Johnson v. State, 4 Div. 945

• Decision Date: 18 May 1982
• Docket Number: 4 Div. 945
• Citation: 421 So.2d 1306
• Parties: Ronnie JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1306

421 So.2d 1306

Ronnie JOHNSON v. STATE.

4 Div. 945.

Court of Criminal Appeals of Alabama.

May 18, 1982.

Rehearing Denied June 29, 1982.

Certiorari Denied, Nov. 24, 1982

Alabama Supreme Court 81-897.

Robert P. Lane of Phillips & Funderburk, Phenix City, for appellant.

Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Theft of services, second degree; fifteen years sentence (habitual offender).

The appellant was charged with theft under the following indictment which, omitting the formal parts reads:

"The Grand Jury of said County charge that before the finding of this Indictment Ronnie Johnson did, between October 15, 1980 and February 11, 1981 intentionally and by deception, threat, false token or other means to avoid payment for said services, obtain from South Central Bell Telephone Company services to-wit, a series of long distance telephone calls, of the value of more than one hundred and no/100 ($100.00) dollars, known by him to be available only for compensation, in violation of § 13A-8-10.2 Code of the Code of Alabama 1975, as amended."

The State alleged that appellant intentionally obtained telephone services by calling from one telephone and charging the calls to another number listed under the name of Bobby Graham.

Bobby Graham and the appellant had been friends for "quite a few years." Graham testified that during the month of September, 1980, he gave the appellant permission to charge long-distance telephone calls to his (Graham's) home telephone. According to Graham, the appellant assured him that he would pay for the calls, but when the October billing for the long-distance calls was received, the appellant avoided payment by stating that he was unable to pay. Graham said that on several occasions in November he requested payment from the appellant, but he received only excuses from the appellant for non-payment. Graham also testified that the appellant told him that the long-distance calls were made to the appellant's girlfriend, Michele Marinko, who lived with her parents in Kansas.

Graham stated that on November 16, 1980, he told the appellant not to charge any more calls to his (Graham's) home telephone. According to Graham, however, the calls continued, and in December, 1980, when Graham received his telephone bill, he again asked the appellant for payment.

During cross-examination, Graham admitted that the appellant had given him approximately sixty-seven dollars for calls made with Graham's permission in September of 1980. Graham testified that South Central Bell was still billing him for the long-distance charges on the calls made by the appellant in November and December Mrs. Carol Adams, the residence department supervisor with South Central Bell in Phenix City testified that the approximate amount due as a result of the long-distance calls charged to Mr. Graham's phone was $300.

and during the trial, he identified the phone bills he had received.

Sandra Long Graham, the wife of Bobby Graham, testified that sometime after January 16, 1981, she and her husband had a conversation with the appellant. At that time, the appellant admitted making the phone calls, stating that the reason he made them was because "I needed to talk to my girl friend [sic]."

At the end of the State's case, the appellant made a motion to exclude the State's evidence, which the trial court overruled. The appellant did not present any evidence in his behalf.

I

The appellant contends that the State failed to prove each and every element of the offense of theft of services in the second degree. He argues that the State failed to prove that South Central Bell Telephone Company performed any service in connection with any of the alleged unauthorized telephone calls. Further, he maintains that the State failed to show either the value of the services performed by South Central Bell Telephone Company, or that he was the one who made the telephone calls which were billed to Mr. Graham's home telephone. The appellant also insists that the State's proof of his girlfriend's residence, by a business record of the Alabama Power Company and by a returned postage receipt to one of the State's investigators, was hearsay and improperly admitted.

The appellant was charged with theft of services under § 13A-8-10, Code of Alabama 1975, and the foregoing indictment tracks this statute. Section 13A-8-10(a)(1) provides:

"A person commits the crime of theft of services if: (1) He intentionally obtains services known by him to be available only for compensation by deception, threat, false token or other means to avoid payment for the services...."

Section 13A-8-10(b) designates "telephone services" as one of the services subject to theft under the statute, and § 13A-8-1(10) indicates that "the supplying of... a [public utility] commodity to premises from an outside source by means of wires, pipes, conduits or other equipment shall be deemed a rendition of a service...." Thus, there is no question that the legislature intended to prohibit theft of services rendered by a telephone company. The appellant argues, however, that because the telephone calls were interstate and were made by using the lines of various subsidiaries of AT & T other than South Central Bell, South Central Bell itself rendered no service in connection with the calls.

While we recognize that certain long-distance telephone calls, such as the ones at issue here, may not involve the actual physical use of South Central Bell's lines, we cannot say that these calls do not represent a "service" rendered by South Central Bell. Although there is no definition of "telephone service" in the criminal code, the legislature has defined the term in § 37-6-40(1), Code of Alabama 1975, as follows:

"Any communication service, including all telephone lines, facilities or systems used in the rendition of such service." [Emphasis added]

In our judgment, interstate calls originating from or charged to a Russell County number but actually transmitted over other telephone companies' lines, involve a "service" rendered by South Central Bell to the All of the foregoing result in ease of communication and convenience for the subscriber, and they are part of the "service" rendered by South Central Bell to its subscribers. South Central Bell is thus analogous to the issuer of a credit card. The telephone company extends credit to its subscribers in much the same way as the card issuer does for its cardholders. In the present case, when South Central Bell was asked to bill a Russell County subscriber for charges on long-distance calls to Salina, Kansas, it was, through its billing function, furthering the telephone or communications service.

Russell County subscriber. The service performed is simply the extension of credit: (1) the subscriber is entitled to make a telephone call to anywhere in the world from his own number and "charge it" without paying cash; (2) the subscriber is entitled to make a call from anywhere in the world and have it billed to his own number without paying cash; (3) the subscriber receives only one bill, and that is from South Central Bell. Regardless of how many other telephone companies' lines were used for his calls, and no matter which company owned the equipment through which his calls passed, the Russell County subscriber is not responsible for paying any entity other than South Central Bell.

The value of the services was shown by the testimony of South Central Bell's subscriber, Bobby Graham, and by the phone bill which amounted to three-hundred dollars and sixty-seven cents. Our examination of that bill indicates that approximately twenty telephone calls were made to Salina, Kansas from Phenix City between December 15, 1980 and January 4, 1981, all after the date Graham instructed the appellant not to charge other long-distance calls to his (Graham's) home telephone. The South Central Bell bill dated January 16, 1981, alone indicated a total of long-distance calls of some one-hundred and twenty-six dollars and ninety-seven cents, and of the total calls, only six were made to a location other than Salina, Kansas. Further, the approximately twenty-two telephone calls made to Salina, Kansas as shown on the bill dated January 16, 1981, reflected a cost in excess of one-hundred dollars. In our judgment, therefore, the value of the service rendered was properly in evidence.

In the present case, the criminal conduct that the statute seeks to condemn grows out of the misrepresentation of the accused's relationship with the South Central Bell Telephone Company. The analogy may be made again to the credit card operations. The criminality of the unauthorized use of a credit card by a third party is in the misrepresentation by the third party that he has a contractual relationship with the issuer of the credit card. The card issuer then stands behind the authorized card user. The unauthorized use of the card by a third person results in the misrepresentation of the present existing fact (that he is authorized to sign the card) upon which another relies to his detriment. See Stokes v. State, 366 P.2d 425 (Okl.Cr.App.1961). Here, appellant misrepresented to South Central Bell that he was authorized to charge calls to Mr. Graham's number.

Since Graham, his wife, or someone to whom he gave permission had authority to charge calls, the jury could find that the South Central Bell Telephone Company relied upon the appellant's misrepresentation when it permitted the long-distance calls to be charged to Graham's home telephone.

The appellant's intent is evidenced from the uncontroverted testimony of Graham who testified that, after he informed the appellant not to charge any other long-distance calls to his home telephone, Graham received bills for more long-distance calls amounting to one-hundred and twenty-six dollars and ninety-seven cents on his January, 16, 1981 telephone bill.

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