Anderson v. State
Annotate this Case
Download PDF
Cite as 2009 Ark. App. 804
ARKANSAS COURT OF APPEALS
DIVISION IV
CACR09-570
No.
PHILLIP ANDERSON and MARK A.
STEPHENS
APPELLANTS
V.
STATE OF ARKANSAS
Opinion Delivered DECEMBER
2, 2009
APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT,
[CR-08-169-2]
HONORABLE PHILLIP H. SHIRRON,
JUDGE
APPELLEE
AFFIRMED
RITA W. GRUBER, Judge
Appellants Phillip Anderson and Mark A. Stephens were tried by a jury and were
convicted of second-degree forgery. Anderson was sentenced to serve a term of sixty months’
imprisonment in the Arkansas Department of Correction, and Stephens was sentenced to
thirty-six months. Each appellant challenges the sufficiency of the evidence to support his
conviction. Anderson raises two additional points, contending that the trial court erred in
denying his motion to suppress evidence and abused its discretion in admitting certain
testimony under Arkansas Rule of Evidence 404(b). We affirm.
Corporal Dennis Overton of the Arkansas State Police testified at trial that on August
13, 2008, he stopped an eastbound, high-end-model rental car with California tags just past
Interstate 30’s 100-mile marker because it was impeding the flow of traffic in the inside lane.
He testified as follows regarding the stop, his own observations, and subsequent events that
Cite as 2009 Ark. App. 804
led to forgery charges being brought against both appellants.
Appellant Stephens, who was driving the car, and appellant Anderson, his passenger,
presented Overton California identification cards in their own names, but they had no valid
driver’s licenses to show him. Each man appeared to be nervous. Overton asked Stephens
to step out and meet him behind the car, where Overton could talk to him away from
Anderson. Stephens told him he was visiting his mother in Hope and was going to Little
Rock to shop and eat. Overton went back to the car, and Anderson gave him basically the
same explanation about shopping in Little Rock. Overton asked Anderson why he was so
well dressed while Stephens was only casually dressed, and Anderson replied that he had
attended church that morning. Because the day was Tuesday, Overton thought the answer
unusual.
Overton explained to the men that because there was no one present with a valid
driver’s license, state police policy required that their car be towed from the interstate. He
called for a tow truck, had Anderson and Stephens stand in separate places on the highway’s
shoulder, and performed an inventory search of the car.
The glove box in front of Anderson’s passenger seat contained an empty wallet and all
its contents, apparently dumped out; there was no identification but some of the contents
indicated that the wallet belonged to Anderson. Overton found checks “laid out . . . almost
like a deck of cards” on top of an open duffel bag in the trunk. They were printed on
perforated paper and were grouped according to the name of each account-holder: Thomas
-2-
CACR09-62
Cite as 2009 Ark. App. 804
Bell, Marc Woodyard, and David Roth. Each account displayed an account number and a
California address. Stephens told the officer that the checks in the trunk were his, that he had
printed them on his Home Depot computer, and that nothing was wrong with those
activities.
Overton, remembering that Anderson’s wallet had been dumped into the glove box,
noticed him pacing nervously behind the patrol car. This behavior led Overton to believe
that Anderson probably had a form of identification matching that on some of the checks.
Overton approached him and asked if he had “any kind of other identity on him, or if he was
armed, or carrying any kind of narcotics.” Anderson replied in the negative. Overton asked
for permission “to search his person for any of those items,” and Anderson agreed.
Overton performed a brief pat-down, checking Anderson’s pockets, and asked him to
take off his shoes. Anderson pulled off his left shoe and dumped it out. Then he took off his
right shoe but simply left it on the ground. Overton found in it a California driver’s license
and a Discover card, both apparently fake, in the name Marc Woodyard, and showing
identical California addresses. The photograph on the driver’s license, however, was of
Anderson. The checks from the shoe appeared to use the same logo and same paper as those
in the car’s trunk. All the checks at issue were introduced into evidence through Overton’s
testimony.
Overton was able later to determine from checking the Discover card’s authenticity
that it indeed was invalid. He testified that he also received from California copies of
-3-
CACR09-62
Cite as 2009 Ark. App. 804
Anderson’s and Stephens’s driver’s licenses, which he examined before bringing them to trial.
He testified that the people shown on the licenses were the same men being tried in the
courtroom.
He also testified that he had compared Anderson’s photograph with the
Woodyard license formerly in Anderson’s possession and determined them “the same.”
Nancy Hollis, vice president for investigative services at Bank of America, Arkansas,
testified as follows about her fraud investigation of some of the checks at issue. Roth had two
accounts with the bank, withdrawals had been made from each, and Roth made police reports
of the withdrawals. Although the Roth checks that Hollis investigated showed a valid name,
their address was not valid, and he had reported to the bank fraudulent activity. Three
unauthorized electronic cash withdrawals had taken place on the account–one at Bank of
America’s Geyer Springs branch in Little Rock, another at the Levy branch in North Little
Rock, and the last at the main bank in Mt. Pleasant, Texas.
Hollis explained that if a teller is convinced that a person who presents two pieces of
identification and a valid account number is indeed the holder of the account, the person’s
withdrawal transaction on the account can be completed. Two withdrawals were made on
the same day on accounts bearing Roth’s name: one for $1500 at the Levy branch, and one
for $3500 at Geyer Springs. A California driver’s license and a Discover card were used as
proof of identity in the Levy withdrawal; an Arkansas driver’s license and a Discover card
were used at Geyer Springs. A $3600 withdrawal occurred three days later at Mt. Pleasant.
It appeared to Hollis that Anderson was the person depicted in surveillance-camera
-4-
CACR09-62
Cite as 2009 Ark. App. 804
photographs made at the Mt. Pleasant and Geyer Springs branches. The Geyer Springs
photographs were made on August 19, 2008, at the time when a withdrawal on David Roth’s
account occurred there; the Mt. Pleasant withdrawal, however, occurred on August 22, 2008.
Hollis was unable to obtain photographs from cameras at the Levy branch by the time of trial.
Hollis testified that all of the checks Stephens and Anderson had possessed bore the
same Sandpiper logo. The logo also appeared on a separate Roth check that was under her
investigation: she did not know whether it had been reported as a fraudulent transaction,
where it had been cashed, or whether Roth had been notified of it. Hollis could validate
only one of two account numbers that were shown on Marc Woodyard checks in the
possession of Stephens and Anderson. They also had possessed checks showing Thomas Bell
as the account holder, but the true account holder of the checks’ account number was actually
Thomas Ebel; his address in California was different than the one shown, and he had reported
to Bank of America some unauthorized activity on the account. Finally, there were two
different account numbers on the Marc Woodyard checks that Stephens and Anderson had
possessed; Hollis recognized only one account as legitimate, and there was report of no
fraudulent activity on it.
Substantial Evidence to Support Appellants’ Convictions
Arkansas Code Annotated § 5-37-201(a) (Supp. 2009) states that “[a] person forges a
written instrument if, with purpose to defraud, the person makes, completes, alters,
counterfeits, possesses, or utters any written instrument that purports to be or is calculated to
-5-
CACR09-62
Cite as 2009 Ark. App. 804
become or to represent if completed the act of a person who did not authorize that act.”
Forgery of a check constitutes second-degree forgery. Ark. Code Ann. § 5-37-201(c)(1)
(Supp. 2009).
At the close of the State’s case, both appellants moved for directed verdicts on the basis
that there was no proof that their possession of checks and a credit card was unauthorized or
that they intended to defraud anyone. The motions were denied. Neither appellant
presented evidence in his own behalf.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Taylor v.
State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). When the sufficiency of the evidence is
challenged, we consider only the evidence that supports the verdict, viewing the evidence in
the light most favorable to the State. The conviction will be affirmed if it is supported by
substantial evidence, which is evidence of sufficient force and character that it will, with
reasonable certainty, compel a conclusion one way or another. Spight v. State, 101 Ark. App.
400, 278 S.W.3d 599 (2008). Because intent is seldom shown by direct evidence and usually
must be inferred from the circumstances surrounding the crime, jurors are allowed to draw
upon their common knowledge and experience to infer it from the circumstances. Id.
Because of the obvious difficulty in ascertaining a defendant’s intent, a presumption exists that
a person intends the natural and probable consequences of his or her acts. Id.
Appellants rely upon Arkansas cases reversing forgery convictions to argue that the
State was required to present the account owners’ testimony that they had not authorized
-6-
CACR09-62
Cite as 2009 Ark. App. 804
appellants to possess and use their checks and credit card. In Johnson v. State, 236 Ark. 917,
370 S.W.2d 610 (1963), a handwriting expert’s testimony constituted competent evidence
that Johnson had signed the account holder’s name on his check, but there was no evidence
that he had not authorized Johnson to sign it. Likewise, in Askew v. State, 280 Ark. 304, 657
S.W.2d 540 (1983), the State presented no evidence that the signature was unauthorized.
Those two cases are distinguishable from the present one, and they do not support the
arguments now presented to us.
Stephens and Anderson argue that there was neither proof that they lacked
authorization to possess forged items nor proof that they possessed the items for the purpose
of defrauding the respective account holders. We do not agree. First, Roth and Ebel’s
reports of fraudulent activity on their accounts showed that Anderson was not authorized to
access Roth’s account and did so for the purpose of defrauding him. There were photographs
and receipts showing that Anderson made three withdrawals from Roth’s account within days
of his arrest in Arkansas for forgery. Appellants possessed not only checks bearing the names
of Roth, Ebel, and Woodyard, but also a Discover card and driver’s license in Woodyard’s
name, the license bearing Anderson’s picture. Roth could not have authorized appellants to
possess a fake driver’s license. Further, proof that Anderson used a Discover card and driver’s
license when representing himself to be Roth suggests that the items bore Roth’s name and
Anderson’s photograph. Finally, Stephens drove the car in which the fake checks and other
documents were located, and he told Corporal Overton that the checks were his and he had
-7-
CACR09-62
Cite as 2009 Ark. App. 804
printed them.
Neither do we find merit to an argument by Anderson that no fraudulent transactions
occurred in Hot Spring County. Section 5-37-201(a) provides that merely possessing the
forged items is sufficient to prove forgery. Thus, the circuit court properly denied a directed
verdict for each appellant.
Anderson’s Motion to Suppress Evidence
Anderson filed a pretrial motion to suppress evidence obtained by illegal search. The
trial court conducted a suppression hearing, at which Overton testified essentially as he did
at trial. Anderson argued that he had committed no offense to justify being searched, that the
request to remove his shoes was beyond the scope of a pat-down search, and that the search
of the car was illegal. The trial court denied the motion to suppress, ruling that Overton
reasonably suspected criminal activity based upon his own observations, that Anderson freely
consented to the search of his person, and that Anderson lacked standing to contest the search
of the car.
In reviewing a circuit court’s denial of a motion to suppress evidence, the appellate
court conducts a de novo review based on the totality of the circumstances, reviewing
findings of historical facts for clear error and determining whether those facts give rise to
reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial
court.
Baird v. State, 357 Ark. 508, 182 S.W.3d 136 (2004). The credibility of witnesses
who testify at a suppression hearing is for the trial judge to determine, and the appellate court
-8-
CACR09-62
Cite as 2009 Ark. App. 804
defers to that determination. Id.
Anderson argues on appeal only that he consented to nothing more than a pat-down
search and that Corporal Overton’s request that Anderson remove his shoes exceeded the
scope of his consent. Anderson relies upon the holding of Howe v. State, 72 Ark. App. 466,
39 S.W.3d 467 (2001), that the seizure of a “hard ball” subsequently shown to be tin foil
wrapped around methamphetamine exceeded the scope of an officer’s pat-down search for
weapons. Here, however, nothing suggests that Anderson attempted to limit the scope of the
search or that Overton represented to him that its purpose was to check for weapons. The
search was not a pat-down for officer safety but was for the purpose of determining if
Anderson possessed anything related to the checks in the trunk of the car. Moreover,
Overton suspected that something was amiss based upon what he had seen and on Anderson’s
nervous behavior. The Fourth Amendment is not implicated when a person voluntarily
consents to a search of his person, and it is not even necessary that the officer have probable
cause or reasonable suspicion to request consent for the search. E.g., Chism v. State, 312 Ark.
559, 853 S.W.2d 255 (1993); see also Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005).
Here, the circuit court correctly found that the search was proper and did not exceed the
scope of consent based upon the purpose of the search, and we affirm the denial of Anderson’s
motion to suppress.
Admission of Evidence of Anderson’s Subsequent Acts and Photos under Rule 404(b)
The circuit court overruled Anderson’s objections before and during trial to Ms.
-9-
CACR09-62
Cite as 2009 Ark. App. 804
Hollis’s testimony about his actions of making electronic transfers from Roth’s account days
after his Arkansas arrest and to surveillance photographs that appeared to show him as the
person making those transactions at banks in Geyer Springs and Mt. Pleasant. The court ruled
at the conclusion of the pretrial hearing that the records Hollis relied upon were the kind she
normally relied upon in conducting bank business and making her decisions, and that her
testimony about the fraudulent transactions was proper under Ark. R. Evid. 404(b) (2009).
Under Ark. R. Evid. 404(b), evidence of other crimes, wrongs, or acts is not
admissible to prove character, but the evidence may be admissible for such purposes as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident. The rule applies to evidence of prior and subsequent bad acts. Fitting v. State,
94 Ark. App. 283, 229 S.W.3d 568 (2006). Trial courts are afforded wide discretion in
evidentiary rulings; specifically, a trial court’s ruling on issues relating to the admission of
evidence under Rules 401, 403, and 404(b) is entitled to great weight and will not be reversed
absent an abuse of discretion. Id.
Here, there was evidence that, within days of Anderson’s arrest and his possession of
a Discover card and driver’s license in Woodyard’s name, someone went to three Bank of
America locations to withdraw money from Roth’s account, using as identification a
California driver’s license and Discover card bearing his name. Surveillance photographs at
two of the locations apparently showed Anderson to be the person, a determination that the
jury could have made by comparing the photos with his actual person. The car in which
-10-
CACR09-62
Cite as 2009 Ark. App. 804
Anderson was riding contained checks bearing Woodyard’s and Roth’s name, and Roth had
reported fraudulent action on his account. The circuit court properly admitted the disputed
evidence under Rule 404(b) to show Anderson’s motive, intent, plan, and knowledge.
Because it was relevant for those purposes, its prejudicial effect did not outweigh its probative
value.
Affirmed.
MARSHALL and HENRY, JJ., agree.
-11-
CACR09-62
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.