DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-1471

September 19, 2001

KENNETH LEE STANLEY AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

SEVENTH DIVISION [CR00-966]

V. HON. JOHN B. PLEGGE, JUDGE

STATE OF ARKANSAS REVERSED IN PART;

APPELLEE AFFIRMED IN PART AS MODIFIED

Kenneth Lee Stanley appeals a non-jury verdict that found him guilty of Class C felony theft of property, fraudulent use of a credit card, and second-degree forgery.1 On appeal, he challenges the sufficiency of the State's evidence. We agree that the State failed to introduce substantial evidence to support appellant's convictions in two instances. Therefore, we reverse appellant's conviction for fraudulent use of a credit card, reverse appellant's conviction for second-degree forgery, and modify appellant's conviction for Class C felony theft of property to Class A misdemeanor theft of property.

On March 22, 2000, the State filed a felony information alleging that appellantcommitted the Class C felony offenses of residential burglary, theft of property, fraudulent use of a credit card, and second-degree forgery by 1) making unauthorized use of his great-aunt's (Mary Red) checking account by signing her name to seven checks, 2) using his great-aunt's credit card without her permission, and 3) breaking into his great aunt's home and removing a television, weed-eater, and a shop-vacuum. After waiving a jury trial, appellant was tried before a trial court on August 28, 2000.

The State presented the testimony of appellant's aunt (Mary McGinnis), her daughter (Vickie Barrett), and Detective Ricky Trimble. After the State rested, counsel for appellant moved for a directed verdict, arguing that the State failed to prove that appellant was not authorized to use the credit card or sign Red's name on the checks. Counsel also requested that the court reduce the felony charge of theft to a misdemeanor because the State did not prove that the items had an aggregate value of more than five hundred dollars. The court denied appellant's motions. Appellant rested and renewed his motion for directed verdict. The court again denied the motions, and found appellant guilty on all counts. It sentenced appellant to five years' imprisonment for residential burglary, four years' imprisonment for felony theft of property, eight years' imprisonment for fraudulent use of a credit card, and eight years' imprisonment for second-degree forgery.

Appellant raises three points on appeal, each related to the sufficiency of the State's evidence. Specifically, he argues that the State failed to introduce substantial evidence to demonstrate 1) that he used Red's credit card without her permission, 2) that he signed Red's name on checks payable to him without Red's permission, and 3) that the value of the itemsremoved from Red's home was in excess of five hundred dollars.

Standard of Review

When reviewing an appeal based on the sufficiency of the State's evidence, we regard all proof in the light most advantageous to the verdict, and contemplate only evidence that supports the verdict. See Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999). Evidence is considered as sufficient to support a conviction when it is forceful enough to compel reasonable minds to draw a conclusion, without resorting to conjecture or speculation. See id. The evidence used by the State may be direct or circumstantial; however, when the State seeks to sustain a verdict based solely on circumstantial evidence, the evidence relied upon must point to the guilt of the accused and eliminate every other reasonable hypothesis. See id. When we determine that the circumstantial evidence relied upon by the State is such that the finder of fact must speculate in order to reach a guilty verdict, the evidence is insufficient as a matter of law and we will reverse. See id.

Fraudulent Use of Credit Card

First, appellant argues that the State failed to present evidence that he used Red's credit card without her permission. Arkansas Code Annotated section 5-37-207 (Repl. 1997) provides that the criminal offense of fraudulent use of a credit card is committed when a person "with purpose to defraud, uses a credit card or credit card account number to obtain property or services with knowledge that . . . his use of the card or account number is unauthorized by either the issuer or the person to whom the credit card is issued." Fraudulent use of a credit card is a Class C felony when the value of the goods or servicesobtained during a six-month period is greater than one-hundred dollars. See id. It is the use of an unauthorized credit card or credit card number that results in a criminal conviction. See Patterson v. State, 326 Ark. 1004, 935 S.W.2d 266 (1996).

Turning to the evidence at hand, and viewing it, as we are required to do, in the light most favorable to the State, the following facts are significant. Appellant concedes that he used Red's credit card, however he contends that he did so with Red's permission. In an effort to demonstrate that the credit card use was unauthorized, the State presented testimony from McGinnis, who testified that her mother suffered from dementia and a series of strokes beginning in March 1999, that appellant lived with Red in Red's home, and that Red was disoriented and unaware of her whereabouts the majority of the time. She also testified that although Red normally kept her credit cards in her purse, McGinnis and Barrett discovered credit cards throughout the home, including appellant's bedroom. In addition, McGinnis and Barrett found several credit card receipts in appellant's bedroom, which indicated that appellant used Red's credit cards in March, April, and May of 1999 to frequent several strip clubs and liquor stores. She testified that her mother did not patronize night clubs. McGinnis further relayed that Red was hospitalized for one month in June 1999, and that appellant called the hospital only once during Red's one-month hospital stay to ask for money. McGinnis also testified that she assumed responsibility of Red's financial affairs in July 1999.2 McGinnis testified that she was not with her mother at any time during March1999 to January 2000, when her mother gave money or wrote checks to appellant, and that she never authorized appellant to use her mother's credit card or checking account. Barrett corroborated her mother's testimony regarding the credit card receipts.

The State bears the burden of affirmatively proving the guilt of an accused, beyond a reasonable doubt. See Combs v. State, 286 Ark. 74, 690 S.W.2d 712 (1985). It is not enough for the State to persuade the trier of fact that the accused has given false testimony. See id. While the proof presented by the State supports the notion that appellant's conduct was far from ideal, it does not rise to the level of circumstantial evidence to sustain his conviction for fraudulent use of a credit card. Because the credit card transactions took place approximately two months before McGinnis gained control over her mother's finances, and before Red's hospitalization, the power to refuse appellant the authorization to use the credit card remained with Red. The record fails to demonstrate that Red did not authorize appellant's use of her credit card. Because we conclude that reasonable minds could not have rendered a verdict of guilty on the count of Class C fraudulent use of credit card based on the evidence produced by the State without resorting to speculation, we reverse.

Forgery

Next, appellant urges that the State failed to present substantial evidence that Red did not authorize him to sign her name on checks made payable to him. Again, we agree.

A person commits forgery in the second degree when he forges a written instrument that is a check that creates or otherwise affects a legal right, interest, obligation or status. See Ark. Code Ann. § 5-37-201 (Repl. 1997). The fact that a person signs the name of anotheron a check does not necessarily mean that the signature was forged. See Johnson v. State, 236 Ark. 917, 370 S.W.2d 610 (1963).

In Johnson, supra, the State presented evidence that the appellant had signed a check in the name of James Odom for $38. After noting that the State failed to call Odom as a witness to prove that he did not authorize the appellant to sign his name as a witness, that the State failed to call any other witness to prove lack of authorization, and that the State failed to call a representative from the bank to produce Odom's signature card, our supreme court determined that the evidence was not sufficient to support the appellant's conviction. See Johnson, supra.

Considering only the evidence favorable to the State that supports appellant's conviction for forgery, we conclude that the State failed to present substantial evidence that appellant's signature of Red's name was not authorized. Although appellant concedes that he signed the checks using Red's name, he persuasively argues that the State bore the burden of affirmatively proving beyond a reasonable doubt that he did so without Red's authorization. We begin by noting that because Red died before appellant's trial, the State was unable to call Red as a witness to confirm or deny whether she gave appellant permission to sign checks in her name. In an effort to meet its burden of proving beyond a reasonable doubt that appellant signed Red's name without her permission, the State presented circumstantial evidence that the checks in question were written and signed by appellant in June and July 1999. Additionally, it is not disputed that all of the checks except one were written while Red was hospitalized. The State also presented McGinnis' testimonythat appellant never came by to visit Red while she was hospitalized and only telephoned Red once while she was in the hospital, but was unable to speak with Red because McGinnis intervened.

Pursuant to Johnson, supra, the fact that appellant signed Red's name does not prove his guilt of second-degree forgery. The testimony adduced at trial indicated that appellant and Red had a quasi parent-child relationship, that appellant lived with Red off and on for his entire life, and that appellant was living with Red at the time of the alleged incident. Red raised appellant, and the State's contention that Red would not have given appellant permission to sign his name on her checks is, without more, pure speculation. Also, McGinnis testified that she obtained a power of attorney from Red on July 30, 1999, and there is no evidence that appellant signed any of the checks in question after July 30, 1999. Again, because the evidence does not provide sufficient force to support a conclusion that appellant committed second-degree forgery, we reverse.

Felony Theft

For his final point on appeal, appellant urges that the State failed to present substantial evidence that the items he confiscated from Red's home were valued at more than $500 and less than $2,500 to sustain his conviction of felony theft and that the court erred by refusing to reduce his charge from a Class C felony to a Class A misdemeanor. Again, we agree.

Arkansas Code Annotated section 5-36-103(a)(1) (Repl. 1997) mandates that theft of property occurs when an individual "knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, withthe purpose of depriving the owner thereof." Theft of property is considered a Class C felony when the State establishes that the value of the property exceeds five hundred dollars, but is less than two thousand five hundred dollars. See Ark. Code Ann. § 5-36-103 (b)(2)(A) (Repl. 1997). However, when the property is valued at five hundred dollars or less, the theft is considered a Class A misdemeanor.

It is incumbent upon the State to prove the value of stolen property. See Chase v. State, 46 Ark. App. 261, 879 S.W.2d 455 (1994). Value is considered as the market price of the property when it was stolen, or the cost of replacing the item within a reasonable period of time after it was stolen. See id. When seeking to establish the value of a stolen item, the State is permitted to introduce the purchase price paid by the owner as one factor of determining value, provided that the State demonstrates that the purchase was not too remote in time and that the price paid by the owner correlates somewhat to the item's present value. See id.

To satisfy its burden of proof that the aggregate value of the nineteen-inch television, shop-vac, and weed blower exceeded five hundred dollars, the State offered the testimony of McGinnis and Barrett. When asked on direct examination about the value of the television, McGinnis testified "I'm not good at things like that, probably five or six hundred dollars. I don't know. It was a big TV." With regard to the shop-vac, McGinnis testified "It was old. Oh, my husband bought it. I don't know, what $25, I don't know what they cost." When asked about the weed blower, she testified "my husband purchased that blower. I'd be guessing. I don't know how much they cost." On cross examination, McGinnistestified "I'm not sure about the value of the TV. No, I'm really not. I'm just guessing. Just like the shop-vac, I don't know how much they cost. My husband bought it. I don't know about TVs, no." Barrett testified that the television had a value of "a couple hundred dollars maybe." She also testified that "the value of the shop-vac or the weed blower [was] twenty-five, thirty dollars, just a guess." No evidence was introduced regarding the date that the items were purchased, the amount paid for each of the items, or the condition of the items. Because we cannot conclude that the State presented substantial evidence to support the trial court's finding that the stolen items had an aggregate value exceeding five hundred dollars, we modify appellant's conviction to a Class A misdemeanor. Reversed in part; affirmed in part as modified.

Stroud, C.J., and Neal, J., agree.

1 Appellant was also convicted of residential burglary. However, he does not challenge his residential burglary conviction on appeal.

2 In its reply brief, the State suggests, contrary to the record, that McGinnis assumed financial responsibility over Red's affairs in March. However, a document purporting to be a power of attorney was introduced into evidence by the State. This document indicates that the power of attorney was executed on July 30, 1999.