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State v. Manning

Supreme Court of Vermont

September 29, 2017

State of Vermont
Gregory Manning

         On Appeal from Superior Court, Windsor Unit, Criminal Division Theresa S. DiMauro, J.

          Heidi W. Remick, Windsor County Deputy State's Attorney, White River Junction, for Plaintiff-Appellee.

          Matthew F. Valerio, Defender General, and Dawn Matthews and Marshal Pahl, Appellate Defenders, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          REIBER, C.J.

         ¶ 1. This appeal stems from an embezzlement case concerning four missing bank deposits defendant was entrusted to make for his employers. Following his jury conviction on a single count of embezzlement, in violation of 13 V.S.A. § 2531(a), defendant argues on appeal that: (1) the State's failure to preserve potentially exculpatory video evidence should have resulted in the trial court dismissing the charge or at least barring the State from presenting testimony concerning the video recordings in question; (2) the State's closing argument impermissibly shifted the burden to him to preserve the video evidence and improperly impugned his defense; and (3) given his continuing claim of innocence, the sentencing court's probation condition requiring him to complete a particular program in which he would have to accept responsibility for his crime was not individually tailored to his case and thus constituted an abuse of the court's discretion. We affirm.

         ¶ 2. The record reveals the following facts. Defendant worked at the Corner Stop Mini Mart, located in Royalton, Vermont, for several years leading up to the incidents in question. He was a trusted employee and friend of the couple who owned the Mini Mart. As a trusted employee, he was responsible at times for making the store's bank deposits, including night deposits, at the local bank.

         ¶ 3. At the end of each shift, cashiers at the Mini Mart counted the money in the drawer, noted how much was in cash, change, and checks, and filled out a deposit slip. The money and deposit slip were then placed in a zippered bag to be deposited at the bank. A daily sales report was kept by the store for bookkeeping purposes. On days that defendant worked, he would take deposits to the bank. Otherwise, the cashier would drop the bag in the store's drop safe, and one of the store's owners would make the deposit. Defendant was the only employee allowed to make after-hours bank deposits.

         ¶ 4. At some point between mid-November and December 2013, the store owner who did the bookkeeping noticed a missing deposit. Due to the date of the deposit, October 26, she was not concerned because she thought it would appear on the November statement. When the deposit did not appear, she called the bank to inquire about the missing deposit. Soon thereafter, she noticed a second missing deposit, dated November 27. Several weeks later, she discovered two more missing deposits from December 14, 2013 and January 2, 2014. Defendant was working on all four dates and thus would have been responsible for taking the deposits to the bank. The four missing deposits totaled over $10, 000: $2302 from October 2013, $2554 from November 2013, $3153 from December 2013, and $2077 from January 2014.

         ¶ 5. The bank made an initial search for the missing deposits, but found no record of the deposits on the dates in question or the days immediately after those dates for either the Mini Mart account or any other account. In early January 2014, the regional security manager for the bank began investigating the missing deposits. After reviewing security camera footage, she did not observe defendant on October 26, 2013;[1] however, footage from the other three dates appeared to show defendant approaching the after-hours drop box with the deposit bag, but then either holding the bag in the box and withdrawing it or placing the bag in his coat before putting an empty hand in the box.

         ¶ 6. At the security manager's invitation, she, a Royalton police officer, the store owners, and defendant watched the camera footage from the November and December incidents together. Regarding the November deposit, defendant claimed he was having trouble with the deposit box, and the bag would not drop in properly. He alleged he returned to the bank a day later to make the deposit in person with a teller.[2] Defendant's wife testified at trial that she accompanied defendant the Friday after Thanksgiving to make the November deposit. Regarding the December deposit, defendant claimed that two money bags were stuck together, one of which was empty, and that he pulled back only the empty bag out of the deposit box while dropping in the one containing money.

         ¶ 7. After viewing the camera footage of the night deposits, defendant requested in writing that security videos be preserved for the night deposit on November 27 and 28 and for the entire day on November 28 and 29, as well as December 14 and 16. The security manager replied in writing that the federal Gramm-Leach-Bliley Financial Privacy Act prohibited the bank from honoring his request without a subpoena. Defendant never provided the bank with a subpoena.

         ¶ 8. In February 2014, the security manager and the Royalton police officer reviewed the internal bank camera footage from November 29 and 30. The officer testified that he did not seek a warrant to obtain copies of the footage because he "did not see the defendant come into the bank and give the deposit to a teller" like the defendant stated he did.

         ¶ 9. In early March 2014, the Royalton officer learned of the missing January deposit and contacted the bank to see if there was any relevant camera footage. The bank produced security footage that showed defendant walking to the night depository and then walking away without depositing anything. Regarding that incident, defendant testified that he had issues ...

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