Hodges v. State, 8 Div. 8

• Decision Date: 16 June 1989
• Docket Number: 8 Div. 8
• Parties: Walter Warren HODGES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1252

570 So.2d 1252

Walter Warren HODGES v. STATE.

8 Div. 8.

Court of Criminal Appeals of Alabama.

June 16, 1989.

Rehearing Denied Oct. 27, 1989.

Certiorari Quashed Dec. 7, 1990

Alabama Supreme Court 89-203.

John Mark McDaniel and William P. Burgess, Jr., Huntsville, for appellant.

Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of theft of property in the first degree, in violation of § 13A-8-3, Code of Alabama (1975). He was sentenced to three years in the State Penitentiary, but the trial court suspended the sentence and placed the appellant on probation for five years. He was also ordered to pay $30,640.91 and fined $25 to be paid to the Victims Compensation Fund.

I

The appellant argues that the evidence was insufficient to sustain his conviction of theft of property in the first degree. Specifically, he argues that the evidence failed to prove the element of specific intent.

Theft of property is defined by § 13A-8-2, Code of Alabama (1975), as follows:

"A person commits the crime of theft of property if he:

"(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property; or

"(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property."

Theft of property in the first degree is defined by § 13A-8-3, Code of Alabama (1975):

"(a) The theft of property which exceeds $1,000.00 in value, or property of any value taken from the person of another, constitutes theft of property in the first degree."

The State provided evidence that the appellant began working for Estes Oil Company in October 1984 and was eventually promoted to manager of the Cox Creek Station. In October 1986, the appellant was approached by Ed Estes, the owner of Estes Oil Company, about purchasing the merchandise inside the Cox Creek Station. The appellant agreed to do so and also continued to manage the store for Ed Estes. Under their agreement, the money made from the merchandise inside the store belonged to the appellant and the money made by the sale of gasoline, diesel fuel, and kerosene belonged to Estes Oil Company. Further, the appellant was still paid as manager of the station. Part of the appellant's job was to take the money made for Estes Oil Company from the first shift immediately to a nearby bank to be deposited. He was instructed that the deposits were to be made as soon as possible and was never given permission to hold out a deposit or to take a deposit home. J.T., another employee of Estes Oil Company, testified that he made five deposits for the appellant during the period from November 1986 until January 1987. The appellant never contacted Ed Estes about any problems he was having concerning deposits.

On January 21, 1987, the bookkeeper for Estes Oil Company was contacted by the bank and informed that there were insufficient funds in the Estes Oil Company checking account. It was initially determined that 105 deposits, totalling $177,000, were missing. Estes Oil Company's accountant discovered that all of the missing deposits came from the Cox Creek Station. When the appellant was confronted with the problem, he told Ed Estes that the money was at his apartment and that he would get it to him in a few days. However, Estes demanded the money immediately, whereupon the appellant drove to the station, removed a brown bag from the safe, and then drove to his apartment. Ed Estes and J.T. followed the appellant to the station and then to his apartment. The appellant retrieved two large garbage bags, containing money, from his apartment and subsequently, after matching the money with deposit slips, it was determined that only 94 of the 105 deposits were accounted for. The deposits were missing $14,516.24. Furthermore, it was subsequently determined that Estes Oil Company was missing a total amount of $30,640.91.

The appellant testified that he began holding back deposits because "they" were short of money. He further testified that he attempted to discover who was taking the money. He explained that he kept the deposits in the safe until mid-January, when he took them home to determine how much was missing.

The evidence was sufficient to support a conviction of theft of property in the first degree. See Airhart v. State, 477 So.2d 976 (Ala.Cr.App.1984), reversed on other grounds, 477 So.2d 979 (Ala.1985); Beaver v. State, 455 So.2d 253 (Ala.Cr.App.1984); Waldrop v. State, 439 So.2d 1359 (Ala.Cr.App.1983). This evidence was also sufficient for the jury to infer that the appellant had the requisite intent to deprive. McCord v. State, 501 So.2d 520, 529 (Ala.Cr.App.1986).

"In a theft trial, intent is a question for the jury. McMurphy v. State, 455 So.2d 924, 928 (Ala.Cr.App.1984); Craig v. State, 410 So.2d 449 (Ala.Cr.App.1982). 'Intent can only be shown by facts and circumstances from which the jury is authorized to draw the inference.' Burk v. State, 22 Ala.App. 107, 108, 114 So. 71, cert. denied, 216 Ala. 655, 114 So. 72 (1927). 'The scintilla rule does not apply in a criminal case.' McArdle v. State, 372 So.2d 897, 901 (Ala.Cr.App.), cert. denied, 372 So.2d 902 (Ala.1979). 'Intent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.' Pumphrey v. State, 156 Ala. 103, 47 So. 156, 157 (1908)."

McCord v. State, supra, at 528-29.

II

The appellant argues that the trial court erred in failing to allow into evidence certain evidence which he alleges was relevant to prove his intent and his innocence of the crime. The appellant argues that the trial court so erred on six occasions.

The appellant testified that he gave J.T. a deposit for $1,281 to be made to his account on January 2, 1987. However, the appellant testified that this deposit was never credited to his account. The defense counsel then asked the appellant if he made any other deposits about that same time. The appellant responded that he made one on the same afternoon for $2,642. When he was asked why he made the second deposit, the State objected to the question and the trial court sustained the objection.

The appellant argues that the inquiry was relevant to show the appellant's intent and was relevant to indicate that J.T. was the guilty party. However, other testimony had been presented that the appellant made deposits during this time period and the testimony would not have been relevant toward the appellant's intent to deprive Ed Estes of $30,640.91. Moreover, the testimony concerning J.T.'s failure to deposit the money given him by the appellant was not excluded from evidence.

The appellant further argues that he should have been allowed to testify that it was his intent to get together with Ed Estes concerning the loss of deposits. The following transpired during the appellant's testimony:

"Q [DEFENSE COUNSEL]: Did--and you planned to--when you completed your study of the deposits--to go and meet with Mr. Estes?

"A: I had tried to figure out a way of approaching him with this matter, you know, in the future. I--you know at that time, I didn't know how I was going to bring it around to him.

"Q: And you had not made a decision as to what day you were going to sit down with Mr. Estes at that time?

"A: Yes, sir.

"Q: But it was your intention that you were going to be getting with Mr. Estes.

"[PROSECUTOR]: I'm going to object to that question as asked, if it please the Court, as far as what his intention was.

"THE COURT: I think he's answered two or three times what his intention was."

The appellant was allowed to testify that he intended to approach Ed Estes "with this matter". Thus, the defense counsel's question was repetitive and properly excluded. 3 Wigmore, Evidence § 782(2) (Chadbourn rev.1970).

The appellant also argues that he should have been allowed to ask Investigator Dennis Bailey, the man in charge of the investigation, about the evidence that he found which indicated guilt on the part of the appellant. The following transpired during the cross-examination of Investigator Bailey "Q [DEFENSE COUNSEL]: And you went before the Grand Jury?

"A: I did.

"Q: Is there anything that you have found in your investigation that proves that Wally Hodges took this money?

"[PROSECUTOR]: Now, Your Honor, we object to that. That's the point of the trial.

"THE COURT: Sustained.

"Q [DEFENSE COUNSEL]: Is there anything you found--Well, just tell us what--tell us then what you did find that you say indicates guilt on the part of the defendant. Tell us the things that you came up with to charge this man.

"[PROSECUTOR]: Judge, I don't believe that's a proper question.

"[DEFENSE COUNSEL]: That is a proper question.

"THE COURT: Well, the objection is sustained."

The purpose behind the appellant's question is unclear. If the appellant was seeking to determine the evidence which led Investigator Bailey to believe that he was guilty, such a question would call for speculation and possible hearsay. If the question was an attempt to determine the evidence upon which Investigator Bailey determined that there was probable cause, such a determination, after indictment, is irrelevant. "Whether a particular person is indicted for an offense is a matter addressed to a grand jury." Allen v. State, 380 So.2d 313, 327 (Ala.Cr.App.1979), writ denied, 380 So.2d 341 (Ala.1980).

"The structure of the grand jury provides assurance that investigations will be carried out free from political pressures. The capacity of a grand jury to take an investigation wherever it may lead serves to counteract suspicions of corruption and partisanship in criminal law enforcement. The grand jury therefore has the capacity not only to ferret out hidden crimes, but to relieve public concern generated by...