301 Kan. at 840 (citing State v. Goeller, 276 Kan. 578, 583, 77 P.3d 1273 [2003] ); see K.S.A.2014 Supp. 21–6604(b)(1) ; State v. King, 288 Kan. 333, 204 P.3d 585 (2009).
The record reveals Bryan has failed to establish compelling circumstances rendering the restitution order unworkable. At sentencing, Bryan requested a lower restitution amount than the $4,000 requested by the State. But Bryan presented no evidence of her inability to pay. Instead, she simply asserted she was unemployed, was receiving $175 monthly child support, and had no other financial resources. However, Bryan acknowledged she had made no attempt to find employment during the pendency of the trial. Bryan admitted she should be able to obtain minimum wage employment in spite of her convictions, and the trial court advised her that employment was required as a condition of her probation. Additionally, the trial court set restitution at an amount at least $800 less than the victim's actual loss and waived the requirement of Bryan to pay attorney fees for her court-appointed attorney, finding an order of restitution and attorney fees would be a hardship for Bryan.
At sentencing, the trial court presented Bryan with two opportunities to present compelling circumstances to mitigate the restitution amount. First, before setting the restitution amount the court gave Bryan an opportunity to present compelling circumstances rendering restitution unworkable—an opportunity she declined. Then, when discussing the amount of attorney fees to assess to Bryan, the court offered to have a future hearing to better determine Bryan's financial situation even though it was under no duty to investigate Bryan's financial circumstances. See King, 288 Kan. at 354, 356–58. Bryan did not take up the court's offer. Therefore, we cannot say that no reasonable person would agree with the trial court when it ordered Bryan to pay $4,000 in restitution based on the information it had when it made its restitution order.
There is no reason to modify the restitution order.
Affirmed.