Sherrelljean 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 Heliums testified that Whisenant was his girlfriend and that she lived at his house. According to Heliums, 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, Heliums arranged to meet with Deputy Sheriff Preston Glen from the Pike County Sheriffs Department, who verified his suspicions about Whisenant. Hel-iums 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, Heliums 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 sheriffs department and was attempting to book Whisenant. Glen stated that Whisenant had given him several different names and dátes 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. Heliums stated that he might be able to help and grabbed a purse off a table in the kitchen. Heliums 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. Heliums 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 Heliums 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,
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 Heliums, Tim Stone, Jack Stone, and Retha Johnson. Virgil Heliums 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. Heliums 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 Heliums 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, Heliums 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,
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 Heliums’s stack of credit cards at his house on one occasion and joked as to how much he trusted her and as to “where she might go with these cards.” Although Whisenant had explanations for possessing much of this financial information, the victims denied these explanations, and the jury is not required to believe her testimony, which is self-serving. Sera v. State,
Whisenant’s conviction for theft of property was based on her possession of two of Hellums’s credit cards, along with his other credit card numbers. A person commits theft of property if he knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(1) (Supp. 2003). The theft of credit cards or credit card account numbers is a Class C felony. Ark. Code Ann. § 5-36-103(b)(2) (Supp. 2003).
Whisenant again argues that there was insufficient evidence that she possessed this property with the purpose of depriving Heliums of it. However, Heliums testified that he did not give her permission to possess his credit cards or credit card numbers. As discussed above, given the evidence that she possessed financial information of four different persons without their permission and that she had joked to a friend as to how much Hellüms trusted her and as to where she could go with the cards, there is substantial evidence to support her conviction for theft of property.
Whisenant next argues that the trial court erred in denying her motion for a continuance, filed the day prior to trial, to allow her to obtain transcripts from her revocation hearing held several days before her trial. She argued that she needed these transcripts for possible impeachment purposes and trial preparation, as the revocation hearing involved many of the same witnesses as would testify in the trial. Whisenant argues that the denial of her motion amounted to a denial of justice because she was unable to cross-examine the witnesses with the “full arsenal” available to her.
When reviewing the grant or denial of a motion for continuance, the appellate court employs an abuse-of-discretion standard. Ware v. State,
Although Whisenant claims that the transcripts from her revocation hearing were necessary to impeach the credibility of the witnesses testifying at trial, she admits that she cannot identify specific instances where the availability of the transcript would have made a difference in the outcome of the trial. This is so despite the fact that she was present at the revocation hearing and heard the testimony of the witnesses. As the trial court noted in denying her motion, in effect, Whisenant was able to obtain a “preview” of her trial during the revocation hearing, an opportunity most defendants do not have. She was able to use her notes from the hearing to impeach witnesses during her trial, even without the transcript. Thus, Whisenant is unable to demonstrate prejudice from the denial of her motion. See McArdell v. State,
Whisenant next argues that the trial court erred in denying her motion to suppress evidence found following a warrantless search of her purse. Prior to trial, Whisenant filed a motion to suppress the credit cards and other evidence found in her purse. She argued that the items seized subsequent to her incarceration were not incident to arrest, were not within the scope or authority of anyone who may have previously given consent to search, and were within her reasonable expectation of privacy. She asserted that the search of her purse by Heliums, at the direction of Deputy Glen, and the subsequent seizure of the evidence found in her purse were illegal. After a suppression hearing, the trial court denied Whisenant’s motion, stating that Heliums was not considered by the court to be an agent on behalf of the State.
When reviewing a trial court’s denial of a motion to suppress evidence, the appellate court makes an independent determination based on the totality of the circumstances and reverses only if the ruling is clearly against the preponderance of the evidence. Morrow v. State,
As Whisenant contends, her purse was an item in which she had a reasonable expectation of privacy. See Evans v. State,
However, the Fourth Amendment’s prohibition against unreasonable searches and seizures does not apply to searches conducted by private citizens not acting as an agent of the government or with the participation or knowledge of a government official. United States v. Jacobsen,
Other courts interpreting these principles have set out a two-part test to determine whether an individual is acting as an agent of the government for Fourth Amendment purposes: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends. United States v. Souza,
If the private actor is not determined to be an agent of the law enforcement agency, his actions do not violate the Fourth Amendment because of their private character. United States v. Jacobsen, supra. Flowever, the government agency may not then exceed the scope of the private search unless it has the right to make an independent search. Id. For example, in Walter v. United States,
Applying the foregoing principles to the present case, we find that the warrantless search of Whisenant’s purse violated the Fourth Amendment. The testimony presented at the suppression hearing established that Deputy Glen went to Heliums’s residence several hours after Whisenant was arrested for the purpose of finding identification on her. Glen requested that Heliums assist him in finding identification, and then, in the presence of Glen, Heliums grabbed Whisenant’s purse from the kitchen and proceeded to search it. When Heliums opened one of Whisenant’s wallets, he immediately found two of his credit cards inside. Heliums then noticed a list in that same wallet, containing credit card numbers and other financial information. After Heliums determined that his other credit card numbers were also on that list, Glen testified that Heliums then turned that wallet over to him. However, it is apparent from a close reading of Glen’s testimony that there was another smaller wallet, which Glen also searched and in which he found Whisenant’s driver’s license and the checks and other documents belonging to Retha Johnson, Jack Stone, and Tim Stone. 1 Thus, Glen’s search exceeded the scope of Hellums’s search, and Glen needed additional justification for this search of the smaller wallet. Walter v. United States, supra.
Moreoever, even if Glen’s search did not exceed the scope of Hellums’s search, we conclude that Heliums was an agent of the police under the two-part test set out above. First, Glen knew and acquiesced in the intrusive conduct of Heliums, as he requested assistance in obtaining identification on Whisenant, then observed Heliums take Whisenant’s purse and search it, including the wallets. Second, Heliums was intending to assist law enforcement efforts when he searched the purse, as there was no evidence presented that he had his own purpose for finding Whisenant’s identification. Also, the other factor that has been considered, whether law enforcement requested the private party’s actions, is present in this case as well, as Glen requested that Heliums help find some identification.
In a case with similar facts, Tucker v. Superior Court of Fresno County,
For her last argument, Whisenant contends that the trial court erred in refusing to give her proffered jury instruction on the “choice of evils” defense. Whisenant testified at trial that she possessed the two firearms because they were evidence to prove that she did not commit arson in another criminal case, in which the charges against her had been dismissed the year before. According to her testimony, the guns belonged to her ex-husband and were supposed to have been burned in the fire. When she found them after the fire at her ex-husband’s parents’ house, she testified that she confiscated them, believing them to be exculpatory evidence because they would show that her ex-husband started the fire and not her.
According to Ark. Code Ann. § 5-2-604(a) (Repl. 1997), conduct which would otherwise constitute an offense is justifiable when the conduct is necessary as an emergency measure to avoid an imminent public or private injury, and the desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct. This section is to be narrowly construed and applied. Koonce v. State,
In Polk v. State,
In this case, as in Polk, supra, if Whisenant’s concern was truly to preserve the guns as exculpatory evidence, she could have notified the police, her attorney in her arson case, or her probation officer. Also, there is no proof of extraordinary attendant circumstances in this case requiring emergency measures to avoid any sort of imminent public or private injury, as required under section 5-2-604. It is not error for the trial court to refuse to give a jury instruction if there is no basis in the evidence for giving it, even if the instruction contains a correct statement of law. Pursley v. State, supra. Because there was no basis in the evidence for giving a jury instruction on the choice-of-evils defense, the trial court did not err in refusing Whisenant’s proffered instruction.
Because our reversal on the denial of the motion to suppress involves only the evidence found in Whisenant’s purse, we affirm her conviction for possession of firearms by a felon, and reverse and remand the remaining convictions, because, while all of the evidence of financial identity fraud was not found in Whisenant’s purse, we note that evidence from the purse was introduced with respect to all four counts.
Affirmed in part; reversed and remanded in part.
Notes
The fact that Glen searched this wallet, not Heliums, is even more clear from Glen’s testimony at trial, where he states that he searched the small wallet, including the zippered compartment containing the driver’s license.