State v. Spivey

THIS OPINION HAS
NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON

 AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Thomas W. Spivey, Jr., Appellant.

Appeal From Horry County

 Paula H. Thomas, Circuit Court Judge

Unpublished Opinion No. 2004-UP-483   

Submitted September 15, 2004 – Filed September 20, 2004

AFFIRMED

Acting Chief Attorney Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John
W. McInitosh, Assistant Deputy Attorney General Charles H. Richardson, and Senior
Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor
John Gregory Hembree, of Conway, for Respondent.

PER CURIAM:  Thomas W. Spivey, Jr., appeals his conviction and sentence
for breach of trust with fraudulent intent.  He asserts the trial court erred
by failing to grant his motion for a directed verdict because the State failed
to produce substantial circumstantial evidence he was guilty of taking money
from his employer.  We affirm. [1]

FACTS

Don Cauthen hired Spivey to manage Studebaker’s, a club owned by
Cauthen.  One of Spivey’s responsibilities was to verify the nightly receipts.
After closing, the bartenders added the receipts in their cash register, prepared
a deposit slip, and turned it into the manager on duty that night.  The manager
then verified the deposit slip and compared it to the register tape, which
the bartenders did not have access to prior to calculating their deposit slips. 
The manager then took the deposit by the bank that night, and Diane Davenport,
the bar’s bookkeeper, collected the statements the following morning.

Davenport testified that on one occasion in September 1994, she
collected the deposits and statement from the bank and noticed several deposit
slips written by bartenders that were not processed by the bank.  She compared
the slips and found slips that Spivey had written for a lesser amount, which
were processed by the bank.  The currency amount on the slip written by Spivey
was $150 less than the amount listed by the bartender.

Cauthen testified that he became suspicious of Spivey and gave Richard Zecchino,
a bartender at Studebaker’s, a $100 bill to place in one of the registers
on a night Spivey was working as a manager to determine if Spivey was decreasing
the amount on the deposit slips.  At the end of the night, the register should
have been $100 over the appropriate amount.  The deposit slip for that night
was reduced by $100.  Cauthen testified he confronted Spivey regarding the
changed deposit slips and Spivey maintained he changed them because of having
to move money between registers.  Cauthen, however, testified that none of
the deposit slips had been increased; only decreased.

Cauthen also testified about the procedures employed in handling the money. 
He testified that the bartender counted the money, which was then verified
by the manager according to the register tape.  If the amount was counted
incorrectly or was otherwise different from the tape, the bartender was notified
and was the only one permitted to make any changes.  Cauthen testified the
manager then took the money to the bank and made the night deposit. 

State Law Enforcement Division (SLED) forensic examiner Joyce Lauterbach
reviewed the deposit slips from January through September 1994 and determined
there were 180 altered slips.  Using a video spectral comparator, she determined
the majority of the slips contained overwriting or changes from $100 to $300. 
The total of the changes was found to be $17,730.  It was later determined
that Spivey was the manager on duty for all but one instance of a changed
deposit slip.

Zecchino testified he counted the money in his register several times before
giving the money to the manager on duty.  He testified that if his calculations
were incorrect, he requested a new deposit slip and did not make any changes
to the one he had already written.  He also testified that several of his
deposit slips that were altered by $100 to $200 were not calculation errors
or mistakes.  Additionally, he testified the bartenders frequently did not
ring up drinks so the register had more money in it than the tape showed,
creating a buffer.  Finally, Zecchino testified that after he was placed in
charge of decreasing pour costs and making certain all drinks were accounted
for on the registers, Spivey told him to “lay off of them a little bit.”

At trial, Spivey moved for a directed verdict on the grounds that when viewing
all evidence in the light most favorable to the State, the State failed to
produce any evidence that he had taken any property.  The trial court denied
the motion.  Spivey renewed the motion at the end of trial, and the court
denied the motion again.

Spivey was convicted of breach of trust with fraudulent intent and sentenced
to eight years, suspended on time served with five years probation.  The court
also ordered him to pay $13,000 in restitution.

LAW/ANALYSIS

Spivey argues the
trial court erred in failing to grant his motion for a directed verdict on the
charge of breach of trust with fraudulent intent. 
He maintains the State failed to produce any direct or circumstantial
evidence to show he actually took money as opposed to simply correcting the
deposit slips.  We disagree.

In reviewing the denial of a motion for a directed verdict, we must use
the same standard as the trial court and view the evidence in the light
most favorable to the State.  State v. Harris, 351 S.C. 643, 653,
572 S.E.2d 267, 273 (2002).  The trial court is concerned with the existence
of evidence, not its weight.  State v. Gaster, 349 S.C. 545, 555,
564 S.E.2d 87, 92 (2002).  The trial judge is required to submit the case
to the jury if there is any direct evidence or any substantial circumstantial
evidence reasonably tending to prove the guilt of the accused.  State
v. Lollis, 343 S.C. 580, 584, 541 S.E.2d 254, 256 (2001).  On the other
hand, “[a] defendant is entitled to a directed verdict when the State fails
to produce any direct or substantial circumstantial evidence of the offense
charged.”  State v. Rothschild, 351 S.C. 238, 243, 569 S.E.2d 346,
348 (2002). 

Breach of trust with fraudulent intent, commonly called embezzlement in
other jurisdictions, has been defined as “larceny after trust, which includes
all of the elements of larceny or in common parlance, stealing, except the
unlawful taking in the beginning.”  S.C. Code Ann. § 16-13-230 (Supp. 2003);
State v. Owings, 205 S.C. 314, 316, 31 S.E.2d 906, 907 (1944).  “The
primary difference between larceny and breach of trust is that in ‘common-law
larceny, possession of the property stolen is obtained unlawfully, while
in breach of trust, the possession is obtained lawfully.’”  State v.
Scott, 330 S.C. 125, 130, 497 S.E.2d 735, 738 (Ct. App. 1998) (quoting
State v. McCann, 167 S.C. 393, 398, 166 S.E. 411, 413 (1932)).  Thus,
in order to prove breach of trust, the State had to prove Spivey actually
took money from the deposits and the appropriation was accompanied by a
fraudulent intent to destroy the right of the true owner, Studebaker’s.

At trial, several bartenders testified regarding their deposits. 
Most notably, Zecchino testified he rarely miscounted his money and was
certain the amount written on his deposit slip was the same amount he gave
to Spivey.  Zecchino also testified that on specific dates he did not recall
being told that his count was off.  Finally, he testified that if he erred
in his calculations, he was supposed to get a new deposit slip and make
the change, not Spivey.

Cauthen testified he had Zecchino put an extra one hundred dollar
bill in one of the registers without Spivey’s knowledge.  After the money
was counted and turned over to Spivey, the deposit slip was reduced by $100. 
Cauthen also testified that it was Spivey’s duty to make the night deposits. 
Finally, Davenport testified it was Spivey’s handwriting on the altered
deposit slips and the forensic examiner verified that there were approximately
180 altered slips from January through September of 1994.

The State, therefore, presented substantial
circumstantial evidence that Spivey was improperly reducing the amount on
the deposit slips and the money in Spivey’s possession that should have
been included in the deposit for Studebaker’s was not deposited in the bank. 
Accordingly, we find the State offered substantial circumstantial evidence
of Spivey’s taking of money that belonged to Studebaker’s and thus, the
trial court properly denied Spivey’s motion for a directed verdict.

AFFIRMED.

STILWELL, BEATTY, and SHORT, JJ., concur.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.