June 22, 2012 | Brandon Hubbard (231) 439-9374 – firstname.lastname@example.org | Staff Writer
A jury unanimously found an employee at the Noggin Room restaurant in Petoskey not guilty on four felony embezzlement charges Thursday, following a three-day trial.
Erin Zitka, 29, of Petoskey, and two co-workers were arrested last year when Stafford’s Hospitality vice president David Marvin contacted the Petoskey Department of Public Safety to report an embezzlement between $8,000 to $10,000, which according to court documents, took place between February and July of 2011.
The jury acquitted Zitka on charges of embezzlement — agent or trustee $1,000 or more but less than $20,000, felony with a maximum penalty of five years in prison and/or $10,000 or three-times the amount embezzled; using a computer to commit a crime, a felony with seven years and/or $5,000 reimbursement to government for expenses incurred in relation to the violation; illegal sale/use with a financial transaction device, a felony with a maximum four years in prison and/or $5,000 fine; and using a computer to commit a crime with up seven years and/or $5,000 reimbursement to government for expenses incurred.
In January co-defendant Joshua David Sawinski, 23, of Indian River, pleaded guilty to one count of embezzlement, agent or trustee, $1,000 or more, but less than $20,000, after accepting a plea deal, and was sentenced to serve 12 months in jail, two years probation and 300 hours of community service and pay $5,400 in restitution after pleading guilty to felony embezzlement of more than $1,000 but less than $20,000.
Lori Ann Sheets, 43, of Petoskey, also accepted a plea deal and pleaded guilty to one count of embezzlement, agent or trustee, less than $200, was sentenced to serve 93 days in jail, with credit for one day served, to serve 10 days, 20 days community service work and with 62 days held in abeyance, court records show.
But, the case against Zitka rested on whether or not her manager’s code was knowingly used by the co-defendants in embezzling funds through fake comps on customer bills.
“We showed at trial that her code was used when she wasn’t there and showed that it was used by Josh (Sawinski) when she wasn’t there,” defense attorney Dan Harris, of Petoskey.
“Her code was used 35 consecutive days in a row and the day she was terminated from the Perry (Hotel), she never even worked that day, four other servers used her code,” Harris said.
Although Sawinski testified he left cash on the bar for Zitka, Harris said he completely discredited himself by changing his story multiple times on the stand — to include having never discussed the details of a “fairly complicated embezzlement” with Zitka.
“There is no question the jury did the right thing,” Harris said.
Harris would not comment on whether he thought the case should have been dropped earlier.
However, Jeff Lange, one of the jury members on the trial characterized the case as “unfortunate” and spoke to the News-Review independent of the jury about his personal outrage at the case.
“I was very disappointed that this case ever got this far, because of what it put Erin Zitka through,” Lange said, adding that he didn’t know any of the defendants or staff at Stafford’s.
Lange said he felt the case against Zitka was weak because of its heavy dependence on Zitka’s manager code being used.
“We heard testimony that many of the managers at Stafford’s had given their codes out,” Lange said.
Lange said the prosecution basically based Zitka’s case almost entirely on Sawinski telling a detective that Zitka had knowledge of his using her code, but in the video interview presented, Sawinski was basically adapting any question the detective asked to attempt to be helpful in hopes of a lesser charge.
“It was pretty much worthless,” Lange said of Sawinski’s testimony. “If the detective would have said ‘say your brother is a terrorist,’ he would have said my brother’s a terrorist.”
The Emmet County prosecutor was not immediately available for comment.
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