Lee v. State, CR
| Decision Date | 27 October 1980 |
| Docket Number | No. CR,CR |
| Citation | 609 S.W.2d 3,270 Ark. 892 |
| Parties | Wayne Terrell LEE, Appellant, v. STATE of Arkansas, Appellee. 80-97. |
| Court | Arkansas Supreme Court |
E. Alvin Schay, State Appellate Public Defender by Ray Hartenstein, Chief Deputy Appellate Defender, Little Rock, for appellant.
Steve Clark, Atty. Gen. by James F. Dowden, Asst. Atty. Gen., Little Rock, for appellee.
The appellant was tried before a jury and convicted on three counts of second degree forgery in violation of Ark.Stat.Ann. § 41-2302 (Repl.1977); one count of theft by receiving in violation of Ark.Stat.Ann. § 41-2206 (Repl.1977); and criminal possession of a forgery device in violation of Ark.Stat.Ann. § 41-2312 (Repl.1977). He was sentenced as a habitual offender after having been found guilty of four or more prior felony convictions.
On appeal the argument is that the evidence was insufficient to support the verdicts. We disagree with the appellant except as to Count 10 which was the conviction of theft by receiving.
The Little Rock Police Department obtained a search warrant for the premises at 9019 Rodney Parham Road, Apartment A, Little Rock, Arkansas. The warrant was served on February 1, 1979, at a time when the appellant was the only person present at the premises. The officers found a machine which was used for the purpose of writing money orders and has also been referred to as a check protector. They also found a briefcase in one of the bedrooms which contained the checks involved in the conviction of second degree forgery. These checks were drawn on Midsouth Woodcraft Company, West Helena, Arkansas, and each was in the amount of $158.66. Each check bore the signature of Clyde Horton. Also in the briefcase was a check for $11,687.50 payable to J. & M. Associates at 9101 Rodney Parham Road, Little Rock, Arkansas. The maker of this check was Stuart Ford Company, Inc. Additional items in the briefcase were the identification and savings account cards of Ealgie Gilbert, Jr. and some of the appellant's checks which he had previously reported as having been stolen. The officers also found in the same bedroom several pictures of the appellant as well as medicine bottles with his name on them.
The briefcase containing all of the articles upon which the charges were based, except the check writing machine, was found in the same bedroom with the other items mentioned. The north bedroom contained a bed and a dresser. There was no covering on the bed nor anything in the dresser. The closet was also empty. The north bedroom appeared to be unoccupied. When the officers asked the appellant to open the briefcase he stated that he could not. Thereupon, the officers cut it open with a knife and discovered the items previously mentioned.
Appellant's brother, Ealgie Gilbert, Jr., testified that he had formerly jointly occupied the premises with the appellant but he had moved out about the last part of 1978. Ealgie Gilbert, Jr., an employee of the post office, stated that he saw Larry Gilmore moving into the premises after he had moved out. Gilbert further testified that he had never seen his brother with a briefcase which resembled the one in question but that he had seen Larry Gilmore with a similar briefcase in his possession at the premises on Rodney Parham Road. He further testified that Doris Jackson and Colette Finley were at the 9019 Rodney Parham address on several occasions when he visited after he had moved out. Gilbert had occupied the south bedroom when he lived at the address. This is the same bedroom in which the items in question were discovered. He also testified that the check to J. & M. Associates from Stuart Ford Company had arrived at the 9019 Rodney Parham address while he still lived there. He testified it was customary for him and the appellant to place misdelivered mail on the television until the person to whom it was addressed came to pick it up. Apparently, mail for former occupants of this address continued to arrive after appellant and his brother moved in. Gilbert and the appellant shared the expenses and rent of the apartment while they lived together. The apartment was rented by appellant in his name.
Sometime prior to the trial Larry Gilmore died. The record does not disclose the day of his death. Wanda Dokes testified that she knew the appellant and Larry Gilmore. In fact, she dated Gilmore in January of 1979 during which time she stated he lived at 9019 Rodney Parham Road. She further stated Larry Gilmore had been in possession of a briefcase and she had observed him carrying it upstairs to the bedroom. She further testified that Gilmore tried to get her to cash some checks which she knew were not hers. She refused to participate in the scheme. The record does not reveal if Larry Gilmore was alive on February 1, 1979, the date of the search of the premises.
The central issue of the case before us is whether appellant had constructive possession of the items which were used to convict him. We quoted from another jurisdiction in Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (19...
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Lee v. Lockhart
...possession of a forgery device, but reversed the conviction for theft by receiving on grounds of insufficient evidence. Lee v. State, 270 Ark. 892, 609 S.W.2d 3 (1980). Lee then filed a post-conviction petition in the state courts, which was denied. Lee v. State, No. CR 80-97 (Ark. Jan. 11,......