A La Plata County Sheriff’s Office investigator pleaded guilty this summer to embezzling more than $16,000 from a charity formed in honor of his 5-year-old daughter, who died in 2012 after ingesting a lethal dose of cough medication.
Michael Brown, 40, of Durango, took a plea deal for charges of charitable fraud on July 29. If he completes the conditions of his settlement – which includes $16,600 in restitution, 75 hours of community service and two years probation – the case will be dismissed and removed from his record.
The case was brought to the Herald’s attention this week through an anonymous tip delivered by mail.
Brown’s daughter, Kimber, was found dead Feb. 12, 2012, at her grandmother’s home in Hermosa from a drug overdose of two over-the-counter cough medications.
Though no criminal charges were filed, a La Plata County coroner determined the combination of the two drugs, which exceeded 2½ times the recommended dosage, led to her death.
Not long after, the Brown family formed the Kimber Foundation, which was intended to provide scholarships to young girls who wanted to pursue dance through a number of fundraising events, the largest of which was a golf tournament every year in October.
But in winter 2014, a charge was filed with the Colorado Bureau of Investigation that claimed between Aug. 2013 and Dec. 2014, Brown took money from the Kimber Foundation to use for his own personal expenses.
Because the case involved a La Plata County employee, it was transferred to the Mesa County District Attorney’s Office. Chief Deputy District Attorney David Waite, who prosecuted the case, told The Durango Herald on Tuesday it’s difficult to say just how many people were victims of the fraudulent charity.
“A lot of people thought they were doing a good thing for a fund to be used for a certain purpose, and it was not used for that purpose,” Waite said.
Waite said an investigation determined Brown did not use the money for extravagant expenditures.
Instead, funds intended for young women’s scholarships in his daughter’s honor went to personal and family expenses.
Robert Duthie, Brown’s defense lawyer, claimed the Kimber Foundation’s use was never clearly defined, which led Brown to believe he could use the money for whatever he deemed fit.
Duthie said his client was diagnosed with major depression in 2014, and has since been enrolled in therapy.
“He 100 percent did not believe what he was doing was illegal,” Duthie said. “But he certainly did not do the right thing. I guess, technically, he did use the funds for personal use, and that was inappropriate.”
In a February 2015 statement provided by Duthie, Brown said it has been a struggle for him to remain strong and help his family to move on from the death of their 5-year old daughter.
“While trying to accomplish this I made certain financial decisions which I never thought were illegal,” Brown wrote.
“In no way did I ever intend to defraud anyone who contributed to the fund in an attempt to help keep Kimber’s name alive while helping my family heal from this tragedy.”
Brown was not arrested or given jail time, Waite said, because he had no criminal history, posed no flight risk and was not a threat to the community.
“We actually have a preference to handle things by summons if there’s no concern about a flight risk or violence or things that might put the community at risk,” Waite said. “In this case, he was a former sheriff’s deputy, not going anywhere.”
Waite said Brown was not given special treatment because he was a Sheriff’s Office employee. He said during court hearings, Brown showed signs of depression and remorse, and jail time would not have been appropriate in this circumstance.
“It didn’t look to me like jail time would accomplish anything,” he said.
“But he should have known better, having probably dealt with similar cases I’m sure. He needs to be held to a higher standard. Law enforcement needs to know better than to do what he did.”
Dan Recht, an experienced trial lawyer on the Front Range, said charitable fraud cases can go either way: A defendant can either be suffering from depression and fall into bad practices – or can be callously and calculating stealing the money.
“Is it a sweet deal he got, certainly,” Recht said.
“But I can imagine a case where he loses his daughter, falls into a deep depression, is having trouble living life, and in the course of all that uses some money to get by.
“It seems like a very good deal, but not an unusual deal or anything that would reflect some kind of favoritism for a sheriff’s deputy,” Recht continued.
“But these cases vary so greatly.”
All money remaining in the Kimber Foundation, and Brown’s restitution, will be directed toward appropriate charities.
The Kimber Foundation has since dismantled.
The La Plata County Sheriff’s Office provided a statement late Tuesday after being contacted by The Durango Herald, which said Brown was placed on administrative leave in November 2014 shortly after allegations arose about potential criminal activities. The sheriff’s office then conducted an internal investigation, which led to Brown’s termination in January 2015.