Champluvier v. State
| Docket Number: | 2003-KP-02581-COA Linked Case(s): 2003-CT-02581-SCT ; 2003-CT-02581-SCT ; 2003-KP-02581-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-13-2005 Opinion Author: Bridges, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Embezzlement - Limited liability companies - Section 97-23-19 - Agent - Section 79-29-303 - Jurisdiction - Right to confront witnesses - Constitutional judge - Mistrial - Admission of evidence - M.R.E. 401 - M.R.E. 902(9) - M.R.E. 1001(4) - Ineffective assistance of counsel - Jury instructions - Incomplete record - Restitution Judge(s) Concurring: Lee and Myers, P.JJ., Chandler and Ishee, JJ. Judge(s) Concurring Separately: GRIFFIS, J., JOINED BY BRIDGES AND CHANDLER, JJ. Dissenting Author : Barnes, J. Dissent Joined By : King, C.J., and Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-15-2004 Appealed from: DeSoto County Circuit Court Judge: Gray Evans Disposition: COUNT I EMBEZZLEMENT AND SENTENCED TO FIVE YEARS. COUNT II EMBEZZLEMENT AND SENTENCED TO FIVE YEARS TO RUN CONCURRENT TO COUNT I WITH FOUR AND HALF YEARS SUSPENDED ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. District Attorney: JOHN W. CHAMPION Case Number: CR2001-456O/D |
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| Party Name: | Attorney Name: | |||
| Appellant: | Deborah Champluvier a/k/a Deborah Marie Champluvier |
DEBORAH CHAMPLUVIER (PRO SE) |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Embezzlement - Limited liability companies - Section 97-23-19 - Agent - Section 79-29-303 - Jurisdiction - Right to confront witnesses - Constitutional judge - Mistrial - Admission of evidence - M.R.E. 401 - M.R.E. 902(9) - M.R.E. 1001(4) - Ineffective assistance of counsel - Jury instructions - Incomplete record - Restitution |
| Summary of the Facts: | Deborah Champluvier was convicted of two counts of embezzlement. The court sentenced Champluvier to serve five years for both counts to and to serve both concurrently with four and a half years suspended from each. Champluvier appeals. |
| Summary of Opinion Analysis: | Issue 1: Section 97-23-19 Champluvier argues that section 97-23-19 only applies to corporations and not to limited liability companies. An LLC is treated like a corporation in that it acts as a separate individual and owns property as a separate individual. Champluvier clearly converted funds that did not belong to her, but to the company she co-owned. This case clearly fits the intent of the statute to prevent someone from embezzling assets from a company that legally belongs to the company and not the individual. Since the company is not a person, this statute serves as the way to prosecute someone from fraudulently taking money from the LLC where he gained the ability as one of its members. Issue 2: Agent Champluvier argues that the owner of a LLC cannot also act as an agent or servant. Section 79-29-303 states, “every member is an agent of the limited liability company for the purpose of conducting its business and affairs.” Furthermore, Champluvier testified that she worked in the furniture store and wrote checks on behalf of the store. In doing so she clearly acted as the store’s agent. Issue 3: Jurisdiction Champluvier argues that the Northern District of Mississippi Bankruptcy Court had exclusive jurisdiction over her. However Mississippi Constitution art. 6, § 156 clearly gives the state circuit courts jurisdiction over criminal matters. Bankruptcy is vested in another court of law but criminal actions clearly fall within the jurisdiction of the circuit court. Champluvier also argues that the chancery court had subject matter jurisdiction since it had jurisdiction over the dissolution of the store. Mississippi’s embezzlement statute clearly resides in the criminal codes section. Issue 4: Right to confront witnesses Champluvier argues that the trial court denied her Sixth Amendment rights by failing to put the names of the witnesses from the grand jury hearing on the record. The right to confrontation of those testifying against a defendant, is a trial right, and does not apply to grand jury proceedings. Issue 5: Constitutional judge Champluvier argues that the case lacked a constitutional judge. The Mississippi Supreme Court appointed the judge to the case as allowed under section 9-1-105. She also argues that the judge improperly tried the case because he failed to take the oath of office. Mississippi Constitution art. 6, § 155 gives the judicial oath of office and does not require filing the oath in the record of each case. Issue 6: Mistrial Champluvier argues that the court erred by failing to grant a mistrial, because jurors and witnesses and the witnesses amongst themselves discussed the case. A trial court does not abuse its discretion in denying a motion for a mistrial solely based upon conversations between a third party and a juror, unless the record discloses either that the actual case at trial was discussed or other facts that could support a finding of possible undue influence. The record does not show that the parties discussed the merits of the case or that they had any undue influence. Issue 7: Admission of evidence Champluvier argues that the court improperly admitted the check she made out to herself for $6000 on the company’s account into evidence. Champluvier first put a photocopy of the check into evidence herself. In addition, when the State introduced the original check into evidence Champluvier failed to object. Champluvier also argues that the court improperly admitted the BankcorpSouth withdrawal copy that showed where she withdrew $445.64 into evidence. The copy clearly follows the requirements for relevancy under M.R.E. 401 since the copy shows the withdrawal of funds that brought about the charges against Champluvier. In addition, M.R.E. 902(9) allows the self authentication of documents relating to the extent provided by general commercial law including bank-checks and other negotiable instruments for the payment of money and M.R.E. 1001(4) allows a photocopy of the original bank withdrawal so that the presented copy was acceptable. Issue 8: Ineffective assistance of counsel Champluvier argues that she did not receive effective assistance of counsel. Champluvier made this decision on her own and did not allow either of her two different court appointed attorneys the opportunity to represent her. In fact, the second court appointed attorney attended the trial as standby counsel and worked with Champluvier to assist her in jury selection and prepared her jury instructions. Issue 9: Jury instructions Champluvier argues that the judge improperly instructed the jury because he included the words “without authority” in two of the jury instructions. The judge replaced the words in the “wilfully, unlawfully, and feloniously”from the indictment with “without authority.” Synonymous phrases or interchangeable words may be used in a jury instruction and the jury still be properly instructed. Issue 10: Incomplete record Champluvier argues that exhibits one, two, and three were missing from the circuit court’s file. Since Champluvier represented herself and has actual knowledge of the missing exhibits she is required to show specific prejudice by the missing portions of the record in order to mandate reversal and remand for a new trial. She fails to show any actual prejudice from these missing exhibits. Issue 11: Restitution Champluvier argues that the court erred in sentencing her by ordering her to pay restitution after her bankruptcy trial discharged her of any debts owed to her co-owner’s estate. The Code does not prevent restitution from someone who went through bankruptcy proceedings. |
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