State v. Phillips

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Alison A. Phillips,       
Appellant.

Appeal From Greenwood County

Wyatt T. Saunders, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-675

Submitted October 6, 2003 – Filed November
18, 2003

AFFIRMED

C. Rauch Wise, of Greenwood, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
Assistant Attorney General David A. Spencer, all of Columbia; and Solicitor
William Townes Jones; of Greenwood, for Respondent.

PER CURIAM:  Alison Phillips was
convicted of breach of trust with fraudulent intent.  Phillips appeals, arguing
the trial court erred by: (1) denying her motion for a directed verdict; (2)
failing to declare a mistrial based on the state’s allegedly improper cross-examination
regarding her prior employment; and (3) failing to charge the jury as to the
proper definition of circumstantial evidence.  We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Phillips worked as a bookkeeper for Jachat, Inc.
(“Jachat”) for approximately four years.  Following her resignation, Ann Long,
one of the owners of Jachat, and her new bookkeeper, Dana Henderson, found irregularities
in Jachat’s books, including unauthorized, duplicate checks issued by and paid
to Phillips. 

Thereafter, Phillips was convicted for breach of
trust with fraudulent intent and sentenced to three-years imprisonment, suspended
upon successful completion of four-years probation.  Additionally, as a term
of probation, Phillips was required to pay a total of $5,571.60 in restitution. 
Phillips appeals.  We affirm.

LAW/ANALYSIS

Phillips argues the circuit
court erred by denying her motion for a directed verdict because the state failed
to establish any substantial evidence of her fraudulent intent.  We disagree.

When ruling on a motion for directed verdict in a criminal
case, the circuit court is concerned only with the existence of evidence, not
its weight. State v. Saltz, 346 S.C. 114, 138, 551 S.E.2d 240, 253 (2001). 
An appellate court reviewing a circuit court’s denial of a motion for directed
verdict must view the evidence in the light most favorable to the state and
determine whether any evidence exists that reasonably tends to prove the defendant’s
guilt or with which her guilt may be logically deduced.  State v. Brazell,
325 S.C. 65, 77, 480 S.E.2d 64, 71 (1997).  Unless there is a total failure
of competent evidence as to the charges alleged, refusal by the circuit court
to direct a verdict of acquittal is not error.  State v. Massey, 267
S.C. 432, 443, 229 S.E.2d 332, 338 (1976).

Initially, we note, Phillips only argues
the state failed to present evidence reasonably tending to prove fraudulent
intent.  Phillips does not argue the state failed to prove the other elements
of breach of trust with fraudulent intent.  See State v. Owings,
205 S.C. 314, 316, 31 S.E.2d 906, 907 (1944) (“Breach of trust [with fraudulent
intent] is larceny after trust, which includes all of the elements of larceny
or in common parlance, stealing, except the unlawful taking in the beginning.”);
Bell v. Clinton Oil Mill, 129 S.C. 242, 253, 124 S.E. 7, 11 (1924) (“A
breach of trust is where personal property of appreciable value and of which
larceny may be committed is put into the possession of another; and when it
is so put into his possession it becomes a trust, and while it so remains, if
he conceives the purpose to convert that property to his own use, and does it
with intention to deprive the owner of the use of that property, then that is
a breach of trust with a fraudulent intent.”); State v. Scott, 330 S.C.
125, 130, 497 S.E.2d 735, 738 (Ct. App. 1998) (“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.’”  (quoting State v. McCann,
167 S.C. 393, 398, 166 S.E. 411, 413 (1932) (emphasis as in original))).  Thus,
we limit our inquiry to whether evidence exists within the record reasonably
tending to prove Phillips had a fraudulent intent.  See Saltz,
346 S.C. at 138, 551 S.E.2d at 253 (holding an appellate court must affirm the
denial of a motion for directed verdict where evidence exists which reasonably
tends to prove the defendant’s guilt or with which his guilt may be logically
deduced). 

“[F]raudulent intent is a condition of the mind
beyond the reach of the senses, usually kept secret, and can only be proved
by unguarded expressions, conduct and circumstances generally.”  State v.
Jordan, 255 S.C. 86, 90, 177 S.E.2d 464, 465 (1970); Cook v. Metropolitan
Life Ins. Co., 186 S.C. 77, 84, 194 S.E. 636, 639 (1938) (“Fraud may be
deduced not only from deceptive or false representations, but from facts, incidents,
and circumstances which may be trivial in themselves, but decisive in a given
case of the fraudulent design.”); see also State v. McDowell,
266 S.C. 508, 515, 224 S.E.2d 889, 892 (1976) (holding as a general rule, any
act or conduct on the part of the accused is admissible as some evidence of
consciousness of guilt).

Henderson, Jachat’s bookkeeper, testified she discovered
Jachat’s payroll records had several irregularities following Phillips’ resignation. 
Specifically, Henderson testified on several occasions, Phillips issued herself
multiple paychecks, on the same day, for the same period of time.  Henderson
also authenticated spreadsheets admitted into the record indicating Phillips
issued herself in excess of sixty unauthorized checks, totaling over $8,000,
during a two year time period. 

Furthermore, Henderson testified during the time
she was working with Phillips at Jachat, Phillips called while on a business
trip to New Orleans and told Henderson to draft a payroll check, payable to
Phillips, from Jachat’s operations account.  The check was purported to be an
advance paycheck for Phillips.  However, when Henderson subsequently reviewed
Jachat’s payroll records, Henderson discovered Phillips issued herself a payroll
check for that week, despite the advance she received while in New Orleans.

Moreover, Henderson testified on Phillips’ last
day of employment with Jachat, Phillips took a copy of Jachat’s Quick Books
software, a program used by the company for its payroll records.  When taking
the records, Henderson testified Phillips said: “I am taking this to cover myself.”

Anita Nogai, a certified public
accountant, also reviewed Jachat’s financial records.  Nogai stated Quick Books
allows a user to alter the records of issued checks.

Following the state’s case, Phillips took the stand in her
defense and admitted she received an advance on her paycheck while in New Orleans
and issued herself an additional paycheck for the same period of time.  Furthermore,
Phillips admitted she issued herself unauthorized checks totaling $1,297.  However,
Phillips contended the unauthorized checks were issued mistakenly rather than
with fraudulent intent.

In a light most favorable to the state, this evidence demonstrates
Phillips issued multiple unauthorized checks to herself.  Furthermore, the evidence
indicates Phillips believed she had a need to “cover herself.”  This evidence
is sufficient to support a reasonable inference Phillips intended to fraudulently
deprive Jachat of property.  See State v. Ezzard, 40 S.C. 312,
324-25, 18 S.E. 1025, 1029 (1894) (holding where an agent receives and wrongfully
retains money he knows belongs to his principal, with intent to defraud his
principal, the agent is guilty of breach of trust with fraudulent intent). 
Consequently, we find no error in the trial court’s denial of Phillips’ motion
for directed verdict.

As to Phillips’ other issues, we affirm pursuant
to Rule 220(b)(2), SCACR, and the following authorities:  As to Issue II:  State
v. Craig, 267 S.C. 262, 268, 227 S.E.2d 306, 309 (1976) (“[T]he consideration
of whether there was any prejudice requires that a motion for mistrial be made
after the trial judge attempts to cure the error.”); State v. Hale, 284
S.C. 348, 354, 326 S.E.2d 418, 422 (Ct. App. 1985) (holding an error is generally
deemed cured if the court sustains a timely objection to testimony and gives
the jury a curative instruction to disregard the testimony); State v. George,
323 S.C. 496, 510, 476 S.E.2d 903, 911-12 (1996) (holding where objecting party
moves for a mistrial, and the trial judge gives a curative instruction, the
objecting party must either object to the curative instruction or move for a
mistrial again to preserve the error for appellate review).

As to Issue III:  State v. Grippon, 327
S.C. 79, 83-84, 489 S.E.2d 462, 464 (1997) (holding the appropriate circumstantial
evidence charge is the following:  “Circumstantial evidence is proof of a chain
of facts and circumstances indicating the existence of a fact.  The law makes
absolutely no distinction between the weight or value to be given to either
direct or circumstantial evidence.  Nor is a greater degree of certainty required
of circumstantial evidence than of direct evidence.”).

CONCLUSION

For the foregoing reasons, Phillips’ conviction is

AFFIRMED.
[1]

STILWELL, HOWARD, and KITTREDGE, JJ.,
concur.

[1] Because oral argument would not aid the Court in resolving any issue
on appeal, we decide this case without oral argument pursuant to Rule 215,
South Carolina Appellate Court Rules.