State v. Hampton

634 S.W.2d 635, 1982 Tenn. Crim. App. LEXIS 430
CourtCourt of Criminal Appeals of Tennessee
DecidedFebruary 11, 1982
StatusPublished
Cited by2 cases

This text of 634 S.W.2d 635 (State v. Hampton) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hampton, 634 S.W.2d 635, 1982 Tenn. Crim. App. LEXIS 430 (Tenn. Ct. App. 1982).

Opinion

OPINION

TATUM, Judge.

The appellant, Joseph Craig Hampton, was convicted of reckless driving and unlawful possession of credit cards. He was sentenced to a term of 30 days in the County Jail and assessed a fine of $250 in the reckless driving case. The punishment imposed for unlawful possession of credit cards was a sentence of not less than 1 year nor more than 3 years in the State Penitentiary. Since the appellant has assigned no issue with respect to the reckless driving case, that judgment is affirmed. After considering the issues assigned in the unlawful possession of credit cards case, we also affirm that judgment of conviction.

In the issues presented for review, the appellant insists that the evidence will not support the verdict, i.e., the State did not prove all of the elements of the possession of credit cards offense. He also states that venue was in Decatur County and not in Benton County and that the trial judge [637]*637erred in admitting evidence as to the crimes committed in depriving the true owners of the credit cards of their possession. The State submitted the case to this court “without specific recommendation,” and stated that neither subsection (a) or (b) of T.C.A. § 39-1946 “appear to be violated by a mere possession of credit cards, regardless of the mental state of defendant, without there having been proved a receiving of the cards with particular mental state.” The State did not discuss the evidence.

The appellant offered no proof and the State’s evidence is clear and uncontradicted. On the early morning of July 27, 1979, in Atlanta, Georgia, two black males broke into a motel room occupied by Mr. Perry E. McGriff. At gunpoint, the two men took Mr. McGriff’s wallet which contained approximately 11 or 12 of his credit cards. They also took a money clip which bore Mr. McGriff’s name and which contained approximately $250. The room was dark when the robbery occurred and Mr. McGriff could not identify either of the intruders. Two of his credit cards, which were not in the appellant’s possession at the time of arrest, had been used since the robbery.

In June, 1979, Mr. Robert White’s automobile was stolen at Percy Priest Lake in Davidson County, Tennessee. Mr. White had left his billfold containing his credit cards in the automobile while he went boating. Mr. White did not know the thieves’ identity.

On August 5, 1979, the Sheriff of Benton County observed the appellant driving an automobile, bearing a Georgia license plate, skid across a highway and into a “wash.” The Sheriff pursued the appellant’s automobile out of Benton County at a high rate of speed. The appellant’s automobile was wrecked after it had traveled about one-half mile into the adjoining county of Decatur. Mr. McGriff’s billfold containing 11 credit cards that had been issued to him was in the appellant’s possession. The billfold also contained Mr. McGriff’s personal identifying documents. Mr. McGriff’s money clip was also in the possession of the appellant. In addition, the appellant also had Mr. White’s billfold containing 3 credit cards and personal identification papers, all of which belonged to Mr. White. The appellant told the Sheriff that he had bought the credit cards on the street in Atlanta.

In considering the issue attacking the sufficiency of the evidence, we first examine the pertinent portion of the indictment:

“That on the day and year aforesaid, before the findings of this indictment, in the County and State aforesaid, the said Joseph Craig Hampton did unlawfully, and feloniously take, unlawfully possess or receive the two or moore (sic) credit cards of Perry McGriff, Jr., and Robert White without the knowledge and consent of said Perry McGriff, Jr., and Robert White with intent to use, sell, or transfer said credit cards in violation of Section 39-1946 of the Tennessee Code Annotated...”

An examination of the indictment reveals that the appellant was originally charged with multiple offenses, which are defined in subsections (a) and (b) of T.C.A. § 39-1946. These subsections provide:

“39-1946. Taking credit card or information—Receiving, selling or buying unlawful—Penalty.—(a) A person who takes a credit card or the information therefrom from the person, possession, custody or control of another without the cardholder’s consent or who, with knowledge that it has been so taken, receives the credit card or the information with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder is guilty of credit card theft and is subject to the penalties set forth in subsection (a) of § 39-1952. A person who has in his possession or under his control credit cards issued in the names of two (2) or more other persons, without their knowledge and consent, is presumed to have violated this subsection.
(b) A person who receives a credit card that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and who retains possession with intent to use it or to sell it or to transfer it to a person [638]*638other than the issuer or the cardholder is guilty of credit card theft and is subject to the penalties set forth in subsection (a) of § 39-1952.”

The trial judge instructed the jury to disregard the charges that the cards were “taken” or “received” since there was no evidence that the appellant took or received them in Benton County. The trial judge submitted only the issue to the jury as to whether the appellant possessed the credit cards in violation of subsection (b) of § 39-1946.

Subsection (b) proscribes the possession of a credit card of another with intent to use it or to sell it or transfer it to a person other than the person to whom it was issued or the person who issued it; provided, however, that the possessor had received the credit card with knowledge that it had been lost, mislaid, or delivered under a mistake as to the identity or the address of the person to whom the card was issued (the cardholder or owner). This is a possessory offense; subsection (b) makes criminal the possession of a credit card with fraudulent intent when the person in possession knows that he obtained possession without the knowledge of the owner or without the consent of the owner.

The offense is continuous; so long as one retains possession of a credit card of another under the circumstances discussed, he is committing the offense. One can violate the statute even though he does not intend to fraudulently use or transfer the' card when he first obtains possession. For example, if one finds a credit card on the street and retains it for the purpose of returning it to the owner or issuer, but later decides to use it to make a fraudulent purchase, he is guilty of the crime from the time he forms the intent to make the fraudulent purchase. The fraudulent intent and possession must coexist for the statute to be violated.

The trier-of-fact may consider all of the relevant circumstances of the accused’s receipt, use, and possession of the card in determining both the question of intent and the question of his receipt with the knowledge that it was lost, mislaid or mistakenly delivered.

We find abundant evidence upon which the jury could find that the appellant possessed the cards with fraudulent intent.

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Related

State v. Easterly
77 S.W.3d 226 (Court of Criminal Appeals of Tennessee, 2001)
State v. Anderson
738 S.W.2d 200 (Court of Criminal Appeals of Tennessee, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
634 S.W.2d 635, 1982 Tenn. Crim. App. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hampton-tenncrimapp-1982.