Kendra Katrise Deshazer v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-211

DIVISION II

CACR05-211

October 26, 2005

KENDRA KATRISE DESHAZER AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR03-3161; CR04-2579]

V. HON. BARRY SIMS, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Kendra Deshazer appeals from her convictions for fraudulent use of a credit card and failure-to-appear. She argues that the State's evidence was insufficient to support a conviction on each charge. We affirm both convictions.

This appeal arises from two cases that were tried together in a single bench trial. The first case was CR 2003-3161, in which appellant was charged with fraudulent use of a credit card. The second case was CR 2004-2579, in which appellant was charged with three counts of failure-to-appear. Two of the failure-to-appear charges were based on case number CR 2003-2383 and CR 2003-2486, which were set for plea and arraignment on August 11, 2003. Appellant appeared on those charges, but the matter was reset until August 25, 2003, to allow her to retain an attorney. She appeared on August 25, 2003, and the matter was reset for September 2, 2003, again, so that appellant could obtain an attorney. Appellant again failed to appear on September 2, 2003, and no attorney appeared on her behalf. The third failure-to-appear charge arose after she failed to appear for plea and arraignment in the CR 2003-3161, which had also been set for September 2, 2003.

These cases were tried together and the trial court found appellant guilty of all charges. She was sentenced to serve forty-two months in the Arkansas Department of Correction for fraudulent use of a credit card, and to 120 months on each charge of failure-to-appear. The trial court ordered the sentences for failure-to-appear to run concurrently to each other, but consecutively to the sentence imposed for fraudulent use of a credit card.

I. Fraudulent Use of Credit Card

For her first argument, appellant challenges the sufficiency of the evidence supporting her conviction for fraudulent use of a credit card. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id.

Arkansas Code Annotated § 5-37-207(a)(Supp. 2005) prohibits the fraudulent use of a credit card as follows:

(a) A person commits the offense of fraudulent use of a credit card or debit card, if with purpose to defraud, he or she uses a credit card, credit card account number, debit 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 or debit card is issued.

In general, under the provisions of § 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.

Appellant argues that because the credit card belonged to her sister, there was no evidence that appellant knew that the card was stolen. Thus, she asserts that the State failed to prove that she knew she was not authorized to use the credit card. Her argument is without merit.

The evidence adduced at trial was that, at her sister's direction, appellant used a credit card belonging to Kay Danielson, without Danielson's permission, to pay for extermination services at appellant's sister's house. James Campbell, a Bug Man employee, testified that on August 11, 2000, he responded to a service call from a Nicole Webb at 8117 Winterwood in Little Rock, Arkansas. He identified appellant through a photospread and at trial as the person who met him at the apartment. Campbell said that appellant gave him a credit card to pay for his services, but his office informed him that card was invalid. Campbell stated that appellant telephoned her sister to see if she had another credit card.1 Appellant then gave Campbell another credit card, a card that both appellant and her sister represented to Campbell as belonging to appellant's sister. This card belonged to Danielson. This card was deemed valid by Campbell's office, and appellant signed the ticket as "Kendra Webb." Campbell thereafter performed extermination services at appellant's sister's apartment.

Danielson, who lives in Jacksonville, Arkansas, testified that she had a Visa account that matched the number on the credit card used by appellant. When she received her monthly statement in September 2000, she noticed some unauthorized charges, including a charge for services by Bug Man. She stated that she was the only authorized user of thatVisa account and specifically stated that she had not authorized appellant or Nicole Webb to use her account.

Viewed in the light most favorable to the State, the foregoing evidence constitutes substantial evidence to sustain appellant's conviction for fraudulent use of a credit card. Even if appellant's sister represented to appellant and to Campbell that the card belonged to her, appellant is hard-pressed to argue that she did not know the credit card was stolen, when it did not bear her own name, her sister's name, or the false name that appellant signed, "Kendra Webb." In other words, appellant knew that her sister's name was not on the credit card and therefore, that appellant's own usage was unauthorized, as demonstrated by her act of signing a false name. Accordingly, we affirm appellant's conviction for fraudulent use of a credit card.

II. Failure-to-Appear

Appellant's second argument is that no substantial evidence supports her convictions for failure-to-appear because she had a medical excuse for not appearing in court on September 2, 2003. We hold that this argument is procedurally barred, because appellant did not properly file a motion to dismiss the failure-to-appear charges.

In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. Ark. R. Crim. P. 33.1(b). Further, a defendant's failure to challenge the sufficiency of the evidence as specified in Ark. R. Crim. P. 33.1(b) constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the verdict. Ark. R. Crim. P. 33.1(c); Etoch v. State, 343 Ark. 361, 37 S.W.3d 186 (2001) (holding the defendant in a bench proceeding waived his challenge to the sufficiency of the evidence where he did not make a motion for dismissal at the close of the evidence).

Appellant filed a written motion to dismiss on August 6, 2004, and admitted into evidence copies of faxes proving that she was at the emergency room on September 2, 2003. However, she did not move for dismissal at the close of the evidence or obtain a ruling on her motion to dismiss. At the close of the evidence, the following colloquy occurred:

Court: Call your next witness.

Defense: Your Honor, we don't have any other witnesses on this case.

Court: Okay, on case number 04-2579, I find the defendant guilty as charged.

The parties thereafter directly proceeded to that portion of the trial concerning appellant's fraudulent use of a credit card. Accordingly, because appellant did not object to the sufficiency of the evidence supporting her convictions for failure-to-appear at the close of the State's evidence on those charges, she has waived any objection to the sufficiency of the evidence supporting those charges. Etoch, supra.

Even if we were to reach the merits of appellant's sufficiency argument, we would affirm. It seems clear that appellant sought medical treatment the day of her court appearance. However, the trial court was not required to conclude that was the reason appellant failed to appear. The record shows that appellant's court date had been reset twice so that she could obtain an attorney, that appellant had not obtained an attorney as of September 2, 2003, and that no attorney responded on her behalf when she failed to appear. Thus, the trial court could have concluded that appellant failed to appear because she had not procured an attorney as ordered and that her failure-to-appear was unreasonable.

Affirmed.

Vaught and Roaf, JJ., agree.

1 The record does not indicate the name of appellant's sister.