Anderson v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: RITA W. GRUBER
• Citation: Anderson v. State, 2009 Ark. App. 804, 372 S.W.3d 385 (Ark. App. 2009)
• Decision Date: 02 December 2009
• Docket Number: No. CA CR 09–570.,CA CR 09–570.
• Parties: Phillip ANDERSON and Mark A. Stephens, Appellants v. STATE of Arkansas, Appellee.

2009 Ark. App. 804

372 S.W.3d 385

Phillip ANDERSON and Mark A. Stephens, Appellants

v.STATE of Arkansas, Appellee.

No. CA CR 09–570.

Court of Appeals of Arkansas.

Dec. 2, 2009.

Phyllis J. Lemons, Malvern, David R. Cannon, North Little Rock, for appellant.

Dustin McDanial, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

RITA W. GRUBER, Judge.

[Ark. App. 1]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 [Ark. App. 2]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 [Ark. App. 3]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 [Ark. App. 4]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 [Ark. App. 5]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 [Ark. App. 6]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...