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The People v. Leah Tupper

December 23, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LEAH TUPPER, DEFENDANT AND APPELLANT.



(Mendocino County Super. Ct. No. SCTMCRCR0775971)

The opinion of the court was delivered by: Pollak, J.

P. v. Tupper CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Leah Tupper appeals from a conviction for embezzlement and burglary. A jury found that defendant, the bookkeeper for a preschool, failed to deposit into the school's bank account numerous cash payments received for children's tuition and converted the payments to her own use. She challenges her conviction on various grounds, none of which has merit, but we conclude that minor corrections must be made with respect to the terms of her probation.

BACKGROUND

Defendant was charged by first amended information with one count of grand theft by embezzlement (Pen. Code,*fn1 § 503) and one count of second degree burglary (§§ 459, 460). There was evidence at trial of the following facts.

Nancy Pollard was the director of Little Lambs Preschool in Fort Bragg from 2003-2005. Pollard testified that defendant was the bookkeeper at Little Lambs from 2003 through mid-November 2005. In that role, she was required to deposit and enter into the computer tuition payments and to generate monthly statements for the parents. Tuition payments were to be deposited into the school checking account. When a parent gave a payment to a staff member, the money was to be recorded on an intake sheet along with the child's name, the date of receipt, whether the payment was by cash or check, the check number or the receipt number if the payment was made in cash, and the initials of the person making the payment. The money along with a copy of the receipt was placed in a zippered pouch kept in a locked cupboard.

Pollard and defendant were the two people who most often received cash payments. Pollard and defendant were the only two people with access to the locked cupboard while defendant worked there, and so far as Pollard was aware the cupboard was not broken into during that period. Defendant was also responsible for preparing a "breakdown sheet" that reflected payments made on behalf of each child, itemizing whether the payment was for materials, tuition, or late fees. Defendant prepared a handwritten deposit slip itemizing cash and checks being deposited. Normally defendant placed the cash and checks in her purse and told Pollard that she was going to make a deposit.

Defendant left her position with Little Lambs on November 15, 2005, for health reasons. Pollard did not suspect any wrongdoing at that time. After defendant left, Pollard conducted an audit that revealed missing funds. The audit revealed several occasions on which no cash deposit had been made, although a parent, Tom Humecky, had receipts for payments on some dates on which there were no deposits. Pollard identified 68 cash payments that had not been deposited, totaling $12,525.50. All of the deposit slips for deposits that were made on dates of those payments but did not include missing payments were in defendant's handwriting. The breakdown sheets that should have reflected the missing deposits were also in defendant's handwriting.

In February 2006, Pollard met with defendant; Daniel Fowler, the pastor of the church that ran the preschool; and Deborah McCullough, the new bookkeeper. Fowler asked defendant about an $800 cash payment from Humecky that had not been deposited. Defendant told Fowler she thought it was strange that the money had not been deposited and added, "I didn't steal the money."

Humecky testified that his son had attended Little Lambs Preschool since March 2005. He paid his son's tuition in cash to whichever staff member was on duty at the time. He remembered making payments to Pollard, McCullough, and defendant. When he paid, he was given a receipt signed by the staff member who took the payment. He recalled making an $800 payment to defendant and receiving a receipt from her. A copy of the receipt was admitted in evidence. Humecky identified 12 cash payments he made in 2005. He received a monthly statement from Little Lambs for payments he had made.

Sergeant Charles Gilchrist of the Fort Bragg Police Department testified that he interviewed defendant in August 2006. Defendant denied taking any money from the preschool.

Carol Steele testified that she had 30 years of experience in the banking industry and that she had special experience reviewing bank statements to determine the amount of deposits. Steele was also an elder of the church that operates the preschool and was asked by Pollard to audit the Little Lambs bank statements and other documents. Steele reviewed the parents' ledgers for payments that were recorded as cash, the intake sheets, and the bank statements for the preschool checking account to see if cash was listed on the deposit slips. For her final audit, Steele said, "I started with the amounts that I had listed on the original one . . . and I did a paper trail. I started from those figures and those dates, went back to the parents' ledgers, confirmed the dates and the amounts, and then I went to the checking account deposit slips for that day and the next day, and then I went to the savings ...


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