Before Thomas, P.j., Diaz, And Herring, JJ.
The opinion of the court was delivered by: Thomas, P.j., For The Court:
Hartley v. State, 96-KA-00436-COA
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 04/19/96
TRIAL JUDGE: HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED: SIMPSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CT'S 1 THRU 14; FELONIOUSLY & FRAUDULENTLY CONCEAL APPROXIMATELY $285.00 CASH MONEY OF DR. WILLIAM MUNN WHICH HAD BEEN ENTRUSTED TO HER CARE; CT'S 1 THRU 14 SENTENCED TO A TERM OF 1 YEAR IN THE MDOC ON EACH COUNT; EACH COUNT SHALL RUN CONSECUTIVELY.
Margie Hartley appeals her conviction on fourteen counts of fraudulent concealment raising the following issues as error:
I. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN DENYING, APPELLANT'S MOTION TO QUASH THE FOURTEEN COUNT INDICTMENT FOR EMBEZZLEMENT.
II. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN DENYING, APPELLANT'S MOTION FOR A DIRECTED VERDICT.
III. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE STATE'S INSTRUCTIONS S-3 THROUGH S-16 REGARDING THE ELEMENTS OF THE CRIME OF EMBEZZLEMENT.
IV. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN REFUSING, APPELLANT'S INSTRUCTIONS D-12 THROUGH D-25 REGARDING THE ELEMENTS OF THE CRIME OF EMBEZZLEMENT.
V. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN REFUSING, APPELLANT'S INSTRUCTIONS D-9 AND D-11 REGARDING CIRCUMSTANTIAL EVIDENCE.
VI. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO ALLOW AN EVIDENTIARY HEARING OR ANY TYPE OF HEARING AFTER ALLEGATIONS OF JUROR MISCONDUCT AROSE AND WERE PRESENTED TO THE CIRCUIT COURT BY AFFIDAVITS.
VII. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN DENYING THE, APPELLANT'S MOTION TO POLL THE JURORS OUTSIDE THE SUPERVISION OF THE COURT BASED ON POSSIBLE JUROR MISCONDUCT.
VIII. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR IN DENYING THE, APPELLANT'S MOTION FOR A J.N.O.V., OR IN THE ALTERNATIVE, A NEW TRIAL.
Finding no error, we affirm.
Dr. William G. Munn is a general practitioner in Mendenhall, Mississippi. In December of 1982, Dr. Munn hired for his office Margie Hartley as a receptionist/bookkeeper. Dr. Munn testified that she was a faithful employee who dutifully carried out her responsibilities. Her duties included answering the telephone, arranging appointments, greeting patients, bookkeeping, handling of money transactions, and opening the mail. Dr. Munn further testified that it was Hartley's job to account for incoming payments from patients. This included documenting the payments received each day in the daily physician's record book and filling out daily bank deposit slips. The entries in the daily physician's record book were totaled at the end of the day and compared to the bank deposit slips to ensure that they matched. The payments and deposit slips were then kept at the office until the end of the week at which time Dr. Munn's wife would deposit the payments at the bank.
Hartley maintained a cordial relationship with Dr. Munn until October of 1993. At that time Hartley was called away for jury duty. Amanda Jones, another one of Dr. Munn's employees, took over Hartley's duties at the front desk for the two days Hartley was gone. On the first day, Hartley returned to make sure the handling of the payments was properly done. On the second day, Dr. Munn's wife and Jones prepared the deposit slip. The deposit for that day contained around $600 in cash, considerably more cash than was going to the bank on the days Hartley prepared the deposit slip. Dr. Munn testified that this discovery plus the fact that he read that on a nationwide average most physician's offices took in currency equal to about 30% of their income made him suspect something was wrong. He then advised his office staff to keep a lookout for what was going on.
It was soon discovered that cash payments were recorded on the daily record but not recorded on the deposit slips, and check payments were found recorded on the deposit slips, but not recorded in the daily record. In this way the totals for the daily record and deposit slips remained equal. After this discovery Dr. Munn swore out an affidavit for the Justice court in February of 1994. It stated that upon review of the office deposit books and account ledgers between January 1993 and November 1993, that Dr. Munn learned that Hartley embezzled payments totaling approximately $11,563. Shortly thereafter, Hartley was arrested. Hartley's house, car, and person were searched but nothing turned up belonging to Dr. Munn. Hartley was subsequently indicted on fourteen counts § of fraudulent concealment under Miss. Code Ann. 97-23-19 (Rev. 1994) (embezzlement; by agents, bailees, trustees, servants and person generally).
Hartley testified that she was told by Dr. Munn to give him cash payments in certain situations. In particular, when an insurance check arrived which was not assigned to a certain patient because Dr. Munn did not charge a fee to that patient. In those cases the check would be deposited, and the cash equivalent given to Dr. Munn. Hartley further testified that all payments were kept in an unlocked drawer accessible to all in the office during the day, and that on Dr. Munn's directive she brought home the payments at night. After deliberations, the jury returned a verdict of guilty on all fourteen counts.