{ "id": 6137389, "name": "Sean P. TUMLISON v. STATE of Arkansas", "name_abbreviation": "Tumlison v. State", "decision_date": "2005-11-09", "docket_number": "CA CR 04-1367", "first_page": "91", "last_page": "101", "citations": [ { "type": "official", "cite": "93 Ark. App. 91" }, { "type": "parallel", "cite": "216 S.W.3d 620" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "71 Ark. App. 226", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140559 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/71/0226-01" ] }, { "cite": "54 Ark. App. 302", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140651 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/54/0302-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-205", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-90-305", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "295 Ark. 20", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893728 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ark/295/0020-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-303", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 2003, "pin_cites": [ { "page": "27" } ], "opinion_index": 0 }, { "cite": "868 S.W.2d 42", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1993, "opinion_index": 0 }, { "cite": "314 Ark. 471", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912811 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0471-01" ] }, { "cite": "304 U.S. 458", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10805 ], "year": 1938, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/us/304/0458-01" ] }, { "cite": "310 Ark. 744", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898920 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "748", "parenthetical": "citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)" }, { "page": "595", "parenthetical": "citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)" } ], "opinion_index": 0, "case_paths": [ "/ark/310/0744-01" ] } ], "analysis": { "cardinality": 804, "char_count": 18109, "ocr_confidence": 0.76, "pagerank": { "raw": 1.0599897330993742e-07, "percentile": 0.5568378696981947 }, "sha256": "7b92b7fcd98a174e507a225861826c9ac15939d6c62d2fd12d78090b4d4e1095", "simhash": "1:7b27c5e0967b9f72", "word_count": 2976 }, "last_updated": "2023-07-14T22:52:25.043286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Vaught and Roaf, JJ., agree." ], "parties": [ "Sean P. TUMLISON v. STATE of Arkansas" ], "opinions": [ { "text": "Wendell L. Griffen, Judge.\nSean Tumlison appeals from udge. for his conviction for computer fraud. He argues that the trial court erred in not submitting the issue of restitution to a jury and by ordering excessive restitution. Appellant does not challenge the sufficiency of the evidence to support the conviction. We hold that appellant waived his right to ajury trial with regard to the calculation of restitution. However, we agree that the trial court ordered excessive restitution. Accordingly, we reverse and remand.\nAppellant was charged with computer fraud, theft of property worth over $2500, and five counts of second-degree forgery. Scott Woodward, criminal investigator for the Arkansas State Police, began his investigation by looking at business records provided by Paula McMahan, district manager for Johnson\u2019s Warehouse-Showroom. He took statements from various people who purchased furniture from the store. Some of the contracts he saw indicated that the customer returned the merchandise, but in at least two cases, he went to the customer\u2019s home and discovered that the customer had not made a return. During an interview with appellant, appellant stated that he told McMahan about the account for a friend of his. Appellant told Woodward that he was being pressured to collect on the account and that he started a scheme to get his employer off his back. The scheme involved taking money from one account to cover another. When that account became due, he would pay the old account with a new one.\nRicky Ellis testified that he purchased a stainless steel refrigerator for his business. He stated that he did not buy the refrigerator immediately; however, appellant marked the refrigerator as \u201csold\u201d and held it for him. Thirty days later, Ellis received a bill for the refrigerator. He told appellant that he had been billed for the refrigerator, and appellant told him that he would mark the refrigerator as unsold and then \u201csell\u201d it again. Ellis actually purchased the refrigerator six months later. He was shown a contract indicating a purchase of various other appliances; however, he stated that he did not sign the contract. He also stated that he got behind on his payments in early 2002 and that appellant started coming to him and asking for payment.\nRobert Leonard testified that he worked at Pauline Baptist Church. He stated that one Sunday, he made an appeal to the church for new furniture. Appellant later showed Leonard a couple of sectionals in the store\u2019s warehouse. Appellant told Leonard that he wanted to donate them to the church, and Leonard accepted them. Leonard was shown a purchase agreement indicating that the church had purchased two glider rockers, two gliders, and a sectional. He testified that the church only received the sectional. The purchase agreement stated a purchase price of $2623.47; however, Leonard testified that no payment plan was discussed and that he did not sign the agreement. The State also presented the testimony of several other customers who noticed either inconsistences with the purchase agreement and the actual agreement or fraudulent signatures on contracts.\nJohn Johnson, part owner of Johnson\u2019s Warehouse-Showroom, testified that appellant was an excellent manager but that \u201cit just kind of fell apart.\u201d Regarding the Ellis account, Johnson testified that appellant sold more than $7000 worth of appliances for about a $700 markup from wholesale, which was cheaper than any employee could buy them. Johnson testified that he pressed appellant to stay on top of Ellis over this deal. Ellis eventually paid the account. On cross-examination, Johnson testified that appellant was taking money from other accounts to pay on Ellis\u2019s account. He noted that, when he checked the computer, he discovered several outstanding accounts. Johnson learned of appellant\u2019s scheme after he started calling customers.\nPaula McMahan was called to talk about the investigation. Her direct testimony went into the specifics of appellant\u2019s scheme. On cross-examination, she testified that her investigation took approximately three months. The investigation started when she noticed that the company had money posted to an account for which it was not intended. A collection for J.R. Jackson was the first one that alerted McMahan to the problem. When calculating the loss to the business, she counted the difference between the contract that appellant wrote for the customer and the money collected from that customer. The company was holding appellant responsible for any shortage in profits.\nAfter hearing all of the testimony in the case, the jury found appellant guilty of computer fraud but acquitted him on the theft and forgery charges. The following colloquy then occurred:\nThe Court: The verdicts will be received then and then tendered to the Clerk for insertion in the court file. Approach the bench, counsel. Do y\u2019all want to submit the sentencing to the jury?\nMr. Gibson [counsel for appellant]: I don\u2019t know that we really need to. He\u2019s already \u2014\nMr. Cason [counsel for the State]: Let me talk to my people and see if they\u2019re agreeable to a certain number of years and I\u2019ll \u2014\nMr. Gibson: We\u2019d go the max.\nMr. Cason: The max is six.\nMr. Gibson: How about five?\nMr. Cason: Wait a minute now.\nMr. Gibson: Back up one. Ask him about five.\nMr. Cason: How about five supervised and one unsupervised.\nMr. Gibson: Oh, no, no, no. Let\u2019s just go five supervised.\nMr. Cason: Well \u25a0\u2014\nMr. Gibson: See what he says.\nThe Court: I might let you talk to them and \u2014\nMr. Cason: Let me talk to them.\n[after a brief recess\\\nMr. Cason: Five years supervised is fine.\nThe Court: Okay. Thank y\u2019all. Ladies and gentlemen, normally, the case would at this time be submitted to you regarding your deliberations on the sentence to be imposed. However, in this case, the parties have agreed what the recommended sentence should be and that is five years supervised probation, and this has been agreed to between the parties so we don\u2019t need to keep y\u2019aH any longer for any further deliberations or considerations. I thank you for your work the last three, days. You\u2019re excused tomorrow and you can be dismissed at this time if you would like to be. In fact, I\u2019m probably going to delay sentencing in order for some paperwork to be done at a later date, and so I\u2019ll dismiss y\u2019all at this time if you would like to be.\n[jury is dismissed]\nThe Court: Counsel, regarding the sentencing, I know what the recommendation is. I suppose that, I guess, conditions of the probation are open for discussion argument. Now, I know we\u2019ve got to do some paperwork, in order for Mr. Tumlison to have those conditions, whatever they might be. I suggest that we set this for sentencing hearing. It would be the most reasonable way to do it.\nMr. Gibson: That\u2019s what the defendant would move, Your Honor, if the Court would do that, sentencing hearing, the first opportunity of the Court.\nThe Court: Okay. Well, we\u2019ll put this back on the docket then and I\u2019ll order Mr. Tumlison back. Let\u2019s take it up on May 17th. Since we\u2019re going to have other people here that day, too, let\u2019s set it at 3:00 p.m. and we\u2019ll take it up at that time, and I\u2019ll excuse Mr. Tumlison and order him back at to court at that time. We\u2019ll be in recess.\nAt the sentencing hearing, McMahan testified that Johnson\u2019s suffered losses of $40,614.15 due to appellant\u2019s computer fraud. The losses were broken into three categories. The first category represented losses where no payment was posted. For example, McMahan noted the J.R. Jackson account, where appellant wrote a fraudulent contract of $5294.88 but was paid with a check for only $4500. Appellant had put the money on three other accounts and did not credit Jackson\u2019s account. The company paid sales tax on $5294.88. There were eleven other instances, allegedly costing Johnson\u2019s $16,140.78.\nNext, McMahan accounted a $10,902.40 loss for fraudulent contracts to cover inventory. For example, she noted $2453.31 for Pauline Baptist Church. Appellant intended to pay for the inventory but did not. In addition, the contract was in the name of the church when it should have been in appellant\u2019s own name. Other contracts of this type included contracts for items that appellant purported were returned but were not and contracts for items for which there was no payment.\nFinally, McMahan noted a loss of $13,570.97, which represented the time that she and Johnson spent finding and fixing the computer problems. She noted that Johnson spent ninety-two hours finding the problem, which she calculated to be worth $2300. She stated that she spent three months fixing the problems and calculated that twenty-five percent of her salary went to fixing the problem when she could have been doing something else. McMahan calculated her time to be worth $11,270.97.\nAppellant testified that the first set of accounts where no payment was posted was a result of swapping accounts to cover the Ellis account. He stated that nothing prevented the company from posting payments on those accounts. Regarding the second set of fraudulent contracts, appellant testified that he did not see where Johnson\u2019s had lost money. He stated that the contracts were drafted to get the items off the inventory books. Appellant also testified that, while Johnson\u2019s paid sales tax on the contracts, it should have been credited with the sales tax they paid when the item was \u201creturned.\u201d Appellant also calculated what the Pauline Baptist Church contract cost Johnson\u2019s. He stated that Johnson\u2019s lost $204 in commissions, $1097.80 from the cost of the furniture given to the church, and $98.80 in sales tax. This came to $1400.60, which he was willing to pay.\nOn cross-examination, appellant stated that there would be no way for Johnson\u2019s to recover the sales tax it paid on the contracts to which there were no payments posted. Regarding the fraudulent contracts, appellant stated that the contracts should have been redone. He discussed one account, the Reinhart account. He noted that the oven the Reinharts wanted was still in the warehouse when he left Johnson\u2019s. The contract had not been paid because the oven had not been delivered. He concluded that his opinion was simply different from McMahon\u2019s regarding the $10,902.40 figure.\nThe trial court ordered appellant to pay $29,429.95 in restitution. It noted that the computer fraud began to cover up the $5000 owed on the Ellis account; however, the fraud went much further than that. It found that Johnson\u2019s was entitled to the $13,570.97 that Johnson\u2019s requested for fixing the problem. It also found that Johnson\u2019s was entitled to its out-of-pocket expenses for the fraud, which included sales tax paid. Regarding the Pauline Baptist account, the court allowed $1400, the amount appellant stated he owed. For the remainder of the damages claimed by Johnson\u2019s, the trial court stated that markup on Johnson\u2019s inventory was about fifty percent and that the markup represented out-of-pocket expenses.\nAppellant argues that the trial court erred by ordering him to pay restitution. He first contends that he did not waive his right to sentencing by a jury; thus, the issue of restitution should have been a question for the jury. Alternatively, he contends that he did not agree to the amount of restitution as a condition of his probation.\nArkansas Code Annotated section 5-4-205 (Supp. 2005) provides in relevant part:\n(a)(1)(A) A defendant who is found guilty or who enters a plea of guilty or nolo contendere may be ordered to pay restitution.\n(2) (A) The sentencing authority, whether the trial court or a jury, shall make a determination of actual economic loss caused to a victim by the crime.\n(3) (A) The determination of the amount of loss is a factual question to be decided by the preponderance of the evidence presented to the sentencing authority during the sentencing phase of a trial.\n(B) The amount may be decided by agreement between a defendant and the victim represented by the prosecuting attorney.\n(c) If the defendant is placed on probation or any form of conditional release, any restitution ordered under this section shall be a condition of the suspended imposition of sentence, probation, parole, or transfer.\nAppellant contends that he did not waive his right to sentencing by jury; however, the record shows the contrary. Rule 31.2 of the Arkansas Rules of Criminal Procedure requires that, if a defendant wishes to waive his right to trial by jury, he must do so personally, either in writing or in open court. Waiver is defined as \u201can intentional relinquishment of a known right.\u201d Calnan v. State, 310 Ark. 744, 748, 841 S.W.2d 593, 595 (1992) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).\nHere, appellant\u2019s counsel negotiated a probation term of five years, then agreed to have a sentencing hearing on the conditions for probation after the trial court dismissed the jury. This constitutes a waiver of sentencing by jury. Appellant states that the waiver was ineffective because \u201c[t]he record reflects that all discussions concerning the sentencing phase of the trial were between the Court, the prosecuting attorney and defense counsel\u201d (emphasis added). However, appellant cannot sit idly by while his counsel proceeds to waive his right to a jury. See Johnson v. State, 314 Ark. 471, 863 S.W.2d 305, reh\u2019g denied, 314 Ark. 471, 868 S.W.2d 42 (1993). Appellant\u2019s right to sentencing by jury was effectively waived.\nAppellant also relies on Ark. Code Ann. \u00a7 5-4-303 (Supp. 2003), the statutory provision regarding the conditions that a court can impose on probation. Subparagraph (h)(1)(A) provides:\nIf the court suspends the imposition of sentence on a defendant or places him or her on probation conditioned upon his or her making restitution or reparation under subdivision (c)(8) of this section, the court, by concurrence of the victim, defendant, and the prosecuting authority, shall determine the amount to be paid as restitution.\nAppellant reads this statute to mean that if the court imposes restitution, the victim, defendant, and prosecuting attorney must agree on the amount. He also relies on the supreme court\u2019s interpretation of the statute in Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988), where the supreme court stated:\nIf the court suspends the imposition of sentence or places her on probation conditioned upon making restitution as provided by Ark. Code Ann. \u00a7 5-4-303, payment must be in an amount she can afford to pay and the victim, defendant and prosecuting attorney must agree on the amount. This section of the code appears to be aimed at allowing an accused to remain out of prison so long as satisfactory payments of restitution are being made. Immediate imprisonment would thwart such intent. Section 5-4-303 is available to the trial courts if deemed just and proper.\nId. at 27, 746 S.W.2d at 374. However, that same case noted that Ark. Code Ann. \u00a7 16-90-305 (which has since been repealed and replaced by Ark. Code Ann. \u00a7 5-4-205) allowed the prosecuting attorney to make a recommendation about what amount of restitution would be proper and allowed the defendant to introduce evidence in mitigation of the amount recommended.\nWe agree with the State\u2019s interpretation of Ark. Code Ann. \u00a7 5-4-303. The statute authorizes the court to set the amount of restitution if the victim, defendant, and prosecuting attorney agree to allow the court to do so. Without the phrase \u201cby concurrence of the victim, defendant, and the prosecuting authority,\u201d the latter portion of subparagraph (h)(1)(A) reads, \u201c[T]he court shall determine the amount to be paid as restitution.\u201d The additional phrase imposes the condition upon which the court would make that determination, that condition being the victim, defendant, and prosecuting attorney agreeing to allow the court to do so. Appellant\u2019s interpretation of the statute would lead to an interpretation inconsistent with allowing the trier of fact to determine restitution as allowed by Ark. Code Ann. \u00a7 5-4-205. Accordingly, appellant did not have to agree with the amount of restitution before the trial court imposed that amount.\nNext, appellant argues that the amount of restitution ordered by the trial court was excessive. Specifically, he argues that restitution should have been limited to the Ellis account and that because the account was eventually paid, no restitution was due. Restitution is meant, as far as it is practicable, to make the victim whole with respect to the financial injury suffered. Nix v. State, 54 Ark. App. 302, 925 S.W.2d 802 (1996). When compensating a victim for actual losses suffered, compensation may include an amount over and above the actual value of the interest that is the subject of the case. Therefore, we disagree with appellant\u2019s contention that restitution could not be more than what was owed on the Ellis account.\nHowever, we hold that the trial court\u2019s award of restitution was indeed excessive. Arkansas Code Annotated section 5-4-205 requires the sentencing authority to make a determination of \u201cactual economic loss.\u201d See also Donovan v. State, 71 Ark. App. 226, 32 S.W.3d 1 (2000). The cost to investigate appellant\u2019s fraud does not constitute actual economic loss. Furthermore, it is the function of law enforcement to investigate violations of the law. Johnson\u2019s investigatory expenses, for the purposes of this criminal proceeding, were self-incurred. It cannot recover those losses from appellant. It is, however, entitled to incur actual economic losses resulting from appellant\u2019s fraud, which at a minimum includes excess taxes and commissions paid on non-existent sales.\nTherefore, we reverse the award of restitution and remand this case with instructions to hold another hearing and award restitution based on Johnson\u2019s actual economic loss.\nReversed and remanded.\nVaught and Roaf, JJ., agree.", "type": "majority", "author": "Wendell L. Griffen, Judge." } ], "attorneys": [ "John P. Gibson, Jr., for appellant.", "Mike Beebe, Att\u2019y Gen., by: Brent P. Gasper, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Sean P. TUMLISON v. STATE of Arkansas\nCA CR 04-1367\n216 S.W.3d 620\nCourt of Appeals of Arkansas\nOpinion delivered November 9, 2005\nJohn P. Gibson, Jr., for appellant.\nMike Beebe, Att\u2019y Gen., by: Brent P. Gasper, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0091-01", "first_page_order": 117, "last_page_order": 127 }