Houston v. State

• Decision Date: 26 August 2005
• Docket Number: CR-04-0480.
• Citation: 933 So.2d 397
• Court: Alabama Court of Criminal Appeals
• Parties: Gary HOUSTON v. STATE of Alabama.

933 So.2d 397

Gary HOUSTON v. STATE of Alabama.

CR-04-0480.

Court of Criminal Appeals of Alabama.

August 26, 2005.

Rehearing Denied October 7, 2005.

Certiorari Denied December 9, 2005 Alabama Supreme Court 1050156.

John B. Langland, Huntsville, for appellant.

Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.

COBB, Judge.

On June 15, 2004, Gary Houston was convicted of first-degree theft of property by deception, a violation of § 13A-8-2, Ala. Code 1975. On August 25, 2004, he was sentenced to five years imprisonment; that sentence was suspended, and he was placed on supervised probation for two years and ordered to pay restitution, court costs, and a victim's compensation assessment. Houston filed a motion for a new trial which the trial court denied on November 5, 2004.¹

The record reflects that Houston purchased a Ford 1100 lawn tractor at the online auction site "eBay" from Robert Brent Pepper for $2,400. According to Pepper, the auction listing contained a picture of the tractor, as well as details about the tractor. Pepper testified that Houston contacted him shortly after the auction ended and questioned him about specific details about the tractor. Pepper testified that v-shaped tires were customary for that type of tractor. According to Pepper, he advised Houston that the tires on the tractor were Goodyear brand Wrangler tires rather than "turf tires" as were listed in the description of the tractor on eBay; Pepper stated that he told Houston that it was common to place that type of tire on the size of tractor and that Houston "really didn't say much about the tires." (R. 39.) Pepper testified that although he indicated in the auction description that payment was required from the winning bidder within seven days of the close of the auction, Houston did not tender payment to Pepper within that time. Rather, according to Pepper, at Houston's request, he agreed to allow Houston a few additional days to submit payment for the tractor, but Houston did not tender payment during that additional time. Pepper testified that he and Houston had some disagreements concerning the deal, but after further discussion, Houston agreed to tender a down payment of $1,000, which he paid via "Paypal," an online electronic money transferring service. He then set up a meeting with Pepper at Pepper's residence in Huntsville, for Houston to inspect and pick up the tractor and to tender the balance of the price for the tractor.

Pepper's testimony further indicated that Houston traveled from his residence in North Carolina to Pepper's residence on Saturday, May 10, 2003, inspected the tractor, paid the remaining balance of the purchase price, and took the tractor back to North Carolina. According to Pepper, he provided Houston with a detailed inspection of the tractor before the two of them loaded it onto Houston's trailer. We note the following excerpt from Pepper's testimony at trial:

"[Pepper]: Well, I — the first thing I did was I cranked the tractor up, raised and lowed [sic] the three-point hitch, which is where the equipment goes on. Popped the hood and let him look at the engine. I remember him saying something about the oil filter on it looked like it was the same oil filter that goes on a Mazda car of some sort.

"I showed him the tires, I said, `As I told you on the phone,' I said, `Here is the Goodyear tires it's got on the back of the tractor. And just showed him that there were no leaks, the thing ran good and I drove it up on his trailer and helped him strap it down."

(R. 47.) Pepper further testified that Houston did not mention the tires at that time and that Houston did not voice any complaints about the tractor. According to Pepper, Houston tendered payment to Pepper at that meeting for the remaining balance of $1,400 by check. Pepper testified that he deposited the check two days later, on Monday May 12, and that he was notified on May 23 that a stop-payment order had been placed on the check by Houston; Pepper stated that his credit union informed him that the stop-payment order had been placed on Monday, May 12. According to Pepper, when he contacted Houston by telephone to ask him why he had stopped payment on the check, the following conversation occurred:

"I asked him why he had stopped payment on the check and he said, `You thought I was stupid. You misrepresented the tractor. I stopped payment on it.' And I said, `Well, you didn't say a word about it in the driveway.' And he said, `Well, I knew you wouldn't refund my deposit back so I knew this is what I had to do."

(R. 50-51.) Houston told him that the tires he had on the tractor interfered with the correct operation of the tractor.

Houston raises four issues on appeal: (1) whether the trial court lacked jurisdiction over Houston because he did not commit an act of fraud within Limestone County; (2) whether the criminal trial against him was improperly commenced for the unconstitutional purpose of collecting a civil debt; (3) whether the trial court erred by sustaining the State's objection to evidence of Houston's offer of settlement to the complaining witness; and (4) whether the State presented sufficient evidence to support the conviction.

I.

Houston claims that the Limestone Circuit Court lacked jurisdiction over this case because, he says, any deception on his part occurred in North Carolina when he put the stop-payment order on the check. Houston raised this contention both in a pretrial motion to dismiss the indictment and in his post trial motion for a new trial and motion for a judgment of acquittal.

The Alabama Supreme Court has held the following with regard to jurisdiction over the crime of theft of property:

"`The "subject matter" in the criminal setting is the crime itself. Therefore, if the crime is committed in this State, our courts have subject matter jurisdiction.

"`If a crime is committed in this State, our courts also have jurisdiction over the person. Jurisdiction over property rarely arises in criminal matters, but a reasonable statement would be that, if property is illegally taken from this State or illegally brought into this State, our courts would have jurisdiction over this as well.'

"Rothchild v. State, 558 So.2d 981, 983 (Ala.Crim.App.1989)."

Ex parte James, 780 So.2d 693, 695 (Ala. 2000).

Houston claims that no intent to defraud took place within Limestone County. In order for Alabama courts to have jurisdiction of a crime of theft of property, an element of the charged offense must have taken place in Alabama. See, e.g., Ex parte James, supra; and Heath v. State, 536 So.2d 142 (Ala.Crim.App.1988). See also § 15-2-3, Ala.Code 1975.

Here, Pepper testified that Houston replied to his inquiry about why he stopped payment: "Well, I knew you wouldn't refund my deposit back so I knew this is what I had to do." (R. 50-51.) Pepper testified that Houston also replied: "`You thought I was stupid. You misrepresented the tractor. I stopped payment on it.'" (R. 50.) One inference that can be drawn from Pepper's testimony is that Houston intended to stop payment on the check before he came to Limestone County to pick the tractor, as evidenced by his failure to comply with the payment terms stated in the auction description or the payment terms later negotiated by the parties; another inference that can be drawn from Pepper's testimony is that Houston formed the intent to take possession of the property but never to honor the check, i.e., that at the time he handed the $1,400 check to Pepper he intended to stop payment on the check. Therefore, the trial court did not err in denying Houston's requests that the charge against him be dismissed for lack of jurisdiction.

II.

Houston next contends that the criminal prosecution was improperly commenced for the unconstitutional purpose of collecting a civil debt. According to § 13A-8-2, Ala.Code 1975:

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

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

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

Although Art. I, § 20, Alabama Constitution 1901, prohibits the State from prosecuting a defendant for failure to pay a debt, the prosecution of a defendant for theft with intent to deprive the rightful owner of his property is not unconstitutional:

"The difference between the improper use of a statute as a means of punishment for debt and the proper use of a statute as a means of punishment for a criminal act is intent. Harris v. State, 378 So.2d 257 (Ala.Crim.App.), cert. denied, 378 So.2d 263 (Ala.1979). A mere failure or inability to pay a debt does not necessarily constitute theft. Theft requires the specific intention to deprive which cannot be inferred from the mere naked fact of nonpayment of a debt. Thus, the theft statute was designed to punish those who exert unauthorized control over the property of another with the intent to deprive that person of his property and not to punish persons who are unable to pay a debt."

Bullen v. State, 518 So.2d 227, 233-34 (Ala. Crim.App.1987) (Emphasis original). As set forth more fully in the statement of facts herein and in Parts I and IV of this opinion, there was evidence that tended to indicate that Houston had the requisite intent to deprive Pepper of his property. Thus, we cannot say that the district attorney, being in the best position to assess the merits of proceeding with criminal charges, see Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907 (Ala.1992), abused his discretion in deciding to initiate criminal proceedings against Houston. Thus, we cannot say that the criminal prosecution in this case was initiated for the purpose of collecting a civil debt.

III.

Houston contends that the trial court erred in sustaining the State's...