Clemmeth and Janis Leach v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jul 07 2015, 9:34 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Andrew J. Baldwin Gregory F. Zoeller
Franklin, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Clemmeth and Janis Leach, July 7, 2015
Appellants-Defendants, Court of Appeals Case No.
55A01-1410-CR-443
v. Appeal from the Morgan Circuit
Court.
The Honorable Matthew G. Hanson,
State of Indiana, Judge.
Appellee-Plaintiff Cause Nos. 55C01-1206-FC-859
55C01-1206-FD-860
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 55A01-1410-CR-443 | July 7, 2015 Page 1 of 5
[1] Janis and Clemmeth Leach appeal the judgment of the trial court ordering them
to pay $45,238.01 in restitution to Patton Park. Finding that the trial court’s
judgment is supported by sufficient evidence, we affirm.
Facts
[2] In 1998, Janis and Clemmeth Leach moved to Patton Park, a lake community
in Morgan County. A few years later, Janis became the secretary and treasurer
of the Patton Park Homeowner’s Association Board. Residents of Patton Park
pay membership dues each year for the operation and maintenance of Patton
Lake. Janis’s duties included collecting these dues and keeping an account of
all monies received and disbursed.
[3] Around 2007, Janis and Clemmeth started to fall behind on their bills. Janis
began to withdraw money and cash checks from Patton Park’s checking and
savings accounts to cover these personal expenses. Janis also began to spend
dues that members had personally paid to her, or that she had received from the
community’s caretaker, Ron Deetz, without depositing these dues into any of
the community’s accounts. Janis routinely falsified the accounting to make it
look as though everything was normal. Clemmeth, who was spending money
that Janis had taken from the account, assisted Janis in the cover up.
[4] Janis and Clemmeth continued to take money from Patton Park’s checking and
savings accounts until September 2011, when Janis closed both of the accounts
because no money remained. At this point, James Trout, president of the
board, noticed something was wrong and informed Janis that there would be an
Court of Appeals of Indiana | Memorandum Decision 55A01-1410-CR-443 | July 7, 2015 Page 2 of 5
audit. Janis told Trout that she had taken $4,128.37 from the accounts and
wrote a promissory note for that amount. Trout spoke with other members of
the board and they decided not to accept the promissory note, because they
believed Janis owed a greater amount than she had admitted to taking. Janis
was removed from her position as treasurer and she and Clemmeth moved out
of Patton Park in November 2011.
[5] On June 19, 2012, the State charged Janis with three counts of class D felony
theft and one count of corrupt business influence. The State also charged
Clemmeth with one count of class D felony theft. On August 19, 2014, Janis
and Clemmeth each pleaded guilty to one count of class D felony theft. The
plea agreement provided that Janis and Clemmeth would pay restitution to
Patton Park in an amount to be determined by the trial court.
[6] A restitution hearing was held at which the State presented evidence that Janis
and Clemmeth had taken a total of $50,238.01 from the Patton Park accounts.
The trial court reduced this amount by $5,000, after it found that Janis and
Clemmeth had at one point deposited this sum back into the accounts.
Accordingly, the trial court ordered Janis and Clemmeth to pay $45,238.01 in
restitution to Patton Park, for which they were held to be jointly and severally
liable. Janis and Clemmeth now appeal.
Discussion and Decision
[7] We review a trial court’s order of restitution for an abuse of discretion. Rich v.
State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008). An order of restitution must be
Court of Appeals of Indiana | Memorandum Decision 55A01-1410-CR-443 | July 7, 2015 Page 3 of 5
supported by sufficient evidence of the actual loss sustained by the victim. Id.“The amount of actual loss is a factual matter that can be determined only upon
the presentation of evidence.” Id. (quotations omitted). We will affirm if
sufficient evidence exists to support the trial court’s decision. Id.[8] Here, the evidence before the trial court consisted mainly of Deetz’s personal
records as to membership dues he had received from residents that had never
been deposited in Patton Park’s accounts and bank records showing
unauthorized withdrawals by Janis and Clemmeth. State’s Ex. 1-2. Deetz’s
records show that, from 2007-2011, Janis neglected to deposit $14,374.50 worth
of membership dues into Patton Park’s accounts. State’s Ex. 1. The bank
records show that Janis withdrew $35,263.51 from Patton Park’s accounts over
the same period of time. State’s Ex. 2. Trout was called to testify as to his
belief that these withdrawals were unauthorized. Tr. p. 66-67. These amounts
totaled $50,238.01, which the trial court reduced by $5,000 in light of evidence
showing that Janis and Clemmeth had deposited this amount into the accounts.
[9] Janis and Clemmeth only take issue with the veracity of this evidence to the
extent that they question Trout’s certainty as to whether or not certain
withdrawals were authorized. Appellant’s Br. p. 4. They primarily argue that
the trial court failed to consider other evidence before it. They point to
evidence showing that deposits made to the Patton Park accounts from 2007-
2011 totaled $132,007.07. Appellant’s Br. p. 5. They calculate that, based on
the number of members and the amount of dues owed, the most revenue Patton
Park could have earned during that same time was $136,500. Id. at 5-6. Based
Court of Appeals of Indiana | Memorandum Decision 55A01-1410-CR-443 | July 7, 2015 Page 4 of 5
on these calculations, they argue that the most that could possibly be missing
from the accounts was $4,492.93.1 Id. at 6.
[10] However, on appeal, we neither reweigh evidence nor judge witness credibility.
Shady v. Shady, 858 N.E.2d 128, 143 (Ind. Ct. App. 2006). Under an abuse of
discretion standard, we will not reverse the trial court “if there is a rational basis
in the record supporting its determination.” Id. We find that there is such a
basis here, as the trial court had evidence before it that Janis and Clemmeth
misappropriated $50,238.01 for their own use. Janis and Clemmeth argue that
other evidence in the record tends to show this amount is significantly lower.
However, these arguments amount to a request that we reweigh the evidence
and judge witness credibility, which we may not do.
[11] The judgment of the trial court is affirmed.
Najam, J., and Friedlander, J., concur.
1
Janis and Clemmeth speculate that this discrepancy is due to the fact that, while they were taking money
from the accounts, they were also depositing money back into the accounts in an effort to repay what they
were taking. They argue that the State’s evidence fails to consider any money that they may have put back
into the accounts. At the hearing, the State explained:
I don’t think the office calculated back in any money that they said was theirs that they put back
because there’s no way to show whose money it was that was put back into the account, I don’t
know if it was her money or the park’s money.
Tr. p. 93.
Court of Appeals of Indiana | Memorandum Decision 55A01-1410-CR-443 | July 7, 2015 Page 5 of 5