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State v. Buteaux

Court of Appeals of Louisiana, Third Circuit

March 14, 2018



          COUNSEL FOR: Plaintiff/Appellee - State of Louisiana M. Craig Colwart St. Mary Parish Indigent Defender Board

          COUNSEL FOR: Plaintiff/Appellee - State of Louisiana M. Bofill Duhé W. Claire Howington

          COUNSEL FOR: Defendant/Appellant - Tanya Buteaux Richard Allen Spears

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.


         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.



         Ms. Buteaux raises only one issue on appeal:

whether the evidence was sufficient to support a guilty verdict on all three counts of theft?



         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]

         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 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- 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 ...

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