Sullivan v. State, 6 Div. 996

• Decision Date: 01 November 1983
• Docket Number: 6 Div. 996
• Citation: 441 So.2d 130
• Parties: James Arthur SULLIVAN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 130

441 So.2d 130

James Arthur SULLIVAN v. STATE.

6 Div. 996.

Court of Criminal Appeals of Alabama.

Nov. 1, 1983.

Stephen B. Griffin, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Asst. Atty. Gen., for appellee.

JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, James Arthur Sullivan, was charged by an indictment returned against him by the Grand Jury of Jefferson County with theft of property in the first degree. He entered a plea of not guilty, was found guilty as charged in the indictment of theft in the first degree, and duly sentenced to be imprisoned in the penitentiary for a term of forty-two months. He appeals to this Court.

The appellant was represented at all proceedings in the trial court, and is represented in this Court by the same counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant claims in his brief that the trial court erred to his prejudice when it overruled his motion for judgment of acquittal at the close of the state's evidence on the grounds that the state has failed to prove the element of deception, and the facts do not sustain a probable cause to believe the crime was committed, and, also, the facts at this point, as presented by the state, did not support the allegations the state has made in the indictment. This presents to this Court the sufficiency of the state's evidence, at the time it rested its case, to sustain the jury verdict of guilty.

The indictment charges that the appellant did knowingly obtain, by deception, control over seven thousand six hundred eighty dollars and ninety-seven cents of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, the property of Bonanza Central Corporation, a corporation, with the intent to deprive the owner of said property, contrary to Section 13A-8-3 of the Alabama Criminal Code.

State's evidence tended to prove that in October and November, 1981 Mr. Phil Gross owned and operated four Bonanza Restaurants in the City of Birmingham, Jefferson County, Alabama, and had hired the supervisory personnel, managers, and assistant managers, for the past fifteen years. That he had hired the appellant as an assistant manager trainee, and then as an assistant manager of the restaurant on 21st street. That the appellant had been assistant manager of the restaurant for about six months before November 2, 1981. That as assistant manager the appellant had the responsibility to fill out and sign a daily report each night that he was on duty, and close the restaurant. The daily report shows the sales for the day, the number of units sold, the price collected for each item, and the total amount of money to be deposited in the bank each evening. That it was the duty of an assistant manager to attach a copy of the deposit slip to the report, and to place the money for the day, together with a deposit slip, in a money bag, lock it, and deposit it in the night depository at the Central Bank each evening after closing time. The blank deposit slips are furnished by the Central Bank with the proper account numbers on them, and the manager, or assistant manager, fills them out daily at closing time. A copy of the deposit slip is attached to the daily report which is signed by the manager, or assistant manager, who closes that day. State's exhibits 1 and 2 are reports for October 30, 1981 for $4,322.47, and for November 1, 1981 for $3,296.50. That the appellant was the closing manager on October 30, 1981, and on November 1, 1981, and signed both reports. That the amount missing totaled $7,618.97. That when Mr. Gross heard that there may be a problem at the restaurant, he immediately went to the restaurant on 21st. street where he met with Mr. Davis, the manager, and Mr. Sullivan, the assistant manager, and a gentleman from Central Bank, and found out that the two deposits had not been made, and the deposit slips were not initialed by a bank teller. That Mr. Gross asked the appellant what was going on, and that the appellant was very noncommittal at the time. That Mr. Gross requested Mr. Davis to ask the appellant to come by, and for Mr. Davis and the appellant to be at the restaurant on Tuesday, as Mr. Gross wanted to talk to them on a one to one basis. That the appellant came to the restaurant, and Mr. Gross asked him to return the money, and that the appellant replied, "Mr. Gross, as good as you have been to me, do you think I would steal from you?" That several weeks before this conversation the appellant told Mr. Gross that his key to the bank depository would not work, and Mr. Gross told the appellant to go to the bank the next day and get a new key. That there were three keys to the bank depository. Mr. Davis, Mr. Sullivan, and Mr. Gross each had one. That the money bag had a lock on it, and the next day after a money bag was placed in the bank depository, the person who closed the restaurant the evening before would go to the bank, unlock the money bag, and count the money in the presence of a person who represented the bank, and who would stamp, and initial, the deposit slip. That the deposit slips and daily reports for October 30, and for November 1, 1981 were made out, and signed, by Mr. Sullivan, but the deposits were never placed in the depository at the bank.

State's evidence further tended to prove that Mr. Ray Lee Davis was manager of the restaurant on 21st. street. That in October and November of 1981 he had twenty-four employees at the restaurant. That on October 30, and November 1, 1981, Mr. James Sullivan, the appellant, was assistant manager of the restaurant. That his duties as assistant manager are almost the same as the manager, which are running the restaurant, making daily reports, making bank deposits, hiring, and firing employees. They are a team-type responsibility between the manager and the assistant manager. That November 2, 1981 was Mr. Davis' day off, but at about 9:00 or 9:15 A.M., Mr. Davis went by the restaurant, and found that Mr. Sullivan was not there, so Mr. Davis took the key to the deposit bag, and went to the bank to claim the unprocessed bags which should have been dropped in the bank depository. That when Mr. Davis got to the bank, the deposit for Sunday, November 1, 1981, the day before, was not there. That when Mr. Davis went back to the restaurant at about 10:00 o'clock, A.M., he telephoned Mr. Sullivan, and told him that the Sunday evening money bag was not at the bank, and Mr. Sullivan told Mr. Davis that his key to the bank depository would not work on Sunday night, and that he had the deposit bag with him at his apartment, and that he would drop it by the bank on his way to work. That on Tuesday morning Mr. Davis went back to the bank to process the money bag, and when he got to the bank, he found out that the money bag had not been left there Monday by Mr. Sullivan. That Mr. Davis again called Mr. Sullivan from the bank, and Mr. Sullivan said he had left the money bag with a drive-in teller by the name of Bridgette, and the bag was supposed to be at the bank. That Mr. Davis then requested Mr. Sullivan to meet him back at the restaurant, and Mr. Sullivan came to the restaurant, and Mr. Davis and Sullivan went to the bank where they met with Mr. Yogi, a supervisor, Bridgette, a drive-in teller, and Mr. Davis told Bridgette that she knew Sullivan left the bag at her drive-in window, and Bridgette began to cry, and said he did not leave the bag with her, and Mr. Davis advised the bank employees that he knew Mr. Sullivan had left the bag at the drive-in teller window, and that they needed the money, and that he was going to call the police. Mr. Sullivan and Mr. Davis returned to the restaurant, and Mr. Davis called Mr. Gross. That Mr. Davis said to Mr. Sullivan that they really did not have a problem because the bank made pictures of all transactions made at the drive-in teller window, and the bank's records would show that Mr. Sullivan did, in fact, deliver the bag to the drive-in teller's window. That Mr. Davis then called the police, and before anyone arrived, Mr. Sullivan told Mr. Davis that he, Sullivan, really did not carry the bag to the drive-in teller window, but that somebody stole it out of his car, and that he was scared, and just made up the story about taking the bag to the drive-in teller window. That Mr. Sullivan made out a police report that someone had stolen the money out of his car. That this happened on Tuesday, November 3, 1981. That on Wednesday, November 4, 1981, Mr. Davis found out that the deposit for Friday night, October 30, 1981, was missing. That Mr. Davis called Mr. Sullivan, and he came to the restaurant, and there was a conference between Mr. Davis, Mr. Sullivan, and Mr. Gross, in which Mr. Gross asked Mr. Sullivan where Friday night's deposit was, and Mr. Sullivan replied that he did not want to answer any more questions. ...