Opinion
Court of Appeals No. A-10839 Trial Court No. 1JU-08-1000 CR No. 5951
05-22-2013
KAREN S. WHITE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges.
Judge MANNHEIMER.
Karen S. White worked as a bookkeeper for Yak-tat Kwaan, an ANCSA corporation located in Yakutat. She was convicted of theft for embezzling cash rent payments from her employer, and she was also convicted of falsifying business records to hide her embezzlement.
White appeals her convictions on two grounds.
First, White argues that the trial judge should not have allowed the State to cross-examine her about an uncharged incident involving a $200 cash rent payment. This cash payment was physically received by the corporation at the beginning of February 2008, but it was not deposited into the corporation's bank account until the beginning of March, when the corporation's books were being audited by an outside accounting firm. At that time, White transferred the money (in the form of a money order) to the corporation's bank account, and she prepared a falsely dated deposit slip relating to this $200 transfer.
At trial, when White took the stand and denied stealing from her employer, the prosecutor questioned White about her handling of this $200 cash payment. When White denied that she had handled this money improperly, the trial judge allowed the State to present rebuttal testimony to impeach White's testimony. On appeal, White argues that the prosecutor's questions about this incident were outside the scope of White's direct examination — and, thus, the trial judge should neither have allowed the prosecutor to ask these questions, nor later allowed the prosecutor to present rebuttal testimony to impeach White's answers. For the reasons explained in this opinion, we conclude that the incident involving the $200 was relevant cross-examination, and that the State was entitled to present testimony to rebut White's answers to the prosecutor's questions.
White's second argument on appeal is that she was denied a unanimous jury verdict. This issue arises from the fact that the State charged White with a single count of falsifying business records, but the State presented evidence that White had altered or deleted accounting records pertaining to two separate cash rental payments, one for $800 in September 2007, and the other for $400 in February 2008. White's jury was not asked to specify whether its verdict was based on the records relating to the first payment or the second payment, or both.
We agree with White that, because the jury was not asked to specify the factual basis of its verdict on the falsifying business records count, there is a substantial issue as to whether White was denied her right to a unanimous verdict. However, for the reasons explained here, we conclude that any error was harmless beyond a reasonable doubt.
Underlying facts
Yak-tat Kwaan is a village corporation located in Yakutat, and established under the Alaska Native Claims Settlement Act. One of the corporation's business activities is rental housing.
In May or June of 2007, White began working as the corporation's bookkeeper. As part of her duties, White processed the rental payments received by the corporation. Some renters would pay by check or money order, but others would pay in cash. When the rent was received in cash, White was supposed to photocopy the money, then (because there was no local bank in Yakutat) she would take the accumulated cash to the post office every week or two. At the post office, White would convert the cash to a money order, and then the money order would be mailed to the corporation's bank in Juneau.
These cash transactions were recorded in two different forms. White's computer at work had a copy of the bookkeeping software QuickBooks, and White would make entries in QuickBooks to document the incoming money, to post the corresponding credits to the renters' accounts, and to show the matching bank deposits. In addition, each time that White sent a money order to the corporation's bank, she was supposed to fill out an internal deposit slip for the corporation's records, itemizing the money she had mailed to the bank.
In December 2007 or January 2008 (about a half-year after White began working as the corporation's bookkeeper), the corporation's president and CEO, Shari Jensen, hired the Carter Financial Group to review the corporation's account books in preparation for an annual audit. In the first week of February 2008, an accountant working for the Carter Group, Kathleen Maidlow, began the task of reviewing the corporation's books.
White was aware of what Maidlow was doing, because Maidlow sat by White while she was working, and Maidlow would ask White questions when she needed information about the corporation's business practices or records.
During her review of the corporation's books, Maidlow discovered twelve or thirteen instances during the preceding year (i.e., between early 2007 and early 2008) where renters paid cash to the corporation, but the cash was never deposited in the bank. The unaccounted-for cash totaled more than $3300. In February or early March of 2008, Maidlow reported her findings to Jensen — that $3356 in cash receipts could not be accounted for, and was not represented in the deposits to the corporation's bank account.
After Maidlow alerted Jensen to this problem, Jensen attempted to conduct her own reconciliation of the books. In this process, Jensen realized that the amounts of money deposited to the corporation's bank account did not match the company's internal deposit slips and QuickBooks records, which were supposed to itemize these deposits.
On March 4, 2008, Jensen confronted White about the problems with the books. White told Jensen that she did not know anything about these problems. The next day, however, White tendered her resignation as the corporation's bookkeeper, effective one month later (April 15, 2008). She told Jensen that the audit process was too stressful for her, and that she wanted to spend more time with her family.
One week later, on March 12, 2008, Maidlow made a further report to Jensen about the problems with the corporation's books. Maidlow had discovered that there were several instances where cash receipts had been entered into the QuickBooks software as having been received and deposited, but later the records of these deposits had been deleted from the QuickBooks account.
The QuickBooks program maintains an audit trail, and this feature of the software allowed Maidlow to see the exact date and time when the deposit entries for these cash receipts were deleted. For instance, Maidlow found that a deposit entry for an $800 cash payment was entered into QuickBooks on September 4, 2007, but this deposit entry was deleted one month later, on the afternoon of October 9, 2007. Similarly, a deposit entry for a $400 cash payment was entered into QuickBooks on February 6, 2008, but this deposit entry was deleted two weeks later, on Saturday afternoon, February 23, 2008.
These two cash receipts — the $800 cash payment from September 2007 and the $400 cash payment from February 2008 — were part of the $3300 in cash that never reached the corporation's bank account.
Armed with this new information, Jensen called the police on Thursday, March 13, 2008. The next day (Friday the 14th), Jensen placed White on administrative leave pending the outcome of the investigation. When White was informed of Jensen's decision, she quit her job.
Jensen decided to call a special meeting of the corporation's board of directors for the next Monday (March 17th) to inform them of the audit and the investigation. During the weekend before this board meeting, Jensen and White spoke on the phone. Jensen told White about the board meeting, and Jensen suggested that she would ask the board to treat White leniently if White wrote a letter admitting her embezzlement and detailing her specific acts of misconduct.
In response, White faxed a letter to Jensen, confessing to embezzling an $800 cash payment in September 2007 and a later $400 cash payment. In her letter, White told Jensen that "[she] had every intention of putting the money back, but [the situation] got out of hand before [she] had the chance to [do that]." She begged Jensen to handle the matter internally, and allow her to repay the money. White's letter did not mention altering or deleting any business records.
At the Yak-tat Kwaan board meeting on March 17, 2008, Jensen did what she promised: she asked the board to handle the matter internally, and to let White pay the money back. The board, however, decided to pursue the police investigation.
Facts relating to the $200 cash transaction
One of the issues raised in this appeal concerns a $200 cash transaction. This $200 was a rent payment from a tenant; it was received by the corporation on February 4, 2008.
As we have already explained, during accountant Maidlow's review of the corporation's books, she discovered twelve or thirteen instances where renters paid cash to the corporation, but the cash was never deposited in the corporation's bank account. The $200 rent payment described in the preceding paragraph was one of the transactions for which no cash receipt could be found, and the money was apparently missing.
Maidlow reported her discovery to Jensen in late February or early March 2008. Sometime in March, after Maidlow had alerted Jensen to the problem of the missing cash payments, White came to Jensen and brought her a copy of a money order and an internal deposit slip for $200. White asked Jensen if this was one of the missing cash receipts that Jensen and Maidlow were looking for. White told Jensen that she had mailed this $200 to the bank on February 29, 2008.
The internal deposit slip that White gave to Jensen bore a date that corresponded to White's story: the internal deposit slip was dated Friday, February 29, 2008. However, the $200 money order that was sent to the corporation's bank bore a purchase date of Monday, March 3rd.
Jensen knew that, given the corporation's practices for handling cash, this discrepancy between the date of the deposit slip and the date of the money order made no sense, so Jensen asked White about this discrepancy. According to Jensen's later testimony, White confessed to backdating the internal deposit slip, to make it look like she sent the money to the bank the previous week.
At trial, after White took the stand and denied embezzling any money from the corporation, the trial judge allowed the prosecutor to cross-examine White concerning this $200 cash transaction. White now contends that it was error for the prosecutor to engage in this cross-examination. We address this contention in the second half of our analysis.
White's claim that she was deprived of a unanimous jury verdict on the count charging her with falsifying business records
To prove White guilty of the count charging her with falsifying business records, the State relied on evidence pertaining to two different deletions from the corporation's QuickBooks computer records.
Specifically, the State presented evidence that someone made a deposit entry in QuickBooks for an $800 cash rent payment on September 4, 2007, but this deposit entry was deleted one month later, on the afternoon of October 9, 2007. The State also presented evidence that someone made a deposit entry in QuickBooks for a $400 cash rent payment on February 6, 2008, but this deposit entry was deleted two weeks later, on Saturday afternoon, February 23, 2008.
Based on these two occurrences, the State charged White with a single count of falsifying business records as defined in AS 11.46.630(a) — i.e., altering, erasing, removing, or destroying a true entry in the business records of an enterprise with the intent to defraud. This single count covered the fourteen months between January 2007 and February 2008 (inclusive). Thus, it encompassed both the October 2007 deletion of the QuickBooks entry pertaining to the $800 cash payment and the February 2008 deletion of the QuickBooks entry pertaining to the $400 cash payment.
At White's trial, the prosecutor argued that both of these deletions were performed by White, and that she acted with intent to defraud on both occasions. The prosecutor then asked the jury to convict White of falsifying business records, based on these two deletions. The jury returned a general verdict finding White guilty of this offense, without specifying which occurrence (or occurrences) the jurors found to be proved.
In the superior court, White's attorney did not attack the indictment as duplicitous, even though the count charging White with falsifying business records encompassed two separate acts of deletion. Nor did White's attorney object to the jury's receiving a general verdict form, or to the manner in which the prosecutor argued this count to the jury (lumping together the two QuickBooks deletions).
However, on appeal, White argues that it was plain error for the judge not to instruct the jurors that they had to reach unanimous agreement with respect to each of the two deletions.
The State concedes that when a defendant is charged with falsifying business records, the jury must not convict the defendant unless they can reach unanimous agreement that the defendant committed a particular act of falsification. And the State further concedes that, because White's jury was not asked to reach unanimous agreement on either the October 2007 record deletion or the February 2008 record deletion, a legitimate question arises as to whether White was denied her right to a unanimous jury decision.
Nevertheless, the State argues that this problem does not rise to the level of plain error for two reasons. First, the State argues that White's attorney had a tactical reason for not raising this issue during the superior court proceedings (either before or during White's trial). And second, the State argues that any potential error was harmless beyond a reasonable doubt, given White's unified defense to the records falsification charge.
(As we explained earlier, White testified at trial that she had never deleted any QuickBooks entries relating to cash payments received by the corporation. In his summation to the jury, White's attorney did not dispute that QuickBooks entries pertaining to the $800 and $400 cash payments had been deleted; but he argued that the State had failed to prove beyond a reasonable doubt that White was the one who deleted these entries.)
We need not reach the question of whether White's attorney had a tactical reason for failing to bring this problem to the trial judge's attention, because we agree with the State that, given the way White's case was litigated, the error was harmless beyond a reasonable doubt.
See Khan v. State, 278 P.3d 893, 899, 901 (Alaska 2012) (holding that an improper failure to require jury unanimity is an error of constitutional dimension, and that, accordingly, courts must employ the "harmless beyond a reasonable doubt" standard when assessing whether the error requires reversal of the defendant's conviction).
The State's case was essentially based on the assertion that White repeatedly stole money from the corporation by using the same tactic: taking a cash rental payment and embezzling it for her own use, rather than converting the cash to a money order and mailing it to the bank. To avoid detection of these thefts, White later deleted the QuickBooks entries that were supposed to reflect the deposits of this cash into the corporation's bank account.
White's attorney did not dispute that the relevant QuickBooks entries had been deleted. Rather, he argued that, given the corporation's lax business and accounting procedures, it was impossible to tell who had deleted those entries.
Given the evidence presented at White's trial, and given the way White's case was litigated, we are convinced beyond a reasonable doubt that even if White's jury had been asked to reach unanimity with respect to each of the two QuickBooks deletions, the jury's verdict would have been the same. We therefore conclude that the lack of a unanimity instruction was harmless error.
See Anderson v. State, 289 P.3d 1, 7 (Alaska App. 2012) (holding that when a court assesses whether an improper failure to require jury unanimity is harmless, the court "must ask whether, if [the] jury had received a proper instruction on factual unanimity, there is a reasonable possibility that the jury's verdicts would have been different").
White's claim that she was improperly questioned about the $200 transaction, and that the State was then improperly allowed to present extrinsic evidence impeaching White's answers to the prosecutor's questions
At trial, White took the stand and denied stealing any money from her employer. She asserted that she attempted to help Maidlow (the outside accountant) find the receipts and deposit slips that were needed to track down the missing cash rent payments.
White also denied falsifying the corporation's records. Specifically, White stated that she never deliberately deleted any QuickBooks entries pertaining to the cash payments.
White conceded that she had provided a written confession to Jensen, but she claimed that this confession was false. White told the jury that she confessed only because she was certain that she would be blamed for taking the missing money, since she had a prior criminal conviction for forging drug prescriptions for pain killers, and because her boss, Jensen, assured her that the police would not be involved if White confessed.
During cross-examination, the prosecutor began to ask White about the $200 cash transaction described earlier in this opinion. White's attorney immediately objected that this topic was beyond the scope of White's testimony on direct examination. The trial judge, Superior Court Judge Philip M. Pallenberg, overruled the defense attorney's objection, and the prosecutor continued questioning White on this subject. In particular, the prosecutor showed White copies of the deposit slip and money order that White had given to Jensen in early March 2008 — the deposit slip bearing the date of February 29th, and the money order purchased on March 3rd. White verified that the deposit slip was in her handwriting.
Then the prosecutor asked White if she had backdated the deposit slip. White answered "No." In other words, White's answer was apparently inconsistent with what she had admitted to Jensen at the time.
After White left the stand and the defense rested, the prosecutor announced that he wished to call Jensen as a rebuttal witness, to testify about the deposit slip and the money order relating to the $200 cash payment. White's attorney again objected. When Judge Pallenberg asked the prosecutor to explain the relevance of Jensen's proposed testimony, the prosecutor described the incident to the judge: how White had produced the two documents and had given them to Jensen in early March 2008; how the date of the deposit slip failed to match the purchase date of the money order; and how White (when questioned about this discrepancy) admitted to Jensen that she had backdated the deposit slip.
The prosecutor argued that this incident was relevant because it showed that White was planning to embezzle the $200 — that the cash was physically received on February 4th, and White was "sitting on [this] money" through the month of February, but she then decided "to come forward" at the beginning of March and misrepresent the transaction by "trying to manipulate the dates to make it look like she'd been doing things appropriately".
The prosecutor contended that White's handling of the $200, and her handling of the paperwork relating to this cash payment, tended to show that White was lying when, on direct examination, she claimed that she had always acted honestly, and when she claimed that she made good-faith attempts to help Maidlow and Jensen track down the paperwork relating to the various missing cash payments.
The defense attorney argued that the prosecutor should not be allowed to present extrinsic evidence on this topic because it was "a collateral matter". Judge Pallenberg rejected this argument:
The Court: With respect to the [argument that this is a] collateral matter, I [note that] Ms. White [testified], "I never took any money from the corporation; I never did these things." And ... if there is, in fact, evidence that shows ... that in February [2008], Ms. White took some money [in the form of cash] from [one of the corporation's tenants, and] she sat on the cash for some period of time, and then, when Ms. Maidlow was there doing her [audit], Ms. White, ... after a substantial delay, took the money to the post office and ... purchased the money order, and then backdated a deposit slip
— if that's what the testimony would show, that's certainly not a collateral matter.
Judge Pallenberg acknowledged that it was "certainly argu[able]" that White acted innocently when she failed to transfer the money to the corporation's bank account for several weeks, and when she put the wrong date on the deposit slip that recorded that transfer. But the judge concluded that if the evidence was viewed in a light favorable to the State, the evidence supported the prosecutor's characterization of White's actions — and, thus, it was up to the jury to resolve the question of whether White acted with a guilty or an innocent intent. Judge Pallenberg also concluded that the probative value of this evidence outweighed any potential for unfair prejudice, and he accordingly allowed the prosecutor to call Jensen as a rebuttal witness.
Judge Pallenberg later gave the jury a cautionary instruction, explaining that the documents relating to the $200 cash transaction were not the documents that White was accused of falsifying, and that the evidence relating to this transaction was pertinent only to the extent that it might tend to prove White's intent or lack of mistake.
On appeal, White renews her argument that it was improper for the prosecutor to cross-examine White about the $200 cash transaction because this cross-examination exceeded the scope of White's testimony on direct examination. White also renews her argument that the judge should not have allowed the prosecutor to introduce extrinsic evidence on this topic (i.e., the rebuttal testimony of Shari Jensen) because the issue of the $200 transaction was completely collateral to the question of White's guilt or innocence. Finally, White argues that even if the evidence was not collateral, its potential for unfair prejudice outweighed its probative value, and thus Judge Pallenberg should have excluded it under Evidence Rule 403.
Under Alaska law, a party is not entitled to introduce extrinsic evidence to impeach a witness on a collateral matter. Shane v. Rhines, 672 P.2d 895, 898 n. 2 (Alaska 1983); Morrell v. State, 575 P.2d 1200, 1204 (Alaska 1978); Smithart v. State, 946 P.2d 1264, 1286 n. 8 (Alaska App. 1997) (reversed on other grounds in Smithart v. State, 988 P.2d 583 (Alaska 1999)).
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We find no merit to any of these arguments. The evidence pertaining to the $200 cash transaction (viewed in a light favorable to the State) showed that White was not following corporate procedures with respect to cash rent payments, that she was willing to falsify records to cover up her deviation from these procedures, and that she was planning on appropriating the $200 for her own use until the ongoing audit of the corporation's books led her to change her mind. As Judge Pallenberg noted when he issued his ruling on this evidence, White testified on direct that she never stole money from the corporation, that she never falsified or deleted business records relating to the corporation's cash receipts, and that she worked in good faith to assist Jensen and Maidlow in reconciling the corporation's books and tracking down the missing cash payments. The State's evidence pertaining to the $200 transaction was relevant impeachment of this testimony. Moreover, the question of whether White was acting in bad faith was (in Judge Pallenberg's words) "certainly not a collateral matter".
With respect to White's claim that Judge Pallenberg should have excluded this evidence under Rule 403, we note that the evidence would bolster the State's case only if the jury viewed the evidence in a light favorable to the State — that is, if the jury believed that White purposely mishandled the money and the related documentation. As Judge Pallenberg noted, the jury might have concluded that White's tardy accounting for the $200 was the result of innocent mistake or neglect — in which case, the evidence would have no prejudicial impact (unfair or otherwise).
In addition, Judge Pallenberg expressly instructed the jurors that even if they believed that White falsified the paperwork relating to the $200, this could not be used as a basis for convicting White of falsifying business records. The jurors were told that this evidence was admitted "only for the purpose of showing [White's] knowledge, intent, or lack of mistake", and the jury was prohibited from "consider[ing] [the] evidence for any other purpose".
For these reasons, we conclude that Judge Pallenberg did not abuse his discretion under Evidence Rule 403 when he decided to allow the prosecutor to present this evidence.
Conclusion
The judgement of the superior court is AFFIRMED.