Cummings v. State


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Docket Number: 2009-KA-01896-COA

Court of Appeals: Opinion Link
Opinion Date: 04-05-2011
Opinion Author: Griffis, P.J.
Holding: Affirmed in part, reversed and remanded in part.

Additional Case Information: Topic: Embezzlement - Sufficiency of evidence - Amount of restitution - Section 99-37-3(1) - Right to jury trial
Judge(s) Concurring: Lee, C.J., Irving, P.J., Myers, Barnes, Ishee, Roberts and Maxwell, JJ.
Concur in Part, Dissent in Part 1: Carlton, J. With Separate Written Opinion
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 09-25-2009
Appealed from: Jones County Circuit Court
Judge: Billy Joe Landrum
Disposition: Convicted of embezzlement and sentenced to ten years in the custody of the Mississippi Department of Corrections, to be suspended upon the successful completion of the Restitution Center, five years of post-release supervision, and completion of the Circuit Court Community Service Program
District Attorney: Anthony J. Buckley
Case Number: 2004-633G

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Hazel L. Cummings




JUSTIN TAYLOR COOK



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER  

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    Topic: Embezzlement - Sufficiency of evidence - Amount of restitution - Section 99-37-3(1) - Right to jury trial

    Summary of the Facts: Hazel Cummings was convicted of embezzlement and sentenced to ten years. Her sentence was suspended upon her successful completion of the Restitution Center, five years of post release supervision, and the Circuit Court Community Service Program. Cummings was ordered to pay restitution in the amount of $34,411.04, plus attorney’s fees and court costs. She appeals.

    Summary of Opinion Analysis: Issue 1: Sufficiency of evidence Cummings argues that there was no evidence presented of conversion, an essential element of embezzlement. Cummings states that a mere showing that the deposits were missing was not enough to prove she had embezzled the funds. The intent to convert may always be proven by circumstantial evidence if it is sufficient to prove a willful and unlawful conversion; however, to sustain a verdict of guilty, based upon circumstantial evidence, the testimony must exclude every reasonable hypothesis but that of guilt. The State presented sufficient circumstantial evidence for the jury to conclude that Cummings had converted the funds for her personal use. Cummings, as manager, was responsible for removing the money from the safe, counting the money, completing the deposit slips, and making the deposits. She had access to the safe, and it was her duty to check the totals on the daily sheets to make sure they matched the amount of cash in the safe. When asked about the missing deposits, Cummings told the Stinsons that there was no money to deposit. Cummings never reported the missing cash to the police. As manager, she would have been immediately aware that there was insufficient cash to make the required deposits. It was not until Cummings was later questioned about the missing deposits that she reported the missing cash to the Stinsons and accused someone else of stealing the money. It was reasonable for the jury to infer that Cummings had converted the funds for her personal use. Issue 2: Restitution The circuit judge sentenced Cummings to pay the Stinsons $34,411.04 in restitution. Cummings argues that the State failed to show that this amount of money was embezzled from the Stinsons. She asserts that the State merely put on proof that $7,309.59 was missing. Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute. The State entered into evidence the daily sheets and the bank statements showing that several deposits from the Daphne store – totaling $7,309.59 – were never made. This was more than sufficient evidence to meet the State’s burden to show that the value of the property at issue was $500 or more. But the State failed to put on any evidence of the alleged missing deposits from the other two stores. At the sentencing hearing, the prosecutor announced to the circuit court that a total of $34,411.04 had been embezzled from all three stores owned by the Stinsons. Section 99-37-3(1) allows the court to order restitution. For purposes of this section, “criminal activities” are defined as “any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.” While Cummings’s conviction of embezzlement gave the circuit judge the authority to order restitution in the full amount that was embezzled from the Stinsons, there was no evidence presented to the circuit judge to support the amount of restitution imposed. It was error for the circuit judge to order $34,411.04 in restitution without such evidence. Thus, the case is remanded for resentencing. Issue 3: Right to jury trial Cummings raises a constitutional challenge to the circuit court’s authority to impose restitution. She argues that the issue of restitution must be submitted to the jury. Cummings failed to object on this basis during sentencing. As such, she is procedurally barred from raising this constitutional violation on appeal.


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