NO. 88-420 

IN THE 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 the First ~udicial District, 

In and for the 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 

Patricia J. Schaeffer, Asst. Atty. General, Helena 

~ike McGrath, County Attorney, Helena, Montana 

Leo Gallagher, Deputy County Attorney, Helena 

Submitted on ~riefs: March 31, 1989 

Decided: May 18, 1989 rl 

-. 1 . '---- L' 

c Clerk 
Mr. 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. 

Korang presents three issues for review: 

1. Whether the evidence is sufficient to sustain her 

conviction. 

2. Whether the District Court interfered with 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 certain date. 

3. Whether the District Court erred in its determination 

of the amount of restitution that Korang was required to pay 

as a condition of her 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 reception book. 
Korang also had bookkeeping responsibility for this 

operation and deposited collected fees with the County 

Treasurer's Office. During busy periods, she was 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 on vacation or ill. 

In June of 1987, staff members Dori Kuhl and Marylin 

Bracken met with Clerk and Recorder Sue Bartlett. They 

expressed concern about problems with the books being kept by 

Korang. Their concern stemmed from an incident several weeks 

before. Both women had issued a large number of death 

certificates one day and had rung up 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 the women had estimated, the book 

showed that they had taken in only $8. They began keeping 

track of amounts they collected when 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) either 
fictitious transactions were then 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 the cash register. It also appeared to Bartlett that when 

the amount of cash taken from the till did not exactly match 

the amount of the checks used to replace it, Korang would 

make an entry on the cash register to make the total from the 

register tape for that particular day match the corresponding 

daily total in the book. 

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 

audit of the books. Based on Rartlett's observations and the 

results of the audit, Korang was charged by inFormation with 

two felonies: theft (common scheme) and tampering with public 

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 at Warm Springs, hut. suspended all but 

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 at trial was insufficient to sustain her convictions. 

The test applied by this Court to determine whether evidence 

is sufficient is whether, after reviewing the evidence in the 

light most favorable to the State, any rational trier of fact 

could have found the essential elements of the crime beyond 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 in part: 

(1) A person commits the offense of theft when 

he purposely or knowingly obtains or exerts 

unauthorized control over property of the owner 

and : 

(a) has the purpose of depriving the owner of 

the property; ... (6) ... A person convicted of the offense of 

theft of property 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 of missing money discovered by 

Bartlett. The testimony included direct observation of 

Korang voiding entries on the cash register and making other, 

unusual entries; direct observation of Korang making unusual 

calculations when balancing the books; 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 of which 

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 at work, but not when 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 system 
used 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 as we said in Tracy, it was for the jury to decide which 

evidence was convincing. We therefore hold that there was 

sufficient evidence to sustain Korang's conviction for theft. 

The offense of tampering with public records or 

information is d-efined in S 45-7-208, MCA: 

(1) A person commits the offense of tampering 

with public records or information if he: 

(a) knowingly makes 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 convince a rational trier of fact that Korang knowingly 

made false entries or al-terations in financial records kept 

by the Clerk and Recorder's Office. We therefore hold that 

there was sufficient evidence to support Korang's con17iction 

for tamperinq with public records or information. 

Counsel for Korang next argues that the District Court 

interfered with Korang's right to a fair trial by inhibitins 

the cross-examination of State's witness Mary Craig. At 

trial, counsel for Korang requested the court's permission 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 taken 
by the trial and counsel's ample opportunity to exami.ne all 

of the evidence before Ms. Craig took the stand. 

The parties agree that the appli.cable rule 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 judge must be careful to insure 

that he remains impartial, and avoids becoming an advocate 

for one side or the other through his behavior. We also said 

in that case that the judge must be given sufficient latitude 

to conduct the trial in an orderly and expeditious fashion. 

Stafford, 678 P.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 consumption of time. 

Korang's final argument takes issue with the restitution 

ordered by the District Court in consideration for suspending 

most of Korang's sentences. According to Korang, the 

restitution order was improper for two reasons; the amount of 

restitution went beyond the scope of the offenses charged, 

and any claim for amounts taken more 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. Section 
46-18-241, 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-ncluding without limitation the money equivalent 

of loss resulting from property taken, destroyed, 

broken, or otherwise harmed and out-of-pocket 

losses, such as medical. expenses; and 

(b) reasonable out-of-pocket expenses incurred 

by the victi-m in 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 

loss asserted by the County. 

Korang points out that the information charging her with 

theft and tampering with public records or information 

alleged that she had committed both offenses between July of 

1985 and June of 1987. The restitution ordered by the 

District Court was 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 amount was not "substantiated by evidence in the record" 

as required by the statute because she was not bei.ng tried 
for her activities prior to July of 1985. In essence, Korang 

argues that she has been sentenced for two years of "crimi.na1 

activities" for which she was not convicted. 

The sentencing hearing is part of the record reviewed by 

this Court when considering an 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 suffered by the County "arising out 

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. 

Korangls assertion that the statute of limitations bars 

any claim for amounts taken more than two years prior to the 

filing of the information is based 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 to her was § 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 District Court. 

We Concur: 
A ?-,n Chief Justi 

I-, /