Shirley Tyus v. State of Arkansas

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CACR02-800

MAY 7, 2003

SHIRLEY TYUS AN APPEAL FROM THE FAULKNER

APPELLANT COUNTY CIRCUIT COURT

v. [CR2001-523]

STATE OF ARKANSAS HONORABLE DAVID L. REYNOLDS,

APPELLEE JUDGE

AFFIRMED

On May 10, 2001, appellant, Shirley Tyus, was charged by information with violation of Ark. Code Ann. § 5-37-207 (Repl. 1997), fraudulent use of a credit card. The information alleged that appellant had used a credit card issued to Thomas Jablonski to obtain property or services without Mr. Jablonski's authorization. The Faulkner County Circuit Court found appellant guilty and sentenced her to three years' probation. The court also ordered appellant to pay restitution and a fine. On appeal, appellant asserts that the trial court erred when it denied her motion to suppress evidence. She also asserts that the trial court erred when it denied her motion to dismiss. We affirm.

At appellant's March 8, 2002, bench trial, Thomas Jablonski testified that in January 2000, he had a Nex Card Visa credit card and that the credit card bill was sent to a P.O. Box that he shared with his mother, Patricia Jablonski. Mr. Jablonski said that upon paying off his credit card balance, he cut up the credit card but failed to cancel it. He testified that since cutting up the credit card, he had not made any purchases with the credit card. Mr. Jablonski stated that in the Spring of 2001, he received a credit card bill listing about $2,000 in recent charges. During his testimony, Mr. Jablonski indicated that he neither knew appellant nor authorized her use of his credit card.

Detective Mike Welch of the Conway Police Department testified that he investigated the fraudulent use of Mr. Jablonski's credit card. He said that during his investigation, he discovered that Mr. Jablonski's credit card had been used to pay a Conway Corporation utility bill for 109 Eve Lane and to purchase hair replacement formula that was delivered to 109 Eve Lane. Detective Welch stated that as part of his investigation he went to 109 Eve Lane, where he made contact with appellant. He stated that his investigation also revealed that Mr. Jablonski's mother once rented the P.O. Box that appellant used as her mailing address. Detective Welch testified that appellant informed him that she had received some assistance with her April utility bill. He said that when questioned about the hair replacement formula, appellant informed him that she had found the hair replacement formula at her door and that some of it had been used. Detective Welch explained that appellant then went inside the residence and retrieved the unused portion of the hair replacement formula shipment. Detective Welch testified that he subsequently placed appellant under arrest when she came to the police station later to obtain a receipt for the hair replacement formula. He said that Mr. Jablonski's credit card was found in appellant's purse during an inventory of appellant's personal effects after her arrest.

Roberta Jones, custodian of the Conway Corporation records, testified that her records indicated that the April utility bill for 109 Eve Lane was paid with a credit card. She further testified that the account number on Mr. Jablonski's credit card matched the account number on the credit card used to pay the utility bill for 109 Eve Lane.

Appellant testified that she lived at 109 Eve Lane with her four children. She stated that although she is separated from her husband, Kenneth Tyus, the utilities remained in his name. During her testimony, appellant asserted that she never possessed Mr. Jablonski's credit card. She also asserted that she neither paid her utility bill with the credit card nor purchased the hair replacement formula with the credit card. Appellant maintained that her April utility bill was paid by a charitable organization. She explained that upon finding the hair replacement formula, she opened the box to see what was inside before placing the box on a shelf in her home.

At her trial, appellant made a motion to dismiss, alleging there was no evidence that she used Mr. Jablonski's credit card. The trial court denied her motion. On appeal, appellant argues that the trial court erred when it denied her motion to dismiss because the evidence was insufficient to support a finding that she used a credit card to obtain property or services without authorization of the credit card holder. A motion to dismiss, identical to a motion for directed verdict in a jury trial, is a challenge to the sufficiency of the evidence. Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002). The right against double jeopardy requires that we consider the challenge to the sufficiency of the evidence before we consider alleged trial error even where the issue was not presented as the firstissue on appeal. Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003).

On appeal of the denial of a motion for dismissal, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Green v. State, supra. 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 resorting to speculation or conjecture. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Gamble v. State, supra.

At the time of appellant's offense, Arkansas Code Annotated Section 5-37-207 (Repl. 1997) provided as follows:

(a) A person commits the offense of fraudulent use of a credit card if, with purpose to defraud, he or she uses a credit card or credit card account number, debt card, or debit card account number to obtain property or services with knowledge that:

(1) The card or account number is stolen; or

(2) The card or account number has been revoked or canceled; or

(3) The card or account number is forged; or

(4) For any other reason his or her use of the card or account number is unauthorized by either the issuer or the person to whom the credit card is issued.

(b)(1) Fraudulent use of a credit card is a Class C felony if the value of all money,goods, or services obtained during any six-month period exceeds one hundred dollars ($100). Otherwise, it is a Class A misdemeanor.

In general, under the provisions of section 5-37-207, it is the use of a stolen, revoked or canceled, forged, or unauthorized credit card that results in a criminal violation. Patterson v. State, 326 Ark. 1004, 935 S.W.2d 266 (1996). Specifically, it is the use of the account numbers on a credit card that gives the plastic card any credit value. Id.

Here, Mr. Jablonski's credit card number was used to pay the utility bill for 109 Eve Lane and to purchase hair formula that was delivered to 109 Eve Lane. Appellant resided at the address in question and rented Mr. Jablonski's mother's old P. O. Box. She also had access to the hair formula. Moreover, Mr. Jablonski's credit card was found among appellant's personal effects. Viewing the evidence in a light most favorable to the State, we conclude that appellant's conviction was supported by substantial evidence.

Appellant also asserts that the trial court erred when it denied her motion to suppress evidence because the State lacked the requisite probable cause to effectuate a warrantless arrest. In reviewing the denial of a motion to suppress evidence, we make an independent examination based upon the totality of the circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Hilton v. State, 80 Ark. App. 401 , 96 S.W.3d 757 (2003). Because the determination of the preponderance of the evidence turns on questions of credibility and the weight to be given the testimony, we defer to the trial judge's superior position in this regard. Reeves v. State, 80 Ark. App. 61, 91 S.W.3d 97 (2002).

Rule 4.1(a)(1) of the Arkansas Rules of Criminal Procedure provides that an officer may make a warrantless arrest if the officer has reasonable cause to believe that the person arrested has committed a felony. Reasonable or probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected. Jones v. State, 348 Ark. 619, 74 S.W.3d 663 (2002). In assessing the existence of reasonable or probable cause, our review is liberal and is guided by the rule that probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Id. On appeal, the legality of an arrest is presumed and the burden is on appellant to establish its illegality. Hilton v. State, supra.

At the suppression hearing, Detective Welch testified that his investigation into the fraudulent use of Mr. Jablonski's credit card revealed that the Conway Corporation utility bill for 109 Eve Lane was paid using Mr. Jablonski's credit card. He also testified that Mr. Jablonski's credit card was used to purchase hair replacement formula that was shipped to 109 Eve Lane. Detective Welch stated that based on this information, he went to 109 Eve Lane where he made contact with appellant. Detective Welch testified that appellant retrieved a box of hair replacement formula from the residence and that several bottles of the hair replacement formula were missing from the box. Detective Welch stated that during his investigation, he discovered that the P.O. Box that appellant used as her address once belonged to Mr. Jablonski's mother. During his testimony, Detective Welch explained that Mr. Jablonski would also receive mail at his mother's P.O. Box. Based on the foregoingtestimony, Detective Welch had probable cause to arrest appellant. Therefore, we affirm.

Affirmed.

Pittman and Roaf, JJ., agree.