From the Circuit Court of Jasper County; Criminal Appeal; Judge L. Thomas Elliston.
Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.
The opinion of the court was delivered by: Crow
A jury found appellant ("Campbell") guilty of the class C felony of stealing at least $150 in money, by deceit, § 570.030, RSMo 1978, and assessed punishment at 90 days imprisonment in the county jail, § 558.011.2, RSMo 1978, as amended by Laws 1979, p. 633. The jury also recommended that the trial court assess a fine "in lieu of any imprisonment." The trial court imposed the jail sentence assessed by the jury, but suspended execution and placed Campbell on probation, § 559.012, RSMo 1978, subject to sundry conditions including restitution, § 559.021.2(1), RSMo 1978, as amended by Laws 1981, p. 637. No fine was imposed.
The theft is alleged to have occurred during the period from November 12, 1980, through February 7, 1981, from Rural Missouri Incorporated ("RMI"), an organization which, during that time, administered "manpower training programs" under the Comprehensive Employment and Training Act of 1973 ("CETA"), Pub. L. 93-203, 87 Stat. 839, as amended. The program pertinent here was one in which employers were induced to hire persons previously unemployed or underemployed, the inducement being reimbursement to the employer for up to fifty percent of those persons' wages for a fixed period. The funds for reimbursement were supplied by the United States government to RMI, which administered the program in Campbell's locale through an agency called Ozark Gateway Council ("OGC").
The information alleged Campbell represented to RMI that (a) Joseph DeWalt ("DeWalt") was an employee of ABC Pest Control ("ABC") during the period in question, and (b) ABC was entitled to reimbursement of $854, knowing the representations were false.
Campbell's sole point on appeal is that the evidence is not "unequivically (sic) inconsistent" with his innocence, in that the evidence does not support a finding that he knew the hours represented as having been worked by DeWalt were not in fact so worked. Campbell asserts the trial court erred in denying his motion for judgment of acquittal at the close of the State's case, and in denying a similar motion at the close of all the evidence.
Campbell did not stand on his motion for judgment of acquittal at the close of the State's case. After the motion was denied, he introduced evidence in his own behalf, thereby waiving any error with respect to the denial of the motion. State v. Green, 476 S.W.2d 567, 569 (Mo. 1972). Accordingly, the submissibility of the case will be determined upon the basis of all the evidence, including those portions of Campbell's evidence that favor the State. State v. Wood, 553 S.W.2d 333, 334 (Mo. App. 1977). We view the evidence in the light most favorable to the State, accept all substantial evidence and all legitimate inferences fairly deducible therefrom which tend to support the verdict, reject contrary evidence, and disregard all evidence unfavorable to the State. State v. Leach, 633 S.W.2d 754, 755 (Mo. App. 1982).
During the period in question, ABC, a corporation, maintained its office in Joplin, Missouri. Campbell was ABC's president and "major stockholder." He "ran the business."
ABC used "time sheets" to keep track of the hours its employees worked. Each sheet covered one employee for one week. At the beginning of each week, each employee put his name on a blank sheet, then filled in his hours each day. The sheets were kept on a "board" or in a box at ABC's office.
In an "employer contract" dated November 12, 1980, signed by Campbell, ABC, as employer, agreed with RMI and OGC to furnish employment and training for DeWalt beginning that date and continuing for 36 consecutive weeks, or until the training was successfully completed, whichever first occurred. The contract provided, inter alia, for ABC to submit to OGC, "by the 15th of each month," invoices for reimbursement for half of DeWalt's monthly wages, with RMI's liability not to exceed $100 per week.
Under date of December 3, 1980, ABC submitted to OGC a written "Request for On-Site Training Cost Reimbursement" for DeWalt's November wages. The Request, signed by Campbell, showed DeWalt worked eight hours on each of these days: 12, 13, 14, 17, 18, 19, 20, 21, 24 and 25. Total wages were $400; ABC claimed $200 reimbursement. On December 22, 1980, RMI issued a check to ABC for the amount claimed, together with reimbursement for another CETA employee.
A similar procedure was followed regarding DeWalt's December wages. A Request, signed by Campbell and dated January 12, 1981, showed DeWalt worked eight hours on each of these December days: 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22 and 23. Total wages were $544; ABC claimed $272 reimbursement. RMI paid ABC the amount claimed, by check dated January 22, 1981.
ABC, over Campbell's signature, submitted a Request dated February 3, 1981, for DeWalt's January wages. The Request showed DeWalt worked eight hours on each of these days: 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29 and 30. Total wages were $704; ABC claimed $352. RMI reimbursed ABC that amount by check dated February 23, 1981.
Under date of March 4, 1981, ABC, over Campbell's signature, submitted a Request for DeWalt's February wages, showing DeWalt worked eight hours on each of these days: 2, 3, 4, 5 and 6. Wages of $160 were shown, with ABC claiming $80 ...