The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
17-877
STATE OF LOUISIANA
VERSUS
TANYA BUTEAUX
**********
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 13-2074
HONORABLE ANTHONY THIBODEAUX, DISTRICT JUDGE
**********
ULYSSES GENE THIBODEAUX
CHIEF JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Elizabeth A. Pickett, Judges.
AFFIRMED AND REMANDED WITH INSTRUCTIONS.
M. Craig Colwart
St. Mary Parish Indigent Defender Board
P. O. Box 1226
Franklin, LA 70538
Telephone: (337) 828-3628
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana
M. Bofill Duhé
District Attorney – 16th Judicial District
W. Claire Howington
Assistant District Attorney – 16th Judicial District
300 Iberia Street – Suite 200
New Iberia, LA 70560
Telephone: (337) 369-4420
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana
Richard Allen Spears
101 Taylor Street
New Iberia, LA 70560
Telephone: (337) 367-1960
COUNSEL FOR:
Defendant/Appellant - Tanya Buteaux
THIBODEAUX, Chief Judge.
Defendant, Tanya Buteaux, appeals her jury conviction of three
counts of theft of $1,500.00 or more, violations of La.R.S. 14:67. The trial court
sentenced Ms. Buteaux to five years at hard labor on each count, to be served
concurrently, with all but two years suspended, and five years supervised probation
upon release from incarceration. The court also ordered Ms. Buteaux to pay
restitution to the victims in the amount of $89,186.63.
We affirm her convictions and sentences and remand with
instructions.
I.
ISSUES
Ms. Buteaux raises only one issue on appeal:
whether the evidence was sufficient to support a guilty
verdict on all three counts of theft?
II.
FACTS AND PROCEDURAL HISTORY
Ms. Buteaux managed the Spanish Lakes One Stop gas station
convenience store in New Iberia. The State alleged that Ms. Buteaux stole almost
two hundred fifty thousand dollars from the store between January 1, 2011, to
April 30, 2013.1
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In the amended bill of information, the State charged Ms. Buteaux with three counts of
theft of $1,500.00 or more, committed “including and through the dates of January 1 through
December 31 of 2011” (Count #1), “including and through the dates of January 1 through
December 31 of 2012” (Count #2), and “including and through the dates of January 1 through
April 30, 2013” (Count #3).
The State presented evidence of theft perpetrated through a scheme
whereby Ms. Buteaux manipulated daily store statements (reconciliation sheets) to
short the cash deposits. The State first called George J. Trappey III, a certified
public accountant who was qualified as an expert in accounting and tax
preparation. In his testimony, Mr. Trappey stated that he prepared the tax returns
and financial statements for the store in 2010, 2011, and 2012. He then explained
how he first discovered a problem while preparing the store’s 2012 business tax
reports:
Okay. When I was doing the 2012 year-end work,
which I would have been working on in late March or
early April of 2013, they have an account called “cash
transfers”. And what happens is, off of these monthly
reports, all of the sales activity are recorded. And the
total cash that should have been deposited in the
checking account is shown as a debit to this cash transfer
account where it’s based on those computer reports off
the store system. This is how much cash should have
went in the bank. Then, as they make deposits, that cash
transfers account is credited or reduced for the actual
deposits.
And so what happened during 2012 is, that cash
transfer account just kept building a balance. And when
we got to the end of the year, there was a $68,000
balance left in that account that I couldn’t explain why
that balance was still there and why all of the cash that
should have been deposited wasn’t being deposited. So
we had this $68,000 unexplained difference that we
couldn’t figure out. So it just got me concerned. And so
that’s really when I called Mark Musso and said, “Mark,
there’s something not right. We’ve got this balance in
this cash transfer account that I can’t explain. And, you
know, it’s too big of an amount to just adjust.” And so
that’s when he kinda started digging into the records at
the store.
After this discovery, he looked at the monthly reports generated by the
store’s computer to see “what the sales . . . were . . . based on what the registers . . .
sa[id] they should be” and compared them to what the sales were based on the
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accounting records. Based on his review, he found a discrepancy of “$16,000” in
2010, “$48,699” in 2011, and “$101,626” in 2012. When asked if it was possible
that Susan Musso, who prepared the general ledger, may have been making
mistakes in her accounting, Mr. Trappey agreed that it was possible but stated that
“on my professional opinion, being a CPA for 43 years, you know, to me, the
difference was a shortage that had to be accounted for by theft.”
Mark Musso and his wife, Susan, co-owned the convenience store
with another couple. The Mussos were responsible for operating the store, and
their partner was responsible for all the legal aspects of owning and operating a gas
station convenience store. Mr. Musso testified that Ms. Buteaux worked at the
store from 2002 until 2013. She started as a cashier, then moved up to manager in
2007 or 2008. According to his testimony, Ms. Buteaux grossed five hundred
dollars a week plus bonuses and was given a gas fill-up once a week.
As manager, one of Ms. Buteaux’s responsibilities was preparing the
cash deposits daily, which consisted of cash and checks only. Her work schedule
was from 5:00 a.m. to 1:00 p.m. Between 5:00 a.m. and 7:00 a.m., Ms. Buteaux
prepared the previous day’s cash deposit, after which she would lock the deposit
bag. Later in the morning, Ms. Musso would take the deposit bag to the bank
where the bank teller would unlock the bag and return a bank statement reflecting
the deposit amount to Ms. Musso.
Mr. Musso explained that originally the store’s gas distributor was
Exxon and that the cash deposit calculation was done a certain way. However, in
approximately 2009, the store switched to Shell, and the cash deposit calculation
was handled differently. Every day, a set amount of cash was put into the store’s
two cash registers, and a set amount was left in the safe allocated for change in pre-
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counted tubes. During the day, if a cashier needed extra cash for making change,
he or she would simply punch a button, and the extra money would drop from a
tube directly from the safe. When the money in the till reached a certain amount,
the cashier would then drop the excess amount into an inaccessible compartment of
the safe. Mr. Musso explained that all of the money allocated for change was held
in a separate compartment of the safe from the compartment that held the money
“dropped” into the safe, which “goes all the way to the bottom.” Each time a
cashier dropped money into the safe, the computer generated a report with the time
of the drop and the cashier’s employee I.D.
At the end of the day, the amount of money taken out of the safe for
change was the “paid-in.” Mr. Musso explained:
Because we had a reconciliation statement which
took the G-SITE reports which were computerized, and
they were reconciled to a day. And on that day report,
there’s a category called paid-in. On our Exxon
statement, if you did $10,000 of revenue and you had
$500 in safe paid-ins, your total revenue was $10,500.
Under the Shell program, if you had $10,000 of
revenue, paid-in didn’t exist, you ended up having
$10,000 of revenue.
The difference was, was the paid-in category – and
this is very important – that was the money paid from the
safe to the register – was counted as revenue. When we
switched to the Shell program, she kept counting that
paid-in revenue. So she was basically taking the
difference between the paid-in category and what was
paid out. And every single day, almost without
exception, she stole that amount of money.
By continuing to count the paid-ins as revenue on the daily, handwritten
reconciliation sheets, Ms. Buteaux, he explained, was able to manipulate the
calculation, making it appear as if the actual amount of money coming in was
lower than it really was, and she just pocketed the difference.
4
Using a power-point, Mr. Musso demonstrated to the jury how the
cash accounting used to be and how it should have been after the change of gas
distributors. Then employing the Shell formula, he demonstrated why the paid-in
figure was not supposed to be included in the daily reconciliation sheet. He then
explained how he calculated the theft by taking the total revenue from the
computer-generated printout (minuend) minus the total charges and paid-outs
(subtrahend). The difference equaled the amount of cash that should have been
deposited. Comparing that number with the actual deposits, as recorded in the
bank receipts and reconciliation sheets, revealed the theft.
Detailing an attempt to catch Ms. Buteaux “red-handed,” Mr. Musso
explained how he and his wife went into the office after the store was closed and
turned off the motion-activated surveillance camera. They then counted the cash in
the safe and turned the camera back on before leaving. However, he testified that
the “[n]ext morning, she figures out what happened and she calls my wife and says
she’s got a problem at home” and left the office to never return. Ms. Musso did the
cash deposit that morning, and Ms. Buteaux was fired shortly thereafter. Mr.
Musso explained that each morning, Ms. Buteaux would watch “the video between
when she got off of work and the next morning only as it pertained to the office,
because the office is the only place she can see if someone was going to do
something that could catch her in the act, in my opinion.”
From then on, Ms. Musso continued doing the cash deposits, and Mr.
Musso testified that the business had been operating in the black since Ms.
Buteaux was fired. Edward Landry, one of the co-owners, also testified that in the
prior years, they had to refinance twice in order to keep the business running;
however, after Ms. Buteaux was fired, the business could finally pay its bills.
5
Regarding the store’s theft insurance, Mr. Musso testified that the
store had maintained theft insurance for losses up to fifty thousand dollars per year.
The store recovered in total a little over one hundred twenty thousand dollars for
the years of 2010 to 2012. No losses were collected for 2013 because, for some
reason, the store did not have theft insurance for that year. But based on his
calculations, the store was “short” over “$35,000” between January and April
2013.
Mr. Musso further explained that in July 2011, Iberia Bank’s fraud
department called him and advised him that Ms. Buteaux’s bank account showed
an extraordinary number of cashier’s checks issued to her by her son from the
convenience store. As a result, Mr. Musso stopped employees from receiving
cashier’s checks issued from the store.
When questioned as to whether he had investigated any other
employees as the potential thief, Mrs. Musso testified:
Yes. Every day you have what’s called a shift
change report. So every person who works, say, 7:00 to
3:00, at the end of 3:00, they hit a button, and it gives
you all their sales. And it can tell you whether they are
over or short. That was looked at daily by Susan. So, if
one cashier was short, you knew about it that day.
Any theft would have been caught in the daily review of the computer-generated
shift change report, as reflected in the notations on the handwritten reconciliation
sheets admitted into evidence.
Susan Musso’s testimony was essentially the same as her husband’s.
She further explained that she would do the morning cash deposits and
reconciliation sheets whenever Ms. Buteaux was absent, but could never get the
figures balanced and did not know the computation formula had changed after the
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switch in gas distributors. Ms. Buteaux, however, was always able to fix the
problem when she returned to work. Ms. Musso also clarified that she had
prepared the deposit slips nineteen or twenty times during the last two years Ms.
Buteaux worked at the store, but only when Ms. Buteaux took time off.
When Ms. Musso was asked about certain notations in the
reconciliation sheets, the following dialogue transpired:
A. What it means is, occasionally an employee
would not ring something up properly and you would
have your report for each individual employee. And it
would end up showing that they were over for their day
or short for their day on their own individual reports. So
it was easy to identify if somebody didn’t ring something
up.
Q. And that writing in there refers to something
like that happening?
A. Right. Basically, what she was doing was
keeping track of who wasn’t doing the right thing all of
the time. So she would write notes for us on there.
Q. So, if anybody was stealing – other than Tanya
were stealing, she would have caught it, right?
A. There was – yes, she would have been the one
to catch it, yes.
Regarding the daily deposits, Ms. Musso testified that Ms. Buteaux
would create the daily handwritten reconciliation sheets and deposit slips:
The deposit slip and the cash would be placed in
the bank bag with a lock on it. And later in the day,
some time during the morning, not on a regular schedule,
I would show up and I would pick up the paperwork that
was already processed and stapled together and the
deposit. And I would bring that to the bank.
Once she “picked up that bag,” Ms. Musso could not “get inside” it. “The tellers
had the other key,” and they would return the bag to her with a bank receipt after
the cash was deposited.
7
Curry Rankin, a detective with the Iberia Parish Sheriff’s Office,
testified that he investigated the alleged thefts. The detective stated he received
documents, which included paystubs and time sheets prepared by Mr. Musso, and
also obtained Ms. Buteaux’s bank records from January 2010 to July 2011.
Detective Rankin testified that Ms. Buteaux’s account at Iberia Bank was closed in
July 2011, but that for the six months proceeding the closure, i.e., from January
2011 to July 2011, there was approximately fifty thousand dollars deposited into
her account. He stated:
Well, I believe in her case she was paid on a weekly
basis. You have roughly half of what her annual salary
would be. When you take into account the verifiable
source of income that she has from Spanish Lake Market
as opposed to what was being deposited, there was a
major gap between the two.
The detective prepared a summary of deposits and expenditures for that six-month
period. When he then compared it to the store’s time sheets and the days that the
money went missing, he “found consistencies,” but did not elaborate on the
consistencies. He agreed that Ms. Buteaux’s bank records reflected several
cashier’s checks paid to the order of Ms. Buteaux from her son, Edjawaski
Buteaux, noting that in the month of March 2011, there were fifteen cashier’s
checks made out to Ms. Buteaux from her son alone. A similar number of checks
were made out monthly throughout the six-month period.
The detective did concede that he did not investigate any of the other
employees, who were cashiers, because only Ms. Buteaux and the owners had
access to the money kept in the safe. Moreover, Ms. Buteaux and Ms. Musso were
the only ones to ever prepare the cash deposits. The detective agreed that he never
interviewed Ms. Buteaux’s family and had no idea what the household’s necessary
8
expenditures were. He did attempt to interview Ms. Buteaux’s son but was never
able to locate him.
After the State rested, Ms. Buteaux testified in her defense and
emphatically denied taking the money. She stated that she did the deposits as she
was taught to do by Ms. Musso, and after the switch from one gas distributor to
another, no one ever told her to do it differently. Because her son was bad at
handling money, she explained how she had him buy cashier’s checks from his
earnings for her to deposit into her account to help him learn to manage his money.
However, she stated that the bank forced her to close her account in July 2011
because all the cashier’s checks “look[ed] suspicious.” She also stated that her
boyfriend, who was deceased at the time of trial, gave her money, as would her
family members for joint vacations and various other reasons. Accounting for the
expenditures from January 2010 to July 2011, Ms. Buteaux testified that she had
two daughters living at home to support and that she would buy stuff for her son
from the money he gave her. Ms. Buteaux did admit that she was the only
employee who had access to the cash deposits and that she prepared the cash
deposits and handwritten reconciliation sheets, except occasionally when Ms.
Musso would do so because Ms. Buteaux was out for any reason. She further did
not “dispute that the vast majority of the documents, over 95 percent of the
documents that have been introduced with respect to these cash deposits” were in
her handwriting.
Ms. Buteaux’s mother, Lula Buteaux, agreed with Ms. Buteaux’s
testimony that she took care of her son’s financials and that family members gave
her money. The witness stated that if her daughter was living beyond her means,
she would have noticed, and she pointed out Ms. Buteaux was still driving an old
9
vehicle. Ms. Buteaux’s daughters, Muraya and Savannah Buteaux, also testified.
They both stated that if their mother had in excess of two hundred thousand dollars
over the three-year period, they would have noticed. Both girls believed they were
constantly struggling financially.
After deliberations, the jury returned a unanimous guilty verdict on all
three counts. The trial court sentenced Ms. Buteaux to five years at hard labor on
each count to run concurrently with all but two years suspended. Upon release, the
court ordered that Ms. Buteaux be placed on five years supervised probation, as a
condition of which Ms. Buteaux had to “pay restitution in the amount of
$89,186.63.”
III.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed
by this court for errors patent on the face of the record. After reviewing the record,
we find there is one error patent. In sentencing Ms. Buteaux, the trial court
imposed restitution of $89,186.63 as a condition of probation, but a payment plan
was not imposed. This court has held, however, that when restitution is required, a
specific payment plan must be established. State v. Wagner, 07-127 (La.App. 3
Cir. 11/5/08), 996 So.2d 1203. Therefore, we remand this matter to the trial court
for establishment of a payment plan for the $89,186.63 restitution. This plan may
either be determined by the trial court or by the Office of Probation and Parole
with approval by the trial court.
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IV.
LAW AND DISCUSSION
Ms. Buteaux’s sole contention on appeal is that there was absolutely
no physical or direct proof that she stole the money from the business. As she
contends, no one ever caught her stealing any money, and no one testified as to a
money trail leading from the store to her. Therefore, Ms. Buteaux maintains that
the verdict was based entirely on circumstantial evidence and that the State did not
negate all reasonable hypotheses of innocence.2
At the outset, we note that Ms. Buteaux is correct in that there was no
eyewitness to her theft or a paper trail showing the money leaving the convenience
store and going into her account. The verdict, therefore, was rendered on
circumstantial evidence, and the question before this court is whether that evidence
was sufficient to support the convictions.
In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), the
Supreme Court set forth the constitutional standard for testing sufficiency of the
evidence, requiring that a conviction be based on proof sufficient for any rational
trier of fact, viewing the evidence in the light most favorable to the prosecution, to
find the essential elements of the crime beyond a reasonable doubt. Pursuant to
La.R.S. 15:438, “[t]he rule as to circumstantial evidence is: assuming every fact to
be proved that the evidence tends to prove, in order to convict, it must exclude
every reasonable hypothesis of innocence.”
Circumstantial evidence involves, in addition to
the assertion of witnesses as to what they have observed,
2
In brief, the State argues that Ms. Buteaux waived “this assignment by failure to
adequately brief the issue.” See Uniform Rules—Courts of Appeal, Rule 2-12.4(B)(4).
However, we find that, though sparsely argued, Ms. Buteaux has sufficiently briefed this issue so
to preserve her appeal.
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a process of reasoning, or inference by which a
conclusion is drawn. Like all other evidence, it may be
strong or weak; it may be so unconvincing as to be quite
worthless, or it may be irresistible and overwhelming.
There is still no man who would not accept dog tracks in
the mud against the sworn testimony of a hundred eye-
witnesses that no dog passed by. The gist of
circumstantial evidence, and the key to it, is the
inference, or process of reasoning by which the
conclusion is reached. This must be based on the
evidence given, together with a sufficient background of
human experience to justify the conclusion. Prosser,
[LAW OF TORTS], at p. 212.
Consequently, before a trier of fact can decide the
ultimate question of whether a reasonable hypothesis of
innocence exists in a criminal case based crucially on
circumstantial evidence, a number of preliminary
findings must be made. In addition to assessing the
circumstantial evidence in light of the direct evidence,
and vice versa, the trier of fact must decide what
reasonable inferences may be drawn from the
circumstantial evidence, the manner in which competing
inferences should be resolved, reconciled or
compromised; and the weight and effect to be given to
each permissible inference. From facts found from direct
evidence and inferred from circumstantial evidence, the
trier of fact should proceed, keeping in mind the relative
strength and weakness of each inference and finding, to
decide the ultimate question of whether this body of
preliminary facts excludes every reasonable hypothesis
of innocence.
State v. Chism, 436 So.2d 464, 469 (La.1983).
As noted above, the jury herein found Ms. Buteaux guilty of three
counts of theft, which La.R.S. 14:67(A) defines as:
the misappropriation or taking of any thing of value
which belongs to another, either without the consent of
the other to the misappropriation or taking, or by means
of fraudulent conduct, practices, or representations. An
intent to deprive the other permanently of whatever may
be the subject of the misappropriation or taking is
essential.
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In reviewing the jury’s verdicts, we are not required by constitutional law to
determine whether we believe that the evidence establishes guilt beyond a
reasonable doubt or even whether we believe the witnesses. Jackson, 443 U.S.
307; State v. Mussall, 523 So.2d 1305 (La.1988). Discretion in determinations of
credibility is vested in the jury, which may accept or reject testimony within the
bounds of rationality, and we will only impinge upon its discretion “to the extent
necessary to guarantee the fundamental protection of due process of law.”
Mussall, 523 So.2d at 1310. Rather, we are charged in this case with reviewing the
record to determine whether the evidence and the reasonable findings and
inferences permitted by that evidence were sufficient to exclude every reasonable
hypothesis of innocence. Chism, 436 So.2d 464.
To support the convictions, the State had to prove (1) a taking (2) of a
thing of value (3) that belongs to another, (4) with the intent to permanently
deprive the other of the thing. Through the admission of the computer-generated
daily reports from the cash registers, the daily reconciliation sheets, and the daily
deposit slips, the State presented sufficient proof that thousands of dollars were
taken from the store from January 1, 2011, through April 31, 2013, and never
returned. This in uncontroverted. What is in question is the identity of the
perpetrator.
Our review of the record reveals that the perpetrator of the theft was
proven by findings and inferences permitted by the evidence that, for the three
years discussed above, Ms. Buteaux had almost exclusive access to the cash and
checks in the safe and admittedly prepared the daily deposits and handwritten
reconciliation sheets for that time period. From January 2010, to July 2011, her
monthly bank statements consistently and substantially exceeded her reported
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income. In an effort to explain why there was significantly more money in her
account than her reported income, Ms. Buteaux testified that her son and sisters,
who did not testify at trial, and her boyfriend, who was deceased at the time of
trial, gave her money.
At trial, Mr. Musso was questioned about other employees’ access to
the cash deposits, and he testified that no other employee had access to the cash
deposited in the safe or prepared the cash deposits or reconciliation sheets. This
fact was not refuted by Ms. Buteaux who testified that only she and Ms. Musso
prepared the cash deposits and had access to the cash drop part of the safe. She
further admitted that she filled out the daily reconciliation sheets and corrected the
sheets prepared by Ms. Musso in her absence.
Moreover, the evidence showed the discrepancies between the
computer-generated revenue statements and the deposits, while at the same time
revealing the consistencies between the actual deposits and the reconciliation
sheets prepared by Ms. Buteaux. The consistencies were not present, however,
when Ms. Musso prepared the reconciliation statements, and any overages were
only rectified when Ms. Buteaux returned and corrected Ms. Musso’s calculations.
The testimony and evidence further demonstrated how daily
computer-generated shift change reports would have documented as well as alerted
both Ms. Buteaux and Ms. Musso if any “cashier was short.” And the
discrepancies at issue herein were clearly evident when comparing the daily
deposits, over which the cashiers had no control, to the difference between the
computer-generated revenue minus the paid-outs and charged amounts. There is
no dispute that the paid-ins were not supposed to be calculated in the reconciliation
sheets under the Shell formula, and yet Ms. Buteaux admitted that she continued to
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include that figure in her daily reconciliations. Her only explanation was that she
was never told not to include it. Significantly, though, the amount that should have
been deposited under the Shell formula and the actual deposits did not line up until
Ms. Musso took over the preparation of the daily reconciliation sheets and omitted
the previously included paid-in figures.
After hearing all the testimony, the jury apparently did not credit Ms.
Buteaux’s testimony and likewise rejected the defense’s theory that the owners of
the convenience store conspired to report loss of money by theft for the sole
purpose of collecting insurance money. It was well within the jury’s discretion to
make these rational determinations based on the evidence and testimony.
Viewing the evidence in a light most favorable to the prosecution, we
find that, though circumstantial, the evidence was sufficient for the jury to find the
essential elements of the crime of theft perpetrated by Ms. Buteaux and that the
State negated all reasonable hypothesis of innocence. Accordingly, we conclude
that the evidence was sufficient to support an ultimate finding by the jury that the
reasonable findings and inferences permitted by the evidence exclude every
reasonable hypothesis of innocence, and, therefore, the evidence was sufficient to
sustain the verdict of three counts of theft beyond a reasonable doubt.
V.
CONCLUSION
For the foregoing reasons, we affirm Ms. Buteaux’s convictions and
sentences, but remand this matter to the trial court for the establishment of a
payment plan for the $89,186.63 restitution with instructions that this plan may
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either be determined by the trial court or by the Office of Probation and Parole
with approval by the trial court.
AFFIRMED AND REMANDED WITH INSTRUCTIONS.
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