Jones v. State

71 So. 3d 36, 2009 Ala. Crim. App. LEXIS 158, 2009 WL 4981041
Court of Criminal Appeals of Alabama·Decided December 18, 2009·No. CR-08-1556·Published·Cited by 1 cases

Opinion

MAIN, Judge.

Lakisha Evett Jones was charged by seven separate indictments with seven counts of second-degree criminal possession of a forged instruments, i.e., counterfeit checks, violations of § 13A-9-6, Ala. Code 1975. Jones was convicted of two counts of second-degree criminal possession of a forged instrument. The jury acquitted Jones of five charges of second-degree criminal possession of a forged instrument. The trial court sentenced her to two years’ imprisonment on each of the two convictions and ordered Jones to pay restitution in the amount of $6,860 and other assessments, fines, and costs. Jones does not appeal the convictions for second-degree criminal possession of a forged instrument. She challenges the amount of restitution ordered.

The record discloses that Jones applied over the Internet for a job as a customer-service evaluator, and that she received a letter dated September 14, 2007, from Quality Consumer Research. In the letter, the company instructed Jones that she was to evaluate the customer service provided through Money Gram branches located in Wal-Mart stores in the area where she lived. In order to do this she would receive a cashier’s check, made payable to her, that she would need to cash. Once she cashed the check, she was to wire a specified amount of money from a Money Gram branch in a Wal-mart store to a specified recipient in Ontario, Canada, pay the service charge required by Money Gram, complete a form evaluating the customer service she had received, and keep a portion of the funds as her fee.

A cashier’s check made payable to Jones in the amount of $980 was enclosed in the September 14, 2007, letter. Pursuant to the instruction in the letter, Jones cashed the check on September 20, 2007, at Headland National Bank, where she had a savings account. She then went to the Money Gram branch at a Wal-Mart store, wired $840 to a designated recipient in Ontario, Canada, paid a service charge of $20, filled out a form evaluating the customer service at that particular Money Gram branch, and retained $120 as her fee.

Over the next several days, Jones received two more cashier’s checks for $980 each, made payable to her, which she cashed at Headland National Bank on September 24, 2007. She followed the same procedure pursuant to the instructions of the original letter. On September 26, 2007, and again on September 28, 2007, she received a total of four cashier’s checks for $980 each, made payable to her, which she cashed at Headland National Bank. All seven of the cashier’s checks were dishonored and returned, with a notation indicating that they were counterfeit.

The jury acquitted Jones of the charges on the first five checks totaling $4,900. The jury found Jones guilty of the charges related to the last two checks cashed totaling $1,960. At the sentencing hearing, after the trial court imposed Jones’s sentence, the State requested that the trial court order that Jones pay restitution in the amount of $6,860 to Headland National [38]*38Bank. Jones’s counsel argued that Jones should be required to pay restitution only for damage arising out of the two charges for which she was convicted, in the amount of $1,960, and that she should not be ordered to pay restitution for the five charges as to which the jury acquitted her. Over the objection of Jones’s counsel, the trial court ordered Jones to pay restitution to the Headland National Bank in the amount of $6,860, plus interest. The court set Jones’s probation hearing conditioned on Jones’s paying at least one-half of the restitution. Jones filed a motion to reconsider and for a hearing on the restitution amount. At the combined motion and probation hearing, the trial court denied Jones’s motion to reconsider the restitution order, granted probation, and ordered Jones to make restitution payments in the amount of $200 per month.1

On appeal, Jones argues that the trial court erred in ordering her to pay restitution on the five cheeks because the jury acquitted her as to the charges arising from those checks. Alternatively, she argues that she never admitted to any criminal activity or conduct. The State contends that Jones’s testimony that she cashed the counterfeit checks and that she had doubts about the checks after she cashed the first several checks amount to a judicial admission that she engaged in conduct that led to the bank’s loss of $4,900, the amount the bank paid on the first five checks and, thus, that the trial court did not err in ordering restitution in all seven cases. We agree with Jones that the trial court erred in awarding restitution on the five checks as to which she was acquitted. We reverse and remand.

“ ‘The particular amount of restitution is a matter which must of necessity be left almost totally to the discretion of the trial judge.’ ” Ex parte Stutts, 897 So.2d 431, 433 (Ala.2004), quoting Clare v. State, 456 So.2d 355, 356 (Ala.Crim.App.1983), aff'd, 456 So.2d 357 (Ala.1984). Absent a clear abuse of discretion, we will not overturn a trial court’s restitution award. Stutts, 897 So.2d at 433.

According to § 15-18-65, Ala. Code 1975, perpetrators of criminal activity or conduct are “ ‘required to fully compensate all victims ... for any pecuniary loss, damage, or injury as a direct or indirect result thereof,’ ” when the “defendant’s criminal act was the proximate cause of the victim’s injury.... [and] ‘a reasonable person could have foreseen or anticipated that the injury might occur as a natural consequence of the action.’ ” Richardson v. State, 603 So.2d 1132, 1133 (Ala.Crim.App.1992). See also Rule 26.11(a), Ala.R.Crim.P. (“Restitution should be ordered in all cases where a victim has been injured or damaged.”); Best v. State, 895 So.2d 1050, 1054 (Ala.Crim.App.2004); Moore v. State, 706 So.2d 265, 267 (Ala.Crim.App.1996); Butler v. State, 608 So.2d 773, 775 (Ala.Crim.App.1992); Day v. State, 557 So.2d 1318, 1319 (Ala.Crim.App.1989); Strough v. State, 501 So.2d 488, 491 (Ala.Crim.App.1986).

“Under Alabama’s restitution statute, the defendant could be ordered to pay restitution to the victim of his crime only if one of two conditions existed: (1) his victim suffered direct or indirect pecuniary loss as a result of the criminal activity of which the defendant has been convicted, or (2) he admitted to other criminal conduct during the proceedings [39]*39that was the proximate cause of the victim’s pecuniary loss or damages.”

B.M.J. v. State, 952 So.2d 1174, 1176 (Ala. Crim.App.2006). See also Lamar v. State, 803 So.2d 576 (Ala.Crim.App.2001). Further, as this Court stated in Grace v. State, 899 So.2d 302, 308 (Ala.Crim.App.2004), in addressing Alabama’s Restitution Act:

“ ‘[I]t is well established that criminal statutes should not be “extended by construction.” ’ Ex parte Evers, 434 So.2d 813, 817 (Ala.1983). “‘[C]riminal statutes must be strictly construed, to avoid ensnaring behavior that is not clearly proscribed.” ’ United, States v. Bridges, 493 F.2d 918, 922 (5th Cir.1974).” Carroll [v. State ], 599 So.2d [1253] at 1264 [ (Ala.Crim.App.1992) ].’ ”

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Jones v. State, 71 So. 3d 36, 2009 Ala. Crim. App. LEXIS 158, 2009 WL 4981041 (Ala. Ct. App. 2009).

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