Submitted on Briefs: May 24, 2017
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
Appellant: Dana A. Henkel, Terrazas Clark Henkel, P.C.,
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.
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
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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 ...