July 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRELL M. OWENS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-04-0738.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2012
Before Judges Messano and Espinosa.
Following a jury trial, defendant Terrell M. Owens was convicted of third-degree theft, N.J.S.A. 2C:20-3, and fourth-degree falsifying or tampering with records, N.J.S.A. 2C:21-4. The evidence at trial revealed that defendant was employed as the Teaneck branch manager of the Fairleigh Dickinson University Credit Union (the Credit Union), having assumed that position temporarily at the end of November 2007 when the prior manager resigned. Part of defendant's duties included reconciling the actual amount of cash in the Credit Union's vault with the computerized account ledger.
The only other employee at the Teaneck branch was a part-time teller, Melanie Lerner. Lerner did not have the security code or key to open the branch, nor did she have the access code to the vault where the branch's cash was kept. Lerner believed she was never in the vault alone. Records disclosed that only defendant's access code was used to open and close the Teaneck branch between January 2, 2008 and January 18, 2008.
Shareatha Owens, the operations officer at the Credit Union's Madison and Teaneck branches, audited the money in the vault of the Teaneck branch in November 2007, prior to defendant's assuming the position of manager.*fn1 At that time, all money at the branch was accounted for. Thereafter, defendant called her "[a]lmost everyday" because of problems he had balancing the vault cash, but he never indicated any money was missing.
On January 18, 2008, Shareatha was doing a "weekly cash order," i.e., seeing how much cash was actually on hand and making sure it was adequate to service the Credit Union's customers. She accessed the computerized ledger system and noticed entries totaling $9700 in the balance sheet's "nondenominational field." This field represented money that physically existed but was damaged and needed to be removed from circulation. Shareatha testified that in her many years of experience with the Credit Union, the aggregate amount in the nondenominational field was about $500.
She called defendant and asked if he made these entries. He admitted that he had done so in order to balance the vault. Shareatha explained that if the damaged money was removed from the computerized ledger, the vault would necessarily be short, and she directed defendant to "recount his vault and to call [her] back." Shareatha reported the problem to the Credit Union's Chief Executive Officer, Judith Kehres, and proceeded to the Teaneck branch with her fellow employee and defendant's direct supervisor, Ayeisha Robinson.
When they arrived, defendant "appeared fidgety and nervous." Shareatha noticed that the video recording system was not recording, even though she had personally checked the system in November 2007 when the prior manager resigned, and it was working properly. She also noticed that the video camera was no longer pointed toward the vault, but rather toward an area between the vault and the ATM machine. The two women counted the actual cash in the vault and in the teller's drawers and discovered "[a] little over twelve thousand dollars" was missing. Shareatha reported this to Kehres, and the police were notified.
Detective Seth Kriegel responded to the Credit Union and interviewed defendant at police headquarters. Defendant claimed that he did not know what happened to the missing money and that he had spoken to Shareatha about the shortfall.
Lerner testified that she never accessed the computer ledger regarding the monies in the vault and never entered any amounts in the "nondenominational" field. She denied taking any money from the branch.
Kehres read portions of a letter defendant sent to the National Credit Union Administration, the government agency that monitors and insures credit unions, dated April 29, 2008. Defendant claimed that he noticed shortfalls in deliveries of cash from the Federal Reserve as soon as he arrived at the Teaneck branch and "was ignored" when he reported them. Kehres testified that defendant was supposed to notify her whenever a "cash delivery" was incorrect, but he never did.
Defendant's motion for a judgment of acquittal, Rule 3:18-1, was denied and Robinson testified as a defense witness. Robinson shared an office with Shareatha in the Madison branch of the Credit Union. She claimed that defendant called in early January because he was "missing a significant amount of money." She transferred him to Shareatha but could not hear the conversation. Later, though she could not specify the date, Robinson testified that she overheard Shareatha tell defendant to put missing amounts of money in the "nondenominational" field.
Defendant testified that he did not know what happened to the missing money. He claimed that he usually left the code to the vault taped to his desk under his computer keyboard. Defendant also stated that Shareatha specifically told him that if he had a problem balancing the monies in the vault, he should enter any shortfall in the nondenominational sheet on the computer ledger. Defendant claimed he specifically contacted Shareatha on January 2, 2008, the date an entry first appeared, and was given this advice. He did the same on two other occasions in January.
Based on this evidence, defendant was convicted of both counts of the indictment. He was subsequently sentenced to probation for a term of five years and ordered to pay $12,206.25 in restitution.
On appeal, defendant raises the following point for our consideration:
DEFENDANT'S CONVICTIONS MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS GUILTY OF THEFT OR FALSIFYING/TAMPERING WITH EVIDENCE We have considered this argument in light of the record and applicable legal standards. We conclude it lacks sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
When deciding a motion for acquittal based upon the insufficiency of the State's evidence, the trial court must apply the time-honored standard set forth in State v. Reyes, 50 N.J. 454 (1967):
[W]hether viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [Id. at 459.]
We review the decision of the trial judge de novo applying the same standard. State v. Bunch, 180 N.J. 548-49 (2004).
Defendant contends that there was no direct evidence adduced, and the circumstantial evidence "raised a mere suspicion that defendant could have been involved with the disappearance of the money." We disagree.
While the State's case was entirely circumstantial, the evidence of defendant's guilt was substantial and sufficient to prove his guilt beyond a reasonable doubt. At the branch, only defendant had the access code to the vault, and only his code was used to open and close the branch office. The money in the vault was reconciled before defendant arrived as branch manager, and the videotape equipment was working and recording at that time. Less than two months later, the video recording system was not recording, the camera was pointed away from the vault and a substantial sum of money was missing. Defendant had no explanation as to why the money was missing at the time it was discovered and his subsequent claim that he had reported shortfalls in the deliveries from the Federal Reserve was refuted by Kehres.