ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

LAJOYYA ASHLEY THOMAS,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-1042

JANUARY 16, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR99-2158, CR99-2555, CR99-3351 and CR00-535

HON. JOHN PLEGGE, JUDGE

AFFIRMED

This appeal arises out of four separate Pulaski County Circuit Court cases that are consolidated for purposes of appeal. In CR99-2158, appellant Lajoyya Ashley Thomas was convicted of four counts of second-degree forgery and two counts of misdemeanor theft of property; in CR99-2555, Thomas was convicted of one count of fraudulent use of a credit card; in CR99-3351, Thomas was convicted of one count of second-degree forgery; and in CR00-535, Thomas was convicted of one count each of financial identity fraud, second-degree forgery, and first-degree forgery.

Thomas's counsel has filed a no-merit brief and a motion to withdraw in CR99-2158 and CR99-3351. He has attempted to do likewise in CR00-535, in which he contends there is no meritorious ground for appeal except for the denial of appellant's motion to return seized property. Thomas was given thirty days in which to file pro se points of appeal in these no-merit cases; he did not do so. This court denied, on October 3, 2001, Thomas's

pro se motion to file a belated reply brief.

Appellant's counsel has filed a merit brief in CR99-2555, contending that the circuit court erred in denying Thomas's hearsay objection to the admissibility of a credit report of the alleged victim and that the State failed to introduce substantial evidence that Thomas was guilty of Class C felony fraudulent use of a credit card account number because the State failed to prove the value of the property that Thomas obtained in using Patricia Craig's credit card account numbers. In CR00-535, which we treat as a merit appeal, counsel contends that the only meritorious ground for appeal is that the circuit court erred in denying Thomas's pro se post-trial motion, requesting that the court order the Little Rock Police Department to return to Thomas the $1,873 that a Little Rock police officer seized from his purse when she arrested Thomas on December 1, 1999.

I. CR99-2158

Thomas was convicted of four counts of second-degree forgery and two counts of misdemeanor theft of property. He was accused of possessing a prescription that was not his and forging checks. Counsel's list of adverse rulings included two objections to hearsay and an objection to a leading question. The first hearsay objection did not result in an adverse ruling and as such, cannot be addressed on appeal. The objection to the leading question that was overruled by the court did not constitute an abuse of discretion by the court.

The second hearsay objection was to a police officer's statements regarding the photo spread that the officer showed the pharmacists to whom the prescriptions in question hadbeen submitted. The court ruled that "she [the officer] can testify about what her investigation revealed." The witness proceeded to state that the pharmacists, Walter Fruchey and Ray Turnage, identified Thomas. A police officer can properly testify as to the existence and circumstances of an extrajudicial identification by witnesses if there is no defect in the identification procedure used, and if the person making the extrajudicial identification is present at trial and subject to cross-examination, recall, or is subject to being called as a hostile witness by the defense. Jacobs v. State, 316 Ark. 698, 875 S.W.2d 52 (1994); Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981). These standards were met in this case; therefore, we agree that this ruling provides no meritorious ground for appeal.

Counsel further contends that a challenge to the sufficiency of the evidence would also be without merit. A person forges a written instrument if, with the purpose to defraud he draws, makes, completes, alters, counterfeits, possesses or utters any written instrument that purports to be or is calculated to become or represent if completed the act of a person who did not authorize that act. Ark. Code Ann. § 5-37-201(a)(Repl. 1997). A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(1)(Repl. 1997).

Trial counsel based his motion for directed verdict on the grounds that the evidence did not provide a reliable identification of Thomas as the one who wrote the checks and that the in-court identification was based on the photo line-up instead of independent recollection. There was testimony from both pharmacists who were the victims of Thomas'sforgery that he was the one who tendered the prescriptions and checks. There was testimony from Detective Andrew that the pharmacists had identified Thomas from a photo line-up.

It is for the trial court to determine if there are sufficient aspects of reliability present in an identification to permit its use as evidence. Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995). It is then for the jury to decide what weight that identification testimony should be given. Id. Matters of credibility and conflicts in testimony are for the trial court and those decisions will not be disturbed on appeal. Id. The factors to be considered in determining the reliability of an identification include: (1) opportunity to view the suspect; (2) accuracy of the description; (3) prior misidentification; (4) level of certainty demonstrated at confrontation; (5) failure of witness to identify the defendant on a prior occasion; (6) lapse of time between alleged act and the identification. Id.

Ray Turnage filled the prescription in February and was shown the photo line-up in May. Detective Andrew's testimony established that Turnage had described Thomas as a black male dressed as a female. Turnage initially misidentified Thomas. However, he testified that he remembered the defendant as the one who tendered the prescription because the prescription, one for hydroquinone cream, was an unusual prescription for dark-skinned persons such as the defendant.

Walter Fruchey testified that he received a prescription for hydroquinone cream and identified Thomas as the person who tendered the prescription He testified that this transaction occurred on February 19, 1999, and that the check was returned from the bankdue to insufficient funds on February 22. He testified that Thomas stood three feet away from him during the transaction and stared at him the entire time. Fruchey testified he remembered the transaction because he found that behavior unusual, as people usually shop while waiting for their prescriptions to be filled. He stated that the prescription was in the name of Jennifer Armstrong, that the defendant tendered a check under that name, and that the defendant was dressed as a female during this transaction. He testified that he observed Thomas go to the cash register and write the check and that he later received the check back from the bank because it had been reported lost or stolen. He further stated that though he did not view the actual writing of the check, the amount of the returned check in Jennifer Armstrong's name would cover the cost of that specific prescription, and that he watched Thomas take the prescription to the cash register.

Based on the foregoing testimony, it was not clearly erroneous for the judge to consider the identification reliable, considering the Milholland factors. There is substantial evidence to support the identification of Thomas as the one who tendered the prescriptions and forged the checks to the pharmacists.

II. CR99-2555

Counsel contends there is merit to the appeal of case No. CR99-2555. He contends that Thomas's conviction for fraudulent use of a credit card should be reversed because the court erred in denying Thomas's hearsay objection to the admissibility of a credit report of Patricia Craig, the alleged victim, and because the State failed to prove the value of the property obtained through use of the card.

Counsel contends that "credit reports are hearsay and, therefore, are inadmissible unless they are qualified for admission pursuant to the hearsay exception that allows records of regularly conducted business activity to be admitted," citing United States v. Metallo, 908 F.2d 795 (11th Cir. 1990) and United States v. Beecroft, 608 F.2d 753 (9th Cir. 1979). Counsel argues that credit reports inherently lack trustworthiness without some indication that the record was made by someone in the course of their business and near the time of the events. Counsel further contends that the proper foundation for the business-records exception was not laid because no custodian of the credit report records testified and that the report's admission was prejudicial because it constituted the State's only proof that the transactions were credit transactions.

The State contends that the admission of the reports was not reversible error because Craig testified, without objection, to the contents of the report. We need not decide in this case whether the business-records exception is applicable to credit reports in this case because the report's admission was harmless error. The business records predicate was not met in this case; there was no testimony from a custodian of the records and no business-records exception affidavit to replace the custodian's testimony. However, even if credit reports must be admitted under the business-records exception and such exception was not met here, this was harmless error, as the relevant part of the report is merely cumulative of Craig's testimony -- that the two credit transactions were made. The report, as Thomas's counsel argues, does contain much more information than this. However, we cannot say that the admission of such extraneous information, such as amount of outstanding credit,payment history, etc. contained in the report, was harmful error.

Counsel next contends that the State failed to introduce evidence that the value of the property obtained by Thomas exceeded one-hundred dollars during a six-month period. A motion for dismissal, identical to a motion for a directed verdict in a jury trial, is a challenge to the sufficiency of the evidence. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. On appeal, we review the evidence in the light most favorable to the State and consider only evidence supporting the verdict. Id. Substantial evidence is that which is of sufficient force and character to compel a conclusion without resort to speculation or conjecture. Id.

In Ayers, the appellant argued that the State had not produced sufficient evidence of the value of the property alleged to be stolen because the owner of the stolen car did not testify. The court stated that:

Id. at 268, 975 S.W.2d at 93-94.

In the case at bar, the owner of the credit cards, Craig, testified that approximately$2,800 in unauthorized charges were made on her accounts. A victim's testimony constitutes substantial evidence to support a finding that stolen property was valued in excess of the statutory minimum. See Watson v. State, 271 Ark. 661, 609 S.W.2d 673 (Ark. App. 1980). Craig's testimony as to the amount of charges was substantial evidence that the value of the items obtained was in excess of $100.

Because the admission of the credit report was not harmful error and because there is substantial evidence that the value of the goods obtained by Thomas exceeded $100, we affirm his conviction in case No. CR99-2555.

III. CR99-3351

Counsel contends that case No. CR99-3351, in which Thomas was convicted of one count of second-degree forgery, has no merit to its appeal. We agree.

Thomas requested the court to relieve his public defender and appoint him a new attorney. Thomas argued that his public defender was not representing him properly because the defender had only been to see him once during his five-month incarceration in jail, would not bring him motions for discovery, and urged Thomas to plead guilty. Counsel contends this point has no merit.

In Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988), the court rejected an ineffective-assistance-of-counsel argument that was based on failure to investigate, failure to question certain witnesses, failure to file pre-trial motions, inexperience, and failure to confer with appellant. The court stated that:

Id. at 245, 761 S.W.2d at 166 (citations omitted).

In the case at bar, Thomas's assertion that his counsel failed to visit with him enough, just like the assertion in Furr, is too general to provide a basis for a meritorious appeal.

Id. at 404-05, 590 S.W.2d at 304.

IV. CR00-535