Whisenant v. State

• Decision Date: 11 February 2004
• Docket Number: No. CA CR 01-1418.,CA CR 01-1418.
• Citation: 146 S.W.3d 359,85 Ark. App. 111
• Parties: Sherrell Jean WHISENANT v. STATE of Arkansas.
• Court: Arkansas Court of Appeals

146 S.W.3d 359

85 Ark. App. 111

Sherrell Jean WHISENANT v. STATE of Arkansas.

No. CA CR 01-1418.

Court of Appeals of Arkansas, Division III.

February 11, 2004.

Appeal from the Circuit Court, Pike County, Charles A. Yeargan, J Self Law Firm, by: Joseph C. Self, Fort Smith, for appellant.

Mike Beebe, Att'y Gen., by: Linda Blackburn, Ass't Att'y Gen., Little Rock, for appellee.

ANDREE LAYTON ROAF, Judge.

Sherrell Jean Whisenant was convicted of possession of firearms by a felon, one count of theft of property, and four counts of financial identity fraud. She was sentenced to a total of six years' imprisonment. On appeal, Whisenant argues that the trial court erred in: (1) denying her motion for a continuance to allow her to obtain transcripts of previous proceedings; (2) denying her motion to suppress evidence found following a warrantless search of her purse; (3) failing to give a requested jury instruction on the defense of choice of evils; (4) failing to grant her motions for directed verdict on the charges of theft and financial identity fraud. We agree that the trial court erred in denying her motion to suppress evidence found in her purse and reverse on this point.

At trial, Virgil Hellums testified that Whisenant was his girlfriend and that she lived at his house. According to Hellums, Whisenant had told him that she was on probation for using her sister-in-law's social security number to acquire a vehicle and that she was not a felon, but he began to doubt this claim. On the evening of January 13, 2001, Hellums arranged to meet with Deputy Sheriff Preston Glen from the Pike County Sheriff's Department, who verified his suspicions about Whisenant. Hellums informed Glen that Whisenant had firearms in his house and gave his consent to a search of his home, after first removing his own firearms from the house. When they arrived at the residence, Hellums took Glen into the bedroom and showed him two firearms belonging to Whisenant in plain view near the dresser. Whisenant stated that the guns came from her ex-husband. Glen then arrested Whisenant, who was present in the house, and she was transported to the detention center.

After a Department of Human Services caseworker, Regina Dowdle, came to the residence to arrange for someone to care for Whisenant's minor children, Deputy Glen testified that he returned to the sheriff's department and was attempting to book Whisenant. Glen stated that Whisenant had given him several different names and dates of birth and that he could not find her information on the computer. He returned to Hellums's residence at approximately 2:00 a.m. on January 14 and explained that he could not find any identification for Whisenant. Hellums stated that he might be able to help and grabbed a purse off a table in the kitchen. Hellums started to search a large wallet from the purse and found two of his credit cards inside the wallet, along with a list of other credit card numbers, expiration dates, and Hellums's name, social security number, and date of birth. Hellums then retrieved a stack of credit cards that he had in his bedroom and matched up several of these cards with the credit card numbers on the list from the wallet.

Glen testified that they had still not located any identification, so Hellums handed him another smaller wallet that was in the purse. Glen stated that he found three checks belonging to Ms. Retha Johnson on one side of this wallet and found checks belonging to Timmy Stone and to Jack Stone on the other side of the wallet. Glen testified that he then saw the edge of a plastic card inside a partially opened zipper part of the wallet and found Whisenant's driver's license. According to Glen, a bank printout with Jack Stone's name and loan number was also in the wallet, and on the list from the larger wallet were Jack Stone's name, social security number, and bank account number. On the back of that list, Glen testified that there was also a list of some of Jack Stone's real and personal property. In addition, Glen testified that Regina Dowdle, the DHS caseworker, had found two property deeds belonging to Jack Stone inside Whisenant's van when she was at the residence earlier that evening.

Whisenant argues that the trial court erred in denying her motions for directed verdict on the charges of theft of property and financial identity fraud. She contends that the State failed to prove that she had the intent to unlawfully appropriate the property or financial resources of any of the victims. Although Whisenant makes this argument as her fourth point on appeal, this court is required to address challenges to the sufficiency of the evidence first due to double jeopardy considerations. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Id. On appeal from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial; however, when circumstantial evidence is relied upon, it must exclude every other reasonable hypothesis other than the guilt of the accused. Id. The question of whether circumstantial evidence excludes other reasonable hypotheses is for the fact finder to determine. Id.

A person commits financial identity fraud if, with the intent to unlawfully appropriate financial resources of another person to his or her own use or to the use of a third party, and without the authorization of that person, he or she obtains or records identifying information that would assist in accessing the financial resources of the other person. Ark.Code Ann. § 5-37-227(a)(1)(A) (Supp.2003). "Identifying information" includes, but is not limited to, social security numbers, driver's license numbers, bank account numbers, credit card numbers, personal identification numbers, or any other numbers or information that can be used to access a person's financial resources. Ark.Code Ann. § 5-37-227(a)(2) (Supp.2003).

Whisenant's convictions for four counts of financial identity fraud involve the identifying information of Virgil Hellums, Tim Stone, Jack Stone, and Retha Johnson. Virgil Hellums testified that he found in Whisenant's wallet, in addition to two of his credit cards, a list of other credit card numbers belonging to him, along with the expiration dates, his birth date, full name, and social security number. Hellums testified that this list was in Whisenant's handwriting. Whisenant claimed that she had written down this information because she had lost her wallet a couple of months earlier, and Hellums had instructed her that she needed to have a list of everything in case it happened again. Thus, she stated that she had written down both of their credit card numbers and other information for this purpose. However, Hellums stated that he did not give Whisenant permission to write down his credit card information or other identifying information.

Tim Stone testified that Whisenant had lived in his house during October and November of 2000. He identified one of his checks found in Whisenant's wallet as one that had been voided and which had his social security number on it. He testified that he did not authorize Whisenant to have possession of this check at any time.

Jack Stone testified that a check found in Whisenant's possession was one of his checks and that it had his social security number on it. He also identified some of his bank loan documents that were found in Whisenant's possession. Whisenant claimed that she had this information because Stone was planning on getting a new vehicle and that she was assisting him in getting together the information he would need to get a loan. However, Stone testified that he did not authorize anyone to have possession of this check or the loan documents.

Finally, Retha Johnson testified that Whisenant had been in her house while she was in the hospital in December 2000. She stated that her three checks found in Whisenant's possession came from a checkbook that had been lying on her bedroom dresser. Whisenant stated that Johnson had given her three bags of children's clothing and that she found the checks in with the clothes. Whisenant testified that she placed the checks in the ashtray in her vehicle so that she could return them when she next saw Johnson. However, Johnson denied Whisenant's explanation and testified that she did not authorize Whisenant to have possession of these checks at any time.

Because there was no evidence that she had used any of the victims' financial information, Whisenant argues that the State failed to prove that she had the intent to unlawfully appropriate the financial resources of these victims. Intent can seldom be proven by direct evidence and must usually be inferred from the circumstances surrounding the crime. Taylor v. State, 77 Ark.App. 144, 72 S.W.3d 882 (2002). The jury is allowed to draw upon its common knowledge and experience to infer intent from the circumstances. Id.

Contrary to Whisenant's argument, there was sufficient evidence presented in this case to support her convictions for financial identity fraud. Whisenant had possession of financial information belonging to four different persons, all of whom denied giving her permission to have this information. In addition, there was testimony by Annette Stone, who was friends with Whisenant, that Whisenant showed her Hellums's stack of credit cards at his house on one...