Charles Johnson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CHARLES JOHNSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-945

April 13, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR 03-2774]

HON. WILLARD PROCTOR JR., CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Charles Johnson was convicted of second-degree forgery based on evidence that he acted with the purpose to defraud when he possessed, completed, or uttered a check drawn on an account without authorization. On appeal he argues that the State failed to present substantial evidence to support his conviction. We disagree and affirm.

At trial, the State presented evidence regarding events that occurred on April 14, 2003. Ms. McCauley testified that she served as the treasurer of the Holy Anointing Deliverance Church. She was married to Johnson, the church's pastor. The church maintained a checking account at Regions Bank; however, McCauley testified that only she was authorized to draw funds on the church account. She further testified that on April 14th, without her permission, Johnson took a checkbook from their home containing the church's checks. She also identified one of checks (from the stolen checkbook) bearing her signed name "LaJuana McCauley" and noted that it was not her signature. She also commented that she had not given anyone permission to sign her name or to draw on the account. McCauley testified further that-despite the fact that she and Johnson were equal business partners in the Holy Anointing Deliverance Church-he was specifically prohibited from drawing on the church's account because of his past criminal history-which included forgery.

Also at trial Amy Bottoms testified for the State. Ms. Bottoms noted that she was employed at the East Ninth Street branch of Regions Bank. She testified that on April 14, 2003, Johnson drove up to the branch bank's drive-through commercial lane. She recalled that Johnson stated that he had a church deposit and asked for $400 cash back. She explained that he could not get cash back on a business account-that in order to get the $400 he needed to write a check. He then pulled out a book of checks and wrote a check. He signed the check-with his own signature-at the bottom and then on the back of the check. He received $400 and departed. Minutes later, he came back and told Bottoms that he needed her to return the check to him so he could sign Ms. McCauley's name also, which he did.

Finally, Jan Malone, the manager of the Regions Bank branch on East Ninth Street testified that the account that the check was drawn on was under the name Holy Anointing Deliverance Church, Founder and Pastor Charles L. Johnson. She confirmed that only McCauley was authorized to sign the church's checks.

Based on the foregoing evidence, the trial court found Johnson guilty of second-degree forgery and sentenced him as an habitual offender (with four of more prior felony convictions) to ten years' imprisonment. On appeal, Johnson argues that the trial court erred in its denial of his directed-verdict motion for two reasons. First, he argues that because he initially signed his own name to the check-and was given the money he requested-he did not have the requisite purpose to defraud. Second, he takes issue with the fact that the felony information listed the account from which the funds were drawn as belonging to LaJuana McCauley when in fact the account was in the name of the Holy Anointing Deliverance Church.

First, we consider whether the trial court erred in its denial of Johnson's directed-verdict motion. A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. In our review of the evidence, we seek to determine whether the verdict is supported by substantial evidence. Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). However, we consider only the evidence that supports the conviction without weighing it against other evidence that is favorable to the accused. Id. If the evidence is of sufficient certainty and precision to compel a conclusion and pass beyond mere suspicion and conjecture, the evidence is substantial. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001).

Johnson contends that a person who signs his own name to an instrument does not commit forgery. However, under the governing statute, a person forges a written instrument if, with the purpose to defraud, he draws, makes, completes, alters, counterfeits, possesses, or utters any written instrument that purports to be or is calculated to become or to represent if completed the act of a person who did not authorize that act. Ark. Code Ann. § 5-37-201(a) (Repl. 1997). A person commits forgery in the second degree if he forges a written instrument that is a check or other written instrument that does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status. Ark. Code Ann. § 5-37-201(c)(1). Further, "[a] person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result." Ark. Code Ann. § 5-2-202(1) (Repl. 1997). Our theft-of-property statute provides in part that a person commits the crime of theft of property if he "[k]nowingly obtains the property of another person, by deception ..., with the purpose of depriving the owner thereof." Ark. Code Ann. § 5-36-103(a)(2) (Supp. 2003). Further, "[a] person acts knowingly with respect to his conduct ... when he is aware that his conduct is of that nature...." Ark. Code Ann. § 5-2-202(2).

Here, when Johnson signed his own name on a stolen check and received $400-before forging his wife's name on the instrument-he uttered a check that purported to be an authorized act of another (Ms. McCauley) without such authorization. The facts established that Johnson took the checkbook without the permission of its owner and knew that he was not authorized to withdraw funds from the church's account. Indeed, he returned to the bank and attempted to cover-up his fraudulent withdrawal by forging the signature of the only person authorized to draw on the account, his wife. The evidence further established that the church funds withdrawn by Johnson were used, not for authorized church expenditures, but to help him establish bond in a separate criminal matter.

We are satisfied that there is sufficient evidence to show that Johnson knew he was not authorized to draw on the church's account and uttered a check with the purpose of withdrawing money on the account (defrauding) by representing that he had authority to make such a withdrawal (signing his name). Accordingly, we affirm on this point.

Next we address Johnson's second argument. He argues that a material variance existed between the proof and the charge stated in the information. However, an information or other charging instrument is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). An information is sufficient if the act or the omission charged as the offense is stated with a degree of certainty that enables the court to pronounce judgment on conviction. Johnson v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996). A variance between the wording of an indictment or information and the proof at trial does not warrant reversal unless the variance prejudices the substantial rights of the defendant. Id.

However, material variances have been found in limited circumstances. See, e.g., Williams v. State, 302 Ark. 234, 788 S.W.2d 241 (1990) (finding material variance where the State attempted to prove the crime of falsifying business records through elements of the crime not contained within the information); Von Tonglin v. State, 200 Ark. 1142, 143 S.W.2d 185 (1940) (finding material variance where the offense proved was the theft of a cow belonging to Mrs. F.S. Randolph when the offense charged was the theft of a cow belonging to Joe Randolph); Clemons v. State, 150 Ark. 425, 234 S.W. 475 (1921) (finding material variance where the State proved the theft of a steer when the offense charged was the theft of two cows).

Johnson contends that a material variance existed because the State listed the wrong account title in the information. However, this argument is without merit. The fact that the information specifically apprised Johnson of the crime for which he was charged-second-degree forgery-and each element of the offense was cited in the information resolves the question of materiality. Further, in the event that the misnaming of the account was considered to be material, the burden was on Johnson to demonstrate prejudice from the error. See Purifoy v. State, 307 Ark. 482, 490, 822 S.W.2d 374, 378 (1991). Johnson presented no proof as to how he was prejudiced by the mistake contained in the information. Indeed, his own testimony proves that he was aware of the incident giving rise to the charge against him. He further admitted that he knew that McCauley was the sole authorized signer on the account. As such, we hold that Johnson failed to demonstrate a material variance or any resulting prejudice. For the foregoing reasons, we affirm Johnson's conviction.

Affirmed.

Hart and Crabtree, JJ., agree.