Fagan v. State
| Docket Number: | 2001-KA-01336-COA Linked Case(s): 2001-CT-01336-SCT ; 2001-CT-01336-SCT ; 2001-CT-01336-SCT ; 2001-CT-01336-SCT ; 2001-KA-01336-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-18-2003 Opinion Author: Irving, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Embezzlement - Sufficiency of evidence - Reference to polygraph - Production of documents - Other crimes evidence - Newly discovered evidence Judge(s) Concurring: Bridges, Thomas, Lee and Myers, JJ. Dissenting Author : King, P.J. Dissenting Author : Southwick, P.J. Dissent Joined By : McMillin, C.J., Chandler and Griffis, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-23-2001 Appealed from: Clarke County Circuit Court Judge: Larry Eugene Roberts Disposition: GUILTY OF THREE COUNTS OF EMBEZZLEMENT; SENTENCED TO SERVE THREE CONCURRENT TERMS OF IMPRISONMENT IN THE MDOC, ONE TENYEAR 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 District Attorney: Bilbo Mitchell Case Number: 2001-CR-01 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Mary Lynn Fagan |
WILLIAM B. JACOB
JOSEPH A. KIERONSKI JR.
DANIEL P. SELF JR. |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART |
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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 - Sufficiency of evidence - Reference to polygraph - Production of documents - Other crimes evidence - Newly discovered evidence |
| Summary of the Facts: | Mary Fagan was convicted of three counts of embezzlement. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Fagan argues that the evidence was insufficient, because there was a common cash drawer and the State failed to prove that she had exclusive control of it, and the State failed to prove certain elements of the crimes including failure to deposit the funds, ownership of the funds, an intent to defraud, and conversion. 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 operator doing the reprinting appeared on the receipts. The evidence was that Fagan was the only person who knew how to backdate receipts in the computer. Considering this fact, along with the fact that Fagan told the auditor that the problem was in the computer, the evidence was sufficient to sustain the verdict. Issue 2: Reference to polygraph Fagan argues that the court erred in not granting a mistrial because of the prosecutor's and a witness's reference to a polygraph examination. Automatic reversal is not required when evidence is admitted pertaining to a witness's offer to take a polygraph examination, but a determination must be made on a case by case basis. Here, the sudden and unexpected comment from the witness regarding the polygraph examination did not deprive Fagan of a fair trial. Even if some prejudice occurred, it was not of sufficient magnitude to cause reversal where the defense bypassed an opportunity to have the jury queried as to the effect, if any, which the statement may have had on its ability to render a fair verdict based on the admissible evidence. Issue 3: Production of documents The court prohibited the State from utilizing certain documents because they had not been disclosed to Fagan. However, during the defense's case, the prosecution was allowed to use the documents during its cross-examination of Fagan. Fagan argues that the court erred in permitting this limited use. Because there is no evidence that the State willfully withheld production of the documents to get some kind of tactical advantage and did not attempt to introduce the documents as a part of its case-in-chief, the court did not err in allowing the prosecution to use the documents. Issue 4: Other crimes evidence Fagan argues that the court erred in allowing testimony on other crimes when a witness was questioned on redirect examination, in response to a series of direct examination questions to Fagan designed to show that someone else may have committed the crimes. Not only did Fagan fail to make an other crimes objection when the question was asked, but there was no error with permitting the question to be asked and answered since the identity of the perpetrator was an issue. Issue 5: Newly discovered evidence Fagan argues that the court erred in not granting her a hearing on her motion for a new trial based on an allegation of newly discovered evidence. The notice of appeal was filed on August 23, 2001, and the motion for a new trial was not filed until August 2, 2002. The filing of the notice of appeal divested the trial court of jurisdiction to hear the motion. |
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