Opinion
No. 1 CA-CR 16-0320
09-28-2017
STATE OF ARIZONA, Appellee, v. APRIL MICHELLE MOONEY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By W. Scott Simon Counsel for Appellee Maricopa County Public Defender By Christopher V. Johns, Tennie B. Martin Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2014-005797-001
The Honorable Jerry Bernstein, Commissioner
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By W. Scott Simon
Counsel for Appellee Maricopa County Public Defender
By Christopher V. Johns, Tennie B. Martin
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Randall M. Howe and Judge Samuel A. Thumma joined. THOMPSON, Judge:
¶1 April Michelle Mooney (defendant) appeals after a jury convicted her of one count of aggravated theft and four counts of fraudulent schemes and artifices. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against defendant. See State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997).
¶2 Defendant worked for J.F. Ellis Corporation (Ellis Corp.), a concrete construction company owned by John Ellis (Ellis), from 2004 until 2014. Defendant was responsible for accounts payable, and one of her duties was to generate checks for Ellis to sign. She was also responsible for paying off company credit cards with company funds. Defendant had two company credit cards—a Chase Visa card and an American Express card. In early 2014, Ellis and his office manager discovered that defendant had used her company credit cards to make numerous unauthorized personal purchases over a period of years. Defendant spent $38,889 using her company American Express card from 2011 to 2013, and $92,371 using her company Visa card from 2010-2014.
¶3 Ellis terminated defendant and called the police. Police discovered that defendant had created a company called White Cap Confections Company (a name similar to that of a company Ellis Corp. did regular business with, White Cap Construction Supply Inc.) and had generated checks made out to "White Cap" totaling $92,414 and deposited them in her White Cap Confections Company account. Police also discovered that defendant had generated checks made payable to herself and misidentified them in the company's accounting software.
¶4 A grand jury indicted defendant on one count of theft, a class 2 felony (count one), four counts of fraudulent schemes and artifices, class 2 felonies (counts two through five), and two counts of forgery, class 4 felonies (counts six and seven). Subsequently, the trial court granted the state's motion to dismiss the forgery counts without prejudice.
¶5 A jury convicted defendant of counts one through five. The trial court sentenced her to a presumptive sentence of five years in prison for count one with credit for seventy-one days of presentence incarceration, suspended imposition of sentencing for the remaining counts, and imposed probation for seven years following defendant's release from prison on count one. Defendant timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2016), 13-4031 (2010), and -4033(A)(1) (2010).
DISCUSSION
¶6 Defendant raises two issues on appeal: 1) whether the trial court abused its discretion by allowing the state to introduce into evidence spreadsheets prepared by Ellis Corp.'s office manager, Maryanne Clouatre, showing defendant's credit card purchases, and 2) whether the trial court committed reversible error by allowing the state to elicit testimony from Clouatre that she found unpaid Ellis Corp. state tax bills in defendant's desk after she was fired.
A. The Spreadsheets
¶7 Before trial, defendant filed a motion in limine to preclude the state from introducing spreadsheets created by Clouatre regarding defendant's unauthorized credit card charges (exhibits 7.001 and 8.001), and to preclude "any testimony by Maryanne Clouatre and Detective Van Horn that the transactions were unauthorized as this would be hearsay. . . ." The state argued the spreadsheets were admissible as summary exhibits pursuant to Arizona Rule of Evidence 1006. On the first day of trial, the parties discussed the spreadsheets and the motion in limine. Defendant made no claim that the documents supporting the spreadsheets had not been disclosed. The court asked the state whether all of the items set forth in the spreadsheets would be corroborated by evidence or testimony. The state answered in the affirmative. The court declined to rule on the admission of the spreadsheets before trial.
¶8 On the second day of trial, the state moved to introduce and, without objection, the trial court admitted exhibits 7 and 8, copies of Ellis Corp.'s American Express and Visa statements from 2010 and 2014 pursuant to Arizona Rule of Evidence 803(6) (business records exception to the rule against hearsay). Subsequently, during Clouatre's testimony, the state offered the spreadsheets into evidence. Defendant objected, arguing that the state needed to lay a foundation for every entry on the spreadsheet. The state repeated its argument that the spreadsheets were admissible as summaries of voluminous documents, and avowed that everything on the spreadsheets was contained in the previously admitted exhibits. The trial court admitted the spreadsheets.
¶9 We review the trial court's evidentiary rulings for an abuse of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006). Arizona Rule of Evidence 1006 provides that a party "may use a summary, chart, or calculation to prove the content of voluminous writings . . . that cannot be conveniently examined in court," so long as the writings are properly disclosed. Defendant did not object to the admission of exhibits 7 and 8. Exhibits 7 and 8 both have an affidavit from the custodian of records of the bank certifying that the credit card statements were kept in the ordinary course of business. See Ariz. R. Evid. 902 (11). Exhibits 7 and 8, which are in three-ring binders, contain hundreds of pages of credit card statements. Because the spreadsheets "simply repeated information that was admissible as a business record," the spreadsheets were likewise admissible. See Ariz. R. Evid. 803(6), State v. Parker, 231 Ariz. 391, 401, ¶ 32, 296 P.3d 54, 64 (2013) (citing Ariz. R. Evid. 1006; U-Haul Int'l, Inc., 576 F.3d 1040, 1043-44 (9th Cir. 2009)). We find no abuse of discretion in the trial court's decision to admit the spreadsheets and allow Clouatre to testify about them.
A "writing consists of letters, words, numbers, or their equivalent set down in any form." Ariz. R. Evid. 1001(a).
B. Testimony About Unpaid Company Sales Tax Bill
¶10 Defendant next argues that the trial court erred by allowing Clouatre's testimony that after defendant was fired, an unpaid state sales tax bill was found in her desk. Clouatre testified that Ellis Corp. ultimately discovered it owed the state $103,000 in taxes, penalty, and interest. Much of the testimony was received without objection. It was only when Clouatre was asked whether a document would refresh her recollection as to the time period that defendant objected and the following discussion took place at a bench conference:
[Defense counsel]: Your Honor, she's not charged with doing anything with the sales tax ledgers. All it's for is to make her look like a bad
employee . . . this has nothing to do with anything that's been stolen . . ..In open court, the prosecutor then attempted to introduce the document to "refresh [Clouatre's] recollection as to the time period when taxes were not paid and were due[.]" Defendant objected and the court sustained the objection. The prosecutor then asked Clouatre if she recalled "what time period the taxes weren't paid?" Without objection, she said "it was a good three or four years," and "counting backwards . . . I would say from 2009 to 2013."
The Court: Remind me what [defense counsel] said in . . . the opening statement . . ..
[Prosecutor]: He said that John Ellis came up with a scheme in order to not pay taxes, that's why April Mooney is being paid underneath the table and he's a tax cheat . . . He's made it relevant.
[Defense counsel]: But . . . this is sales tax. This has nothing to do with anything, totally different category.
The Court: Okay. Based on what you said in the opening statement, you did bring up taxes, and I know you're talking about IRS as opposed to sales tax. I'll allow some limited inquiry into it.
[Prosecutor]: She's already testified as to what wasn't paid. I want to show her this document so she would know the time period - refresh her recollection as to the time, the dates.
The Court: Just ask what time periods. That's it. Don't introduce the document.
[Prosecutor]: No. Okay.
During his opening statement, defense counsel asserted that Ellis permitted defendant to use company accounts in order to increase her salary without Clouatre finding out and allow him to receive a tax benefit (as opposed to paying defendant under the table), and that Ellis was "tax cheating." --------
¶11 When asked if Ellis Corp. was "working towards paying off those taxes," Clouatre answered "[a]ctually we had meetings with the Arizona Department of Revenue, and we made monthly payments, and we actually just made our last payment this week." The court sua sponte told the jury that this last answer was "not relevant" and "will be stricken." The questioning of Clouatre then turned to a different topic.
¶12 Defendant argues on appeal that the testimony was not relevant and violated Arizona Rules of Evidence 403 and 404(b) and constitutes reversible error. For purposes of analysis on appeal, the evidence on the unpaid sales taxes falls into three distinct categories: (1) evidence received before any objection was made; (2) evidence as to the time period involved that came after the objection quoted above and (3) Clouatre's answer to the final question that was stricken.
¶13 The first category of evidence was received without objection and defendant has not shown how that evidence caused fundamental error resulting in prejudice. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-21, 115 P.3d 601, 607-08 (2005). For the second category of evidence, the question that lead to the bench conference where defendant's timely objection was sustained, was whether a document would help refresh Clouatre's memory. Accord Ariz. R. Evid. 612. Although it may be that a timely objection to the line of questioning concerning the time period involved would have been sustained, defendant made no such objection and has not shown that allowing Clouatre to testify to the time period involved was not relevant, was unfairly prejudicial or ran afoul of Rule 404(d) by her answering "a good three or four years . . . from 2009 to 2013." For the third category of evidence, the superior court told the jury that Clouatre's answer to the final question was not relevant and was stricken. On this record, defendant has not shown this answer that the court sua sponte struck from the record constitutes reversible error. For these reasons, defendant has shown no reversible error based on the evidence of the sales tax returns.
CONCLUSION
¶14 For the foregoing reasons, we affirm defendant's convictions and sentences.