Dunford v. State, F-79-323
| Decision Date | 04 August 1980 |
| Docket Number | No. F-79-323,F-79-323 |
| Parties | Holden DUNFORD, Jr., Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant was convicted of Forgery in the Second Degree, After Former Conviction of a Felony, in the District Court of Oklahoma County, Case No. CRF-78-3025. On appeal he has raised four assignments of error pertaining to impeachment by prior conviction, improper instruction of the jury, improper communications with the jury and insufficiency of the evidence. We affirm.
For purposes of clarity, we will first discuss the second assignment of error, which is that the evidence was insufficient to sustain the conviction. The appellate test of sufficiency is whether or not the State presented a prima facie case. Garrett v. State, Okl.Cr., 525 P.2d 1238 (1974); Hunt v. State, Okl.Cr., 601 P.2d 464 (1979). The elements of forgery are the existence of a false or materially altered writing, which is capable of defrauding innocent parties and which is passed with the intent to defraud. Title 21 O.S.1971, § 1577; Willingham v. State, Okl.Cr., 549 P.2d 350 (1976). The following summary of evidence demonstrates that the State presented sufficient evidence on each of the elements to justify submitting the case to the jury:
1. Checks were discovered missing by the Oklahoma Tile Company.
2. One of the missing checks was cashed at the Buerger Brothers Grocery Store.
3. The Oklahoma Tile Company employee, by whom the check was purported to have been signed, testified that the signature on the check was not his.
4. The State presented a record of the transaction made by a Regiscope a device which simultaneously photographs the check being presented, the person presenting it and that person's identification.
5. A handwriting expert compared the signature on the check to samples executed by the appellant. His opinion was that the appellant had forged the signature on the check.
The appellant challenges the State's case in two respects. The first is that he allegedly had an injured hand when he executed the samples, so that the samples had no validity. The appellant raised the issue during cross-examination of the expert in his attempts to impeach the expert's testimony, and the whole question was one for the jury to decide since the circumstance of the injured hand went to the weight and credibility of the expert's opinion rather than its admissibility.
The other argument made by the appellant is that the Regiscope is inherently unreliable and that the picture made by it should not have been admitted. The appellant cites Sisk v. State, 232 Md. 155, 192 A.2d 108 (1963), in which a Regiscope photograph was held inadmissible. The appellant in that case conceded that he was the person in the Regiscope photograph, but denied cashing the check. The witness who testified about the Regiscope had not been present for the transaction in question. The Maryland Court of Appeals concluded that the photograph was not sufficiently authenticated to merit admission.
In the present case, on the other hand, the store employee who made the Regiscope photograph of the transaction in question took the stand. He explained how the Regiscope works, related the store's practices in using the device, and identified the check in question as one which he had cashed. He admitted that he had no recollection of the appellant apart from the Regiscope photograph and that it was within the realm of possibility for the person using the Regiscope to photograph the check and identification from one transaction with the person from another.
The appellant puts great stress on these latter admissions, asking us to follow Sisk and strike the Regiscope photograph in this case. Sisk is not in point, however. The witness in the present case testified to the store's practices, saying that he invariably followed those practices. He was then cross-examined extensively on the possibility of mistake. We hold that the photograph was sufficiently authenticated to be admitted, and the weight to be given it was a question for the jury under all the facts and attendant circumstances. This assignment of error is without merit.
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