Kelly v. State

4 So. 3d 572, 2008 Ala. Crim. App. LEXIS 156, 2008 WL 3989586
CourtCourt of Criminal Appeals of Alabama
DecidedAugust 29, 2008
DocketCR-07-0527
StatusPublished

This text of 4 So. 3d 572 (Kelly v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. State, 4 So. 3d 572, 2008 Ala. Crim. App. LEXIS 156, 2008 WL 3989586 (Ala. Ct. App. 2008).

Opinion

BASCHAB, Presiding Judge.

The appellant, James Randall Kelly, was convicted of first-degree theft of property, a violation of § 13A-8-3(a), Ala.Code 1975.1 The trial court sentenced him to serve a term of seven years in prison, but suspended his sentence and placed him on probation for four years. The appellant [574]*574did not file any post-judgment motions. This appeal followed.

Patrick Odell testified that, on September 8, 2000, he went to TitleMax and spoke to the appellant; that he obtained a $600 loan; and that he gave the appellant a clear certificate of title and a spare key to his 1994 Jeep Cherokee to secure the loan. He also testified that, when the month ended, because he did not have enough money to pay back the loan, he paid the interest on the loan and rolled the principal amount over to the next month. Over the next several months, he rolled the loan over several times, borrowed some additional money, and paid interest and some of the principal on the loans. Each time, Odell dealt directly with the appellant.

Odell testified that contract number 1712 dated July 25, 2001, showed him taking out an additional $1,000 loan. However, he testified that he did not receive any additional funds on that date and that he did not sign that contract. Odell testified that some of the contracts he signed were not included in the packet of contracts that were presented for him to review in court. He further testified that he ultimately paid off the loan in November 2001. At that time, the appellant gave him the key to his vehicle, but stated that it would take 90 days to get his certificate of title back because he had rolled over the loan several times.

Odell testified that, a couple of months later, he received a telephone call saying that he owed $2,000 on the certificate of title and that someone was coming to take the vehicle. Later that day, the appellant telephoned him and told him that everything was fine, that they had pulled the wrong file, and that he had taken care of it. Odell asked the appellant to provide him with something that showed that his balance was zero, and the appellant did so a few days later.

Odell testified that he later learned that he supposedly owed over $3,000 on the certificate of title; that he discovered that there were five additional contracts with TitleMax in his name that he did not sign; and that there was a key to a Ford vehicle in his file. Finally, he testified that he did not receive the $3,000 he purportedly owed to TitleMax.

On cross-examination, Odell testified that he executed a new contract each time he dealt with TitleMax. He also testified that the contracts indicated that he received loan proceed checks for $1,000 and $2,000 in July 2001, but that he never actually received those checks or that money.

David Deal testified that, in 2000, he was the district manager for TitleMax, and the appellant was a store manager at the Do-than TitleMax. He explained that, when a customer comes in to obtain a loan, an employee will assess the value of the vehicle and come up with a dollar amount that can be borrowed; that they then check the VIN and model number of the vehicle and, if a negotiated price is reached, the customer turns over the certificate of title and a spare key; that the customer can either pay off the loan after thirty days or pay the interest on the loan and roll over the principal amount to the next month; that a new contract is signed for each transaction; and that the files are stored in fireproof cabinets in the main office.

Deal testified that he normally did two store audits each month and examined only part of the files during each audit. However, around February 5, 2002, or February 6, 2002, the appellant told him and a supervisor that “he knew that he was doing things he wasn’t suppose to do, but it was [their] job to find it.” (R. 114.) Therefore, he decided to audit all of the files.

[575]*575During his audit, Deal discovered that certificates of title, which had previously been in folders, were missing from several folders. When he questioned the appellant about the missing certificates of title, the appellant answered very quickly and said he would take care of it by ordering replacement certificates of title for those vehicles. Afterward, Deal telephoned some of the customers individually and learned that they had paid their accounts in full and received their certificates of title from the appellant, even though their accounts still had an outstanding balance according to TitleMax’s files.

Deal testified that Odell borrowed $600 against a 1994 Jeep Cherokee on September 8, 2000. He did not initially become aware of any problem with Odell’s account because there was a certificate of title and a key in his file. Rather, he was alerted to a problem with Odell’s account when it became past due on February 15, 2002. At that point, he notified Odell and realized that there was a problem because the balance showing due was $3,800 with interest, but Odell had a receipt from the appellant showing that he had a zero balance. In Odell’s file, they found several contracts that Odell had not actually signed; the certificate of title to Odell’s vehicle, even though the appellant had indicated to Odell that it would take ninety days for him to receive it; and a key to a Ford vehicle instead of Odell’s Jeep Cherokee.

On February 7, 2002, Deal fired the appellant because of the discrepancies in various files. The next weekend, someone broke into the TitleMax building; took the towers for computers that had customer information on them, a repossession logbook, backup computer disks, approximately $5,900, and several files; and set the building on fire. A TitleMax customer testified that she saw a pickup truck that matched the appellant’s truck parked beside the building that morning before the store was supposed to open and before the fire was discovered.

Sergeant Tony Luker of the Dothan Police Department testified that he investigated the allegations against the appellant. He explained that it was his understanding that TitleMax issued checks to customers and that it sometimes cashed its own checks. Luker also testified that he did not see any checks related to the theft charge against the appellant.

The appellant testified that he made the loan to Odell and was the primary person who dealt with him. He also testified that, when TitleMax issues money from an account, it does so with a check. The appellant further testified that, if Odell’s account history showed separate advances of $1,000 and $2,000 on different dates, Title-Max would have issued two separate checks for those amounts. Finally, he testified that he did not prepare the receipt that showed that Odell had a zero balance.

The appellant argues that, “[u]nder Alabama law and the indictment issued against [him] for theft of property, the State of Alabama failed to meet its required burden of proof with the evidence that it presented at trial.” (Appellant’s brief at p. 12.) The indictment alleged that he

“did knowingly obtain or exert unauthorized control over A CHECK, the property of TITLEMAX OF DOTHAN, INC., of the value of, to-wit: $3,000.00, with the intent to deprive the owner of said property, in violation of Section 13A-8-3 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C.R.

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Bluebook (online)
4 So. 3d 572, 2008 Ala. Crim. App. LEXIS 156, 2008 WL 3989586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-alacrimapp-2008.