Olukunle Gabriel Adesiyan v. The State of Texas--Appeal from 184th District Court of Harris County

Opinion issued August 11, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00494-CR

OLUKUNLE GABRIEL ADESIYAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 959700

MEMORANDUM OPINION

A grand jury indicted appellant Olunkunle Gabriel Adesiyan for the felony offense of theft of property, aggregated at a total value of greater than $20,000 and less than $100,000. A jury found Adesiyan guilty of the lesser included offense of felony theft of property, aggregated at a total value of greater than $1,500 and less than $20,000, and assessed punishment at two years confinement and a $10,000 fine. Adesiyan contends (1) the trial court erred in denying his motion to quash the indictment; (2) the trial court erred in denying his motion to suppress; and (3) the evidence is legally and factually insufficient to support his conviction. We affirm.

The BackgroundAccountemps, a company that provides temporary financial and accounting professionals, employed Adesiyan. Accountemps placed Adesiyan, an accountant, in a Coca-Cola, Inc. office in Houston. Accountemps required Adesiyan to document the hours that he worked for Coca-Cola on a time sheet, which Accountemps provided to him. Adesiyan then faxed his time sheets to Accountemps each week. After receiving Adesiyan s time sheets, Accountemps paid Adesiyan and billed Coca-Cola for the time Adesiyan worked. Cheryl Munson supervised Adesiyan s work for Accountemps.

Gary Stone, a senior accounting manager at Coca-Cola, was the onsite person designated to approve Adesiyan s time sheets. Stone explained to Adesiyan that, as an employee of Accountemps, Adesiyan was not permitted to work any overtime hours. In February 2003, Coca-Cola s human resources department noticed that two of Adesiyan s time sheets bore similar signatures, purporting to be Stone s, that authorized overtime hours. Human resources informed Stone, and Coca-Cola began an investigation. The investigation revealed that Adesiyan had submitted numerous time sheets containing false information and forged signatures. Adesiyan had used an original time sheet actually signed by Stone, copied it, and then changed the information concerning the hours he had worked to include overtime. Adesiyan faxed these time sheets to Accountemps for payment based on the falsely submitted hours. After discovering the extent of Adesiyan s fraud, Coca-Cola and Accountemps contacted the Harris County District Attorney s Office. Investigators Boethel and Kelly from the district attorney s office met with Stone at the Coca-Cola office on a Friday in an effort to intercept his weekly time sheet facsimile to Accountemps. Stone and the investigators positioned themselves in an office in the accounting area and observed Adesiyan send his time sheet to Accountemps. Stone checked the facsimile machine and confirmed that Adesiyan faxed his time sheet to Accountemps s facsimile number. Stone then requested that Accountemps fax to him and the investigators a copy of the time sheet Adesiyan had just submitted.

After confirming that Adesiyan had faxed Accountemps a time sheet with a fraudulent overtime claim, Stone entered Adesiyan s office, obtained the time sheet Adesiyan had just faxed to Accountemps, and asked Adesiyan to go with him to another office and meet with the investigators. Adesiyan complied. During the initial interview, Adesiyan denied submitting false claims, but admitted that he had faxed the time sheet to Accountemps. Adesiyan told the investigators that Stone had approved his overtime and had signed his time sheet earlier that morning. After the interview, the investigators placed Adesiyan under arrest, allowed him to collect his personal items from his office, and transported him to the district attorney s office. The investigators found a time sheet with Stone s original signature in blue ink, and whiteout liquid in Adesiyan s briefcase.

After Adesiyan responded that he understood his Miranda rights, the investigators further questioned him at the district attorney s office. During this videotaped interview, the investigators presented Adesiyan with the forged time sheets, and Adesiyan admitted that he had copied ten time sheets and submitted approximately $10,000 in unauthorized overtime.

At trial, Munson testified that Accountemps reimbursed Coca-Cola over $20,000 for Adesiyan s falsely submitted time sheets. Munson further testified that Accountemps overpaid Adesiyan $15,000 for regular, holiday, and overtime hours, as well as bonus pay, none to which he was entitled. Adesiyan s pay stubs indicate that, while he worked at Coca-Cola, Accountemps paid him over $10,000 in overtime pay.

DiscussionMotion to Quash the Indictment

Adesiyan contends the trial court erred in denying his motion to quash the indictment because the indictment fails to provide adequate notice of the pending charges. Specifically, Adesiyan contends the indictment (1) fails to specify the method by which he allegedly deceived the complainant, and (2) fails to allege that he appropriated the money without the effective consent of the owner.

We review the trial court s decision to grant a motion to quash for an abuse of discretion. Geter v. State, 779 S.W.2d 403, 404 (Tex. Crim. App. 1989); Jordan v. State, 56 S.W.3d 326, 329 (Tex. App. Houston [1st Dist.] 2001, pet. ref d). A trial court abuses its discretion in denying a motion to quash if the language of the indictment is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988); State v. York, 31 S.W.3d 798, 800 01 (Tex. App. Dallas 2000, pet. ref d). A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Pen. Code Ann. 31.03(a) (Vernon 2003). Appropriation of property is unlawful if it is without the owner s effective consent. Tex. Pen. Code Ann. 31.03(b)(1). Generally, if the Legislature statutorily defines a term, the State need not further allege it in the indictment. Geter, 779 S.W.2d at 405 (citing Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1981)). If the statutory term provides for more than one manner or means to commit that act or omission, however, then, upon timely request, the State must allege the particular manner or means it seeks to establish. Id. at 405 06.

The indictment in this case alleges that Adesiyan:

. . . on or about AND BETWEEN NOVEMBER 10, 2001 AND FEBRUARY 14, 2003, did then and there unlawfully, pursuant to one scheme and continuing course of conduct, appropriate, by acquiring and otherwise exercising control over the property, namely, MONEY, owned by CHERYL MUNSON AND ACCOUNTEMPS, hereafter styled the Complainant, with the intent to deprive the Complainant of the property and the total value of the property appropriated was over twenty thousand dollars and under one hundred thousand dollars.

In Geter, the Texas Court of Criminal Appeals held that in a theft prosecution in which the State relies upon a defendant s act or omission to negate effective consent, the indictment must allege the particular statutory negatives that vitiated consent, else the indictment is subject to a timely motion to quash for lack of notice. 779 S.W.2d at 407. The Legislature has provided that consent is not effective, if it is:

(1) induced by deception or coercion; (2) given by a person the actor knows is not legally authorized to act for the owner; (3) given by a person who because of their youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions; (4) given solely to detect the commission of an offense; or (5) given by a person who, by reason of advanced age, is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property.

See Tex. Pen. Code Ann. 31.01(3) (Vernon 2003).

Here, the State maintains that Adesiyan never had consent to work overtime, and thus section 31.03 never came into play. Adesiyan responds that only the overtime was allegedly unauthorized, and the indictment fails to distinguish between regular hours and overtime hours or even to mention the means of committing the theft at all.

Even assuming that Adesiyan is correct that the indictment fails to convey a requisite item of notice to obtain a reversal of his conviction, Adesiyan must also show that the State s failure to give that particularized notice impacted his ability to prepare his defense. Geter, 779 S.W.2d at 407. In his briefing to this court, Adesiyan fails to address whether the alleged defect the failure to provide the precise theory of deception prejudiced his defense. We therefore conclude that Adesiyan has failed to show harm from the trial court s denial of his motion to quash the indictment. See id.

Motion to Suppress Illegal Arrest

Adesiyan contends the trial court erred in denying his motion to suppress the facsimile copy of his forged time sheet and his videotaped interview at the district attorney s office because they are the fruits of an illegal arrest. Specifically, Adesiyan contends the officers had no warrant and lacked probable cause to arrest him. Adesiyan based his motion to suppress on federal and state constitutional grounds, as well as on a state statutory ground. U.S. Const. amends. IV, V, VI, XIV; Tex. Const. art. I, 9, 10, 19; Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). //

In reviewing a trial court s ruling on a motion to suppress, we apply the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer to a trial court s determination of historical facts and review de novo the trial court s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman, 955 S.W.2d at 88 89). If the issue involves the credibility of a witness, we defer to a trial court s ruling, as a trial court is in a better position to evaluate the credibility of witnesses before it. Guzman, 955 S.W.2d at 89. If the trial court is called upon to apply the law to the facts, and the ultimate resolution of the issue does not turn on an evaluation of the credibility and demeanor of a witness, we review the issue de novo. Id. at 89.

A warrantless arrest without probable cause is illegal, and the lack of probable cause is not cured by the subsequent discovery of incriminating evidence. See Wilson v. State, 621 S.W.2d 799, 804 (Tex. Crim. App. 1981); see also Givens v. State, 949 S.W.2d 449, 451 (Tex. App. Fort Worth 1997, pet. ref d). If an accused makes a state constitutional argument, then the proper inquiry is the reasonableness of the seizure under the totality of the circumstances. State v. Steelman, 93 S.W.3d 102, 106 n.5 (Tex. Crim. App. 2002). On the other hand, if an accused makes a statutory argument, the proper inquiry is whether (1) probable cause exists with respect to that individual, and (2) the arrest falls within a statutory exception. Steelman, 93 S.W.3d at 107 (citing Beverly v. State, 792 S.W.2d 103, 104 05 (Tex. Crim. App. 1990)). One such statutory exception, article 14.01(b), provides that [a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). In applying this statute, the Texas Court of Criminal Appeals has held:

The test for probable cause for a warrantless arrest under [article 14.01(b)] is whether at that moment the facts and circumstances within the officer s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.

Steelman, 93 S.W.3d at 107 (some punctuation omitted). An offense is deemed to have occurred within the presence or view of an officer when any of his senses afford him an awareness of its occurrence. Id. (citing Clark v. State, 35 S.W.2d 420, 422 (Tex. Crim. App. 1931)). The information afforded to the officer by his senses must give him reason to believe that the particular suspect committed the offense. Id. (citing Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993)).

Here, the trial court found that Investigators Boethel and Kelly, along with Stone, watched Adesiyan send his time sheet to Accountemps a time sheet that bore Stone s forged signature and authorized unapproved overtime hours not worked. The trial court further found that Stone entered Adesiyan s office, obtained the forged time sheet and facsimile confirmation page, and handed these two documents to the investigators. The investigators then introduced themselves to Adesiyan, identified themselves as law enforcement officers, and explained to Adesiyan why they were speaking to him. Based on Adesiyan s evasive answers and the forged time sheet, the investigators read Adesiyan his Miranda warnings and placed him under arrest for theft of property.

Adesiyan concedes that the record suggests that he did not have the effective consent of Accountemps to work the hours listed on his time sheet. Adesiyan contends, however, that at the time of his arrest, the investigators were unaware that Accountemps had not given Adesiyan consent to work the hours he stated on his time sheet. Adesiyan contends that information learned or acquired after an arrest or search cannot be used to justify the search. Adesiyan cites Bumper v. North Carolina, 391 U.S. 543, 549, 88 S. Ct. 1788, 1792 (1968), and Scott v. State, 531 S.W.2d 825, 827 (Tex. Crim. App. 1976) to support this contention.

The record reveals, however, that, before Adesiyan s arrest, Investigators Boethel and Kelly met with Stone, Munson, and the district attorney to discuss Adesiyan s forgery. Stone had collected Adesiyan s time sheets and presented this evidence to Accountemps and the district attorney s office. Stone provided the district attorney s office with this information before the day they observed him send a forged time sheet to Accountemps. Thus, the investigators possessed information in addition to observing Adesiyan fax his time sheet to Accountemps.

Deferring to the trial court s findings of historical facts, we conclude that the investigators were authorized to arrest Adesiyan without a warrant. First, the investigators witnessed Adesiyan commit theft. See Tex. Code Crim. Proc. Ann. art. 14.01(b). Second, considering the totality of circumstances, the investigators possessed probable cause for Adesiyan s warrantless arrest, given the facts and circumstances available to the investigators, including (1) their observation of Adesiyan faxing documents; (2) Stone s statement that he did not sign the time sheet Adesiyan faxed; (3) a time sheet that bore Stone s forged signature; and (4) the facsimile confirmation sheet that showed that the time sheet had been faxed to a number at Accountemps. We hold that this information is sufficient to support probable cause and that the warrantless arrest thus was authorized under Article 14.01 and both the Texas and federal constitutions. The trial court therefore properly denied Adesiyan s motion to suppress the forged time sheet. //

Motion to Suppress Videotaped Statement

Adesiyan further contends the investigators intimidated and frightened him, and thus he involuntarily provided his videotaped statement.

A statement may be used against an accused if it is freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). In determining the voluntariness of the statement, we weigh the totality of circumstances. Barefield v. State, 784 S.W.2d 38, 41 (Tex. Crim. App. 1989), overruled on other grounds, Zimmerman v. State, 860 S.W.2d 89, 94 (Tex. Crim. App. 1993); Randle v. State, 89 S.W.3d 839, 842 (Tex. App. Houston [1st Dist.] 2002, pet. ref d).

Once the defendant presents evidence that raises a voluntariness question, the burden shifts to the State to controvert such evidence. State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999). This burden arises, however, only if the defendant produces such evidence. At the motion to suppress hearing, the trial court is the sole judge of witness credibility and weight of witness testimony. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995)). We do not disturb trial court findings that are supported by the record. Id.

Here, the trial court heard testimony from Investigators Boethel and Kelly, as well as from Adesiyan, and made several findings of fact regarding the voluntariness of Adesiyan s statement. Among them, the trial court found that the investigators properly read Adesiyan his Miranda warnings before he gave his videotaped statement. The trial court further found that the investigators did not threaten, mistreat, or promise anything to Adesiyan before he gave his statement. Further, the trial court concluded that Adesiyan voluntarily, intelligently and knowingly waived his rights before his statement was provided to Investigators Kelly and Boethel. Based on its assessment of the credibility of the witnesses, the trial court concluded that Adesiyan voluntarily waived his legal rights before giving the videotaped statement. The videotaped interview included in the record, as well as the testimony of the two investigators, supports the trial court s findings. Adesiyan testified contrary to these findings at the motion to suppress hearing. We defer to the trial court s findings of fact and determination of credibility as they are supported by the record. We therefore hold that the trial court did not err in denying Adesiyan s motion to suppress his videotaped statement. See id. at 25.

Legal and Factual Sufficiency

Adesiyan contends that the evidence is legally and factually insufficient to support his conviction for felony theft because the State failed to prove that he did not work the hours listed on his time sheets.

Legal Sufficiency

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied, 125 S. Ct. 1697 (2005).

The State presented evidence that Accountemps did not authorize Adesiyan to work overtime hours. The record indicates that Adesiyan submitted forty-eight forged time sheets to Accountemps that falsely claim payment for regular, holiday, and overtime hours. Stone testified that he did not sign Adesiyan s time sheets, and the investigators testified that they watched Adesiyan fax a forged time sheet to Accountemps. Accountemps paid Adesiyan based upon his forged time sheets. Further, in his videotaped interview, Adesiyan admitted that he forged and submitted at least ten time sheets for approximately $10,000 in overtime work. We therefore conclude that the evidence is legally sufficient to establish that Adesiayan unlawfully appropriated funds from Accountemps.

Factual Sufficiency

In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Id. In a factual sufficiency review, we may not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). In conducting a factual sufficiency review, we discuss the evidence that Adesiyan contends most undermines the jury s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Unless the available record reveals that a different result is appropriate, we defer to the jury s determination concerning the weight to place upon conflicting testimony because resolution of facts often turns on evaluation of credibility and demeanor. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

In response to the State s evidence, Adesiyan adduced evidence that he actually worked some of the hours that he had claimed. Adesiyan relies on Stone s admission that neither Coca-Cola s security system nor Adesiyan s computer use could monitor the time at which Adesiyan actually entered and exited Coca-Cola s building. Adesiyan further relies on the testimony of his co-worker, Natasha Bower, who testified that she saw Adesiyan at work between 7:30 a.m. and 8:00 a.m. on a few occasions.

In contrast to Bower s testimony, however, Stone testified that Adesiyan arrived to work around 8:30 a.m., and that he never observed Adesiyan at work by 7:30 a.m. Kathy Mallory, who worked at Coca-Cola, testified that Adesiyan arrived to work after 8:30 a.m., and that he arrived after 9:00 a.m. at least once per week. Mallory further stated that Adesiyan left the office at 5:00 p.m., or a little after. Karen Dobson, a senior account manager at Coca-Cola, also testified that Adesiyan worked no more than eight hours per day. Dobson further testified that she frequently worked late and she never saw Adesiyan working late.

Stone also testified that he did not authorize Adesiyan to work any overtime hours, that he expressly told Adesiyan not to work any overtime hours, that there was no overtime being worked, and that he would have refused to sign any of Adesiyan s time sheets that contained over forty hours of work per week. Stone further testified that he never authorized Adesiyan to use copies of his signature to claim overtime hours on Adesiyan s time sheets. Mallory and Dobson also testified that Adesiyan was not allowed to work any overtime hours. Moreover, Adesiyan admitted in his videotaped interview that he forged and submitted at least ten time sheets for approximately $10,000 in overtime work.

Upon viewing the evidence in a neutral light for a factual sufficiency analysis, we conclude that the jury was justified in finding Adesiyan guilty beyond a reasonable doubt of felony theft of property. See Escamilla, 143 S.W.3d at 817. The evidence supporting the verdict is not so weak that the jury s finding is clearly wrong and manifestly unjust; nor is Adesiyan s contrary evidence so strong that the State s burden to prove the charged offense beyond a reasonable doubt could not have been met. See id. We therefore conclude that the evidence is factually sufficient to support Adesiyan s conviction for felony theft of property.

Conclusion

We conclude (1) the trial court did not err in denying Adesiyan s motion to quash the indictment; (2) the trial court did not err in denying Adesiyan s motion to suppress; and (3) the evidence is legally and factually sufficient to support Adesiyan s conviction for felony theft of property. We therefore affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Nuchia, Keyes, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).