Theresa Bedford v. State of Arkansas
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Theresa BEDFORD v. STATE of Arkansas
CACR04706
__ S. W.3d ___
Court of Appeals of Arkansas
Opinion delivered June 28, 2006
1.
APPEAL & ERROR – PROBATION REVOCATION – NO VIOLATION OF CONDITIONS.–The trial court
erred in finding that appellant had violated the conditions of her suspended sentence by failing
to pay fines and costs because the written conditions of her suspended sentence did not
require such payments; the State conceded error on this point.
2.
APPEAL & ERROR – PROBATION – STATE DID NOT PROVE A VIOLATION BY A PREPONDERANCE
OF THE EVIDENCE.– Where the trial court revoked appellant’s suspended sentence for
attempting to cash a check that was written on a closed account, but the State presented no
evidence to prove that the check was issued or presented for payment after the date the
account was closed, its argument that the evidence permitted the trial court to conclude that
appellant presented a check knowing that the bank account was closed must fail when the
record is void of any evidence that the account was closed prior to its issuance or its
presentation by appellant to the supermarket.
3.
APPEAL & ERROR – PROBATION –STATE DID NOT PROVE THAT CHECK WAS FORGED – TRIAL
COURT COULD NOT REASONABLY INFER THAT THE CHECK WAS FORGED.– Possession of a
forged instrument by one who offers it without any reasonable explanation of the manner in
which she acquired it warrants an inference that the possessor committed the forgery or was
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BAKER, J. 11
BEDFORD v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 2
an accessory to its commission; nevertheless, before the inference that the possessor of a
forged instrument committed the forgery is warranted, the State must first prove that the
instrument in question is a forged instrument; because the State failed to prove that the check
was issued or presented for payment prior to the closure of the bank account upon which it
was drawn, the trial court could not reasonably infer that the check was forged, and the trial
court therefore erred in finding that appellant violated the terms of her probation by passing
a forged instrument.
Appeal from Crittenden Circuit Court; Charles David Burnett, Judge; reversed and dismissed.
S. Butler Bernard, Jr., for appellant.
Mike Beebe, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
KAREN R. BAKER, Judge. This is the second appeal in this revocation case. On November
26, 1996, appellant Theresa Bedford pleaded guilty to forgery and received a tenyear suspended
imposition of sentence. The State filed a revocation petition on February 12, 2004, and a revocation
hearing was held on March 4, 2004. After the hearing, the trial court found that appellant had
violated the conditions of her suspended sentence by failing to pay fines and costs, and by committing
a forgery, and entered an order sentencing her to four years in prison.
In the first appeal, appellant’s counsel argued that the appeal was wholly without merit
pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 43(j)(1) of the Rules of the
Arkansas Supreme Court and Court of Appeals. In an unpublished opinion, Bedford v. State, CACR
04706 (January 11, 2006), we ordered rebriefing on the grounds that appellant was entitled to an
adversarial presentation by her counsel on the issue of whether the trial court’s decision to revoke
was clearly against the preponderance of the evidence.
In her adversarial brief, appellant presents two arguments for reversal. First, she asserts that
the trial court erred in finding that she violated her conditions by failing to pay fines and costs because
the written conditions of her suspended sentence did not require such payments. The State concedes
error on this point, and we agree. Second, she argues that the trial court erred in finding that she
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BAKER, J. 11
BEDFORD v. STATE
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Page 3
committed a forgery and subsequently violated her probation. We agree and reverse.
The disposition of this case requires the application of permissible inferences by the trial court
in the context of a probation revocation based upon an accusation of forgery. The State has the
burden to prove a violation of a condition of probation by a preponderance of the evidence. Lemons
v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). This burden is not as great in a revocation hearing;
therefore, evidence that is insufficient for a criminal conviction may be sufficient for revocation.
Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). If a court finds by a preponderance of the
evidence that a defendant has inexcusably failed to comply with a condition of his or her probation,
it may revoke the probation. Ark. Code Ann. § 54309(d) (Repl. 2006). The trial court's findings
will be upheld unless they are clearly against the preponderance of the evidence; and because the
determination of a preponderance of the evidence turns on the questions of credibility and weight to
be given testimony, on review, the appellate courts will defer to the trial judge's superior position. Id.
The State argues that the trial court properly revoked appellant’s suspended sentence for
attempting to cash a check that was written on a closed account. The State cites Arkansas Code
Annotated section 537201(a) (Repl. 2006), which provides:
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
1
that act.
In its argument , the State contends that the trial court found that appellant’s presentation of a check
on a closed account was a sufficient basis to revoke her suspended sentence and relies upon the
principle that possession of a forged instrument by someone who seeks to utter it without any
reasonable explanation of how she acquired it warrants an inference that the possessor committed the
1
In Bedford I, it was noted that appellant pro se asserted that she did not commit a
forgery, claiming that no one bothered to check out the information she presented as to her
employment, and this was one of the issues we identified in our determination that appellant was
entitled to an adversarial brief. The dissent now comments that this very issue was not raised on
appeal. In fact, appellant argues that the State failed to prove that appellant violated a State law,
cites the statutory definition of forgery and states that “[t]he key here is whether or not the
Appellant took her actions with the purpose to defraud another person who did not authorize this
action.” (Emphasis added). She further argues that the evidence to the court included appellant
remaining for the entire transaction, presenting proper identification, and “included facts
concerning the drawer of the instrument.” She asserts that “[c]learly the State did not meet its
burden . . . to the underlying charge of forgery.” Given appellant’s arguments, it is difficult to
understand how the dissent concludes that the adversarial presentation of this argument has not
been met.
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BEDFORD v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 4
forgery. See Mayes v. State, 264 Ark. 283, 291, 571 S.W.2d 420, 425 (1978); DeShazer v. State,
94 Ark. App.363, ___ S.W.3d ___ (2006). However, that premise does not apply on the facts of this
case because the State failed to prove that the check at issue was a forged instrument.
To prove that the check issued was forged, the State relied upon the testimony of an employee
of the supermarket, Bruce Avan. He stated that he is employed at a Big Star grocery store in West
Memphis. He further testified that, in September 2003, appellant cashed a check made out to her in
the amount of $1220 at the store. In order to cash the check, appellant presented her driver’s license,
a photocopy of which is on the back of the check. According to Mr. Avan, the check was returned
by the bank with “Account Closed” stamped on it, and Big Star never recovered the money it paid
to appellant.
The State also elicited testimony from Mr. Avan that he had previously dealt with appellant
and that “we have had other forgeries from her.” Mr. Avan alleged that appellant had been banned
from the store but that “she comes anyway.” In addition, Mr. Avan related the following incident
that occurred after appellant passed the check on the closed account:
I know that she came back in our store after that and presented another check to be cashed
and the assistant manager recognized the name and knew we had problems with her. We had
not received the first check back yet. The assistant manager said to me, “let me look at it.”
[Appellant] said “no, that’s okay, I’ll just get it cashed somewhere else.” She left without
letting me see the check.
Officer Bernice Franks, employed by the West Memphis Police Department, CID Division,
testified regarding the investigation of the passing of the check. Officer Franks explained that the
check presented by appellant was made out to appellant, endorsed by appellant, and had
superimposed upon the back of the check a picture of a driver’s licensed issued by the State of
Arkansas to appellant. The officer also stated that all of that information was on the check when Mr.
Avan provided the check to the police. Officer Franks further described attempts to connect
appellant with other fraudulent passing of checks but stated that the department could not identify
her as the perpetrator. In particular, there was another check drawn on the same entity and cashed
at Fidelity National Bank, although the department could never link appellant to the passing of that
check.
Appellant testified on her own behalf, and asserted that she earned the $1220 check while
working for Gates Cleaning Service in Memphis. Appellant gave a phone number and address for
the company, and indicated that she performed cleaning work from April through early September
2003, and that the check at issue was the last paycheck she received. She stated that her boss was
a man named Cedric Yates. Appellant acknowledged that she had committed forgeries in the past
and that she has three previous forgery convictions, but maintained that the transaction at issue was
legitimate.
Given this evidence, we cannot say that the State proved that the check was forged. While
Mr. Avan testified that the check was returned stamped “account closed,” there was no evidence as
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BAKER, J. 11
BEDFORD v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 5
to when the account was closed, particularly as to whether the account was closed prior to the date
the check was allegedly issued or presented by appellant to the supermarket. In fact, Mr. Avan
testified that he did not know the specific date that the store received the check. The State presented
no evidence to prove that the check was issued or presented for payment after the date the account
was closed. Although the State argues that the evidence permitted the trial court to conclude that
appellant presented a check knowing that the bank account was closed, that argument must fail when
the record is void of any evidence that the account was closed prior to its issuance or its presentation
by appellant to the supermarket.
While the drawing of reasonable inferences from the testimony is for the trial judge as fact
finder, not this court, Deshazer, supra, when the record contains no evidence as to when a checking
account is closed in relationship to when the check was issued or passed, the record cannot support
the inference that the account was closed prior to the issuance or passing of the check. In arguing
that this court must defer to the trial court’s determination of credibility, the State quotes the trial
judge’s description of appellant as a “career check passer,” and asserts that the court’s description
suggests that the judge believed this incident to be yet another attempt by her to fraudulently obtain
money. The State argues that we must defer to the trial judge’s superior position to assess
appellant’s credibility.
We agree with the State’s general proposition regarding permissible inferences from
possession of a forged instrument. Possession of a forged instrument by one who offers it without
any reasonable explanation of the manner in which she acquired it warrants an inference that the
possessor committed the forgery or was an accessory to its commission. DeShazer, supra. See also
McGirt v. State, 289 Ark. 7, 708 S .W.2d 620 (1986) (holding that “the crime of forgery was
complete upon his being in possession of the forged instrument, or upon his attempt to pass the
check, or upon his passing of the check”); Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978)
(holding that possession of a forged instrument by one who offers or seeks to utter it without any
reasonable explanation of the manner in which he acquired it warrants an inference that the possessor
committed the forgery or was a guilty accessory to its commission); see also Faulkner v. State, 16
Ark. App. 128, 697 S.W.2d 537 (1985).
Nevertheless, before the inference that the possessor of a forged instrument committed the
forgery is warranted, the State must first prove that the instrument in question is a forged instrument.
While the trial court is not required to believe the accused’s explanation of how he or she came into
possession of a forged instrument, the trial court may not use its disbelief of the explanation regarding
possession of the instrument to infer that the instrument is in fact forged.
Because the State failed to prove that the check was issued or presented for payment prior
to the closure of the bank account upon which it was drawn, the trial court could not reasonably infer
that the check was forged. Therefore, we hold that the trial court erred in finding that appellant
violated the terms of her probation by passing a forged instrument. Accordingly, we reverse and
dismiss.
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BAKER, J. 11
BEDFORD v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 6
HART, BIRD, GLOVER and VAUGHT, JJ., agree.
PITTMAN, C.J., ROBBINS, CRABTREE and ROAF, JJ., dissent.
JOHN B. ROBBINS, Judge, dissenting. I respectfully dissent. The majority has reversed
the trial court’s decision on the basis that the State failed to prove that the check was a forged
instrument. Ms. Bedford has not advanced this argument on appeal, and in order to reach
its decision the majority has acted as appellant’s advocate. It is a familiar rule of practice
that an appellate court does not reverse on a ground not argued by the appellant. Houston
v. State, 82 Ark. App. 556, 120 S.W.3d 115 (2003). This rule is applicable even in cases that
are heard de novo on appeal, see Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571
(1967), and has even been applied in the context of Rule 37.5 appeals following cases where
the death penalty has been pronounced. See, e.g., Echols v. State, 344 Ark. 513, 42 S.W.3d
467 (2001).
In challenging the State’s proof of a forgery on appeal, Ms. Bedford cites Mayes v.
State, 264 Ark. 283, 571 S.W.2d 420 (1978), where the supreme court held that possession
of a forged instrument by one who offers or seeks to utter it without any reasonable
explanation of the manner in which he acquired it warrants an inference that the possessor
committed the forgery or was a guilty accessory to its commission. In Mayes, the supreme
court found substantial evidence to support the appellant’s forgery conviction where
appellant was not named as payee on the check he attempted to pass at a department store,
and the appellant left the store while the cashier took the check to the store manager for
inspection. In her brief, Ms. Bedford attempts to distinguish this case from Mayes, arguing:
In the Mayes case, the individual left the grocery store before the clerk could verify
whether or not the grocery store would accept the check. In this case, the evidence
presented to the Court not only included the Appellant remaining for the entire
transaction, but that she presented her proper information to the clerk. Additionally,
her testimony included facts concerning the drawer of the instrument. These factors
clearly set forth a reasonable explanation for the Appellant’s actions.
In her brief appellant does not dispute the fact that the check is a forged instrument, but
rather asserts that she gave a reasonable and innocent explanation for possessing it.
Ms. Bedford makes no claim whatever that the State failed to prove that the check was issued
or presented for payment after the date the account was closed, as so found by the majority.
In my view, the issue raised and pertinent inquiry in this appeal is whether
Ms. Bedford acted with the intent to defraud. Although the evidence of Ms. Bedford’s intent
to defraud might not have supported a criminal conviction, I would hold that it was sufficient
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BAKER, J. 11
BEDFORD v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 7
to support the trial court’s determination that the State established a forgery by the
preponderance of the evidence.
While Ms. Bedford explained that she earned the check and did not know the account
was closed, the reasonableness and sufficiency of appellant’s explanation was a matter to be
determined by the factfinder, and the trial court had the right to accept or reject
the testimony. See Faulkner v. State, 16 Ark. App. 128, 697 S.W.2d 537 (1985). The trial
court obviously did not find Ms. Bedford’s explanation credible. There was testimony by
Mr. Avan that Ms. Bedford had committed prior forgeries at the same store, causing her to
be banned. There was also evidence that, on a subsequent occasion, Ms. Bedford attempted
to cash a check at Big Star and upon inquiry by the assistant manager she left the store
without allowing Mr. Avan to see the check. Intent can seldom be proved by direct evidence
and must be inferred from facts and circumstances. Johnson v. State, 5 Ark. App. 78, 638
S.W.2d 686 (1982). The trial court described Ms. Bedford as a “career check passer” and
believed this to be another attempt to fraudulently obtain money, and I cannot say its finding
that she committed forgery was clearly against the preponderance of the evidence.
Therefore, I would affirm the revocation of appellant’s suspended sentence.
PITTMAN, C.J., CRABTREE, and ROAF, JJ., join in this dissent.
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BAKER, J. 11
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