Davidson v. State

• Decision Date: 03 June 1991
• Docket Number: No. CR,CR
• Citation: 810 S.W.2d 327,305 Ark. 592
• Parties: Gregory DAVIDSON, Appellant, v. STATE of Arkansas, Appellee. 91-110.
• Court: Arkansas Supreme Court

Page 327

810 S.W.2d 327

305 Ark. 592

Gregory DAVIDSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-110.

Supreme Court of Arkansas.

June 3, 1991.

Bret Qualls, Deputy Public Defender, Little Rock, for appellant.

Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

The appellant, Gregory Davidson, appeals from a conviction for fraudulent use of a credit card which resulted in a three-year sentence and, further, from a revocation of his probation due to the credit card offenses for which he received a two-year sentence. The sole issue on appeal is whether a conviction under the applicable statute [Ark.Code Ann. § 5-37-207 (1987) ] is appropriate, when no property was obtained by the appellant as a result of the fraudulent use.

There were two incidents where the appellant used a stolen credit card for the purpose of obtaining property. The first was on May 20, 1989, at a Tires For Less store in Little Rock. The appellant sought to use the stolen credit card to buy four automobile wheels valued at $419.73. The owner of the store wrote up the ticket, and after the appellant gave him the stolen credit card, the owner asked for identification. The appellant had none, and the store owner refused to turn over possession of the wheels without sufficient identification. The appellant left the store, according to the owner, to get some identification but did not return.

The second incident occurred two days later on May 22, 1989, at Your Car Stereo in Little Rock. The appellant again tried to use a stolen credit card to buy merchandise described as a "box woofer" for a price of $400.00. The salesman ran the credit card through the computer, and the card was declined. He refused to turn the merchandise over to the appellant, and the appellant left the store.

The appellant was subsequently arrested and charged with two counts of fraudulent use of a credit card. He was tried before the trial court, after waiving a jury, and found guilty of both counts on January 24, 1990. Because he had been on two years probation for a theft-by-deception conviction at the time of the crimes, the trial court also revoked the probation at sentencing and assessed two years imprisonment to be served concurrently.

The offense of fraudulent use of a credit card is committed if a person, with the purpose to defraud, "uses a credit card to obtain property or services with knowledge that: (a) the card is stolen...." Ark.Code Ann. § 5-37-207 (1987). The offense is deemed a Class C felony under the statute if the value of the goods "obtained" exceeds $100; otherwise, the offense is a Class A misdemeanor. Id.

The appellant first contends that the statute contemplates the obtaining of property for an offense to occur, and under these facts he obtained no property. We agree that at the very least the statute is ambiguous. One could read it to require the actual obtaining of property. However, one could also focus on the word "use" and interpret the statute as defining a violation when a credit card is used to defraud, whether property is actually obtained or not. Our law is clear that criminal statutes must be strictly construed, with doubts resolved in favor of the defendant. See Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978). What militates against an interpretation that obtaining the property is not required is the fact that the degree of the offense under the statute is based on the value of property obtained. It is a Class C felony if goods valuing more than $100 are obtained; otherwise, it is a Class A misdemeanor. See Ark.Code Ann. § 5-37-207(b) (1987). It logically follows, then, that obtaining property is required in order for there to be a consummated offense, and we so hold. Under these facts before us, there was no property obtained, and the conviction for fraudulent use of the credit cards cannot stand.

Four foreign jurisdictions have wrestled with the issue of fraudulent use of a credit card where no property was obtained, with varying results. See State v. Gonsalves, 476 A.2d 108 (R.I.1984); People v. Tarlton, 91 Ill.2d 1, 61 Ill.Dec. 513, 434 N.E.2d 1110 (1982); People v. Gibson, 99 Ill.App.3d 616, 55 Ill.Dec. 24, 425 N.E.2d 1197 (1981); State v. Williams, 389 So.2d 384 (La.1980). Though the statutes involved were somewhat different than ours, the dilemma faced by the respective courts was the same. In both Gonsalves and Gibson, the appellate courts, following jury convictions for felonies, focused on the intent of the legislature to punish fraudulent use of credit cards, regardless of whether property was obtained. Both courts affirmed the convictions by interpreting the statute expansively to include an offense for goods "sought to be obtained" by fraudulent credit card use.

The Illinois appellate court, in People v. Tarlton, considered the penalty for fraudulent credit card use where the defendant was unsuccessful in obtaining goods. The applicable statute, like ours, premised the offense on the value of goods obtained. It provided for a Class 4 felony, if the value was over $150, and a Class A misdemeanor, if the value was that amount or less. In reviewing a bench trial conviction for a Class 4 felony, the court considered the appellant's argument that the legislature provided no penalty where the credit card use was unsuccessful, and, therefore, the statute was unenforceable when no goods were obtained. The Illinois court rejected the argument and held that when nothing of value was obtained, the defendant was guilty of a Class A misdemeanor as if he had actually obtained goods valued at $150 or less.

Lastly, the Supreme Court of Louisiana, in State v. Williams, supra, reviewed a jury verdict finding the appellant guilty of a felony where no credit or goods were obtained. The court resolved that there was a sufficient evidentiary basis for the jury to find the appellant guilty of an attempt to obtain credit with a stolen credit card, because it was a lesser offense included within the charged crime. The Louisiana court set aside the jury conviction and sentence and remanded the case to the trial court to enter judgment for the lesser offense and impose sentence accordingly.

We decline in this case to read language such as "sought to obtain property" into the criminal statute. We further are reluctant to affirm a conviction under § 5-37-207, which we have held is not applicable to the facts of this case, and then assess a penalty under that statute on the basis that because the appellant obtained no property, he should be treated as an offender who obtained property valued at $100 or less.

The reasoning we find persuasive is that employed by the court in State v. Williams, supra. There is no question that the appellant in the case before us tried to use a stolen credit card on two occasions for merchandise that well exceeded $100 in value. Under the state's general attempt statute, a person attempts to commit an offense if "he purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense." Ark.Code Ann. § 5-3-201(a)(2) (1987). To attempt to use a credit card fraudulently is a Class D felony. See Ark.Code Ann. § 5-3-203(4) (1987).

Here, by twice proffering the stolen credit card, the appellant took a substantial step toward committing the crime, which qualifies as an attempt...