Turner v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: DOUG MARTIN
• Citation: Turner v. State, 2012 Ark. App. 150, 391 S.W.3d 358 (Ark. App. 2012)
• Decision Date: 15 February 2012
• Docket Number: No. CA CR 11–717.,CA CR 11–717.
• Parties: Rebecca Mary TURNER, Appellant v. STATE of Arkansas, Appellee.

2012 Ark. App. 150

391 S.W.3d 358

Rebecca Mary TURNER, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 11–717.

Court of Appeals of Arkansas.

Feb. 15, 2012.

Q. Byrum Hurst, Jr., Hot Springs, AR, for appellant.

Dustin McDaniel, Atty. Gen., by: Valerie Glover Fortner, for appellee.

DOUG MARTIN, Judge.

[Ark. App. 1]The Garland County Circuit Court convicted appellant Rebecca Mary Turner of three counts of theft by receiving a credit or debit card; theft by receiving property valued in excess of $2,500; second-degree forgery; obstruction of governmental operations; and attempted theft of property valued below $500.¹ Turner was sentenced as a habitual offender to an aggregate term of thirty years' imprisonment. On appeal, Turner challenges only two of her convictions. She argues that there was insufficient evidence to support her convictions for theft by receiving with respect to a vehicle and second-degree forgery. Turner also contends that the trial court erred in ruling that her sentences run consecutively. We find no error and affirm.

[Ark. App. 2]I. The Guilt Phase

The series of events that gave rise to the facts of this case began on August 22, 2009, when Jacqueline (Jaci) Barden's purse and vehicle were stolen, and culminated with Turner's arrest at Walmart on August 28, 2009. At trial, Barden testified that, on August 22, 2009, she was shopping for school clothes with several of her children at Kohl's in Conway. Barden stated that she became distracted for “thirty seconds” and turned away from her purse. When Barden turned back, her zebra-print purse was gone. Barden testified that she had “all forms of [her] financial means” in her purse that day, along with debit cards belonging to her children, as well as the children's social security cards and birth certificates needed for enrollment at school. Outside Kohl's, Barden's children saw the family's silver Ford Explorer leaving the parking lot. While Barden was speaking with police officers, one of Barden's older children went to an AT & T store that was in the strip mall with Kohl's and inquired about the GPS tracking system on Barden's cell phone, which was in Barden's stolen purse. According to an employee of AT & T, there had been recent activity on the phone, and the employee gave Barden a telephone number to a “Go Phone” that had been called. Barden first called her own cell phone number, entered her password, and listened to her voice-mail messages. Barden testified that one of the messages, from which she omitted the curse words when repeating, said: “G D M F, Rebecca Turner, you better call me back right now, and I mean it, G D.” Barden then called the “Go Phone” number, and a man eventually answered, refused to identify himself, and claimed that he did not know anyone by the name of Rebecca Turner. According to the testimony, Barden later told Detective Scott Lampinen with the [Ark. App. 3]Hot Springs Police Department that someone had attempted to use her credit card at the 70 West Exxon in Hot Springs shortly after Barden's purse was stolen.

Annie Palmer testified that she was working at the 70 West Exxon station on August 23, 2009, when a woman driving what Palmer described as a gray Ford Explorer pulled into a parking space designated for handicapped individuals. Palmer testified that, although the woman was wearing a wig, she believed the woman was Rebecca Turner because Turner had, on previous occasions, written bad checks at the Exxon station and used credit cards that did not belong to her. Palmer testified that Turner attempted to purchase items with a credit card that was declined. Palmer asked for identification, and Turner explained that she had no identification because her purse had been stolen. Turner, however, produced a social security card, which Palmer testified matched the name on the credit card. Palmer then identified a credit card and social security card as those presented to her on August 23 and stated that she recognized them because the name was the same: “Jaci.” Palmer was shown a picture of Turner that was taken at the time of her arrest on August 28, and Palmer testified that she recognized the hair because it was a wig. According to the testimony, Detective Lampinen later interviewed Palmer and learned that she had provided investigating officers with the license plate number of a vehicle matching the description of Barden's vehicle. The investigators had run the tags and discovered that the vehicle belonged to Barden.

Jason Stovall, who worked in loss prevention at Walmart, testified that he knew Turner from a previous encounter at Walmart when Turner had attempted to pass bad checks. On August 28, 2009, he observed Turner in the store and followed her over the course of [Ark. App. 4]three hours. Stovall testified that he saw Turner conceal over $300 worth of cosmetics in makeup bags, which she then added to her shopping cart full of merchandise. Turner took the merchandise to the checkout counter in the sporting goods section. The items were scanned by the cashier, and Stovall saw Turner hand the cashier a check. Before the transaction was complete, Turner began to walk away from the checkout counter and was immediately detained by a police officer.

Benjamin Riley, a patrol officer with the Hot Springs Police Department, responded to a call from a Walmart employee concerning a potential case involving shoplifting and forgery. When Officer Riley approached Turner in the sporting goods section, Turner told him that her name was Stephanie Phillips but that she had no identification with her. Officer Riley requested consent to search Turner's purse, to which she agreed. Officer Riley discovered credit cards and checks belonging to “Jaci Barden.” Officer Riley testified that Turner told him she had arrived at Walmart in a silver vehicle and that a friend was waiting for her outside.

Lieutenant Craig Kirkland testified that he approached a silver 2005 Ford Explorer in the Walmart parking lot, and a man emerged from the vehicle and identified himself as Karon Mohammed. Lieutenant Kirkland testified that Mohammed had been behind the wheel of the vehicle and that the keys were in the ignition. When Lieutenant Kirkland ran the tags on the vehicle, he discovered that the vehicle had been reported stolen in Conway. Upon conducting an inventory of the vehicle's contents, Lieutenant Kirkland found an Arkansas driver's license belonging to Stephanie Phillips under a seat in the vehicle.

[Ark. App. 5]Detective Lampinen testified that he first made contact with Turner after she was arrested and brought to the police department. According to Detective Lampinen, Turner looked “quite a bit different” at trial than on the day of her arrest. Detective Lampinen identified several items from the purse in Turner's possession, including check number 1345, which listed the account holder as “Jaci Barden.” According to Detective Lampinen, the check was not signed, dated, or paid to the order of anyone, but there was handwriting on the check reflecting telephone numbers, a date of birth, and an expiration date for a driver's license.

Turner testified that, on August 28, 2009, she called her friend Mohammed and asked for a ride to a friend's house. Turner said Mohammed pulled up in a silver Ford Explorer. According to Turner, Mohammed told her that he had some checks and credit cards and asked if she would like to try using them at Walmart. Turner testified that Mohammed handed her a purse and wallet and that she went inside Walmart while Mohammed waited in the vehicle. Turner testified that she was shopping and “[n]ext thing you know I tried giving the check and whenever I turned around there was a police officer behind me....” Turner testified that she identified herself as “Stephanie Phillips” because her parole officer was looking for her. Turner also stated that she was wearing a wig at the time of her arrest. Turner testified that she believed something was put in her drink at Sonic after she was picked up by Mohammed because she could remember only “bits and pieces” from the events leading to her arrest. Turner insisted that she had neither driven Barden's vehicle nor had the keys to it and that, in fact, she had never been to Conway.

[Ark. App. 6]The trial court denied Turner's motions to dismiss with respect to the two convictions Turner challenges on appeal. A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial, is considered a challenge to the sufficiency of the evidence. Williams v. State, 2010 Ark. App. 759, 2010 WL 4523758. This court will affirm the trial court's denial of a motion to dismiss if there is substantial evidence—evidence forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture—to support the verdict. Id. The evidence can be direct or circumstantial. Id. On appeal, the evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict is considered. Cora v. State, 2009 Ark. App. 431, 319 S.W.3d 281. Assessment of witness credibility is the responsibility of the finder of fact. Doubleday v. State, 84 Ark.App. 194, 138 S.W.3d 112 (2003).

Turner first contends that there was no substantial evidence supporting her conviction for theft by receiving with respect to Barden's vehicle. A person commits the offense of theft by receiving if she receives, retains, or disposes of stolen property of another person knowing that the property was stolen or having good reason to believe the property was stolen. Ark.Code Ann. § 5–36–106(a) (Repl.2006). Proof of actual possession is not necessary in order to establish theft by receiving; proof of constructive possession will suffice. Smith v. State, 34 Ark.App. 150, 806 S.W.2d 391 (1991). A person constructively possesses property when she has the power and intent to control it. Id. A person may be found guilty of theft by receiving if she is knowingly in...