Wilson v. State

James F. WILSON v. STATE of Arkansas

CA CR 96-600                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
               Opinion delivered February 19, 1997


1.   Evidence -- sufficiency of -- factors on review. -- Where the
     sufficiency of the evidence is challenged on appeal in
     criminal cases, the appellate court views the evidence and all
     reasonable inferences deducible therefrom in the light most
     favorable to the appellee and affirms if there is substantial
     evidence to support the conviction; substantial evidence is
     evidence that is of sufficient force and character that it
     will, with reasonable and material certainty, compel a
     conclusion one way or the other without resorting to
     speculation or conjecture; the fact that some evidence is
     circumstantial does not render it insubstantial. 

2.   Evidence -- appellant believed he was deceiving victims --
     court's decision supported by substantial evidence. -- Where
     appellant believed that he was deceiving his victims by
     telling them that he could pay off the prosecutor and judge to
     keep one victim's son out of jail, and, at the time of his
     arrest, appellant had a check for $3,000 that he believed
     could be drawn on sufficient funds in just a few minutes, the
     trial court found that appellant attempted to take the $3,000
     and that he believed he had accomplished just that at the time
     of his arrest; the evidence was sufficient to support the
     trial court's decision to convict appellant of attempted theft
     by deception.

3.   Sentencing -- appellant actually held in jail for parole
     violation -- defendant not entitled to jail credit on
     subsequent sentence. -- Where appellant was on parole at
     the time of his arrest, and his parole was revoked five days
     later, subsequent to the revocation appellant was actually
     being held for his parole violation and not simply pending a
     trial on the present charge; a defendant is not entitled to
     jail credit on a subsequent sentence for time spent in jail on
     a parole revocation, even if the parole revocation resulted
     from the crime for which he received the subsequent sentence;
     appellant's argument concerning jail credit was without merit;
     the court properly gave appellant five days jail credit.


     Appeal from Pulaski Circuit Court, First Division; Marion
Humphrey, Judge; affirmed.
     William R. Simpson, Jr., Public Defender, by:  Llewllyn J.
Marczuk, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     John B. Robbins, Chief Judge.
     On January 3, 1996, the appellant was tried before the court
and convicted of attempted theft by deception, a Class C felony. 
Appellant was sentenced as an habitual offender to five years in
the Arkansas Department of Correction, with five days of jail
credit.  Appellant contends on appeal that the evidence was
insufficient to support the conviction of theft by deception, and
that the trial court erred in denying him jail credit of 400 days. 
We find no error and affirm.
     Where the sufficiency of the evidence is challenged on appeal
in criminal cases, we view the evidence and all reasonable
inferences deducible therefrom in the light most favorable to the
appellee and affirm if there is substantial evidence to support the
conviction.  Muhammed v. State, 27 Ark. App. 188, 769 S.W.2d 33
(1989).  Substantial evidence is evidence that is of sufficient
force and character that it will, with reasonable and material
certainty, compel a conclusion one way or the other without
resorting to speculation or conjecture.  Wilson v. State, 277
Ark. 43, 639 S.W.2d 45 (1982).  The fact that some evidence is
circumstantial does not render it insubstantial.  Alford v. State,
33 Ark. App. 179, 804 S.W.2d 370 (1991).
     The evidence before the trial court indicated that Nancy
Babb was contacted by a friend who worked at the American Legion. 
Ms. Babb's son was involved in activities that had resulted in
criminal charges being brought against him.  Ms. Babb went to the
American Legion and met with the appellant, James Wilson, who
informed her that he was the director of an organization called
FAMM.  Ms. Babb testified that the appellant told her he was
purchasing land and a home in Cabot for the purpose of operating
a program to keep juveniles out of criminal trouble and jail. 
Appellant told her that her son would have to go through his nine-
month program to stay out of jail.
     Ms. Babb testified that the appellant later contacted her by
telephone, and they met at the American Legion a few more times. 
At appellant's request, Ms. Babb drove him to the prosecutor's
office and the Pulaski County Jail, allegedly for appellant to make
some contacts concerning her son.
     On January 4, 1995, after appellant telephoned her and stated,
"The money's here.  I need you to come up here," Ms. Babb met with
him at the American Legion for the last time.  When Ms. Babb
arrived, her boyfriend, Mike Laneer, and appellant were talking
about Mr. Laneer having money to pay the appellant.  Mr. Laneer
left, and Ms. Babb and appellant discussed how the appellant was
going to help her son stay out of jail.  The appellant told
Ms. Babb that her son would not have to serve any jail time, but
would have to participate in his nine-month program.  He told
Ms. Babb that "it's going to cost you Five Thousand Dollars."  When
she asked how he could guarantee that her son would not go to
prison and asked what all the money was for, the appellant stated,
"part of it will go to the judge, part of it to the prosecutor." 
She asked the appellant if this was an "under the table"
transaction, and the appellant told her it was.  Appellant
pressured Ms. Babb to go to Mr. Laneer's home that night to get
the money, but she told him to call her in the morning.
     The next morning, January 5, 1995, Ms. Babb called Larry
Jegley at the prosecutor's office to tell him what was occurring. 
After she explained everything, Mr. Jegley had North Little Rock
Police Detective Jim Scott contact Ms. Babb.  At one point Ms. Babb
was talking to the appellant when Detective Scott telephoned.  She
informed the detective of the situation and put him on a three-way
telephone call with the appellant, without the appellant being
aware that the detective was monitoring the call.  The appellant
went over the plan step by step, and they arranged to meet at
Mr. Laneer's auto parts store later that morning.
     Detective Scott and Detective David Dallas met Ms. Babb at the
parts store prior to the appellant's arrival.  Ms. Babb worked at
this store as her boyfriend's (Mr. Laneer's) secretary and had an
office with a two-way mirror.  The store was also equipped with a
video and audio monitor.  The detectives positioned the camera so
they could observe the appellant and Ms. Babb prior to his arrival.
     When the appellant arrived, he and Ms. Babb went over the plan
one final time while the detectives listened.  Detective Scott
corroborated Ms. Babb's testimony and further testified that the
appellant explained to Ms. Babb that for five thousand dollars
he would have her son's charges taken care of by paying off certain
officials.  Detective Scott testified that the appellant stated
he would be keeping seven hundred and fifty dollars for himself
and the rest would go to the prosecutors and judges, but never
mentioned any names.  Appellant agreed to accept a check for three
thousand dollars that day and set up a payment plan for the two-
thousand-dollar balance.  Both Ms. Babb and Detective Scott
testified that Ms. Babb wrote the appellant a check for three
thousand dollars, and the appellant wrote out a receipt.  Ms. Babb
gave the check to the appellant and then went out of the store
to her vehicle.  Mr. Laneer, who corroborated this testimony,
informed the appellant to wait fifteen minutes before cashing the
check so Mr. Laneer could transfer sufficient funds into the
account to cover the check.  As the appellant exited the building
the detectives exited the office and arrested him with the check
and the receipt in his possession.
     The appellant contends on appeal that the evidence was
insufficient to support his conviction.  He specifically argues
that he did not obtain anything of value because the check was
"hot," and that he did not deceive the victims (Ms. Babb and
Mr. Laneer) because they knew it was a scam.  While the appellant
cites several cases for his argument that there must be value and
deception, the cases cited deal with theft and theft by deception
that were actually consummated.  The appellant in this case was
convicted only of attempted theft by deception which makes only his
state of mind and what he believed the facts to be the issue, not
whether the check had some actual value, or whether he actually
"deceived" the victims.
     Arkansas Code Annotated section 5-36-103(a)(2) (Supp. 1995),
provides that a person commits theft of property if he "knowingly
obtains the property of another person, by deception or by threat,
with the purpose of depriving the owner thereof."  Arkansas Code
Annotated section 5-36-101(A)(i) and (v) (Repl. 1993), defines
deception as:
       Creating or reinforcing a false impression, including
     false impressions of fact, law, value, or intention or
     other state of mind that the actor does not believe to be
     true[.]
                            *   *   *
       (v) Employing any other scheme to defraud;
Arkansas Code Annotated section 5-3-201(a)(1) and (2) (Repl. 1993)
states:

       (a) A person attempts to commit an offense if he:
       (1) Purposely engages in conduct that would constitute
     an offense if the attendant circumstances were as he
     believes them to be; or
       (2) Purposely engages in conduct that constitutes a
     substantial step in a course of conduct intended to
     culminate in the commission of an offense whether or not
     the attendant circumstances are as he believes them to
     be.  (Emphasis supplied.)
     In this case, the appellant believed he was deceiving the
victims by telling them that he could pay off the prosecutor and
judge to keep Ms. Babb's son out of jail.  At the time of his
arrest, the appellant had a check for three thousand dollars that
he believed could be drawn on sufficient funds in just a few
minutes.  The trial court found that the appellant attempted to
take the three thousand dollars and that he believed he had
accomplished just that at the time of his arrest.  We cannot say
that this evidence was insufficient to support the court's
decision.
     The appellant contends in his second point that the trial
court erred in not giving him 400 days jail credit toward his
sentence.  Appellant argues that, because he was arrested on
January 5, 1995, and was not sentenced until February 14, 1996,
some 405 days later, he was entitled to 405 days jail credit rather
than the 5 days that trial court gave him.
     Arkansas Code Annotated section 5-4-404 (Repl. 1993) provides
that a defendant shall be given credit for time spent in custody
against the sentence for which he is being held for trial. 
However, in this case the court found that the appellant was on
parole at the time of his arrest on January 5, 1995, and his parole
was revoked January 10, 1995.  As the court correctly held, the
appellant was actually being held after January 10, 1995, for his
parole violation and not simply pending a trial on the present
charge.  As the State points out, the supreme court has held that
a defendant is not entitled to jail credit on a subsequent sentence
for time spent in jail on a parole revocation, even if the parole
revocation resulted from the crime for which he received the
subsequent sentence.  Hughes v. State, 281 Ark. 428, 664 S.W.2d 471
(1984).  We find no merit to the appellant's argument concerning
jail credit.
     Affirmed.
     Neal and Roaf, JJ., agree.