McGirt v. State, CR
| Decision Date | 05 May 1986 |
| Docket Number | No. CR,CR |
| Citation | 289 Ark. 7,708 S.W.2d 620 |
| Parties | Kenneth Marsh McGIRT, Appellant, v. STATE of Arkansas, Appellee. 86-60. |
| Court | Arkansas Supreme Court |
Thomas G. Montgomery, Public Defender, West Memphis, for appellant.
Steve Clark, Atty. Gen. by Joel O. Huggins, Asst. Atty. Gen., Little Rock, for appellee.
The appellant was found guilty of second degree forgery and sentenced as a habitual offender. We affirm.
On December 9, 1984, the appellant entered a Food 4 Less grocery store in West Memphis and placed $147.07 worth of groceries in his shopper's cart. He pushed the cart to the check-out counter where the bill for the groceries was electronically processed by the checker, Leslie Wheeler. The appellant presented to Wheeler a salary check drawn on the Bluff City Service Company, Inc., a Memphis business, payable to appellant in the amount of $412.21. It was purportedly drawn by John P. Johnson. Before she would cash the check, Wheeler took the check and appellant's driver's license to the store manager for approval. The store manager, Dan Brown, recognized the similarity between the check and some other forged checks. He called the security guard, Gary Gitchell, and together they went to the check-out counter where appellant was waiting. They asked appellant to go with them to the store office, where appellant made various statements to the effect that he should not have attempted to pass the check. He attempted to escape from the office but was caught. It is undisputed that the check had been stolen from the Bluff City Service Company, Inc., that appellant had never worked for the company, that he was not due any salary, and that John P. Johnson was not authorized to draw checks on the company. At trial, the checker, the store manager, and the security guard positively identified appellant. The evidence of guilt was simply overwhelming. The jury found appellant guilty, but, in a bifurcated proceeding, was unable to reach agreement on punishment. The trial court sentenced appellant, as a habitual offender, to twenty years, with eight years suspended. The Court of Appeals certified the case to this Court for interpretation of a statute.
The appellant argues that the trial court erred by refusing to instruct the jury on the lesser included offense of criminal attempt to commit forgery. The trial court was correct. The overwhelming evidence shows that appellant possessed and attempted to pass, or passed, the stolen check. Forgery is defined in the relevant part as follows:
41-2302. Forgery--(1) A person forges a written instrument if with purpose to defraud, he draws, ... possesses or utters any written instrument that purports to be or is calculated to become, or to represent if completed, the act of a person who did not authorize that act.
* * * (3) A person commits forgery in the second degree if he forges a written instrument that is:
(a) a deed, will, codicil, contract, assignment, check, commercial instrument, credit card, or other written instrument that does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; ....
(Emphasis added.)
"Utter" is defined in Ark.Stat.Ann. § 41-2301(7) (Repl.1977):
"Utter" means to transfer, pass, or deliver, or cause to be transferred, passed, or delivered to another person any written instrument, or to attempt to do so.
(Emphasis added.)
In Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978), we explained:
The crime of forgery is much broader in scope than under previous statutes and the crimes previously known as forgery and uttering, formerly held to be separate offenses, are now included under the broad category of "forgery." Consequently, when the state charged appellant with forgery, the charge was broad enough to cover the crimes previously known as forgery, uttering and possession of a forged instrument. See Commentary, § 41-2302. Any of these acts constitutes the single crime of forgery. See State v. Morse, 38 Wash.2d 927, 234 P.2d 478 (1951). Under the statute, one forges a written instrument if with purpose to defraud, he draws, makes, completes, counterfeits, possesses or utters a written instrument that purports to be or is calculated to become, or to represent if completed, the act of a person who did not authorize the act. Sec. 41-2302(1).
One commits forgery in the second degree if he forges a written instrument that is a check. He also commits forgery if he forges a written instrument that does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation, or status. As we interpret the trial judge's statements, he properly applied the statute and held that the evidence was not sufficient to show that appellant had drawn, made, completed, altered or counterfeited the instrument presented, but that it did show that he had uttered it. The meaning of the word "utter" in the applicable section is broad enough to cover the delivery, or attempted delivery, of a written instrument to another person. Ark.Stat.Ann. § 41-2301 (Repl.1977).
Here, the appellant possessed a check which purported to be drawn by a person who was not authorized to perform that act, and he passed or attempted to pass that check. The crime of forgery was complete upon his being in possession of the forged instrument, or upon his attempt to pass the check, or upon his passing of the check. Appellant was either guilty of forgery or nothing. It was not error to refuse to instruct the jury on a lesser included offense when the evidence clearly shows that the defendant is either guilty of the greater offense or innocent. Ark.Stat.Ann. § 41-105(3) (Repl.1977); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).
Appellant next argues that the record is insufficient to support an extended term under the habitual offender statute. Appellant has three prior convictions in Tennessee, but contends they are not felonies under Arkansas law. His contention is premised upon Ark.Stat.Ann. § 43-2329 (Repl.1977) which treated conviction of an offense in another jurisdiction as a felony only if the offense would have been a felony if committed in Arkansas. While that statute has not been repealed, we stated in Reeves v. State, 263 Ark. 227, 564 S.W.2d 503 (1978), that it was...
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