DATE OF JUDGMENT: 03/07/96 TRIAL JUDGE: HON. ELZY JONATHAN SMITH JR. COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
TRIAL COURT DISPOSITION: CT I COMMUNICATION FRAUD: SENTENCED TO 3 YRS MDOC, CT II CREDIT CARD THEFT, MISDEMEANOR: SENTENCED TO 1 YR MDOC, CT III'S & CT IV FRAUDULENT USE OF ATM SENTENCED TO 1 YR MDOC PAY A FINE OF $1,000.00
Before Thomas, P.j., King, And Payne, JJ.
The opinion of the court was delivered by: Thomas, P.j., For The Court
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
NATURE OF THE CASE: CRIMINAL - FELONY
Gloria Harris and Jake Harris appeal their convictions of communication fraud, credit card theft, and ATM fraud raising the following issues as error:
I. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANTS' MOTION FOR A DIRECTED VERDICT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE IN CHIEF AND THE CLOSE OF ALL OF THE EVIDENCE.
II. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANTS' MOTION FOR DIRECTED VERDICT OF ACQUITTAL AS TO COUNT II AT THE CLOSE OF THE STATE'S CASE IN CHIEF AND THE CLOSE OF ALL OF THE EVIDENCE AND THE COURT ERRED IN SENTENCING APPELLANT TO ONE (1) YEAR IN JAIL.
III. THE TRIAL COURT IMPROPERLY ALLOWED THE ADMISSION OF THE PHOTOGRAPHS GENERATED BY THE ATM MACHINE IN CONJUNCTION WITH A COMPUTER.
Finding no error, we affirm.
In November of 1994, Kermit Stanton requested and received an ATM card from the Sunburst Bank branch of Shelby, Mississippi where he maintained a checking account. He picked up his card from his post office box located at the Shelby Post Office. Shortly thereafter, he received his PIN number at the same box. Stanton thereby laid his ATM card to the side and never used it. He did not return to it until he received his next bank statement. His statement contained two ATM withdrawals of $300 each, which he had not made. These unauthorized expenditures were promptly reported to Sunburst Bank.
Bobby and Gloria Burton had a checking account at the Sunburst Bank branch of Cleveland, Mississippi. They too requested and received ATM cards for this account in November of 1994. The cards and PIN statements were received at their post office box at the Shelby Post Office. Neither Bobby or Gloria Burton ever used their ATM cards. However, when their statement from the bank arrived, they too had unauthorized ATM withdrawals.
When each of these unauthorized transactions took place, the ATM machine used recorded the date and time of the transaction as well as video taping the transaction. However, one transaction, in which the Burtons' ATM card was used, was not video taped since that particular ATM site did not have a video camera. Based on the date and time of these unauthorized transactions, still photos from the video tape corresponding to those dates and time were made and shown to the parties involved. Stanton could not identify the individual in the photos which coincided with the dates and times his card was used. However, the individual was later identified as Jack Harris by Deputy Floyd Williams, who was assisting in the investigation of this matter. Bobby Burton, however, after being shown the video and photos corresponding to when his ATM card was used, identified Gloria Harris as the individual using his card. He recognized her as someone he knew from the Shelby Post Office. Gloria Burton was shown the video tape and she too recognized and identified Gloria Harris. Gloria and Jake Harris are brother and sister.
Gloria Harris worked at the Shelby Post Office since 1987. Her duties included sorting the mail and placing it in the appropriate post office boxes. Both she and her brother denied using Stanton's or the Burtons' ATM cards. However, they both identified themselves from the still photos but claimed they were in fact using Evelyn Hatchett, their sister's, ATM card. Furthermore, Gloria Harris's fingerprints were found on the inside contents of the letter which contained Stanton's ATM card. Following deliberations, the jury returned a verdict of guilty on various counts of communication fraud, ATM fraud, and credit card theft.