Ballard v. State
| Decision Date | 26 March 1999 |
| Citation | 767 So.2d 1123 |
| Parties | Halycon BALLARD v. STATE. |
| Court | Alabama Court of Criminal Appeals |
W. Lloyd Copeland, Mobile, for appellant.
Bill Pryor, atty. gen., and Sandra J. Stewart, asst. atty. gen., for appellee.
Halycon Ballard appeals from her conviction for second-degree theft, see § 13A-8-4, Ala.Code 1975. Ballard was tried before a jury on the charge that she had taken two blouses and a sweater from Robin O'Neal, a boutique in Mountain Brook, on June 8, 1996, without paying for them. Following a guilty verdict, the trial court adjudicated Ballard guilty and sentenced her to two years' imprisonment. It suspended the sentence, and placed her on supervised probation for two years. The trial court also ordered Ballard to pay $300 restitution and to pay $50 to the victims compensation fund. This appeal follows. We affirm.
The State's evidence tends to prove the following. On Saturday, June 8, 1996, Halycon Ballard entered the Robin O'Neal boutique, where she was assisted by Karen Hill, a sales clerk who had been employed at Robin O'Neal for three years. Ballard, who entered the store carrying a purse with a shoulder strap, expressed an interest in a blazer, and Ms. Hill assisted her in finding other clothes to coordinate with the blazer. Ballard took the blazer and several other items of clothing into a dressing room. Ballard came out of the dressing room carrying just the blazer. At this point, Ballard told Ms. Hill that she could not find her wallet; she left the store and went to her automobile in the parking lot. She was carrying her purse. Ms. Hill watched Ballard walk to her car, open the rear passenger side door and get in the car. Ms. Hill then returned to the sales counter. Ballard returned to the shop with her wallet in her hand. After trying on several sweaters, Ballard indicated that she would purchase only the blazer. She told Ms. Hill that she wanted to pay for the blazer, the total price of which, including tax, was $297, by charging $100 to her credit card and writing a personal check for the remaining $197. She gave Ms. Hill her credit card; Ms. Hill created a credit slip for $100, and Ballard wrote a personal check for $197. Ballard did not sign the credit slip. Ballard then informed Ms. Hill that she had lost her keys. Ballard, with the assistance of a store seamstress, returned to the dressing room, purportedly to look for her keys, but she did not find them. Then, after stopping to use the boutique's restroom, Ballard announced that she was late for an appointment with her hairstylist; she left the store with the blazer on a hanger, covered with a white plastic garment bag.
After Ballard left the store, Ms. Hill went to the dressing room to clean up and to retrieve the clothing Ballard had left in the room. Ms. Hill discovered that a beige sweater Ballard had taken into the dressing room was missing. She also found two hangers placed in some lamp wiring under a small table in the dressing room, hidden by the table covering. At that point, Ms. Hill left the store and approached Ballard's automobile, which was in the same parking space. As she approached Ballard's car, she saw two blouses that had been hanging on the same rack as the blazer Ballard purchased. The blouses were between the driver's seat and the door on the driver's side. She could see the Robin O'Neal price tags on the blouses. Ms. Hill returned to the store and took the seamstress back to the car to see the blouses. Robin O'Neal, the owner of the boutique, arrived around this time and they decided to call the police. Ms. Hill searched the shopping area, looking in different hair salons for Ballard; she found her in a nearby salon. When the police arrived, they were shown Ballard's car and the blouses, the invoice, the credit card slip, and the check for the blazer. The police approached Ballard in the hair salon and asked her what she had purchased in Robin O'Neal. She told them that she had purchased a blazer and two blouses and she showed them her checkbook ledger, in which she had recorded a $497 check payable to Robin O'Neal. After checking with the boutique, the police returned to the salon and confronted Ballard with the fact that the check she had presented to Robin O'Neal was for $197. Ballard then told police that she had taken the blouses on approval and that she had left an open credit slip with the store, which was to be used if she decided to keep the blouses. At this point, the police arrested Ballard. The police retrieved the blazer, which was hanging in the salon. When they removed the white plastic garment bag that covered the blazer, they discovered a sweater underneath the blazer on the same hanger.
The defense theory presented at trial was that Ballard had purchased the blazer and had taken the blouses "on approval" as had been the custom and practice of the Robin O'Neal boutique. According to witnesses, it was customary for the boutique to allow customers to take clothing home on approval, provided the customer left their credit card number with the sales clerk. For approvals, the boutique would customarily generate a sales invoice listing the items being taken along with their prices and write "approval" across the top of the invoice. The customer's credit card number would also be recorded on the invoice. If the customer later telephoned and indicated she wanted to buy the clothing, the boutique would then generate a credit slip and complete it on the customer's behalf. As to the sweater she was accused of taking, Ballard denied knowing that it was underneath the blazer. She testified that Ms. Hill had placed the blazer over a sweater while showing her accessories for the blazer, and that Ms. Hill must have forgotten to remove the sweater when she put the plastic garment bag over the blazer. Ballard testified that she left the boutique with the blazer on a hanger in the white plastic garment bag and with the two blouses in a white plastic bag. She said that she took the items to her car and that she took the blouses out of the bag so that she could put a magazine, a novel, and a water bottle in the bag to carry into the hair salon. She said that she took the blazer with her to show her hairstylist. Ballard testified that Ms. Hill must have accidentally left the sweater under the blazer and then mistakenly completed the credit slip for $100. Ballard argued that Ms. Hill, in order to cover those mistakes, fabricated a sales invoice that recorded only the purchase of the blazer and then falsely accused Ballard of stealing the blouses and sweater.
Ballard argues that the trial court improperly admitted what the prosecutor alleged was a fraudulent Robin O'Neal invoice Ballard's son gave to defense attorneys over a year after the incident. The invoice was offered by the prosecutor to show Ballard's consciousness of guilt. The invoice, purportedly a customer copy of a Robin O'Neal invoice dated June 8, 1996, appeared to corroborate Ballard's testimony that she had taken the blouses from Robin O'Neal on approval. The invoice listed the salesperson as "Karen" and had the misspelled name "Hallycon Ballard" along with a notation "jacket w/ sweat." There was also a partially obliterated word, which appeared to be "blouse," written in the top section of the invoice and the word "approval" was written across the top. According to Ballard's son, Vance, he found the invoice, along with a white plastic bag and a Glamour magazine in late June 1997, under a rear seat in the family's van as he was packing the van to return from a Georgia cheerleading camp. The van was driven principally by Ballard's husband, but Ballard had access to it and had driven it in the past. According to Vance Ballard, after he returned to Alabama, he and his father swapped telephone messages left on their answering machines regarding the invoice. Vance told his father that he had found the invoice and his father instructed him to turn the items he found in the van over to Ballard's attorneys. Vance Ballard complied with his father's instructions, and gave the items to the receptionist at the attorney's office. Vance Ballard stated that when he later told his mother about the invoice, she told him that she was glad he had found it, because she had been looking for it.
The State called forensics experts who testified that the invoice itself was not the type used by Robin O'Neal in June 1996, but appeared to be a Robin O'Neal invoice printed after 1996. The witnesses also testified that the handwriting on the invoice could have been, in part, a tracing of the actual June 8, 1996, invoice. Because the handwriting appeared "forced" or to be a tracing, the forensics experts could not eliminate either Ballard or Karen Hill as the author of the invoice. The prosecutor did not present any evidence to the jury that Ballard had submitted the questioned invoice to the district attorney's office with the intent to introduce the invoice at trial to corroborate her testimony.
Ballard argues that there was insufficient evidence to connect the invoice to her and that it should not have been admitted as tending to show her consciousness of guilt. She argues that she did not find the document; that it was not found in her automobile, but in a family van driven principally by her husband and very rarely by her; and that she was not the person who turned the document over to defense counsel. Ballard also argues that there was no evidence to suggest that she directed that the document be turned over to defense counsel; that there was no evidence that she ever saw the document before it was turned over to defense counsel; that she never spoke to her son about the invoice before he found the invoice; and that there was no evidence that Vance Ballard used the family van on the occasion when he found the questioned invoice at her suggestion.
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