Lewis Richard v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION I

LEWIS RICHARD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-206

September 26, 2001

APPEAL FROM THE HOWARD COUNTY CIRCUIT COURT

[NO. CR-2000-37]

HONORABLE CHARLES A. YEARGAN, CIRCUIT JUDGE

AFFIRMED

A jury found appellant, Lewis Richard, guilty of second-degree forgery and sentenced him to a total of 156 months in the Arkansas Department of Correction ("ADC"). For reversal, appellant argues that there was insufficient evidence to sustain his conviction, and accordingly, the trial court erred by denying his directed-verdict motion. We affirm.

The State filed a criminal information on February 29, 2000, alleging that in November 1999, appellant forged the signature of another person, which resulted in the withdrawal of $40 from that person's personal checking account. Thereafter, on April 20, 2000, the State filed an amended information, charging appellant as a habitual offender.

At trial on July 24, 2000, included among the witnesses that testified were Harold Tyler, the victim; David Shelton, an investigator for the sheriff's office; Anita Pate, a former cashier at Charlie's Thriftway; Chris Moore, a manager at Charlie's Thriftway; Janet Noble,a questioned document examiner and handwriting analyst with the Arkansas State Crime

Laboratory; Albert Rowland, fingerprint analyst for the Arkansas State Crime Laboratory; and appellant.

Tyler testified that in late November 1999, his wife noticed that a check (No. 2355) from their personal checking account was missing. When their bank statement arrived in December, he discovered that the check was made payable to appellant in the amount of $40, signed, and cashed. Tyler then called the sheriff's office to report the incident. According to Tyler, neither he nor his wife signed the check or knew appellant.

Because appellant was the named payee on the check, Shelton questioned appellant about the matter. According to Shelton, appellant denied signing the check and, during the interview, never touched the check.

Pate testified that she was working at the store where the check was cashed and identified her initials on the check. She explained that her initials indicated that she had been satisfied that the person presenting the check for payment was the payee. Although she did not specifically recall cashing the check, it was the store's standard policy to use the picture on a driver's license or state-issued identification to verify that the person cashing the check was also the check's payee.

Thereafter, Moore testified that he was the manager at the store at the time the check was cashed and identified his initials on the check. He explained that although he did not specifically recall the check, his initials indicated that he had been "convinced" that the person who presented the check for payment was the payee. Moreover, he stated that in addition to using the license or identification card to satisfy himself that the presenter andpayee were the same, he used these cards to record birth dates, which he did in this case.

Noble testified that she had received exemplars of appellant's handwriting and compared those samples with the writing on the check. Based on her examination, which was limited because she had only three samples of appellant's handwriting for comparison, she opined that it was more likely than not that appellant signed the check.

The State continued its case by offering the testimony of Rowland, who stated that he had examined the check at issue and identified a fingerprint that, in his opinion, belonged to appellant. Specifically, Rowland stated that "[t]here is no doubt in my mind that this fingerprint was made by [appellant]."

At that time, the State rested, and appellant moved for a directed verdict, arguing that the State had failed to present anyone who could directly identify appellant. In particular, appellant argued that neither Pate nor Moore could identify appellant, and Noble could not positively state that appellant had signed the check. Furthermore, appellant did not deny that his fingerprint was on the check because, despite the State's testimony to the contrary, he had touched the check during his questioning by Shelton. Accordingly, appellant concluded that there was reasonable doubt that he committed the forgery. The trial court, without comment, denied the directed-verdict motion. Afterward, the parties agreed to admit into evidence copies of appellant's current and former driver's licenses.

Appellant, testifying on his own behalf, was the sole witness for the defense. On direct examination, he denied knowing or having any dealings with Tyler, possessing Tyler's check on November 19, 1999, taking Tyler's check to Charlie's Thriftway for cashing, orsigning the check. Additionally, he told the jury that his telephone number was 287-5564 and not the number written on the check, 287-5554. Moreover, appellant explained that the reason his fingerprint was on the check was because Shelton had handed it to him. Appellant also stated that he had lost the driver's licence that was issued to him on May 9, 1997, and he was issued a new driver's licence on January 28, 1999.

Prior to cross examination, the trial judge denied appellant's renewed motion to prevent the State from inquiring into appellant's prior convictions. Appellant then admitted to being found guilty of theft of property in 1994, which resulted in a sentence of five years' imprisonment in the ADC, and having entered a plea of guilty to forgery in 1998, which resulted in a sentence of three years' imprisonment in the ADC.

Following appellant's testimony, he rested and renewed his directed-verdict motion, which was denied. A jury found appellant guilty and sentenced him to serve a term of 156 months for second-degree forgery. From this conviction, comes this appeal.

Appellant's sole point for reversal is that the trial court erred by denying his directed-verdict motion because there was insufficient evidence to sustain the convictions of forgery in the second degree. Our standard of review in matters such as this is well-settled and oft-stated:

A motion for a directed verdict is a challenge to the sufficiency of the evidence. The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict.

E.g., Goodman v. State, 74 Ark. App. 1, 7, 45 S.W.3d 399, 402-03 (2001).

The trial judge denied appellant's directed-verdict motion; however, he did so without stating the basis for his determination. Accordingly, we must ascertain whether the evidence offered was substantial. We conclude that the court did not err in denying the directed-verdict motion.

Pursuant to the material provisions of Ark. Code Ann. § 5-37-201 (Repl. 1997):

(a) 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. . . .

(c) A person commits forgery in the second degree if he forges a written instrument that is:

(1) A . . . check . . . that does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status . . . .

Viewing the evidence in a light most favorable to appellee, there was substantial evidence that with the purpose to defraud, appellant completed a check and represented it as being completed by a person who did not authorize such act. While it is true that the record on appeal demonstrates that there was evidence suggesting that appellant was not the person who committed the crime, we view the evidence in the light most favorable to the State. The State and appellant offered competing theories as to how Tyler's check was forged and cashed, and the jury simply believed the State's theory of the case. Under these circumstances, we conclude that the denial of the directed-verdict motion was appropriate and affirm.

Affirmed.

PITTMAN and ROAF, JJ., agree.