Walter Elvisto Hobbs, II v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

WALTER ELVISTO HOBBS, II

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA01-578

November 7, 2001

APPEAL FROM THE PULASKI COUNTY CHANCERY COURT

JD00-1248

HON. JOYCE WILLIAMS WARREN, JUDGE

AFFIRMED AS MODIFIED

Appellant, Walter Elvisto Hobbs, II, a juvenile, was adjudicated a delinquent after the trial court found that he violated Ark. Code. Ann. § 5-37-302 (Repl. 1997), which is the hot check law. He was ordered to serve one-year probation and to pay restitution for the dishonored checks. Appellant's sole argument on appeal is that the trial court's decision was not supported by substantial evidence. We affirm as modified.

A trial in juvenile court was held on January 17, 2001. Brian Brimer, assistant district manager of Harvest Foods, testified that he was currently at the Chicot Road store, but was not there when the checks at issue were written. He stated that when the store cashes a check, the presenter must show a driver's license with a name that is on the check and initial it. He identified State's exhibits one through four, which were checks that went through the Chicot store, as evidenced by the store number written on the back of the check. The four checks contained the same identification number of the presenter.

The manager of the Cantrell Road Harvest Foods, Michael Lawrence, identified State'sexhibits five and six as checks written at his store. He indicated that although he did not personally receive the checks, he knew that the presenter came to the cashier's booth and wrote them for cash. In order to cash a check, the presenter was required to have a valid driver's license with information matching that on the check. The exhibits contained the license number 906638350.

The State also called Sheryl Miller, the office manager at Arkansas School Pictures. She testified that the company photographers accept checks for school pictures at the time the pictures are taken. Miller did not specifically recognize State's exhibit seven, which was a check written to Miller's School Portrait's for $25 bearing the signature "Walter Hobbs," but she stated it was the sitting fee for the school portrait. She testified that it was company practice to assign the student a sitting number upon payment of the fee before photographs were taken. The sitting number assigned to Walter Hobbs matched the negatives of appellant's school pictures.

The manager of Aaron's Rental Purchase, Kelvin Perry, also testified for the State. Aaron's check policy is to run the check through a check-writing machine and write the account number of the person they are making a payment for on the check. He identified State's exhibit number ten as a check written by Walter Hobbs to Aaron's. The check was for an amount of $130 and was applied to the account of Carol Edwards. He could not testify that Walter Hobbs wrote the check because there was no driver's license number on the check to identify the writer.

Bill Herrell of Driver Services and the keeper of records for the State of Arkansas testified that State's exhibit twelve was an identification number issued by the State of Arkansas to Walter Elvisto Hobbs, II. He stated that the exhibit was only an identification card, and there was no record that a duplicate card was ever issued to Hobbs. The identification number on the card is 906638350. He testified that the identification number was contained on State's exhibits one through six.

Finally, the State called Joe Winesinger, president of United Arkansas Federal Credit Union. He testified that he was familiar with the account of Walter Hobbs. The records indicate that Walter E. Hobbs, born on February 23, 1960, opened a savings account on January 13, 1998. On July 7, 1998, Walter E. Hobbs, II, became a joint owner of the account. That same day, the two opened a checking account. Winesinger testified that they keep a signature card on all active members, which contains a name, social security number, date of birth, and an original signature. When Walter Hobbs, II, became a joint owner on the account, the bank also collected a photocopy of his school identification badge. Because membership in the credit union is restricted, Hobbs, II would not have been able to join unless Walter Hobbs, Sr., who was the existing member, was present. Winesinger brought all of the bank statements from August 1999 through December 1999 when the account was closed. He testified that the bank statements reflected all checks that cleared or were submitted for payment during that time period. The bank closed the account on December 17, 1999, because of NSF checks. There were no reports of forgery on the account. Between August 1999 and December 7, 1999, fifty-seven checks were returned NSF.

At the close of the State's case, appellant moved for directed verdict arguing that the State failed to establish that Walter Hobbs, II, was in fact the person who wrote the checks. The trial court denied the motion. Appellant did not call any witnesses, but did renew his motion for directed verdict, which was deemed denied because the trial court failed to make a ruling. The trial judge found that the State met its burden of proof and that the dishonored checks introduced into evidence amounted to over $800. The court ordered appellant to serve one year of probation and to pay restitution.

In reviewing the sufficiency of the evidence in a juvenile delinquency case, the standard of review is the same as in a criminal case. Pack v. State, 73 Ark. App. 123, 41 S.W.3d 409 (2001). On appeal, a motion for a directed verdict is treated as a challenge to the sufficiency of the evidence.Id. The appellate court reviews a challenge to the sufficiency of the evidence in the light most favorable to the State, considering only that evidence tending to support the verdict, and affirms the lower court's decision if there is substantial evidence to support the conviction. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. The law makes no distinction between circumstantial and direct evidence in a review for sufficiency. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Id. Whether the evidence excludes every such hypothesis is ordinarily for the trier of fact to determine. Id.

Arkansas Code Annotated section 5-37-302(1) provides that it is unlawful:

To procure any article or thing of value, . . . or for any other purpose to make or draw or utter or deliver, with the intent to defraud, any check, draft, or order for the payment of money upon any in-state or out-of-state bank, person, firm, or corporation, knowing at the time of such making, drawing, uttering, or delivering that the maker or drawer has not sufficient funds in, or on deposit with, such bank, person, firm, or corporation for the payment of such check, draft, or order in full, and all other checks, drafts, or orders upon such funds then outstanding[.]

It is prima facie evidence of the maker or drawer's intent to defraud where:

(2)(A)(i) The check, draft, or order bears the endorsement or stamp of a collecting bank indicating that the instrument was returned because of insufficient funds to cover the value; or

(ii) Payment was refused by the drawee for lack of funds, upon presentation within thirty (30) days after delivery, and the maker or drawer shall not have paid the holder the amount due, together with a service charge not to exceed twenty dollars ($20.00), within ten (10) days after receiving written notice that payment was refused upon the check, draft, or order.

Ark. Code Ann. § 5-37-304(a)(2) (Repl. 1997). Where the aggregate amount of all checks written within a ninety-day period exceeds $200 but is less than $2500, violation of the hot check law is a Class C felony. Ark. Code Ann. § 5-37-305(b)(2)(B) (Repl. 1997).

Appellant now contends that there was insufficient evidence to establish that he wrote the dishonored checks at issue. The argument is grounded on the fact that appellant shared the checking account with his father, Walter E. Hobbs, Sr., and the checks were merely signed "Walter Hobbs." In addition, appellant stresses the fact that none of the State's witnesses testified that they actually received the checks from appellant. Because of these facts, appellant suggests that it was entirely possible that appellant's father actually tendered the dishonored checks.

Based on our review, we hold that there was sufficient evidence to sustain the adjudication of delinquency with respect to the Harvest Foods' checks and Miller's School Portraits' check, but not the Aaron's Rental Purchase check.

Brian Brimer of the Harvest Foods on Chicot Road testified that it was routine practice for a person writing a check to show a driver's license that matches a name printed on the check. Four dishonored checks written to the Harvest Foods on Chicot Road contained the identification number on appellant's identification card. Although appellant failed to abstract the checks, the State's brief indicates the amount are as follows: $111.72, $91.04, $31.97, and $45.45. Michael Lawrence from the Cantrell Road Harvest Foods testified that in order to cash a check at his store, the presenter was required to have a valid driver's license with information matching that on the check. The two dishonored checks written to the Cantrell store in the amounts of $30.00 and $55.96 also contained appellant's State identification number.

As for the check written to Miller's School Portraits, Sheryl Miller testified that her company received a $25 check bearing the signature "Walter Hobbs," which was accepted as payment for the sitting fee for school pictures. She testified that it was company practice to assign the student a sitting number upon payment of the fee before photographs were taken. The sitting number assigned to Walter Hobbs matched the negatives of appellant's school pictures.

Unlike the checks written to Harvest Foods and Miller Photography, we hold there is insufficient evidence that appellant presented the dishonored check to Aaron's Rental Purchase. Kelvin Perry, the manager of Aaron's, testified that he did not personally receive the check and that the check was signed by "Walter Hobbs." This dishonored check also did not contain appellant's identification number. A determination that appellant presented or uttered this check could not be made without resort to speculation or conjecture.

In conclusion, we affirm the adjudication of delinquency because there is sufficient evidence that appellant violated the hot check law and that the amount of the checks for which there was sufficient evidence exceeded $200. However, because we hold that the evidence was insufficient to support the Aaron's Rental Purchase check, we modify the restitution order to reflect that appellant owes no restitution to Aaron's Rental Purchase.

Affirmed as modified.

Hart and Baker, JJ., agree