Scarlet Rhea O'Kelley v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CACR00-11

SEPTEMBER 27, 2000

SCARLET RHEA O'KELLEY

AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR99-659]

STATE OF ARKANSAS HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

APPELLEE

AFFIRMED

Appellant, Scarlet Rhea O'Kelley, was convicted of violating Arkansas Code Annotated § 5-37-302, the Arkansas Hot Check Law, and sentenced as a habitual offender to twelve years' imprisonment in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1976), and our Arkansas Supreme Court Rule 4-3(j)(1), her attorney has filed a motion to be relieved as counsel and a brief stating there is no merit to this appeal. Appellant's brief, filed by counsel, outlines the four trial court rulings that were adverse to appellant and states that there are no meritorious grounds for appeal. The State agrees that there is no merit to appellant's appeal. Appellant has not filed a pro se statement raising additional points for reversal. We conclude that there are no meritorious issues raised from the rulings that were adverse to appellant. Accordingly, we grant counsel's motion to be relieved as counsel and affirm appellant's conviction and sentence.

Appellant's conviction arose from a series of fourteen checks written on the account of her business, the Grooming Table. The evidence presented at trial established that fourteen checks payable to either Ms. O'Kelley, her employees, or the Family Market were presented to and paid by the Family Market Grocery Store between September 13, 1998, and September 29, 1998. Each of the checks was returned marked insufficient funds. The total amount of the checks was $2,295.00. Attempts to obtain payment from appellant proved unsuccessful.

At trial appellant admitted that the signatures on the checks belonged to her, but testified that at the time she wrote the checks she believed that she had enough money in the bank to cover them. Appellant suggested that her ex-husband, to whom she had given money to deposit into the account, had stolen the money rather than deposit it. The trial court denied appellant's motion for directed verdict and found her guilty of violating the Arkansas Hot Check Law.

Adverse Rulings

The first adverse ruling that we must reach is the trial court's denial of appellant's motion for a directed verdict. Double jeopardy considerations require us to consider a challenge to the sufficiency of the evidence prior to the review of all other suggested trial errors. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). At the close of the State's case, appellant moved for a directed verdict arguing that the evidence was insufficient to establishthat she knew that her account did not have sufficient funds to cover the checks; that no one had identified her as holding the account for The Grooming Table; and that she was not given notice of dishonor as required by the Hot Check Law. In the no-merit brief, appellant's counsel contends that it was proper for the trial court to deny her motion for a directed verdict.

Initially, appellant's counsel contends this issue is not preserved for review. Arkansas Rule of Criminal Procedure 33.1 requires a motion for directed verdict or dismissal to be made at the close of all the evidence to preserve the issue of sufficiency of the evidence for appeal. Here, the record reveals that appellant moved for a directed verdict at the close of the State's case-in-chief, but made no such motion after the State called a rebuttal witness. Rule 33.1(b) explicitly states that if the defendant moved for dismissal at the close of the prosecution's evidence, the motion must be renewed at the close of all the evidence to preserve the issue for appeal. In this case, appellant did not renew her motion and failed to preserve the issue for appeal.

Even if we were to address this issue on appeal, the trial court properly denied appellant's motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the State and sustain the conviction if there is substantial evidence to support it. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Substantial evidence is evidence that is forceful enough to compel reasonable minds to reach a conclusion and pass beyondsuspicion and conjecture. Id. In determining whether there is substantial evidence, we consider only the evidence that tends to support the verdict. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). We do not weigh the evidence presented at trial as that is the province of the factfinder. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998) Where, as is the case here, the trial is before the bench, the trial judge sits as factfinder. Gray v. State, 311 Ark. 209, 843 S.W.2d 315.

The evidence presented at trial was sufficient to support appellant's conviction for violating the Hot Check Law. The law provides that the stamp of a collecting bank on a check indicating the check was returned for insufficient funds is prima facie evidence that the drawer intended to defraud and knew at the time of drawing that the check would not be honored. Ark. Code Ann. § 5-37-304 (Repl. 1997). Although appellant denied such knowledge and suggested that her ex-husband had stolen money given to him to deposit in the account, the trial court was under no obligation to believe such testimony, and we are bound by the trial court's decision with respect to the credibility of witnesses. Winters v. State, 41 Ark. App. 104, 848 S.W.2d 441 (1993). With respect to her claim that the State had not established that she held an account in the name of the Grooming Table, Dick Ketcher, a fraud investigator for Regions Bank, testified that the account holder with authority of signature on the account is appellant. Furthermore, appellant admitted that the signatures on the checks were her signatures. Finally, in regard to appellant's claim that she was not given notice of dishonor prior to prosecution, our supreme court has held that the statute does not require notice be given to the drawer before charges may be brought. State v. Havens, 337 Ark. 161, 987 S.W.2d 686 (1999).

The second ruling adverse to appellant was a denial of a motion for continuance. Immediately prior to the beginning of the bench trial, appellant's attorney made a motion for a continuance asserting that there were potential witnesses who could be called to testify on appellant's behalf who were absent from the courtroom. Arkansas Rule of Criminal Procedure 27.3 provides that a trial court should grant a continuance only upon a showing of good cause. Motions for a continuance are addressed to the sound discretion of the trial court and we will not reverse the denial of a motion for a continuance absent a showing of an abuse of discretion. Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998). The appellant bears the burden of showing the trial court abused its discretion and that abuse prejudiced the appellant. Nelson v. State, 324 Ark. 404, 921 S.W.2d 593 (1996).

In the instant case, when the court asked appellant why her witnesses were not present for trial, appellant admitted that she did not inform her attorney about them because she anticipated hiring another attorney. The trial court denied appellant's motion, ruling that she was aware of appointed counsel and the two months she had known of her trial date was sufficient time to obtain the presence of witnesses for trial. Lack of diligence in having witnesses present for trial is a legitimate ground for denying a motion for continuance. Nelson v. State, supra.

The trial court also overruled appellant's objection to the admission of certain returned checks. As the manager of the Family Market was testifying, the State sought to introduce several checks the manager identified as having been cashed at the store by Ms.O'Kelley. The manager testified that he recognized the checks as having been returned by First Commercial Bank, now Regions Bank, for insufficient funds. Appellant objected to the introduction of the checks into evidence arguing that without testimony from someone from the bank, the State had not laid a proper foundation for the checks' admittance into evidence. The State responded that the checks were admissible pursuant to the Hot Check Law. The trial court, however, admitted the checks pursuant to the business records exception to the hearsay rule.

The introduction of evidence is a matter within the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). Arkansas Rule of Evidence 803(6) provides an exception to the hearsay rule for the admission of business records. That exception has seven requirements: (1) a record or other compilation, (2) of acts or events, (3) made at or near the time the act or event occurred, (4) by a person with knowledge, or from information transmitted by a person with knowledge, (5) kept in the course of regularly conducted business, (6) which has a regular practice of recording such information, (7) all as known by the testimony of the custodian or other qualified witness. Edwards, supra.

The returned checks do not meet these requirements. Specifically, there was no testimony by a custodian of records to establish the other six requirements. Nevertheless, the records were admissible pursuant to the Hot Check Law, and thus, there is no merit to an appeal based on the trial court's denial of appellant's objection. We will not reverse a trial judge who announces the wrong reason but reaches the right result. Harris v. State, 339Ark. 35, 2 S.W.3d 768 (1999). The Arkansas Code Annotated provides, "The check . . . bearing an `insufficient' stamp or `no account' stamp from the collecting bank shall be received as evidence that there were insufficient funds or no account at trial in any court in this state." Ark. Code Ann. § 5-37-304(b). The checks clearly meet this requirement.

The final ruling that was adverse to appellant was the trial court's refusal to sustain appellant's objection to the prosecutor asking the bank's fraud investigator whether Ms. O'Kelley had reported any checks lost, stolen, or forged by anyone in September 1998, or at any other time. Appellant objected to any testimony outside the dates on the information as being irrelevant. The trial court overruled the objection, concluding that such information would be relevant because the requested testimony would be relative to a period of time prior to the date the crimes were allegedly committed and observed that such theft could not have occurred after the time of the alleged offense. The investigator then testified that he had no indication in his records of any such reports.

Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Relevancy determinations are within the sound discretion of the trial court and are subject to reversal only if that discretion is abused. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999). In addition to showing an abuse of discretion, appellant must also show prejudice, which is not presumed, or the trial court's ruling will not be reversed. Id.

Whether appellant reported any of her checks as being lost or stolen is certainlyrelevant to proving that she actually issued the checks. That appellant did not report any checks lost or stolen is relevant to determining that appellant had possession of the instruments and that she subsequently issued them.

From the review of the record and the briefs before us, we find the appeal to be without merit. Counsel's motion to be relieved is granted and the judgment is affirmed.

Affirmed.

Pittman and Stroud, JJ., agree.