McClellan v. State

Cite as 2014 Ark. App. 725

ARKANSAS COURT OF APPEALS
DIVISION I
No.CR-14-127

Opinion Delivered December 17, 2014

APPEAL FROM THE SEBASTIAN
ELIZABETH McCLELLAN COUNTY CIRCUIT COURT,
APPELLANT FORT SMITH DISTRICT
[No. CR-2012-979]

V. HONORABLE STEPHEN TABOR,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

Appellant Elizabeth Jeannette McClellan appeals the sentencing order entered by the

Sebastian County Circuit Court finding her guilty of theft by deception. She was ordered to serve

a six-year suspended sentence and pay restitution, fines, court costs, and fees. On appeal,

McClellan challenges the sufficiency of the evidence supporting her conviction. We affirm.

At trial, Andrea Moore testified that she and McClellan were friends. McClellan, who had

previously stated that she had taken tax-preparation courses in California, offered to prepare

Moore’s 2010 tax return. Moore agreed. McClellan prepared the return, and Moore subsequently

received a refund. Moore testified that McClellan did not ask to be paid, but she treated

McClellan to dinner.

McClellan also prepared Moore’s 2011 return. Moore testified that McClellan did not give

her (Moore) the opportunity to review the return; she was just told to sign the last page. Moore

stated that she signed the return without reviewing it because she trusted McClellan and because
Cite as 2014 Ark. App. 725

she had prepared the 2010 return without any problems. Moore said that she told McClellan that

she (Moore) preferred a refund check, but McClellan said it would be better to have the refund

deposited directly into Moore’s bank account. Moore agreed and gave her account information

to McClellan. McClellan told Moore the refund would be approximately $5200.

Moore received her refund on March 21, 2012. It was $3346. Moore called McClellan to

question the amount of the refund, and McClellan said that she would check into it. When

Moore did not hear back, she reached out to McClellan, but she was evasive. A couple of weeks

later, Moore received a letter from the IRS stating that, due to mistakes on the return, the

requested refund amount of $8135 had been adjusted to $6181. The letter continued by stating

that $3346 of the $6181 refund had been deposited into Moore’s account and that the remaining

$2835 had been deposited into another account, which was unknown to Moore. After receiving

the IRS letter, Moore called McClellan reporting that the refund had been deposited into two

accounts. McClellan said that she did not know why that happened and that she would “figure

it out.” Moore did not hear back from McClellan.

Thereafter, Moore took the IRS letter to the local IRS office, where she received

printouts of the account information where the refund was deposited. Very upset, Moore called

McClellan once again, advising that she had been to the IRS office. McClellan was furious,

telling Moore that she had trust issues and that McClellan said she would take care of it. When

Moore pressed McClellan, she said that she put part of the refund into an interest-bearing

account for Moore’s benefit and that they could go to the bank and transfer the funds into

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Moore’s account. Moore gave McClellan the opportunity to meet at the bank to transfer the

funds, but McClellan refused.

On April 24, 2012, Moore and her fiancé went to McClellan’s home and asked her to go

to the bank. McClellan said she needed to shower; Moore said that they would wait. McClellan

became belligerent, words were exchanged, and they did not go to the bank.

In May 2012, Moore received a copy of her 2011 return. The refund requested was

$8135. The return requested that $2835 of the refund be deposited directly into the unknown

bank account. Moore testified that the return listed three men as her dependent brothers who

were not related to her or dependent on her. Moore said that she never discussed splitting her

refund with McClellan and did not give her permission to deposit any portion of the refund in

her account or any other separate account. Moore said that she did not agree to pay McClellan

for preparing the 2011 return and that McClellan never asked to be paid. Finally, Moore testified

that McClellan had not repaid the money.

The branch manager at Regions Bank, Karen Elaine Nye, testified that the unknown

account information was in the name of Elite Custom Computers. One of the co-owners of that

account was McClellan. According to Nye, on March 21, an electronic transfer from the U.S.

Treasury, labeled as a tax refund for Moore, was made into the account in the amount of $2835.

Fort Smith Police Officer Barbara Williams interviewed McClellan. The officer testified

that McClellan said she had written permission from Moore to have part of the refund deposited

into her (McClellan’s) account; however, McClellan did not provide it to Williams. McClellan

also told the officer that she was holding the money for Moore because she was being abused

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Cite as 2014 Ark. App. 725

by her fiancé. Officer Williams met with Moore and confirmed there was no abuse. Officer

Williams also reviewed the tax return and the Regions account documents. Thereafter, she

contacted McClellan to set up another interview, but McClellan said to stop harassing her and

hung up.

At the conclusion of trial, the jury convicted McClellan of theft by deception, and this

appeal followed. The sole argument on appeal is that the evidence is insufficient to support her

conviction. Specifically, she argues that there was insufficient evidence to establish that she had

the intent to defraud Moore. Rather, the evidence showed that Moore agreed to the manner in

which McClellan prepared the tax return, but that she changed her mind when the IRS reduced

the amount of the refund and Moore received less than she expected.

Our supreme court has held that when a challenge is made to the sufficiency of the

evidence on appeal, we will affirm the conviction if there is substantial evidence to support it.

McEntire v. State, 363 Ark. 473, 476, 215 S.W.3d 658, 660 (2005). In examining the evidence, we

view it in the light most favorable to the State and consider only that evidence supporting the

verdict. Id., 215 S.W.3d at 660. Substantial evidence is evidence which is of sufficient force and

character that it will, with reasonable certainty, compel a conclusion one way or the other,

without resorting to speculation or conjecture. Id., 215 S.W.3d at 660.

A person commits theft by deception when she knowingly obtains the property of

another person by deception or by threat with the purpose of depriving the owner of the

property. Ark. Code Ann. § 5-36-103(a)(2) (Supp. 2011). An individual acts knowingly when she

is aware of the nature of her conduct or of the attendant circumstances of her actions, or when

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she is aware that it is practically certain that her conduct will cause the result. Ark. Code Ann.

§ 5-2-202(2) (Repl. 2006). Further, “deception” is defined as preventing another person from

acquiring information that would affect her judgment of a transaction, and alternatively as

employing any scheme to defraud. Ark. Code Ann. § 5-36-101(3)(A)(ii), (v) (Repl. 2006).

With these definitions in mind, we hold that substantial evidence supports McClellan’s

theft-by-deception conviction. The evidence demonstrates that when McClellan prepared the

2011 return, she inflated the amount of the refund by claiming dependents that Moore did not

have. The refund requested on the return was $8135; however, McClellan told Moore to expect

a refund of $5200. Without Moore’s permission, McClellan arranged for $2835 of the refund to

be deposited into an account that Moore was unfamiliar with and that was owned by McClellan.1

Other evidence showed that based on their friendship Moore trusted McClellan to prepare the

2011 tax return, which is why Moore did not question McClellan when she showed Moore only

the signature page of the return. Based on these facts, the jury could have concluded that

McClellan schemed to defraud Moore by inflating the 2011 refund amount to $8135, telling

Moore to expect the lesser amount of $5200, and then taking the difference by secretly diverting

it to an account under her control.

McClellan argues that Moore originally agreed to have McClellan direct a portion of the

refund into a separate account but changed her mind when the refund was reduced by the IRS.

However, the evidence presented to the jury demonstrated that Moore did not agree to have any

of her refund deposited into any other account, McClellan was not forthcoming with

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The difference between $8135 and $2835 is $5300—just over the amount Moore was
told to expect for her refund.

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information about the separate account despite Moore’s multiple inquiries, and McClellan

refused to return the money despite Moore’s multiple requests. This is substantial evidence that

supports the jury’s conclusion that McClellan knowingly obtained the property of another by

deception. Accordingly, we affirm the theft-by-deception conviction.

Affirmed.

HARRISON and BROWN, JJ., agree.

David L. Dunagin, for appellant.

Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.

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