Ross v. State, F-83-18
| Decision Date | 21 August 1984 |
| Docket Number | No. F-83-18,F-83-18 |
| Parties | David Lee ROSS, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
On appeal from his conviction of Uttering and Passing a Bogus Check, After Former Conviction of a Felony, Case No. CRF-81-240, and sentence of twenty (20) years imprisonment from the District Court of Garfield County, Oklahoma, the appellant, David Lee Ross, raises six assignments of error. The facts of the case are as follows:
On July 8, 1981, appellant purchased a Ford Bronco from an Enid, Oklahoma car dealership. In payment, appellant gave the dealership a check in the amount of $9,400 drawn on an Altus bank. The account on which the check was drawn in fact had a negative balance, and had for two months. Because of the negative balance, the bank closed the account on July 10, 1981, before receiving the $9,400 check for payment. The check was returned to the dealership's bank on July 17, 1981 stamped "Account Closed." The dealership's salesman testified that there was no agreement to "hold" the check.
Appellant contacted the dealership on July 14, 1981, and asked if the dealership was still holding the check, and was told it had been deposited in regular channels. The next day, appellant left for Nevada. It was then discovered the address given for appellant on the dealer's sales slip, 420 North Grand, was a vacant building, though appellant did live at 620 North Grand at the time of the sale. On July 21, 1981, appellant twice called the dealership, once talking to an Enid police detective. The detective told appellant that a warrant for his arrest had been issued, and asked appellant to return to Enid "to straighten the thing out." Appellant told the detective that the salesman was supposed to have held the check until financing could be arranged, but refused to tell the detective where he was.
On July 24, 1981, appellant obtained a certificate of title to the vehicle in Boise City, Oklahoma; and on July 27, 1981, the title was assigned to an auto dealer in Lamar, Colorado. Eventually, the Enid dealer got the vehicle back from the Colorado dealer.
Defense witnesses testified that appellant had applied for a $7,400 bank loan for a Ford Bronco on July 9, 1981, but was turned down; and that appellant was concerned over his inability to arrange financing. A friend of appellant testified that he had recommended appellant return the vehicle, but that instead, appellant went to Nevada, supposedly to get help from his mother and sister in paying for the vehicle.
Appellant's first assignment of error alleges that the evidence of intent to defraud and cheat was insufficient to support the verdict. We cannot agree.
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 a defendant. Ross v. State, 572 P.2d 1001 (Okl.Cr.1977). It is enough if there is sufficient evidence in the record for the jury to conclude the defendant is guilty. Dunaway v. State, 561 P.2d 103 (Okl.Cr.1977). Furthermore, it matters not that the evidence is in conflict and does not preclude all other inferences. Gray v. State, 527 P.2d 338 (Okl.Cr.1974). The resolution of such conflicts is the exclusive province of the jury. Dunaway v. State, supra.
In the present case, the facts certainly could create a reasonable inference of intent to defraud and cheat on the part of the appellant. For this reason, appellant's first proposition must fail.
Appellant next contends that the trial court erroneously failed to properly instruct the jury on his theory of defense, namely, a lack of intent to defraud and cheat. As he failed to request such an instruction, and failed to object to the instructions given, we will review the case only for fundamental error. Long v. State, 654 P.2d 647 (Okl.Cr.1982).
The instruction actually given to the jury regarding intent 1 accurately stated the law. Thus, no error was made, much less fundamental error. Appellant's contention that an instruction that refusal of a check by the drawee bank will, unexplained, "be prima facie evidence of intent to defraud," was specifically tailored to explain the prosecution's theory is totally without merit, as the instruction mirrors relevant statutory language. See 21 O.S.1981, § 1541.4.
In his third assignment of error, appellant claims his sixth amendment right to counsel was violated when he was permitted to represent himself at a preliminary hearing on the AFCF portion of the information; and that it was error for the trial court to refuse to remand for another preliminary hearing when counsel was eventually hired.
The second preliminary hearing was made necessary by the addition of an After Former Conviction of a Felony allegation to the information. Carter v. State, 292 P.2d 435 (Okl.Cr.1956). Appellant had discharged his original attorney and elected to represent himself. We must only determine whether that election "was made in a knowing, intelligent and voluntary manner." Parker v. State, 556 P.2d 1298, 1301 (Okl.Cr.1976). After reviewing the record, we believe that, in light of the limited purpose of the hearing and the subsequent hiring of counsel for trial, appellant's waiver of counsel met the required test. Therefore, the trial court's refusal to remand was correct.
Appellant's fourth assignment of error alleges the state's introduction of a Journal Entry of Judgment and Sentence was insufficient to identify appellant as the same person named, and therefore the state had not met its constitutional due process burden of proof beyond a reasonable doubt.
The names on the prior judgment and sentence and the information in the present case were identical. We have previously held that where the names are the same, it is prima facie evidence of identity and the burden of producing evidence to rebut that shifts to the defendant. Mitchell v. State, 659 P.2d 366 (Okl.Cr.1983). We believe this position comports with due process. As appellant presented no evidence in the sentencing phase of his trial, this assignment of error is without merit.
In his fifth assignment of error, appellant contends that improper argument by the prosecutor prejudiced him to the jury. We must agree. Of course, both parties are permitted a liberal freedom of speech and a broad range of discussion, illustration, and argumentation. See e.g. Burrows v. State, 640 P.2d 533 (Okl.Cr.1982). But that freedom is not unlimited, and in the present case, Assistant District Attorney, William Maxwell, exceeded those limits.
The prosecutor made numerous improper statements to the jury during his summations. He expressed his personal opinions in many statements beginning with, "I think," or "I believe," and by saying, (Tr. p. 202). He stated or commented on facts not in the record such as, "The Altus bank has never been paid for appellant's deficit account;" "Appellant sold the vehicle in Colorado;" and that "Appellant had been passing bogus checks for ten years," (based on appellant's single ten year old conviction for passing a bogus check).
The prosecutor also made improper characterizations of appellant, saying he had "conned" the dealership. He also improperly commented on the jury instruction that they could find appellant not guilty of having a former felony conviction, saying "[I]t would be a sham on the face of justice to say that he has not been convicted of a felony before because you have got a certified document he was, ..." (Tr. p. 236).
It was further error for the prosecutor to tell the jury what he would have done had the dealership not held his check as...
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