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Thomas v. State

Alabama Court of Criminal Appeals

January 11, 2019

Kamecia Latrina Thomas
v.
State of Alabama

          Appeal from Jefferson Circuit Court (Bessemer Division) (CC-17-861)

          KELLUM, JUDGE.

         Kamecia Latrina Thomas was convicted of theft of lost property in the first degree, a violation of § 13A-8-7, Ala. Code 1975. She was sentenced to two years' imprisonment; the sentence was suspended; and she was placed on five years' probation.

         The evidence adduced at trial indicated the following. Between 2003 and 2014, Thomas was employed by the Bessemer Board of Education (hereinafter "the Board") as a licensed substitute teacher in the Bessemer school system. Thomas's substitute-teacher license expired on June 30, 2014. Testimony indicated that the Board has two types of employees -- regular full-time employees and substitutes. Regular fulltime employees receive paychecks in roughly the same amount each month; substitutes are paid only for the days they work, so their paychecks differ depending on how many days they work in a month. All employees, however, including full-time employees, are paid based on time sheets that are submitted to the Board.[1] Evidence indicated that substitute teachers are paid $60 for every day they work unless they work 20 consecutive school days in the same classroom, in which case, they are paid $125 per day.

         Willie Davis, the chief financial officer for the Board at the time of the events at issue here, [2] and Pat Stewart, the chief financial officer for the Board at the time of trial and former supervisor of business affairs for the Board, both testified about the discovery and investigation of what were determined to be erroneous payments the Board made to Thomas between 2010 and 2014. In October 2014, as the Board was reconciling its finances for the fiscal year that ended September 30, 2014, the payroll clerk, who had been employed by the Board for only a few months, discovered that "an employee was being paid that wasn't there." (R. 140.) When reconciling the finances, the Board must make sure that all full-time employees are "assigned to a salary schedule." (R. 240.) Thomas, although a substitute employee, was listed on the payroll for regular full-time employees (she was listed as a "permanent" substitute), and she had been regularly receiving payments, mostly via direct deposit to her bank account but some via written check, from the Board, but she was not assigned to a salary schedule. (R. 200.) This raised a "red flag" for those reconciling the Board's finances. (R. 202.) Davis and Stewart then conducted an investigation to determine whether Thomas was a full-time employee of the Board and whether the payments that had been made to her were proper.

         During the investigation, it was discovered that Thomas had first been placed on the payroll for full-time employees in 2010 and that she had regularly been receiving erroneous payments since that time, although the error was not discovered until 2014. Davis posited that the error had not been discovered earlier because the former payroll clerk would remove Thomas's name from the full-time payroll at the end of the fiscal year and then, after the finances for that fiscal year had been reconciled, the payroll clerk would put Thomas's name back on the full-time payroll. Davis spoke with the principals of some of the schools where Thomas had supposedly worked as a substitute. One principal indicated that Thomas had never been a substitute teacher there, and another indicated that Thomas had at one time been a substitute teacher at the school, but that she had not been a substitute in several years. According to Davis, he "verif[ied] with several people that [Thomas] was not an employee of the system" (R. 146), and he determined that "she was paid when she didn't actually work for us." (R. 149.)

         Testimony indicated that between September 2011 and September 2013, Thomas was erroneously paid $14, 949.49, and that between December 2013 and September 2014, Thomas was erroneously paid $11, 310. Between May 2010 and September 2014, Thomas was erroneously paid a total of $46, 779.49 in gross pay. Some of the payments to Thomas were made during the summer months of 2012 and 2013, during which time Thomas would not have been working, even as a substitute teacher, because, according to Davis, when a teacher is absent from summer school, the Board does not hire substitutes but uses other summer-school teachers to fill in. In addition, no time sheets were found relating to Thomas that would have supported the payments that had been made to her.

         Davis discussed the issue with the personnel department and learned that Thomas's substitute-teacher license had expired and that the copy of her driver's license the Board had on file had also expired. Thomas was then called to the Board's office under the guise of updating her file with her current driver's license. After she updated her file, she was escorted to Davis's office, where Davis spoke with her about the erroneous payments. When Davis explained to Thomas that she had been paid in error, Thomas acknowledged that she knew she had been paid by the Board when she did not work, and said that "she thought it was a gift from God." (R. 170.) Davis said that he asked Thomas if she had colluded with the former payroll clerk to obtain the payments and Thomas denied having done so. According to Davis, Thomas said she was sorry and that she was responsible for raising her nieces and nephews, and she mentioned making arrangements to pay back the money, but Davis told Thomas that he was not authorized to make any agreement with her and that he had to report the erroneous payments to the Board. Davis testified that, although Thomas later contacted him again and asked to speak to him about the situation "in private," when he informed her that he was unwilling to meet with her without another person present as a witness, he never heard from Thomas again. (R. 172.)

         The State introduced into evidence records from the Board that showed the payments that had been made to Thomas between 2010 and 2014, as well as payments that had been made to Thomas before 2010. Those records indicate that, before 2010, Thomas was paid sporadically on average a net amount between $300 and $400 as a substitute teacher, but that after 2010, Thomas was paid on average a net amount of approximately $1, 000 on a regular, almost monthly, basis. The last erroneous payment Thomas received was $1, 080 on September 30, 2014. The State also introduced into evidence the W-2 tax forms for 2012 and 2013 that the Board had generated for Thomas, and Thomas's bank statements reflecting direct deposits from the Board between 2010 and 2014.

         In her defense, Thomas called her twin cousins, Kiara Thomas and Tiara Thomas to testify. Kiara and Tiara both attended Bessemer High School and graduated in 2014. Tiara testified that during the 2011-12 school year, Thomas was a substitute teacher in one of her classes "for a day or so." (R. 277.) Both Kiara and Tiara also testified that during the 2013-14 school year, they saw Thomas at school one day substituting for a science teacher.

         After both sides had rested and the trial court had instructed the jury on the applicable principles of law, the jury found Thomas guilty of theft of lost property in the first degree as charged in the indictment.[3] This appeal followed.

         I.

         Thomas contends that the trial court erred in denying her motion to dismiss the indictment on the ground that her prosecution was barred by the statute of limitations.

         The indictment was returned on February 3, 2017, and charged, in relevant part:

"KAMECIA LATRINA THOMAS, whose name is to the Grand Jury otherwise unknown, did on or between MAY 25, 2010, to SEPTEMBER 30, 2014, actively obtain or exert control over U.S. CURRENCY, of the lawful currency of the United States of America, a more particular denomination and description of which is unknown to the Grand Jury, in an amount in excess of two thousand five hundred dollars, the property of BESSEMER BOARD OF EDUCATION, which the said KAMECIA LATRINA THOMAS knew to have been lost or mislaid, or to have been delivered under a mistake as to the identity of the recipient or as to the nature or the amount of the property, and with the intent to deprive BESSEMER BOARD OF EDUCATION permanently of said property, the KAMECIA LATRINA THOMAS did fail to take reasonable measures to discover and notify the owner.

(C. 6; capitalization in original.) In response to Thomas's motion to dismiss the indictment on statute-of-limitations grounds, the State moved to amend the indictment to change the date of the commencement of the crime from May 25, 2010, to February 3, 2012, so that all the transactions charged in the indictment fell within the five-year statute of limitations for felonies in § 15-3-1, Ala. Code 1975. See Act No. 2014-348, Ala. Acts 2014 (increasing the statute of limitations for felonies from three years after the commission of the offense to five years effective July 1, 2014). The trial court granted the State's motion to amend the indictment and denied Thomas's motion to dismiss.

         On appeal, Thomas argues that theft of lost property is not a continuing offense and that the former three-year statute of limitations, not the current five-year statute of limitations, is applicable to her case. She also argues that "the majority of the period of time set forth in the ... [i]ndictment encompassed allegations occurring outside the statute of limitations" and that the State "was barred from issuing the [i]ndictment at issue to events occurring" outside the three-year statute of limitations. (Thomas's brief, pp. 16 and 19.) We find it unnecessary to address whether the former three-year or the current five-year statute of limitations is applicable to Thomas because, even if Thomas is correct and the former three-year statute of limitations is applicable, we conclude, contrary to Thomas's contention, that theft of lost property is a continuing offense and that the indictment was timely returned on February 3, 2017, within three years of the last transaction on September 30, 2014.

"It is settled that an offense may be of a continuing nature. Where the acts, when consolidated, constitute but one offense, that crime should be the one with which the accused is charged. Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1943); Troup v. State, 51 Okl. Cr. 438, 2 P.2d 591 (1931); and 35 C.J.S. False Pretenses § 22. Similarly, if several acts form but one element of an offense, the offense is not complete until the last of such acts has been performed. United States v. Ashdown, 509 F.2d 793 (5th Cir. 1975); United States v. Andreas, 458 F.2d 491 (8th Cir. 1972); Carroll v. United States, 326 F.2d 72 (9th Cir. 1963); and 22 C.J.S. Criminal Law § 227(1). Cf., Johnson v. State, 49 Ala.App. 389, 272 So.2d 597 (1973); and Hendrix v. State, 17 Ala.App. 116, 82 So. 564 (1919)."

Griffin v. State, 352 So.2d 847, 850 (Ala. 1977).

"'In contrast to the instantaneous nature of most crimes, a continuing offense is one which consists of a course of conduct enduring over an extended period of time. Note, Statute of Limitations in Criminal Law: A Penetrable Barrier To Prosecution, 102 Pa.L.Rev. 630, 641-642 (1954).' John v. State, 96 Wis.2d 183, 188, 291 N.W.2d 502, 505 (1980). 'Even if the initial unlawful act may itself embody all of the elements of the crime, ...

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