Perkins v. State

Decision Date14 November 1997
Docket NumberCR-96-1234
Citation715 So.2d 888
PartiesJoseph H. PERKINS v. STATE.
CourtAlabama Court of Criminal Appeals

L. Scott Johnson, Jr., Montgomery, for appellant.

Joseph H. Perkins, pro se.

Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.

PATTERSON, Retired Appellate Judge.

The appellant, Joseph H. Perkins, was indicted on December 8, 1995, in a three-count indictment, by the Montgomery County grand jury. Count I charged him with committing the crime of theft of property in the first degree, a violation of § 13A-8-3, Code of Alabama 1975, alleging that he knowingly obtained control over $231,915.50, the property of Norment Industries, W.S.A., Inc., a corporation (hereinafter "corporation"), with the intent to deprive the corporation of that property. Count II charged him with committing the crime of conspiracy to commit theft in the first degree, a violation of § 13A-4-3, alleging that he conspired with Edward Tumlinson and Joseph Bryant to falsely seek payment of money from the corporation for work that was not done, and/or for work done but for which the corporation was not required to pay. Count III charged him with knowingly attempting to commit the crime of theft of property in the first degree, a violation of § 13A-4-2, alleging that he attempted to obtain control over $231,915.50, the property of the corporation, with intent to deprive it of that property. A jury found him guilty as charged on all three counts, and the trial court sentenced him to five years' imprisonment on each count. The sentences were split, and the appellant was ordered to serve two years' imprisonment with the balance being suspended on condition that he serve five years' supervised probation in each case. The sentences were to run concurrently.

The trial court stated at the sentencing hearing that it would prescribe the conditions of probation when the appellant completed his two years' confinement. It further ordered him to pay $250 to the victim's compensation fund, court costs, and restitution. The trial court further stated that upon the appellant's release from confinement, it would order him to pay restitution in the amount of one-third of the loss to the corporation, and would prescribe the method of payment. It stated that a restitution order would be filed at some future time. The prosecuting attorney suggested that the amount of restitution would be $71,526.26; however, no calculation of the amount was made by the trial court, and to date no order has been filed setting an amount.

It appears to us from the record that the trial court has retained jurisdiction of the matter of restitution and intends to determine the amount and method of payment when the appellant completes his two years' confinement. It also appears to us that the parties may not agree as to the amount of restitution that should be ordered and, therefore, in the interests of judicial economy and avoiding future controversy, before a specific amount is determined and ordered, the trial court should hold a hearing at which the parties will be afforded an opportunity to present evidence and be heard on the matter.

The state's evidence tended to show that Edward Tumlinson, Joseph Bryant, and the appellant entered into a plan to steal money from the corporation by billing it for work that they did not perform or for work performed for which the corporation was not supposed to pay; that they illegally obtained approximately $231,915.50 from the corporation by this plan; and that they divided the stolen funds. The plan was as follows: Tumlinson, who was an employee of the corporation and who had authority to approve invoices of subcontractors for payment, would approve for payment invoices periodically submitted by the appellant, who was acting as a subcontractor, knowing that the invoices were padded or inflated and, in some cases, completely fabricated. When the corporation paid those invoices, the appellant would split the illegally obtained funds with Tumlinson and Bryant, who was the appellant's co-conspirator and employee. State witness William Lloyd Strickland, a certified public accountant employed by the corporation to examine the financial records of the corporation and of the appellant to trace the funds, testified that from his examination of the records he concluded that the appellant had received $58,443.93, Tumlinson $80,247.00, and Bryant $45,983.09 from the scheme.

Tumlinson and Bryant were indicted for the same offenses as the appellant. By agreement with the state, they pleaded guilty to theft of property in the first degree, agreed to pay restitution, and agreed to testify for the state against the appellant. The attempt and conspiracy counts of their indictments were nol-prossed, and they were authorized by the trial court to apply for admission into a pretrial diversion program. See §§ 12-23-1 through -19. Bryant was not called as a witness in the present trial by either party; however, Tumlinson testified for the state. He described the scheme and identified numerous invoices that the corporation had paid where the work represented by the invoice was either partially done or not done at all. He identified invoices involving substantial amounts of money that were, according to him, "totally fictitious" or were the result of "double billing." He implicated the appellant and Bryant in the illegal scheme, testified that all three of them were "in it together" from the beginning, and characterized the payments he received from the appellant as "kickbacks."

The appellant testified in his own behalf and admitted that over the period that he was doing subcontracting work for the corporation he had given Tumlinson $78,000. He stated that the first $3,800 of that amount was a "finder's fee" and that the balance was loans. He testified that he and Bryant made the "loans" to Tumlinson to help Tumlinson because of alcohol and domestic problems Tumlinson was having and because of "pressure" from Tumlinson. He further testified that there was no understanding as to how and when the "loans" would be repaid. He denied all charges, and stated that he had no intent to steal money from the corporation.

The appellant appeals his convictions, raising six issues.

I.

First, the appellant contends that the trial court committed reversible error in overruling his motions for judgments of acquittal and his motion for a new trial as to the convictions of attempted theft and conspiracy to commit theft. 1 He argues that he could not be legally convicted of these offenses and also convicted of theft because, he says, they, along with the conviction for theft, were based upon and arose out of the same facts or one course of conduct. He relies upon § 13A-4-5(b) and (c) to support his contention, which provide as follows:

"(b) A person may not be convicted on the basis of the same course of conduct of both the actual commission of an offense and:

"(1) An attempt to commit the offense; or

"(2) Criminal solicitation of the offense; or

"(3) Criminal conspiracy of the offense.

"(c) A person may not be convicted of more than one of the offenses defined in Sections § 13A-4-1 [criminal solicitation], 13A-4-2 [attempt], and 13A-4-3 [conspiracy] for a single course of conduct designed to commit or to cause the commission of the same crime."

See also § 13A-1-8(b)(2) ("When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if ... [o]ne offense consists only of a conspiracy or other form of preparation to commit the other.").

The record shows that to prove the charge of theft of property in the first degree, the state relied on the evidence of the completed transactions between the appellant and the corporation that occurred before the termination of his contractual relationship with the corporation. It also shows that to prove an attempted theft, the state relied on the evidence of uncompleted transactions that occurred after the appellant's relationship with the corporation was terminated. After the relationship was terminated, the appellant submitted several invoices seeking payment for allegedly work done on the "Atlanta job." These invoices were not paid. The state's theory of the evidence establishing both a theft and an attempted theft was known to the appellant at the time of, and discussed in, a pretrial conference. In the conference the trial court stated, "I will give the instruction on the attempted theft; it deals with the alleged invoices after his contract had terminated." The appellant clearly understood that the trial court would charge the jury on attempted theft based on the invoices he submitted on the "Atlanta job" after his termination and which were not paid. Under the facts here, the trial court correctly instructed the jury that the theft and attempted theft charges were separate offenses and that the appellant could be found guilty of neither, either, or both, depending upon the jury's interpretation of the evidence. The appellant did not object to the court's charge in reference to the attempted theft instruction, and agreed to the submission of the attempt count to the jury. We find that these two offenses were properly submitted to the jury and that the state presented sufficient evidence from which the jury could find the appellant guilty beyond a reasonable doubt on both the theft and attempted theft counts. As to this issue, the appellant's position on appeal is inconsistent with his position at trial; at trial he agreed to the submission of the attempt count to the jury as a separate offense based on evidence different from the evidence allegedly establishing the theft charge. Not having objected to the trial court's interpretation of the two...

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