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State v. Mary Newman Reopelle

Supreme Court of Montana

August 9, 2017

STATE OF MONTANA, Plaintiff and Appellee,
MARY NEWMAN REOPELLE, Defendant and Appellant.

          Submitted on Briefs: May 24, 2017

         District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-15-177 Honorable Robert L. Deschamps, III, Presiding Judge

          For Appellant: Dana A. Henkel, Terrazas Clark Henkel, P.C., Missoula, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Karla Painter, Deputy County Attorney, Missoula, Montana.


          Laurie McKinnon Justice.

         ¶1 Mary Newman Reopelle (Reopelle) appeals her conviction for felony deceptive practices entered in the Fourth Judicial District Court, Missoula County, following a jury trial. Reopelle raises the following issues on appeal:

1. Whether the court abused its discretion by admitting evidence of Reopelle's prior investigations and convictions for fraudulent deceptive practices.
2. Whether the court abused its discretion in allowing an expert witness to testify over Reopelle's objection that the State's notification was late.
3. Whether the court abused its discretion when it declined to give a proposed jury instruction for misdemeanor theft.

         We affirm.


         ¶2 On January 14, 2015, Cecile Sorensen (Sorensen), an employee at Missoula Federal Credit Union (MFCU), received six checks issued on January 13, 2015, from Academy Bank. The checks, totaling $17, 999.79, were for the following amounts: $2, 999.94, $2, 999.98, $2, 999.99, $2, 999.95, $2, 999.96, and $2, 999.97. The checks were drawn on an account belonging to "Shawn Garvin" and were designated for deposit into Reopelle's MFCU account, which had been recently opened and had a minimal balance of $5. Sorensen thought the check values were suspicious and her manager instructed her to contact Reopelle to see if she was expecting the deposits. Reopelle confirmed she was expecting the checks. Sorensen, while intending to place a hold on the checks until they cleared, accidentally entered improper codes which allowed Reopelle to access the deposits immediately.

         ¶3 On January 15 and 16, 2015, Reopelle withdrew from her MFCU account cash in the amounts of $9, 800 and $7, 500. Next, she deposited most of the funds into an account at Wells Fargo under the name of "Shawn Garvin." The funds were deposited in three denominations: $2, 300, $5, 700, and $7, 500-all on January 16, 2015. On January 20, 2015, Reopelle withdrew an additional $500 from her MFCU account. Academy Bank did not honor the six checks deposited in Reopelle's MFCU account because the Academy account had been closed due to bad check activity. Reopelle explained to MFCU manager, Carrie Schuster (Schuster), that "Shawn Garvin" was her boyfriend, whom she had met on the internet. Reopelle, however, had never met him personally. Reopelle provided Schuster with the receipts for the deposits she had made into the Wells Fargo account.

         ¶4 Missoula City Police Department was notified and Detective Stacy Lear (Detective Lear) obtained a search warrant for Reopelle's residence. Several cell phones, computers, and other electronic devices were recovered. One of Reopelle's cell phones contained a number for "Shawn Garvin." Detective Lear called the number, left a message, and did not receive a response. Reopelle was charged with felony deceptive practices, which was later amended to felony deceptive practices or, alternatively, felony theft.

         ¶5 The State declared it would be introducing evidence of four prior investigations, commencing in 2008, of fraudulent online financial crimes involving Reopelle and two recent misdemeanor convictions for deceptive practices. The first investigation was in July 2008, when Detective Ben Slater (Detective Slater) of the Missoula City Police Department investigated a Nigerian online financial scam involving Reopelle and her attempt to cash a counterfeit check for $3, 800 issued by "Robert Burkhart." Reopelle was considered a victim of the scam and Detective Slater believed he counseled Reopelle, as was his usual practice, on how to avoid being victimized by internet financial schemes.

         ¶6 In 2011, Detective Lear interviewed Reopelle regarding another Nigerian online financial scam in which Reopelle was believed to be involved. Reopelle explained that she was offered a "job opportunity" from "Jim Ray" through an email. The email included a list of names, addresses, and dollar amounts with instructions for Reopelle to fill in the information on blank checks she would be receiving. Reopelle received approximately fifty checks from "Jim Ray, " filled in the amounts as directed, and Reopelle herself received $200 from "Jim Ray." Reopelle gave law enforcement receipts for four wire transfers to Nigeria which totaled $1, 540. Detective Lear cautioned Reopelle about these types of online fraudulent scams and that she should avoid any participation in them in the future. Reopelle was not charged with any offense.

         ¶7 In 2011, a law enforcement agency from New York contacted Detective Lear for assistance in a fraud investigation involving a purported sale of a snow blower by Reopelle to the victim, Regina Sullivan (Sullivan). Sullivan said that she sold a snow blower on Craigslist to Reopelle and received a check as payment. Sullivan received an amount that was more than the cost of the snow blower and was instructed by Reopelle to deposit the check and ...

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