NO. 88-420
INTHE SUPREME COURT OF THE STATE OF MONTANA
1989

STATE OF MONTANA,
Plaintiff and Respondent,-VSKATHY (DAVIS) KORANG

### , Defendant and Appellant.

APPEAL FROM: District Court of theFirst~udicial District, In and forthe County of Lewis & Clark, The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Helena, Montana
For Respondent:
Hon. Marc ~acicot, Attorney General, Helena, Montana PatriciaJ. Schaeffer, Asst. Atty. General, Helena ~ike McGrath, CountyAttorney, Helena, Montana Leo Gallagher, Deputy CountyAttorney, Helena

Submitted on ~riefs:March 31, 1989
Decided: May 18, 1989

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c ClerkMr. Justice R. C. McDonough delivered the Qpinion of the Court.
Kathy Davis Korang appeals from the judgment of the District Court of the First Judicial District, Lewis and Clark County, entered upon a jury verdict finding her guilty of theft and tampering with public records, both felonies. We affirm. Korangpresents three issues for review: 1. Whether the evidence is sufficient to sustain her conviction. 2. Whether the District Court interferedwith her right to a fair trial by limiting her counsel's cross-examination of the State's witnesses in order to conclude the trial before a certaindate. 3. Whether the District Court erred in its determination of the amount of restitution that Korang was required to pay
as a conditionofher suspended sentence. Korang worked in the I;ewis and Clark County Clerk and Recorder's Office from 1976 until she was suspended in June of 1987. Beginning in 1980,her duties centered around the operation of the "records counter." She recorded documents in the official County records, as well as searching for and making copies of previously recorded documents requested by members of the public. She collected fees for these services set by state law. The fees were rung up on a cash register, with the various services assigned to different "code keys." Fees for filing and recording documents were each assigned a particular code key, an?.were also entered separately in a "reception book." Miscellaneous small-transactions such as makinq photocopies were assigned to key three, hut were not entered in the receptionbook.Korang also had bookkeeping responsibility for this operation and deposited collected fees with the County Treasurer's Office. Duringbusy periods, shewas assisted at the counter by other members of the Clerk and Recorder's staff. The deputy clerk did the books for Korang when she
was onvacation or ill. In June of 1987, staff members Dori Kuhl and Marylin Bracken met with Clerk and Recorder Sue Bartlett. They expressed concern aboutproblemswith the books being keptby Korang. Their concern stemmed froman incident several weeks before. Both women had issued a large number of death certificates one day and had rungup the fees for them on the cash register. They were curious as to how much money their effort had made for the County, and looked at the book entry for such fees at the end of the day. Instead of an entry approximating the $80 that thewomen had estimated, the book showed that they had taken in only $8. They began keeping track of amounts they collectedwhen assisting at the records counter,and checking them against the books. They concluded that money was missing, and came to Bartlett. Bartlett began her own investigation. She counted the cash and photocopied the checks in the till at the end of each day; monitored the register tape, books and deposits; and observed Korang as she went about her work. After several days, Bartlett also began to examine adding machine tapes taken from Korang's waste basket at the end of each day, and kept track of checks and money orders received by mail. with requests for copies of birth and death certificates, which Korang kept in her desk. The pattern Bartlett discovered was roughly as follows: (1) miscellaneous transactions entered on cash register key three
were voided later in the day; (2)cash in the amount of the voided transactions was taken from the I; (3) eitherfictitioustransactionswerethen rung up on another code key and checks from Korang's desk substituted to make up the difference and balance the books, or recording and filing transactions entered in the reception book were not rung up
on thecashregister. It alsoappeared toBartlett thatwhen the amount of cash taken from the till did not exactlymatch the amount of the checks used to replace it, Korang would make an entryon the cash register tomake thetotal from the register tape for thatparticular day match thecorresponding dailytotalinthebook. When Bartlett became convinced that Korang was taking money, she suspended her without pa!7. Mary Craig, a certified public accountant, was then hired to perform an auditof thebooks. Based on Rartlett's observations and the results of the audit, Korang was charged by inFormation with two felonies: theft (common scheme) and tampering withpublic records or in+ormation. She was tried before a jury and convj-cted of both charges. The District Court sentenced Korang to two consecutive 10-year terms in the Women's Correctional Facility atWarm Springs, hut. suspended allbut 180 days of the terms on the condition that Korang make restitution in the amount of $37,891.25. This appeal followed. I. Korang first argues that the evidence presented by the State attrialwas insufficient to sustain her convictions. The test applied by this Court todetermine whether evidence is sufficientiswhether, afterreviewing theevidence inthe lightmost favorable tothe State, any rational trier of fact couldhave found the essentialelementsof thecrimebeyond a reasonable doubt. If the evidence conflicts, it is for the trier of fact to determine which evidence is dispositiv~. State v. Tracy (Mont. J988), 761 P.?d 398, 45 St.Rep. 1705.Korang was charged with theFt under 45-6-301, MCA, which states inpart: (1)A person commits the offenseof theftwhen he purposely or knowingly obtains or exerts unauthorized control over property of the owner and: (a)has the purpose of depriving the owner of theproperty;



# ... (6)

# ...A person convicted of the offense of theft ofproperty exceeding $300 in value


# ... shall be fined not to exceed $50,000 or be imprisoned in the state prison for any term not to exceed 10 years,or both. At trial, the State presented testimony by seven witnesses, including Bartlett, Korang's co-workers, and CPA Mary Craig. These witnesses described Korang's behavior at work and how that behavior fit the pattern ofmissingmoney discovered by Bartlett. The testimony included direct observation of Korang voiding entrieson the cash registerandmaking other, unusual entries; direct observation of Korang making unusual calculations when balancing thebooks; and direct observation of the results of Korang's work, which produced the altered cash register entries and deposits. Mary Craig testified that her audit confirmed the pattern observed by Bartlett, and estimated that the money missing as a result of the alterations to the bookkeeping system amounted to approximately $6,000 per year. Her testimony was accompanied by several exhibits, some ofwhich showed actual work done by Korang and some of which summarized Korang's work. Craig also testified that her audit showed irregularities in the bookkeeping system while Korang was atwork, but notwhen she was ill or on vacation. Our review of the record shows that a rational trier of fact could conclude from the State's evidence that Kathy Korang purposely altered entries in the bookkeeping systemused by the Clerk and Recorder's Office in order to gain control of moneys belonging to Lewis and Clark County. Korang's counsel introduced evidence calling the State's theory into doubt and attempting to explain the alterations, but aswe said in Tracy, it was for the jury to decide which evidence was convincing. We therefore hold that there was sufficient evidence to sustainKorang's conviction for theft. The offense of tampering with public records or information is d-efinedin S 45-7-208,MCA: (1)A person commits the offense of tampering with public records or information ifhe: (a)knowinglymakes a false entry in or false al-teration of any record, document, legislative bill or enactment, or thing belonging to or received, issued, or kept by the government for information or record.

# . .. As described above, the State introduced testimony including firsthand observations of Korang altering the cash register tapes and deposit slips in order to substitute checks from her drawer for cash removed from the till. This evidence could convincea rational trier of fact thatKorang knowingly made false entries or al-terationsin financial records kept by the Clerk and Recorder's Office. We therefore hold that there was sufficient evidence to support Korang's con17iction for tamperinqwith public recordsor information.

Counsel for Korang next argues that the District Court interfered with Korang's right to a fair trialby inhibitins the cross-examination of State's witness Mary Craig. At trial, counsel for Korang requested the court'spermission to cease his cross-examination of Ms. Craig, and reserve the right- to recall her for further cross-examination after he reviewed the evidence upon which he was basing his questions. The court refused this request, citing the time being takenby the trial and counsel's ample opportunity to exami.neall of the evidence before Ms. Craig took the stand. The parties agree that the appli.cablerule of evidence, Rule 611, M.R.Evid., authorized the court to exercise reasonable control over the proceedings in order to avoid "needless consumption of time." Korang cites our decision in State v. Stafford (1984), 208 Mont. 324, 678 P.2d 644, in which we stated that a trial judgemust be careful to insure that he remains impartial, and avoids becoming an advocate for one side or the other throughhisbehavior. We also said in that case that the judgemust be given sufficient latitude to conduct the trial in an orderly and expeditious fashion. Stafford, 678P.2d at 648. The transcript reveals that the court asked counsel for the State if copies of the exhibits had been provided to Korang's counsel prior to trial, and was told that they had. It appears from the record that Korang's counsel had ample opportunity to examine the exhibits prior to trial, and the court was within its authority and discretion in denying counsel

### 's request to suspend cross examination in the interests of avoiding needless consumptionof time.
Korang's final argument takes issuewith the restitution ordered by the District Court in considerationfor suspending most of Korang's sentences. According to Korang, the restitutionorderwas improper for two reasons; the amount of restitution went beyond the scope of the offenses charged, and any claim for amounts takenmore than two years prior to the filing of the information was barred by the applicable statute of ,-imitations. We disagree. Korang claims that the restitution order went beyond the scope of the offenses charged by exceeding the authority granted bv Sfj, 46-18-241 through 46-18-249, PCA. Section46-18-241, MCA, authorizes a court to require an offender to make restitution to the victim of the offense. Under S 46-18-242, MCA, the amount of restitution is based on the pecuniary loss suffered by the victj-m and the offender's ability to pay. Section 46-18-243, MCA, defines "pecuniary loss" as foll-ows: (a) all special damages, but not general. damages, substantiated by evidence in the record, that a person could recover against the offender in a civil. action arising out OF the facts or events constituting the offender's criminal activities, i-ncludingwithout limitation the money equivalent of loss resulting from property taken, destroyed, broken, or otherwise harmed and out-of-pocket losses, such asmedical.expenses;and (b)reasonableout-of-pocket expenses incurred by the victi-min filing charges or i.n cooperating in the investigation and prosecution of t.he offense.
At the sentencing hearing, the District Court received evidence concerning the County's losses resulting from Korang's activities, Korang's ability to pay restitution and the County's out-of-pocket expenses incurred in prosecuting Korang. On appeal, Korang assigns error to the amount of lossasserted by the County. Korangpoints out that the information chargingher with theft and tampering with public records or information alleged that she had committed both offensesbetween July of 1985 and June of 1987. The restitution ordered by the District Courtwas based in part on the final.report of Mary Craig's audit. Craig's report concluded that the pattern of Korang's activities began in 1983 and continued until her suspension in 198?, resulting in losses to the County amounting to approximate1.y$30,250.00. Korang asserts that this amountwas not "substantiatedby evidence in the record"

as required by the statute because she was not bei.ng triedforher activitiesprior to July of 1985. In essence,Korang argues that shehas been sentenced for twoyears of "crimi.na1 activities" forwhich she was not convicted. The sentencing hearing is part of the record reviewedby this Court when consideringan appeal in a criminal case. In fact, by posing this issue, Korang's counsel requests that
our review of the record include the sentencing hearing in this case. At the sentencing hearing, the State submitted evidence of the County's loss resulting from Korang's common scheme theft and attendant records tampering. The evidence showed that Korang's common scheme began in 1983,and gave a figure for the total loss sufferedby the County "arisingout of the facts or events" consti.tuting Korang

### ' s common scheme--her "criminal activities." The court's restitution order was based on pecuniary loss substantiated in the record. Koranglsassertion that the statute of limitations bars any claim for amounts taken more than two years prior to the filing of the information isbased on § 46-18-244,MCA. That section allows an offender to raise any defense against restitution that he could utilize in a civil action for the losses sought as restitution. According to Korang, one defense available toherwas § 27-2-211,MCA,which imposes a two-year period of limitations for an action for penalty, forfeiture, or other statutory liability. We need not address this contention,as Korang did not raise specifically the statute of limitations before the District Court. Section 46-20-701,MCA. We affirm the decision of the DistrictCourt.

We Concur:

# A ?-,n Chief Justi

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