Gore v. State

• Decision Date: 30 March 1987
• Docket Number: No. F-84-747,F-84-747
• Citation: 735 P.2d 576
• Parties: J.L. GORE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 576

735 P.2d 576

J.L. GORE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-747.

Court of Criminal Appeals of Oklahoma.

March 30, 1987.

Pamela Sue Holtzclaw, Oklahoma Center for Criminal Justice Project, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Sandra D. Howard, Legal Intern, Oklahoma City, for appellee.

BUSSEY, Judge:

The appellant, J.L. Gore, was charged, tried and convicted in the District Court of Atoka County for the crime of Obtaining Cash and/or Merchandise by Bogus Checks in Case No. CRF-82-114 and was sentenced to five (5) years imprisonment, and he appeals.

On July 10, 1982, a cattle buyer, who identified himself as Dan Pryor, came to the Atoka Livestock Auction to purchase cattle for the J.L. Gore Cattle Co., with a check signed and printed with the name J.L. Gore, but the dollar amount left blank. Mr. Cochran, the manager of the livestock barn, took the check and obtained the address and phone number of appellant. Mr. Cochran's wife filled in the sale amount of $9,410.76 on the check and called the telephone number printed on the check. The man she spoke with identified himself as J.L. Gore, stated that he sent Pryor to purchase the cattle for him and stated that the check was valid. He told Mrs. Cochran that she could call his banker, David Allen, if she wanted to, and she called the banker, and he stated that a check in the range of $10,000-$15,000 would be acceptable. Subsequently, Mrs. Cochran called appellant back so Mr. Cochran could visit with him, and appellant told him that Mr. Pryor was buying the cattle for him because he was going to another sale. Following the phone conversations, Mr. Pryor loaded the cattle on a trailer and departed.

At trial, David Allen, vice president and loan officer of First National Bank and Trust in Sulphur, Oklahoma testified that he was familiar with appellant and that the check presented to Atoka livestock auction was presented against appellant's account at the bank. Also, the bank's signature card was admitted into evidence and Mr. Allen testified that the signature on the card was the authorized signature that appeared on the check. He further testified that when the check was drawn, there was insufficient funds to cover it.

The Cochrans have never received any money to make good on the check nor have their cattle been returned.

The appellant first contends that fundamental error occurred when the trial court admitted hearsay testimony. Specifically, he argues that the State's first witness, Orin Cochran, testified concerning Mr. Pryor's nonverbal assertions to the effect that the check in question was not his. We first note that Mr. Pryor's assertions that the check was not his were not hearsay testimony. Furthermore, even if this testimony was hearsay, we are of the opinion that these assertions are admissible as part of the entire transaction, formerly referred to as res gestae, in that, without these assertions the main fact might not be properly understood. See Dixon v. State, 560 P.2d 204 (Okl.Cr.1977); Beavers v. State, 709 P.2d 702 (Okl.Cr.1985). Therefore, this assignment of error is without merit.

In his second assignment of error, the appellant argues that fundamental error occurred when the trial court allowed Mr. and Mrs. Cochran to testify to the contents of their respective phone conversations with the appellant when they could not personally identify the voice, and the State failed to establish the number dialed was the number assigned by the phone company to the appellant. We find that the requirement of identification was clearly met in the instant case since "... [T]he call was made to a place of business and the conversation related to business reasonably transacted over the telephone." See 12 O.S.1981, § 2901(B)(6)(b). Furthermore, the State introduced the Cochran's telephone bill to prove that they did call appellant's number, introduced one of appellant's checks on which his phone number was imprinted, and presented evidence that the number the Cochrans called was the number that appellant's bank had listed for him. This assignment of error is without merit.

Appellant's third assignment of error is that the evidence was insufficient to sustain his conviction for the reason that the State never established that he obtained possession of the cattle. We first observe that actual physical possession is not a necessary element of the crime of Obtaining Cash and/or Merchandise by Bogus Checks. Title 21 O.S.Supp.1983, § 1541.1 provides in pertinent part:

Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation any money, property or valuable thing.... (Emphasis added).

Furthermore, the State did present testimony that the cattle were loaded on a trailer and driven away by Mr. Pryor who was acting in behalf of appellant.

Appellant also argues that the State failed to prove any fraudulent intent on the part of appellant. This Court has held that while intent to defraud and cheat is a necessary element of the offense, it is often difficult to prove by direct evidence, and therefore may be shown by inference from the acts of the defendant. Ross v. State, 687 P.2d 1063, 1065 (Okl.Cr.1984). In the instant case, the...