{ "id": 1916839, "name": "Gregory DAVIDSON v. STATE of Arkansas", "name_abbreviation": "Davidson v. State", "decision_date": "1991-06-03", "docket_number": "CR 91-110", "first_page": "592", "last_page": "598", "citations": [ { "type": "official", "cite": "305 Ark. 592" }, { "type": "parallel", "cite": "810 S.W.2d 327" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "290 Ark. 269", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873787 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0269-01" ] }, { "cite": "280 Ark. 359", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744835 ], "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "aggravated assault is a lesser included offense of the offense charged - attempted capital murder" }, { "parenthetical": "aggravated assault is a lesser included offense of the offense charged - attempted capital murder" } ], "opinion_index": 0, "case_paths": [ "/ark/280/0359-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-3-203", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-3-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "389 So. 2d 384", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9560957 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/so2d/389/0384-01" ] }, { "cite": "425 N.E.2d 1197", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 616", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3101896 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0616-01" ] }, { "cite": "434 N.E.2d 1110", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "91 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092860 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/91/0001-01" ] }, { "cite": "476 A.2d 108", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7903737 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/a2d/476/0108-01" ] }, { "cite": "263 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672748 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0398-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-37-207", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 1987, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-37-207", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 2 } ], "analysis": { "cardinality": 633, "char_count": 12644, "ocr_confidence": 0.894, "pagerank": { "raw": 1.0471688635096749e-07, "percentile": 0.5525652267757696 }, "sha256": "7f0173415bb59dc43343a1101d4b4908f26169f4c1a249269ec46d78ca4309a2", "simhash": "1:1e6f295171021f9e", "word_count": 2131 }, "last_updated": "2023-07-14T19:53:54.224345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hays, J., dissents.", "Glaze, J., dissents in part." ], "parties": [ "Gregory DAVIDSON v. STATE of Arkansas" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nThe appellant, Gregory Davidson, appeals from a conviction for fraudulent use of a credit card which resulted in a three-year sentence and, further, from a revocation of his probation due to the credit card offenses for which he received a two-year sentence. The sole issue on appeal is whether a conviction under the applicable statute [Ark. Code Ann. \u00a7 5-37-207 (1987)] is appropriate, when no property was obtained by the appellant as a result of the fraudulent use.\nThere were two incidents where the appellant used a stolen credit card for the purpose of obtaining property. The first was on May 20, 1989, at a Tires For Less store in Little Rock. The appellant sought to use the stolen credit card to buy four automobile wheels valued at $419.73. The owner of the store wrote up the ticket, and after the appellant gave him the stolen credit card, the owner asked for identification. The appellant had none, and the store owner refused to turn over possession of the wheels without sufficient identification. The appellant left the store, according to the owner, to get some identification but did not return.\nThe second incident occurred two days later on May 22, 1989, at Your Car Stereo in Little Rock. The appellant again tried to use a stolen credit card to buy merchandise described as a \u201cbox woofer\u201d for a price of $400.00. The salesman ran the credit card through the computer, and the card was declined. He refused to turn the merchandise over to the appellant, and the appellant left the store.\nThe appellant was subsequently arrested and charged with two counts of fraudulent use of a credit card. He was tried before the trial court, after waiving a jury, and found guilty of both counts on January 24, 1990. Because he had been on two years probation for a theft-by-deception conviction at the time of the crimes, the trial court also revoked the probation at sentencing and assessed two years imprisonment to be served concurrently.\nThe offense of fraudulent use of a credit card is committed if a person, with the purpose to defraud, \u201cuses a credit card to obtain property or services with knowledge that: (a) the card is stolen . . . .\u201d Ark. Code Ann. \u00a7 5-37-207 (1987). The offense is deemed a Class C felony under the statute if the value of the goods \u201cobtained\u201d exceeds $100; otherwise, the offense is a Class A misdemeanor. Id.\nThe appellant first contends that the statute contemplates the obtaining of property for an offense to occur, and under these facts he obtained no property. We agree that at the very least the statute is ambiguous. One could read it to require the actual obtaining of property. However, one could also focus on the word \u201cuse\u201d and interpret the statute as defining a violation when a credit card is used to defraud, whether property is actually obtained or not. Our law is clear that criminal statutes must be strictly construed, with doubts resolved in favor of the defendant. See Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978). What militates against an interpretation that obtaining the property is not required is the fact that the degree of the offense under the statute is based on the value of property obtained. It is a Class C felony if goods valuing more than $100 are obtained; otherwise, it is a Class A misdemeanor. See Ark. Code Ann. \u00a7 5-37-207(b) (1987). It logically follows, then, that obtaining property is required in order for there to be a consummated offense, and we so hold. Under these facts before us, there was no property obtained, and the conviction for fraudulent use of the credit cards cannot stand.\nFour foreign jurisdictions have wrestled with the issue of fraudulent use of a credit card where no property was obtained, with varying results. See State v. Gonsalves, 476 A.2d 108 (R.I. 1984); People v. Tarlton, 91 Ill. 2d 1, 434 N.E.2d 1110 (1982); People v. Gibson, 99 Ill. App. 3d 616, 425 N.E.2d 1197 (1981); State v. Williams, 389 So. 2d 384 (La. 1980). Though the statutes involved were somewhat different than ours, the dilemma faced by the respective courts was the same. In both Gonsalves and Gibson, the appellant courts, following jury convictions for felonies, focused on the intent of the legislature to punish fraudulent use of credit cards, regardless of whether property was obtained. Both courts affirmed the convictions by interpreting the statute expansively to include an offense for goods \u201csought to be obtained\u201d by fraudulent credit card use.\nThe Illinois appellate court, in People v. Tarlton, considered the penalty for fraudulent credit card use where the defendant was unsuccessful in obtaining goods. The applicable statute, like ours, premised the offense on the value of goods obtained. It provided for a Class 4 felony, if the value was over $150, and a Class A misdemeanor, if the value was that amount or less. In reviewing a bench trial conviction for a Class 4 felony, the court considered the appellant\u2019s argument that the legislature provided no penalty where the credit card use was unsuccessful, and, therefore, the statute was unenforceable when no goods were obtained. The Illinois court rejected the argument and held that when nothing of value was obtained, the defendant was guilty of a Class A misdemeanor as if he had actually obtained goods valued at $150 or less.\nLastly, the Supreme Court of Louisiana, in State v. Williams, supra, reviewed a jury verdict finding the appellant guilty of a felony where no credit or goods were obtained. The court resolved that there was a sufficient evidentiary basis for the jury to find the appellant guilty of an attempt to obtain credit with a stolen credit card, because it was a lesser offense included within the charged crime. The Louisiana court set aside the jury conviction and sentence and remanded the case to the trial court to enter judgment for the lesser offense and impose sentence accordingly.\nWe decline in this case to read language such as \u201csought to obtain property\u201d into the criminal statute. We further are reluctant to affirm a conviction under \u00a7 5-37-207, which we have held is not applicable to the facts of this case, and then assess a penalty under that statute on the basis that because the appellant obtained no property, he should be treated as an offender who obtained property valued at $100 or less.\nThe reasoning we find persuasive is that employed by the court in State v. Williams, supra. There is no question that the appellant in the case before us tried to use a stolen credit card on two occasions for merchandise that well exceeded $100 in value. Under the state\u2019s general attempt statute, a person attempts to commit an offense if \u201che purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense.\u201d Ark. Code Ann. \u00a7 5-3-201 (a)(2) (1987). To attempt to use a credit card fraudulently is a Class D felony. See Ark. Code Ann. \u00a7 5-3-203(4) (1987).\nHere, by twice proffering the stolen credit card, the appellant took a substantial step toward committing the crime, which qualifies as an attempt under state law. Under such circumstances we have held that though charged with a greater offense, a defendant may be found guilty of a lesser included offense. See, e.g., James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983) (aggravated assault is a lesser included offense of the offense charged \u2014 attempted capital murder).\nUnder appropriate facts we will modify a conviction from the greater offense to the lesser included offense and either fix punishment ourselves or remand the case to the trial court for the assessment of punishment. See Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). This case presents appropriate circumstances, and we hold that sufficient proof was presented to the trial court for a conviction of attempted fraudulent use of a credit card. Due to the fact that the appellant\u2019s two-year probation was also revoked, we choose to remand the matter to the trial court.\nWe, accordingly, reverse the conviction and remand for judgment of conviction to be entered for the lesser included offense of attempted fraudulent use of credit cards and for sentencing on both the attempt conviction and the revocation of probation.\nReversed and remanded.\nHays, J., dissents.\nGlaze, J., dissents in part.", "type": "majority", "author": "Robert L. Brown, Justice." }, { "text": "Tom Glaze, Justice,\ndissenting in part. I agree with Justice Hays that the crime is the fraudulent use of a credit card and the actual obtaining of the property is not necessary to prove the crime. In fixing the penalty, however, I believe the value of the property is significant. If the value is over $100.00, the punishment is a felony; otherwise, the penalty is a Class A misdemeanor.\nI would reduce the trial court\u2019s sentence to a Class A misdemeanor because appellant was not shown to have obtained property exceeding $100.00 in value.", "type": "dissent", "author": "Tom Glaze, Justice," }, { "text": "Steele Hays, Justice,\ndissenting. The offense which Ark. Code Ann. \u00a7 5-37-207 (1987) is intended to punish is the fraudulent use of credit cards. The gravamen of that offense, I suggest, occurs when the perpetrator uses a credit card with knowledge that the card is stolen, forged, unauthorized, or even merely canceled. Thus, it is not the theft of goods or services to which the statute is directed (those offenses are dealt with under Chapter 36 of the Code), but to the wrongful or fraudulent use of credit cards. On that basis the offense is complete when the perpetrator knowingly presents the card, the merchant processes it, and a credit purchase results in reliance on the credit card.\nIn this case, the only thing that prevented the appellant from acquiring the tires themselves was his inability to provide identification. But that was after the credit transaction was completed and, hence, after the fact and does not relegate the offense merely to an \u201cattempt\u201d to violate the statute. An attempt occurs when the merchant declines, for whatever reason, the credit card purchase, or the transaction is aborted before completion.\nBy way of analogy, if an individual makes fraudulent use of a credit card to order goods by telephone (by which a significant percentage of credit card purchases occur), and the sale is processed and the goods mailed or shipped, under today\u2019s holding, no offense occurs (other than an attempt) if the goods are intercepted before actual delivery is completed. Or assume the perpetrator, rather than taking the goods with him from the store, instructs the merchant to mail them to a designated address. The goods may or may not end up in the possession of the perpetrator, but in both these instances the cardholder or issuer is subject to loss because of the fraudulent use of the credit card.\nThere is plausible evidence that a practical reading of \u00a7 5-37-207 is exactly what the legislature intended \u2014 the Commentary points out that this section is, in substance, Model Penal Code \u00a7 224.6, which defines the offense as occurring when a person fraudulently uses a credit card, \u201c/or the purpose of obtaining property or services,\u201d (my emphasis) which is exactly what occurred in this case. The Commentary points out that \u00a7 224.6 imposed liability\nfor conduct not constituting theft of either property or services since the supplier incurs no loss. Rather, as is pointed out in a Comment to M.P.C. \u00a7 224.6, it is the issuer or cardholder who suffers damage by such transactions.\nThis is a new section to fill a gap in the law relating to false pretense and fraudulent practices. Sections [5-36-103 (1987)] and [5-36-104(1987)] cover theft of property or services by deception. It is doubtful whether they reach the credit card situation because the user of a stolen or canceled credit card does not obtain goods by any deception practiced upon or victimizing the seller. The seller will collect from the issuer of the credit card, because credit card issuers assume the risk of misuse of cards in order to encourage sellers to honor the cards readily. Thus it is the nondeceived issuer who is the victim of the practice.\u201d M.P.C. \u00a7 224.6, Proposed Official Draft at 179 (1962).\nI respectfully suggest that by focusing on whether the perpetrator actually obtains goods, rather than credit, the majority misconstrues the broader objective of the statute and materially limits its effect.", "type": "dissent", "author": "Steele Hays, Justice," } ], "attorneys": [ "William R. Simpson, Jr., Public Defender, Bret Qualls, Deputy Public Defender, by: Didi Sailings, Deputy Public Defender, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Gregory DAVIDSON v. STATE of Arkansas\nCR 91-110\n810 S.W.2d 327\nSupreme Court of Arkansas\nOpinion delivered June 3, 1991\nWilliam R. Simpson, Jr., Public Defender, Bret Qualls, Deputy Public Defender, by: Didi Sailings, Deputy Public Defender, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0592-01", "first_page_order": 622, "last_page_order": 628 }