State of Missouri, Plaintiff/Respondent v. Anthony Umbertino

In the Missouri Court of Appeals
Eastern District
DIVISION FIVE
STATE OF MISSOURI, ) No. ED102418
)
Plaintiff/Respondent, ) Appeal from the Circuit Court of
) St. Louis County
vs. )
)
ANTHONY UMBERTINO, ) Hon. Michael D. Burton
)
Defendant/Appellant. ) FILED: April 5, 2016
OPINION
Anthony Umbertino appeals the trial court’s judgment after a jury convicted him
of felony stealing. We affirm.
Background
Umbertino was the long-time police chief of the City of Charlack. In 2007, he
was given the additional position of city administrator, i.e., the City’s chief financial
officer. In that role, Umbertino was authorized to write checks from City accounts, had
access to signature stamps and a City credit card, and worked with the City’s accountant
on payroll.
On multiple occasions between 2008 and 2012, Umbertino instructed the
accountant to manipulate his pay schedule and issue him several pay advances resulting
in salary overpayments totaling over $20,000. Umbertino also collected compensation in
the form of vacation buyouts (i.e., payment in lieu of paid vacation time) exceeding his
accrued vacation time. During the same period, Umbertino used a City credit card to pay
for personal expenses while on vacation in Hawaii. The State charged Umbertino with
one count of felony stealing and one count of public servant acceding to corruption for
obtaining personal loans from the City.
At trial, Sergeant David Bauer testified that Umbertino’s conduct was discovered
when Umbertino provided Bauer with credit card statements evidencing misconduct by
the City’s mayor. Bauer subsequently remitted the records to the prosecutor, who asked
Bauer to open an investigation into Umbertino’s own use of the City’s credit card. When
Bauer interviewed Umbertino about the Hawaii charges, Umbertino claimed that he had
misplaced his personal credit card, so he used the City’s card while on vacation and then
paid off the charges on his return using funds borrowed from the City in the form of an
employee loan, though Umbertino had previously told Bauer that it was illegal for public
officials to receive employee loans.
Bauer also testified about internal memoranda revealing that Umbertino instructed
the City’s accountant to issue him paychecks months in advance. The State’s expert,
Karen Laves, testified that, between 2007 and 2012, Umbertino received seven extra
paychecks that did not correspond to vacation or overtime. She also testified that, in 2007
and 2008, Umbertino collected vacation pay 98 hours in excess of his accrued time.1 At
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We are unable to decipher from the record, filed without exhibits, the precise total that
Umbertino collected in excess of that to which he was entitled. For example, Ms. Laves testified
that, based on certain assumptions, the amount corresponded to a negative balance of 418
vacation days, but she also conceded, based on other assumptions, that Umbertino did not collect
excess vacation pay if annualized over the period. Laves did observe, however, that, Umbertino’s
personal bank account balance was nominal or overdrawn each time he collected vacation pay.
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the close of the State’s evidence, Umbertino moved for acquittal on the second count
(public servant acceding to corruption), and the trial court dismissed that count.
In his defense on the remaining count (felony stealing), Umbertino called expert
John McGowan to opine whether the pay advances were excess compensation or rather
loans. The State objected on the basis that the inquiry called for a conclusion on the
central question whether fraud had occurred. The trial court sustained the objection to
the extent that McGowan might describe the payments as loans because such an opinion
invaded the province of the jury; but the court permitted McGowan to testify about basic
accounting principles governing the characterization of pay advances as receivables.
At the close of evidence, Umbertino requested a jury instruction for a claim-of-
right defense permitting the jury to find that Umbertino honestly believed that he had a
right to retain the City’s funds. The trial court denied that instruction.
The jury found Umbertino guilty of felony stealing. The trial court sentenced him
to five years in prison but suspended execution of sentence and placed Umbertino on
probation with conditions that he complete 120 days of shock time and pay full
restitution.
Umbertino appeals and asserts that the trial court abused its discretion by (1)
refusing to instruct the jury on his claim-of-right defense, (2) admitting evidence that
Umbertino used the City’s credit card for personal expenses, and (3) precluding
McGowan’s testimony as to whether Umbertino committed fraud.
Our standard of review for all three of Umbertino’s points is the abuse-of-
discretion standard. Generally, an abuse of discretion occurs when a ruling is clearly
against the logic of the circumstances and is so arbitrary and unreasonable as to shock
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one’s sense of justice and indicate a lack of careful consideration. State v. Johnson, 207
S.W.3d 24, 40 (Mo. 2006). Where reasonable persons can differ about the propriety of
the action taken by the trial court, no abuse of discretion will be found. Id. The defendant
bears the burden of showing a real probability that he was prejudiced by the abuse of
discretion. Id.
Analysis
Jury Instruction
For his first point, Umbertino asserts that the trial court abused its discretion by
rejecting his proposed jury instruction on a claim-of-right defense. That defense, codified
in §570.070, provides that a person does not commit the offense of stealing if, at the time
of the appropriation, he acted in the honest belief that (1) he had the right to do so or (2)
the owner, if present, would have consented to the appropriation. §570.070.1. The
burden of injecting the issue rests on the defendant. §570.070.2.
“In determining whether a refusal to submit an instruction was error, ‘the
evidence is viewed in the light most favorable to the defendant.’” State v. Pulley, 356
S.W.3d 187, 192 (Mo. App. E.D. 2011). “If the evidence tends to establish the
defendant’s theory, or supports differing conclusions, the defendant is entitled to an
instruction on it.” Id. “The issue is not submitted to the trier of fact unless supported by
the evidence.” State v. Quisenberry, 639 S.W.2d 579, 583 (Mo. banc 1982). “The burden
on the defendant to ‘inject the issue’ of claim of right includes adducing evidence of facts
from which, in the context of the entire case, the honesty of his belief can reasonably be
inferred. State v. Smith, 684 S.W.2d 576, 580 (Mo. App. S.D. 1984). “The naked
assertion of an honest belief in a legal right, unsupported by any evidence of facts or
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circumstances from which such a belief might reasonably be inferred, is insufficient to
raise the issue. Id.
In Smith, the defendants, charged with stealing a car, presented a theory of
defense that they were test-driving the car and intended to return it. In rejecting their
claim-of-right instruction, the court reasoned that the premise of the instruction - an
honest belief that they were entitled to keep the car - was inconsistent with their claim
that they intended to return it. Id. at 581. Similarly here, Umbertino presented the theory
that no one in the City knew precisely what he “was supposed to actually be earning by
way of salary,” so a jury could reasonably infer that Umbertino had an honest belief that
he was entitled to the extra checks. But, as in Smith, this theory is inconsistent with
evidence that Umbertino pledged to repay the salary advances (i.e., to “return the car”) by
forfeiting later paychecks. Umbertino’s own correspondence to the City’s accountant
confirms this.2 “Obviously, if defendants intended to return the vehicle, they could not
claim they were keeping it under a claim of right.” Id. Likewise here, given the clear
evidence in the record that Umbertino took pay advances with the purported intention to
repay them, he could not also claim that he had a right to keep them.
The trial court did not abuse its discretion in rejecting Umbertino’s claim-of-right
instruction. Point I is denied.
2
In fact, the accountant’s testimony, supported by Umbertino’s correspondence to her,
established that Umbertino repeatedly demanded early paychecks that he never restituted, while
the City’s coffers lacked sufficient funds to pay other employees and third parties in a timely
manner. In 2010, Umbertino wrote, “The gas bill has not been paid since January. … The total
bill is now over 17K.” Additionally, Umbertino instructed the accountant to withhold payments
to the municipal judge and prosecutor within two weeks after he directed her to issue himself the
remaining $450 balance on a $2,500 loan from the City.
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Evidence of Misuse of the City’s Credit Card
For his second point, Umbertino contends that the trial court abused its discretion
by allowing the State to adduce evidence that he used the City’s credit card for personal
expenses while on vacation in Hawaii. Specifically, Umbertino claims that this was
evidence of uncharged wrongdoing adduced to establish a propensity to commit crime
and therefore inadmissible.
The State responds that the evidence of Umbertino’s credit card use was relevant
to the charge of acceding to corruption by accepting a personal loan from the City. The
State also notes that Umbertino did not preserve this point, so this court should review
only for plain error. Rule 30.20 permits this court to consider plain errors affecting
substantial rights when we find that the error resulted in manifest injustice or a
miscarriage of justice. We find no error, manifest injustice, or even abuse of discretion
here.
The evidence pertaining to Umbertino’s use of the City’s credit card, adduced
through Sergeant Bauer, was relevant to the State’s case in chief as originally charged in
the information. The credit card evidence pertained to: how the State came to investigate
Umbertino initially; what vacation time was taken or paid (or both, as alleged); and, most
importantly, whether Umbertino borrowed money from the City in the form of an
employee loan, which Umbertino knew to be illegal for public officials. This was central
to the charge of acceding to public corruption. The fact that this count was subsequently
dismissed does not render the evidence inadmissible retroactively. See State v.
Pippenger, 708 S.W.2d 256, 268 (Mo. App. S.D. 1986) (evidence relevant to charge on
which defendant was acquitted was not retroactively inadmissible). Point II is denied.
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Exclusion of Expert Testimony as to Commission of Fraud
For his third point, Umbertino asserts that the trial court abused its discretion by
precluding expert McGowan’s opinion as to whether Umbertino’s extra paychecks
constituted fraud or merely a poorly recorded loan. The State counters that the ruling was
proper because the question invited a conclusion on the ultimate issue before the jury.
“Every expert opinion to a certain extent ‘invades’ the province of a jury in the
sense that it constitutes a conclusion gathered from facts.” State v. Pickens, 332 S.W.3d
303, 321 (Mo. App. E.D. 2011), citing State v. Pagliano, 319 S.W.2d 613, 623 (Mo.
1958). “[T]he general purpose of expert testimony is to assist the jury in areas that are
outside of everyday experience or lay experience.” Id. A court should not admit an
expert’s opinion “unless it is clear that the jurors themselves are not capable, for want of
experience or knowledge of the subject, to draw correct conclusions from the facts
proved.” Id. If the subject is one of everyday experience, where the jurors are competent
to decide the issues, then opinion testimony is properly rejected. Id. For instance, “the
expert may not express an opinion as to the guilt or innocence of the defendant. To do so
would usurp the decision-making function of the jury.” Id. at 322. (internal citations
omitted)
The record reveals that the trial court respected the foregoing principles. After a
thorough sidebar exchange with counsel on this line of questioning, the court allowed
McGowan to explain how, under general accounting rules, a pay advance should be
recorded as a receivable rather than as an expense. However, the court prohibited
McGowan from characterizing the payments as loans or opining whether Umbertino
possessed the intent to permanently deprive the City of funds, as such a conclusion
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constituted an opinion on the defendant’s guilt or innocence and thus usurped the
decision-making function of the jury. We find no abuse of discretion in the trial court’s
careful resolution of the issue. Point III is denied.
Conclusion
The trial court’s judgment is affirmed.
_________________________________
Lisa Van Amburg, Chief Judge
Mary K. Hoff, J., and
Roy L. Richter, J., concur.
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