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Fagan v. State

11/18/2003

NATURE OF THE CASE: CRIMINAL - FELONY


TRIAL COURT DISPOSITION: GUILTY OF THREE COUNTS OF EMBEZZLEMENT; SENTENCED TO SERVE THREE CONCURRENT TERMS OF IMPRISONMENT IN THE MDOC, ONE TEN-YEAR TERM WITH EIGHT YEARS SUSPENDED, FIVE YEARS' SUPERVISED PROBATION, AND $5,000 FINE FOR EACH COUNT PLUS RESTITUTION OF $33,194.50 FOR COUNT I


DISPOSITION: AFFIRMED-11/18/2003


EN BANC.


. A Clarke County jury convicted Mary Lynn Fagan of three counts of embezzlement. In her appeal of her conviction and sentence, she alleges that the trial court erred (1) in not dismissing the case based on insufficiency of the evidence, (2) in not granting a mistrial because of the prosecutor's and a witness's reference to a polygraph examination, (3) in allowing the State to use certain documents in violation of discovery rules and a previous order of the court, (4) in allowing testimony of other crimes, and (5) in failing to grant a hearing on a motion for a new trial based on newly discovered evidence.


. We find no error in any of Fagan's assertions; therefore, we affirm the rulings of the trial court and the subsequent conviction and sentence.


FACTS


. Mary Lynn Fagan worked as a deputy clerk in the Clarke County Justice Clerk's office from 1994 until 1999. After money was discovered missing from the clerk's office, Fagan was indicted for embezzling the missing money. Specifically, she was indicted for embezzling money on three separate occasions: February 19, June 16 and 19, 1999. Throughout 1999, Fagan worked with two other deputy clerks who also received money, issued receipts and made deposits. The State's case was based on circumstantial evidence.


ANALYSIS AND DISCUSSION OF THE ISSUES


. Fagan attacks the sufficiency of the evidence on several grounds. First, she contends that there was a common cash drawer and that the State failed to prove that she had exclusive control of it. Second, she argues that the State failed to prove certain elements of the crimes, namely, failure to deposit the funds, ownership of the funds, an intent to defraud, and conversion. She also submits that the evidence was consistent with reasonable theories indicative of innocence.


1. Sufficiency of the Evidence


. The financial discrepancies in the clerk's office were investigated by Earl Smith of the State Auditor's office. Smith testified that when he first came to the clerk's office and advised everyone that he was there to do an audit of the clerk's financial records, Fagan came to him and "started to explain to me that the problems that existed were the result of computer problems, and she had a list and she wanted to show me how the computer was skipping receipts." Fagan had previously told Teresa Smith, the clerk, that the problem was with the computer and that she would work with Data Systems to correct the problem.


. As already noted, the State's evidence was entirely circumstantial. However, it showed a common thread pointing to Fagan. The clerk testified that there was no problem with the computer and that she did not know that it was possible to backdate receipts on the computer. Another deputy clerk, Shundra Staten, testified that she did not have any knowledge of backdating receipts, that she had never received any money on behalf of the justice clerk's office and kept it for her personal use, and that she had never failed to make a deposit from the justice clerk's office.


. The three receipts, underlying the charges against Fagan for mishandling of funds, all had either Fagan's initial or name on them, and when the computer reprinted the receipts, the name of the operat

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