Crystal Stinson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

CRYSTAL STINSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-423

FEBRUARY 19, 2003

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR01-2637]

HONORABLE WILLARD PROCTOR, CIRCUIT JUDGE

AFFIRMED

Crystal Stinson was convicted in a bench trial of second-degree forgery. The trial court sentenced Stinson to three years' probation and ordered her to pay a $200 fine, court costs, and restitution. On appeal, Stinson argues that the trial court erred in denying her motion to dismiss the charge of forgery in the second degree because the State failed to introduce substantial evidence that she was the person who actually possessed, completed, or uttered the check at issue. We affirm.

At trial, Karen Lanehart, a Superior Federal Bank branch manager, introduced bank account records for the joint account of Cheryl Addie and Ricky Stinson, including check #1283, dated November 9, 1999, which was drawn on this account. The check was written for $210, and the payee's name was Ann Marrs. Someone purporting to be Ms. Marrs endorsed the check, and the check was signed "Ricky Stinson."

Susan Humphries, a teller at Superior Federal Bank, testified that she accepted and cashed check #1283. Although she had no memory of this specific incident, Humphries testified that she never accepted a check without looking at the person's identification and verifying that the personin the picture was the same person that had handed her the check. On the back of check #1283, Humphries wrote that she was presented with Arkansas driver's license number 906-08-7981, with an expiration date of September 26, 2002, and that the person presenting the license was born on September 26, 1979. Appellant's driver's license, with number 906-08-7981 and an expiration date of September 26, 2002, was also admitted into evidence. Appellant's date of birth, as shown on the license, is September 26, 1979.

Ricky Stinson testified that he knew a woman by the name of Crystal Stinson or Crystal Marrs and identified her as being present in the courtroom. Mr. Stinson testified that he was not related to appellant, but that she was an acquaintance of his who had visited his house around November 9, 1999. Mr. Stinson stated that he did not sign check #1283, he did not give the check to appellant, and he did not authorize appellant to sign, possess, or cash the check. Cheryl Addie also identified the person that she knew as Crystal in the courtroom and testified that Crystal had been to her house in November 1999. Ms. Addie testified that she never gave appellant authority to have any of her checks and that appellant did not have authority to possess check #1283.

On appeal, appellant challenges the sufficiency of the evidence supporting her conviction for second-degree forgery. Specifically, appellant argues that the trial court erred in denying her motion to dismiss because the State failed to introduce substantial evidence that she was the person who actually possessed, completed, or uttered the check at issue. The State contends that appellant's argument is not preserved for our review because she did not renew her motion to dismiss. Appellant made a motion to dismiss at the close of the State's case. The defense then rested without presenting any evidence, and the State did not offer rebuttal evidence. Appellant did not renew her motion, and the parties proceeded with their closing arguments. Under Ark. R. Crim. P. 33.1(b) (2002), in a nonjury trial, the defendant must make a motion to dismiss at the close of all of theevidence to preserve for appeal a challenge to the sufficiency of the evidence. If the defendant moves for dismissal at the conclusion of the State's case, the motion must then be renewed at the close of all of the evidence. Ark. R Crim. P. 33.1(b). This is because a defendant who goes forward with the production of additional evidence after a directed verdict motion is overruled has waived any further reliance on the earlier motion. Davis v. State, 320 Ark. 329, 896 S.W.2d 438 (1995); Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994); Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). Here, although appellant moved to dismiss at the close of the State's case, no further evidence was presented by either party, and appellant's counsel simply said, "Your Honor, the defense would call no witness and we would close. We would rest, I'm sorry." Thus, appellant made her motion for dismissal at the close of all of the evidence as required by Rule 33.1(b), and her challenge to the sufficiency of the evidence supporting her conviction is preserved for our review.

A motion for directed verdict, or in a nonjury trial, a motion for dismissal, is a challenge to the sufficiency of the evidence. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other, without resort to speculation or conjecture. Id. For circumstantial evidence to constitute substantial evidence, it must exclude every other reasonable hypothesis than that of the guilt of the accused. Id.

Arkansas Code Annotated section 5-37-201(a) (Repl. 1997) states that 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." "Utter" means to transfer,pass, or deliver or cause to be transferred, passed, or delivered to another person any written instrument, or to attempt to do so. Ark. Code Ann. § 5-37-101(7) (Supp. 2001). A person commits second-degree forgery when the written instrument forged is a check 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) (Repl. 1997).

Appellant contends that the evidence is insufficient to show that she was the person who possessed, completed, or uttered the check because there were no eyewitnesses who testified that she possessed the check. The bank teller, Humphries, witnessed the incident, but she testified that she had no memory of the person who cashed the check. However, the identity of the perpetrator of a crime may be inferred from all of the facts and circumstances in evidence. Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992). Humphries testified that, as a matter of habit, she always asks for a driver's license to verify the identity of a person cashing a check and that she writes the information from the license on the back of the check. The information written on the back of check #1283 indicated that Humphries received the check from a person who presented identification with Arkansas driver's license number 906-08-7981, a date of birth of September 26, 1979, and an expiration date of September 26, 2002, on it. Appellant's driver's license that was entered into evidence also had the number 906-08-7981, a birthdate of September 26, 1979, and an expiration date of September 26, 2002. Humphries testified that she always confirmed that the person presenting the check was the person pictured on the driver's license. In addition, Mr. Stinson and Ms. Addie, the owners of the checking account, testified that appellant was at their home in November 1999, around the time that the check was cashed, and that appellant did not have authority to possess the check.

The foregoing evidence is sufficient to identify appellant as the person who forged the checkand to exclude every other reasonable hypothesis than that of the guilt of appellant. Appellant also argues that she was not properly identified by the witnesses at trial as being the defendant. However, appellant did not make this argument to the trial court in her motion for dismissal. Arguments not raised at trial will not be addressed for the first time on appeal, and a party cannot change the grounds for an objection on appeal, but is bound by the scope and nature of the objections and arguments presented at trial. Wallace v. State, 53 Ark. App. 199, 920 S.W.2d 864 (1996). Moreover, appellant's argument has no merit. Both Mr. Stinson and Ms. Addie were asked if they knew a person named Crystal Stinson or Crystal Marrs, to which they responded affirmatively by pointing to a specific woman sitting at a table in the courtroom. The State then asked that the record reflect identification, and the trial court stated that the record would so reflect. Although the State did not specifically request identification of the "defendant," we find the in-court identification sufficient to find that the person referred to by Mr. Stinson and Ms. Addie was in fact appellant. Substantial evidence supports appellant's conviction for second-degree forgery, and we affirm.

Affirmed.

Crabtree and baker, JJ., agree.