Davis v. State

• Decision Date: 15 August 2005
• Docket Number: No. 04-95.,04-95.
• Citation: 2005 WY 93,117 P.3d 454
• Parties: Roy Frederick DAVIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

117 P.3d 454

2005 WY 93

Roy Frederick DAVIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-95.

Supreme Court of Wyoming.

August 15, 2005.

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Representing Appellant: Ken Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] In October 2003, a Natrona County jury found Roy Frederick Davis (the appellant) guilty of four counts of forgery, all felonies in violation of Wyo. Stat. Ann. § 6-3-602(a)(ii) and (b) (LexisNexis 2005). This is an appeal from the district court's judgment and sentence, wherein the appellant alleges several errors. We affirm.

ISSUES

1. Whether a handwriting expert's testimony prejudiced the appellant to a degree that mandates reversal of his forgery convictions?

2. Whether the prosecutor made improper remarks during her closing and rebuttal arguments?

3. Whether there was sufficient evidence to sustain the appellant's forgery convictions?

4. Whether the district court abused its discretion in denying the appellant's motion for a new trial based on recanted trial witness testimony?

5. Whether the district court abused its discretion in sentencing the appellant?

6. Whether cumulative error mandates reversal of the appellant's forgery convictions?

FACTS

[¶ 2] The instant case revolves around four people: Thomas "Ted" Dorr (Dorr), Linda Brown (Brown), Rebecca Burton (Burton), and the appellant. At the time of the appellant's trial, Dorr and Brown had been living together for about two and one-half years and Burton and her young son had also periodically lived with Dorr and Brown.¹ Burton is Brown's daughter and was also the appellant's girlfriend (Burton apparently married the appellant in September 2003, but testified at trial that she was the appellant's "girlfriend"). We note, for contextual purposes, that Dorr and Brown testified during the prosecution's case-in-chief at trial, and Burton and the appellant testified during the appellant's case. We will refer to each individual's trial testimony in setting forth the relevant facts.

[¶ 3] On May 31, 2003, Burton and the appellant stopped at Dorr's and Brown's house late in the evening to pick up Burton's son. Brown had previously informed Burton that the appellant was not welcome in the house, but Brown allowed the appellant into the house that evening at Burton's request so that the appellant could use the restroom. Dorr testified that he always kept his wallet containing his credit cards "in plain sight" on a counter located between the living room and the kitchen. Burton took the appellant to the restroom's location and the two passed the location of Dorr's wallet on the way to the restroom and again on their return.² Neither Dorr nor Brown actually witnessed anyone take anything from Dorr's wallet.

[¶ 4] A Holiday Inn night auditor in Casper testified that on May 31, 2003, the appellant used the name "Dorr" when he signed a hotel registration card to secure a room for the night (the auditor recalled that the appellant verbally spelled the name for her) and paid for the room with a credit card. The hotel registration card listed the customer as "Thomas Dorr" with a Casper address of 975 East 12th Street (Dorr's and Brown's Mountain View address was 542 Harding). The appellant signed the hotel registration card "Ted Dorr" (which signature authorized the hotel to bill the credit card the appellant presented to the night auditor).

[¶ 5] Casper Wal-Mart receipts indicate that at about 10:21 a.m. on June 1, 2003, someone used a Visa credit card (last four digits of the account number 0269) to purchase $163.92 in merchandise (including what appear to have been boys clothing, female underwear, and a pair of boots). The purchase receipt was signed "Thomas Dorr." Natrona County Sheriff's Deputy Chris Poldervaart testified that he viewed a Wal-Mart security video of this transaction, in which video he observed: (1) Burton, her son, and the appellant checking out of the store; (2) their items being placed on the checkstand; (3) the appellant removing a credit card from his wallet, swiping the credit card at the checkstand, placing the credit card back into his wallet, and signing the credit card transaction slip; and (4) the three individuals leaving the store.

[¶ 6] A Casper JC Penney store receipt indicates that at 11:03 a.m. on June 1, 2003, someone used a Visa credit card (last four digits of the account number 0269) to purchase $137.73 in merchandise. The receipt was signed "Ted Dorr." A store employee testified that the appellant purchased some clothing (including an adult pair of pants) that day, paid for the items with a credit card bearing the name "Thomas Dorr," and signed the credit card receipt "Ted Dorr."

[¶ 7] A Casper Target store receipt indicates that at 11:15 a.m. on June 1, 2003, someone used a Visa credit card (last four digits of the account number 0269) to purchase $37.79 in designer fragrances. The receipt was signed "Thomas Dorr." Deputy Poldervaart testified that he viewed a Target security video, in which video he observed the appellant, Burton and Burton's son approach a checkout register, as well as the presentation of a credit card.

[¶ 8] The aforementioned account number is that of Dorr's "Camping World" MBNA Visa credit card bearing the name Thomas E. Dorr. Dorr testified that he did not believe that he used this credit card on May 31st, that he did not use this credit card on June 1st or on June 2nd, and that he did not incur the charges at the Holiday Inn, Wal-Mart, JC Penney, or Target. Dorr testified that he had never given anyone permission to use this particular credit card, that he did not give Burton or the appellant permission to use the credit card, and that Burton did not ask Dorr's permission to use the credit card on May 31st.

[¶ 9] On June 2, 2003, Burton called Brown. Dorr testified that Burton told Brown that the appellant had stolen Dorr's credit card; Brown testified that based on the telephone call, she knew that the appellant "had the credit card. . . ." Brown then arranged to meet Burton at a local convenience store. At the convenience store, Burton exited her vehicle (the appellant remained in Burton's vehicle) and entered the vehicle containing Dorr and Brown. According to Dorr and Brown, Burton handed Dorr his credit card³ and stated that the appellant had stolen the credit card and also that Burton had not used the credit card.

[¶ 10] Dorr wanted to report the theft to law enforcement, and Brown testified that she told Burton that Brown was calling 911 and Burton needed to take the appellant to the police department immediately. When the four individuals arrived at the police station, the appellant exited Burton's vehicle and left the area on foot.⁴ Law enforcement advised Dorr to cancel his credit card; Dorr did so and was immediately issued a new credit card account number. Dorr received a letter a few days later issuing him a new personal identification number (PIN) for the credit card account number he had canceled. The credit card company informed Dorr that a man who identified himself as Dorr had requested a new PIN for that credit card account number on June 1, 2003. Dorr testified that he did not request the new PIN.

[¶ 11] Deputy Poldervaart began investigating the case and met with the appellant on June 5, 2003. At that time, the appellant denied that he stole Dorr's credit card, denied that he entered the Holiday Inn (he waited in the car), and admitted that he was present for the transactions at Wal-Mart, JC Penney, and Target.⁵ In a subsequent interview, the appellant initially denied using Dorr's credit card (particularly at Wal-Mart), but when Deputy Poldervaart informed the appellant of the Wal-Mart security video, the appellant reportedly admitted that he signed the credit card receipts at Target, Wal-Mart, and JC Penney. The appellant denied that he entered Dorr's and Brown's house on May 31st and continued to deny that he used Dorr's credit card at the Holiday Inn.

[¶ 12] Deputy Poldervaart also met with Burton. At first, Burton said that she did not sign the credit card receipts at issue because she did not know that they were using Dorr's credit card. Burton stated at another time that she (and not the appellant) took Dorr's credit card, with Dorr's permission. Deputy Poldervaart also testified that he learned that as a result of discussions between Burton and the appellant, Burton was willing to "take a misdemeanor charge for the theft of the card and state that she told [the appellant] that she had permission which could eliminate [the appellant's criminal] charges" because the "penalty would be less for her than it would be for [the appellant]."⁶

[¶ 13] Burton provided her own version of these events during her trial testimony. On May 30, 2003, she asked Brown for money to purchase clothing for Burton, her son, and the appellant on June 1st. According to Burton, Dorr offered to give Burton his credit card for that purpose. On May 31st at about 11:45 p.m., Burton retrieved her son from Dorr's and Brown's house and began to drive back to Douglas. Burton returned to the house because she had forgotten to print off a resumé on Brown's computer. When they arrived at the house, the appellant needed to use the restroom and Brown granted the appellant permission to enter the house for that purpose. Burton and the appellant passed Dorr on the way to the restroom, and Burton returned to Brown's location to print the resumé. The appellant rejoined Burton and Brown, and Dorr was "right behind" ...