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Mraz v. State

Supreme Court of Wyoming

August 29, 2016

MIRANDA ROSE MRAZ, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge

          Representing Appellant: Office of the State Public Defender: Diana Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; and Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          HILL, Justice.

         [¶1] A jury convicted Miranda Mraz of seven counts of felony forgery and one count of misdemeanor theft arising out of charges that as a server at a restaurant she altered credit card receipts to increase the amount of her tips. On appeal, Ms. Mraz asserts that her conviction should be reversed on grounds of vindictive prosecution, ineffective assistance of counsel, prosecutorial misconduct, failure to provide supplemental instructions to the jury, and insufficiency of the evidence. We affirm.


         [¶2] Ms. Mraz states the issues on appeal as follows:

I. Were Ms. Mraz's due process rights violated as her prosecution was motivated by prosecutorial vindictiveness?
II. Was Ms. Mraz provided effective assistance of counsel?
III. Was Ms. Mraz denied her right to a fair trial when the prosecutor in closing argument argued facts not in evidence?
IV. Did the district court commit reversible error when it failed to provide a substantive answer of a question of law asked during jury deliberation?
V. Was the evidence insufficient to support a conviction for forgery or misdemeanor theft?


         [¶3] In 2013, Ms. Mraz began working at the Trails End Motel in Sheridan, Wyoming. Ms. Mraz worked first in housekeeping and then was promoted to server in the motel's restaurant, the Firewater Grill. In November 2013, a customer contacted Robert Romeo, the assistant general manager of the Trails End Motel and Firewater Grill, and complained that he had been overcharged for a tip he left on a credit card payment to the Firewater Grill that month. Mr. Romeo looked into the customer's complaint and verified that the customer had been overcharged. Mr. Romeo then reported what he had found to Robert Green, the general manager who supervised operations at the Firewater Grill.

         [¶4] Upon learning of the overcharge, Mr. Green directed Mr. Romeo to review the transactions for all the restaurant's servers during that same month to ensure this type of overcharge was not occurring frequently. After completing that review, Mr. Romeo reported to Mr. Green that he had found additional credit card transactions that were altered and that while one of the transactions involved a customer served by a server other than Ms. Mraz, the other several transactions involved customers served by Ms. Mraz. Mr. Green and Mr. Romeo both met with Ms. Mraz at this point and informed of her of what they had found. Ms. Mraz denied any wrongdoing in relation to the transactions.

         [¶5] Following their meeting with Ms. Mraz, Mr. Green directed Mr. Romeo to broaden his investigation to include another month's worth of credit card transactions. Mr. Romeo completed his review of the additional transactions and reported to Mr. Green that he found additional altered transactions and all of them were for customers served by Ms. Mraz. Mr. Green and Mr. Romeo then met with Ms. Mraz and terminated her employment.

         [¶6] On February 19, 2014, Officer Daniel Keller of the Sheridan Police Department conducted an alcohol compliance check at the Firewater Grill. During an alcohol compliance check, two officers in plain clothes accompany an under-aged person into a bar and have that person attempt to buy alcohol. After completing the compliance check, Officer Keller reported the results of the compliance check to Mr. Green. During that conversation, Mr. Green asked Officer Keller about reporting the altered credit card transactions involving Ms. Mraz. Officer Keller advised Mr. Green that he could not take his report at that time because he was there solely for the purpose of the compliance check, but he urged Mr. Green to call the police department and report the matter.

         [¶7] On February 21, 2014, Officer Keller returned to the Firewater Grill after finding that no report had been called in. On that date, Officer Keller spoke with Mr. Romeo about the allegations against Ms. Mraz, and Mr. Romeo turned over the documents gathered in his review of the credit card transactions involving customers served by Ms. Mraz. Officer Keller then turned the documents over to the detectives division of the Sheridan Police Department.

         [¶8] On May 29, 2014, the State filed an information against Ms. Mraz charging her with six counts of felony forgery for the alteration of credit card receipts and one count of misdemeanor theft, all relating to the transactions at Firewater Grill. On June 13, 2014, the State filed an amended information, which added a count of felony forgery. On March 2, 2015, following a seven-day trial, a jury returned a verdict finding Ms. Mraz guilty of all seven counts of felony forgery and the one count of misdemeanor theft. On June 5, 2015, the district court entered its judgment and sentence. The court sentenced Ms. Mraz to serve eighteen to thirty months in prison on each of the seven counts of felony forgery, to be served concurrently, and suspended those sentences in favor of three years of supervised probation. On the single count of misdemeanor theft, the court sentenced Ms. Mraz to serve thirty days in jail and suspended that sentence in favor of six months supervised probation, to be served concurrent to the probation for the forgery convictions. On July 2, 2015, Ms. Mraz filed her timely notice of appeal to this Court.


         [¶9] Ms. Mraz presents her sufficiency of the evidence challenge as her final claim of error on appeal. Because our discussion of the evidence supporting Ms. Mraz's conviction may be helpful in our discussion of Ms. Mraz's other claims of errors, we will consider the sufficiency of the evidence claim first. We will then address Ms. Mraz's remaining claims of error in the order presented.

         A. Sufficiency of the Evidence

         1. Background

         [¶10] Because our consideration of Ms. Mraz's sufficiency of the evidence claim requires an understanding of how servers at the Firewater Grill handle transactions with the customers they serve, we will begin our discussion there. More particularly, the jury was provided with detailed testimony on the restaurant's system for processing, recording and tracking customer transactions, and we briefly summarize that background below.

         [¶11] The first piece of background information is the Firewater Grill's system for processing and tracking customer transactions. The Firewater Grill uses a point of sale computer program called Maitre 'D, which was also the system in use when Ms. Mraz worked as a server at Firewater Grill. Each server has a server ID, which is a specific number assigned to that server that allows the server to log into the system. The server uses his/her server ID to: sign into the system with a status that allows the server to wait on tables; open a table and assign the table to a server; to record the number of customers at a table; place and record orders for a table; generate a bill to give to a customer; process cash and credit/debit card payments by a customer; and finalize any transaction with a customer.

         [¶12] Using the Maitre 'D system, the first thing a Firewater Grill server must do upon arriving at work is sign into the system using his/her server ID. [After a customer arrives and is seated, the server enters his/her server ID, enters the table number, and enters the number of customers at the table. After taking any orders from a table, the server then enters that additional information into the system. After customers inform a server that no additional service is required, the server, again using his/her server ID, opens the check for that table on the system and prints the check.

         [¶13] The check generated by Maitre 'D will show the table number, the details of the order, the order total, the date and time the check was printed, the server ID number, and the server's name. If a customer pays with a credit/debit card, the server again opens the ticket in the system, runs the card through the system, and then prints merchant and customer copies of the credit/debit card receipt. The merchant copy provides a line for a customer to enter a tip amount and a line for the customer's signature. After the customer signs the merchant copy, it is returned to the server, and the server, again using his/her server ID number, finalizes the transaction by entering into the system the total amount paid, including the tip.

         [¶14] The second piece of background information that is important to our consideration of Ms. Mraz's sufficiency of the evidence claim is the manner in which a Firewater Grill server handles cash and receipts received from customers during the server's shift. The restaurant's servers use a system called "server banking." This means the server is the bank for a table. If a customer pays in cash, the server makes change for the customer from cash the server is holding. If the server does not have the denominations needed to make the change, the server will take the larger bills given by the customer to a bartender or the motel's front desk and have the larger bill broken into smaller bills that will allow the server to make change. The server keeps all cash paid by customers and all receipts, including both credit/debit card and cash receipts, on his/her person until the end of the server's shift.

         [¶15] At the end of a server's shift, the server uses the Maitre 'D system to prepare a document entitled "Summary of Sales." The Summary of Sales totals all of the server's transactions from the start of a shift to the end of the shift. Drawing data from each transaction entered by the server during the shift, the system generates a summary that shows total sales and total number of tables and customers served. The summary separates out totals for cash transactions and credit/debit card transactions and totals the tips left by credit/debit card. The summary also displays a detailed report that separates out the meal cost and tip for each table served by that server.

         [¶16] After a server prepares and prints the Summary of Sales document, the server generally signs the document. The server then submits the Summary of Sales document to the bartender on duty, along with all receipts collected during the shift. The server must also give the bartender the server's net deposit for the shift. The net deposit is equal to the server's total cash sales for the shift less any tips left by credit/debit card. If cash sales exceed the server's credit/debit card tips, the server will turn over the remaining cash to the bartender. If the cash sales are less than the server's credit/debit card tips, the bartender will take cash from the till to give to the server to make up the difference. Once the net deposit is resolved with the bartender, the server will have received cash for all credit/debit card tips left to the server during that shift.

         [¶17] With this background, we turn to our standard of review and analysis of Ms. Mraz's sufficiency of the evidence claim.

         2. Standard of Review

         [¶18] In reviewing a claim that the evidence was insufficient to support a guilty verdict:

[w]e examine and accept as true the State's evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt. This standard applies whether the supporting evidence is direct or circumstantial.

Bean v. State, 2016 WY 48, ¶ 44, 373 P.3d 372, 386 (Wyo. 2016) (quoting Guerrero v. State, 2012 WY 77, ¶ 14, 277 P.3d 735, 738-39 (Wyo. 2012)).

         [¶19] We have further said:

We do not consider "whether or not the evidence was sufficient to establish guilt beyond a reasonable doubt, but [instead] whether or not the evidence could reasonably support such a finding by the factfinder." Hill v. State, 2016 WY 27, ¶ 13, 371 P.3d 553, 558 (Wyo.2016) (citing Levengood v. State, 2014 WY 138, ¶ 12, 336 P.3d 1201, 1203 (Wyo.2014)). "We will not reweigh the evidence nor will we re-examine the credibility of the witnesses." Hill, 2016 WY 27, ¶ 12, 371 P.3d at 558 (citation omitted). We review the sufficiency of the evidence "from this perspective because we defer to the jury as the fact-finder and assume they believed only the evidence adverse to the defendant since they found the defendant guilty beyond a reasonable doubt." Oldman, 2015WY 121, ¶ 5, 359 P.3d at 966.

Bean, ¶ 45, 373 P.3d at 387.

         3. Analysis

         [¶20] Ms. Mraz was convicted of seven counts of felony forgery, in violation of Wyo. Stat. Ann. § 6-3-602, and one count of misdemeanor theft, in violation of Wyo. Stat. Ann. § 6-3-402. Ms. Mraz argues the evidence was insufficient to support these convictions because the State was able to prove only that Ms. Mraz had the opportunity to commit the crimes, and opportunity evidence without corroboration cannot sustain a conviction.

         [¶21] We have indeed held that evidence of opportunity alone is insufficient to support a conviction. Mraz v. State, 2014 WY 73, ¶ 15, 326 P.3d 931, 935-36 (Wyo. 2014) (citing State v. Morris, 283 P. 406, 414 (Wyo. 1929); Jozen v. State, 746 P.2d 1279, 1283 (Wyo. 1987); Smizer v. State, 752 P.2d 406, 411 (Wyo. 1988); Fischer v. State, 811 P.2d 5, 8 (Wyo. 1991). The record must contain additional evidence, such as the defendant's possession of the stolen property, a motive to commit the crime, an attempt to avoid apprehension, or some other direct link to the crime. Mraz, ¶ 16, 326 P.3d at 936. We thus agree with Ms. Mraz's premise that opportunity evidence alone cannot sustain a conviction. Based on our record review, however, we find sufficient corroborating evidence to support the jury's verdict.

         [¶22] The forgery convictions related to transactions in which Ms. Mraz was alleged to have made written alterations to the amount of the tip written on the credit/debit card receipt by the customer. For each of those transactions, the State presented, at a minimum: the merchant copy of the receipt showing the alteration; the testimony of the customer confirming that the customer's writing on the receipt had been altered; the Summary of Sales showing both that Ms. Mraz was the server and that the amount of the credit/debit card tip she was due was the amount inflated by the alteration; and labor reports from the motel and restaurant showing that Ms. Mraz signed off duty shortly after generating the Summary of Sales report.

         [¶23] To summarize, the State presented evidence that a server prepares a Summary of Sales at the end of the server's shift and then settles up with the bartender. In the course of that settling up, the server is essentially given cash in exchange for amounts shown on the Summary of Sales as credit/debit card tips and is thus left with cash in his or her pocket based on the amount of the credit/debit card tips shown on the Summary of Sales. For each of the seven transactions for which Ms. Mraz was found guilty of forgery, the Summary of Sales showed that the credit/debit card tips for which Ms. Mraz would have received cash when she settled up with the bartender were the tips inflated by the receipt alterations. Additionally, the evidence showed that the Summary of Sales documents associated with these seven transactions were prepared under Ms. Mraz's server ID and were run at the end of a shift she in fact worked. Finally, the State also presented evidence that Ms. Mraz never complained to management that she was not receiving cash for the credit/debit card tips recorded on the Summary of Sales. From all of this evidence, the jury could reasonably infer that Ms. Mraz received cash in the amount of the inflated tips, which is evidence that corroborates the State's opportunity evidence.

         [¶24] With respect to the theft counts, the State presented evidence on two theories of how Ms. Mraz committed the charged thefts. For fourteen transactions, the State alleged Ms. Mraz committed theft by adding an 18% gratuity to the ticket in violation of restaurant policy. In those transactions, Ms. Mraz added the gratuity before the ticket was given to the customer but without informing the customer of the added charge, resulting in inflated tips ranging from 21% to 47% of the meal cost. The jury found Ms. Mraz not guilty of theft with respect to each of those theft charges, and we therefore need not concern ourselves with the evidence supporting those charges.

         [¶25] The theft charges on which the jury did return a guilty verdict consisted of transactions in which the State alleged Ms. Mraz increased the amount of the tip authorized by the customer when she charged the customer's credit/debit card. There were ten of these transactions and they resulted in inflated tips ranging from 15.5% to 82.3% of the meal cost. For all but two of these transactions, the State submitted, at a minimum, the merchant or customer copy of the credit/debit card receipt showing the amount of the tip authorized by the customer, the Summary of Sales prepared under Ms. Mraz's server ID number and showing the increased tip charged against the card, and a labor report showing that Ms. Mraz checked out of work shortly after the Summary of Sales was prepared. With respect to two of the transactions, the State did not introduce corresponding labor reports showing Ms. Mraz checked out of work shortly after preparing the Summary of Sales documents. The State did, however, introduce the associated Summary of Sales documents, and those documents were signed by Ms. Mraz.

         [¶26] As with the forgery charges, the State's evidence to support the theft charges included the Summary of Sales documents, which for each of the transactions recorded inflated credit/debit card tips for which Ms. Mraz would have received cash when she settled up with the bartender at the end of her shift. From this evidence, the jury could again reasonably infer that Ms. Mraz received cash in the amount of the inflated tips. This evidence corroborated the State's opportunity evidence and was sufficient to support the jury's verdict.

         B. Vindictive Prosecution

         [¶27] In 2012, in a case unrelated to the present appeal, Ms. Mraz was charged with one count of larceny by bailee in relation to money that went missing from the safe of her then employer, the Sheridan, Wyoming Eagles Club. On February 16, 2013, a jury found Ms. Mraz guilty of the charged larceny. After the district court entered its judgment and sentence on the larceny conviction, Ms. Mraz appealed the conviction. On June 10, 2014, this Court reversed Ms. Mraz's larceny conviction, finding that it was not supported by sufficient evidence. Thereafter, on August 4, 2014, the district court entered a judgment of acquittal on the larceny charge.

         [¶28] Ms. Mraz now asserts that the State's prosecution of her for forgery and theft was in retaliation for her successful appeal of her 2013 larceny conviction. She contends that the State's allocation of substantial prosecutorial resources to crimes that resulted in only minor monetary losses to the victims is evidence of the State's retaliatory motive and that her present conviction must therefore be overturned as a vindictive prosecution in violation of her due process rights. We find no support for Ms. Mraz's claim in the record or in the law.

         1.Standard of ...

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