Derrick Wayne Holloway v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DERRICK WAYNE HOLLOWAY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-518

DECEMBER 7, 2005

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION

[NO. CR 04-3452, CR 04-3625]

HONORABLE JOHN W. LANGSTON,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Derrick Wayne Holloway appeals his conviction for second-degree forgery and the revocation of his probation, as found by the Pulaski County Circuit Court. Both judgments were entered on February 4, 2005, and appellant timely filed notices of appeal. Appellant asserts that the conviction is not supported by substantial evidence that he had the requisite intent to defraud when he presented a counterfeit check for cashing, and he asserts that his probation revocation is not supported by sufficient evidence for the same reason. We disagree with appellant on both bases, and therefore, we affirm the conviction and revocation. Appellant was placed on a five-year term of probation for three counts of second-degree forgery; the term commenced on March 29, 2004. On August 25, 2004, the State petitioned to have appellant's probation revoked for failure to have ever reported to the probation officer, for delinquency on supervision fees, and for having been charged with another forgery on July 28, 2004.

Appellant had been formally charged with the most recent forgery in Pulaski County Circuit Court case CR04-3452. The case was tried to the bench on January 18, 2005. The following testimony was adduced. Lisa King, an employee of a Little Rock Wal-Mart store, testified that appellant stood in her cashier line to pay for some items on the afternoon of July 28, 2004. He presented a check to her to pay for the goods and to receive the balance in cash.

The check he handed her stated that it was drawn on a Bank of America account located on Roosevelt Road in Little Rock, Arkansas. The check appeared to be issued by Razorback Concrete Company, listing a business address in North Little Rock, Arkansas. The check, dated July 28, 2004, was in the amount of $823.12 and made out to Derrick W. Holloway, 119 Roosevelt Road, Jacksonville, Arkansas. The memo line stated that it was for payroll. Appellant provided the cashier an Arkansas identification card.

Because the cashier did not have enough cash in her register to give appellant the difference between what he owed and the check amount, she went to retrieve more money. Apparently, store personnel alerted to the fact that the check was suspicious, so the police were summoned. The cashier went back to the register where appellant stood and told him that they needed to wait a bit. When the police arrived, appellant was arrested without incident.

The State called Michelle Jennings, an office manager of Razorback Concrete Company, to testify. Ms. Jennings testified that the check appellant presented was not an authentic company check. She explained that their main office was located in West Memphis, Arkansas; that their checks were a different color; that their checks were drawn on a Twin City Bank account; and that their checks had a distinctive razorback logo on it. Ms. Jennings confirmed that appellant had never been an employee of Razorback ConcreteCompany and that they had never paid appellant for any work with a company check. She said that this check was never issued by Razorback Concrete Company.

The State rested, and appellant moved for directed verdict or dismissal on the basis that the State failed to prove that appellant presented this bogus company check with the purpose to defraud anyone. The essence of the argument was a denial that appellant knew this check was a fake. The trial court denied the motion, and appellant testified.

Appellant agreed that he was at Wal-Mart that day and tried to cash the check. Appellant said that this check was given to him by a man named Ferlando in exchange for appellant having worked on Ferlando's vehicle. Appellant said he met Ferlando when Ferlando came up to him while appellant was outside his mother's house in Jacksonville, working on his brother's car. Ferlando wanted a new motor and windshield for his Blazer. Appellant said he did not tell Ferlando the exact amount that he would charge. Appellant claimed that, "I told him just eight hundred and something dollars to fix his car." Appellant said Ferlando was not driving a Razorback Concrete Company truck or a company car, and Ferlando was not wearing a company uniform. Appellant said Ferlando told him that he worked for the company and that he needed appellant's address and social security number so that a check could be made out directly to him.

Appellant testified that he later met Ferlando at the Wal-Mart parking lot on Bowman Road in Little Rock, whereupon he saw Ferlando and a couple of ladies in a car. The ladies gave Ferlando the check, and Ferlando handed it to appellant. Appellant denied that it was odd that he did not know Ferlando's last name, nor did appellant find it strange that it was not apparent that Ferlando worked for Razorback Concrete Company. Appellant said he took Ferlando at his word, and he did not question that the company check was made out to him as a payroll check.

Appellant said he gave the Wal-Mart cashier the check and offered her his Arkansas identification. While he thought they were standing there waiting for approval of the check to pay him the difference, the police appeared and "come up on me." Appellant said, "I didn't try to run or do nothing." Appellant agreed he had committed three prior forgeries regarding counterfeit checks. Nevertheless, appellant maintained that he did not know that this check was invalid.

At the conclusion of the presentation of evidence, appellant renewed the motion for directed verdict or dismissal, which was denied. The trial court found appellant guilty of second-degree forgery. The State submitted proof of appellant's status as an habitual offender, without objection. Appellant is an habitual criminal with four or more prior felonies, including residential burglary, battery, and forgery.

The hearing on the State's probation revocation petition immediately followed. Appellant stipulated that the evidence in second-degree forgery trial would be considered for purposes of revocation. In addition, the State put on evidence regarding appellant's failure to report through appellant's probation officer, Deborah Green.

Ms. Green testified that she was assigned appellant's probation case but she had never seen appellant before this hearing, despite the fact that probationers are told to report for the first time within the first twenty-four hours. Ms. Green stated that appellant's conditions of probation included that he not violate any law, that he pay supervision fees, and that he report. She said that she had tried to contact appellant by mail to reiterate that he needed to report to her, but she never heard from him, even by telephone. She confirmed that he had also not paid his fees as ordered. Ms. Green said she was already in the process of seeking a revocation petition when she learned of his latest arrest on forgery. It was added to the petition. On this evidence and the stipulated evidence, the trial court found that the Stateproved by a preponderance that appellant committed the criminal offense of second-degree forgery and also that appellant had failed to report to his probation officer.

Appellant appeals from both the conviction and revocation. We first consider the conviction for second-degree forgery. A person forges a written instrument if with 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 deed, will, codicil, contract, assignment, check, commercial instrument, credit card, or other written instrument that does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status. Id. at subsection (c)(1).

Appellant argues that there lacked sufficient evidence that he presented this check with the requisite mens rea - with the purpose to defraud. We disagree. A motion for directed verdict is a challenge to the sufficiency of the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in a light most favorable to the State. Id. The evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). We look only to the evidence which supports the verdict. Id. It is for the fact finder to resolve inconsistencies in testimony, and we will not disturb the fact finder's credibility assessment. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983). A criminal defendant's intent or state of mind is rarely capable of proof by directevidence and must usually be inferred from the circumstances of the crime. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).

In viewing the evidence in the light most favorable to the State, we hold that there is sufficient evidence to sustain appellant's conviction for second-degree forgery. Though appellant denied knowing that this check was invalid, his explanation did not have to be believed. A defendant's false and improbable explanations of incriminating circumstances are admissible as proof of guilt. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). Appellant admittedly had a history of criminal trouble regarding counterfeit checks; he accepted this check on a Wal-Mart parking lot in Little Rock from a man whose last name he did not know; he was unclear about what he charged for work he purportedly did on the man's personal vehicle, though not for the amount stated on the check; and he took a company payroll check made out to him from a company for whom he did not work. The check was undisputedly counterfeit. Appellant's improbable explanations were helpful to the State's case, when viewed in the proper light for purposes of appellate review. We affirm appellant's conviction.

Consequently, appellant's probation revocation is supported by a preponderance of the evidence. Probation may be revoked upon a finding by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of the probation. Ark. Code Ann. § 5-4-309(d) (Repl.1997). Evidence that is insufficient to convict a person of the offense may be sufficient to revoke probation. Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). On appeal of a revocation, the revocation will not be overturned unless the decision is clearly against the preponderance of the evidence. Id. We must give due regard to the trial court's superior position in determining the credibility of witnesses and the weight to be given their testimony. Id.

Given these standards of review, the trial court's decision to revoke appellant's probation is not clearly against the preponderance of the evidence. Even had there been insufficient evidence of a violation of a law, which there was not, the trial court also revoked appellant's probation on the alternative basis that he failed to report to his probation officer as required by his conditions. Failure to appeal this finding would result in affirming his revocation in any event.

Appellant's conviction for second-degree forgery and revocation of probation are affirmed.

Bird and Griffen, JJ., agree.