Payne v. State

• Decision Date: 03 February 2006
• Docket Number: CR-04-2005.
• Citation: 946 So.2d 930
• Parties: David D. PAYNE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

946 So.2d 930

David D. PAYNE v. STATE of Alabama.

CR-04-2005.

Court of Criminal Appeals of Alabama.

February 3, 2006.

Lee F. Knowles, Geneva, for appellant.

Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, David D. Payne, was convicted of four counts of fraudulent use of a credit card, violations of § 13A-9-14(b), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve concurrent terms of ten years in prison. See § 13A-5-9(b)(1), Ala.Code 1975. The appellant filed an untimely motion for a new trial.¹ This appeal followed.

The State presented evidence that Donald Lolley and his son owned Circle L Quail Farm, Incorporated, and that Andre Hogue worked for Lolley. Lolley testified that, on the morning of January 14, 2004, he told Hogue to take his truck to get a part and to take that part to Elba; that he gave Hogue one of the company's BP gasoline credit cards and told him to use it to buy gasoline for the truck; that the card had the business' name on it, and he had signed his name on the back of the card; that his truck did not have his business' name on it at that time; that Hogue left between 8:15 a.m. and 8:30 a.m.; and that Hogue did not return. (R. 42.) He also testified that, on the morning of January 15, 2004, he found out that Hogue had gotten the part, but he had not gone to Elba; that he made a police report regarding the unauthorized use of his vehicle; that, around 8:00 a.m. on January 15, 2005, he telephoned BP to cancel the credit card he had given Hogue; that the credit card was not canceled until approximately 8:30 p.m.; and that the card was used seven times on January 15, 2004. Lolley further testified that he did not know the appellant; that the appellant was not authorized to use the credit card; that Hogue was the only person who was authorized to use that credit card; and that his employees knew that they were not supposed to use company credit cards for anything other than purchases for the business vehicle. Finally, he testified that he had looked at the receipts from the January 15, 2004, purchases; that the receipts had different names on them; that some of the receipts had the name "Andrew Mills" on them; and that he did not know anyone named Andrew Mills. (R. 47.)

Lieutenant Ron Sanders of the Hartford Police Department testified that he became involved in the investigation regarding the gasoline card on January 21, 2004; that Lolley showed him a printout that showed purchases that had been made with the card on January 15, 2004; that six of the seven purchases had been made at a BP gasoline station in Hartford; and that he went to that gasoline station and spoke to the clerk, Martha Davis. He also testified that Davis showed him the receipts for six purchases; that the first receipt was dated January 14, 2004, and the other five receipts were dated January 15, 2004; that some of the receipts were signed by Andre Hogue and others had been signed "Andrew Mills"; and that one of the receipts had a partial signature of "David" and then the signature "Andrew Mills" underneath it. Finally, Sanders testified that he obtained the gasoline station's security videotapes for January 14, 2004, and January 15, 2004; that he watched the videotapes; and that the appellant was the person who made some of the purchases that corresponded with the receipts signed "Andrew Mills."

Martha Davis testified that she worked at Al's BP gasoline station in Hartford; that, on January 15, 2004, the appellant, another man, and a young woman were at the station; that the other man pumped the gasoline; that the appellant used a credit card that had the name "Circle L Quail Farm" on it to make purchases; that the appellant signed the receipts "Andrew Mills"; and that the appellant used the credit card to purchase gasoline, drinks, and snacks. She also testified that, at one point, another vehicle came to the station; that the driver of that vehicle asked if he could fill his vehicle with gasoline; and that the appellant and the other man said, "`[Y]eah, go ahead.'" (R. 88.)

The appellant testified that, on January 15, 2004, he was at his father's house; that Hogue came to his father's house in a truck that had a business sign on it; that he had never met Hogue before that; that Hogue asked about buying parts from his father's vehicle; that, when he told Hogue that his father would not sell parts off of that vehicle, Hogue told him that he needed money to buy a fuel pump for his work truck; that Hogue asked him for money, but he told him that he did not have any money; that Hogue told him that he had a BP gasoline credit card, but he could only use the card to buy gasoline and things from the gasoline station; that Hogue offered to sell gasoline for one dollar a gallon; that he knew some people who might be interested, and he took Hogue to meet them; that some people agreed to buy gasoline from Hogue; and that he drove four vehicles to the BP gasoline station, put gasoline in them, signed receipts for the gasoline, and gave Hogue cash for the gasoline. He also testified that he did not know that the credit card was stolen; that he knew that Hogue worked for the company because he was wearing a suit and because the name of the company was on Hogue's shirt, the truck, and the credit card; that Hogue told him to sign the receipts "Andrew Mills"; that he thought that Hogue's name was Andrew Mills; and that he did not know Hogue's real name until he later went to court.

I.

The appellant argues that the State did not present sufficient evidence to support his convictions. Specifically, he contends that the State did not prove that he was not authorized to use the credit card and that he knew that he was not authorized to use the credit card.

"A person commits the crime of fraudulent use of a credit card or debit card if he or she uses, attempts to use, or allows to be used, a credit card or debit card for the purpose of obtaining property, services, or anything else of value with knowledge that:

"(1) The card is stolen; or

"(2) The card has been revoked or cancelled; or

"(3) For any other reason the use of the card is unauthorized by either the issuer or the person to whom the credit card or debit card is issued."

§ 13A-9-14(b), Ala.Code 1975.

"In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala. Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr. App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App. 1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State."

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

"`In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.' Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).

"`. . . .

"`"The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury's verdict only where it reaches "a clear conclusion that the finding and judgment are wrong." Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962). . . . A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). "[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense." Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960).' Granger [v. State], 473 So.2d [1137,] 1139 [(Ala.Crim.App.1985)].

"... `Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.' White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). `Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.' Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala. 1985)."

White v. State, 546 So.2d 1014, 1017 (Ala. Crim.App.1989). Also,

"`[c]ircumstantial evidence is not inferior evidence, and it will be given the same weight as direct...