Rowland v. State
| Decision Date | 14 September 1988 |
| Docket Number | No. 57841,57841 |
| Citation | 531 So.2d 627 |
| Parties | Kenneth Wayne ROWLAND v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Jack R. Jones, III, Taylor, Jones, Alexander & Seale, Southaven, for appellant.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and ANDERSON and GRIFFIN, JJ.
Kenneth Wayne Rowland (Rowland) has appealed from his conviction of forgery in the circuit court of Tate County for forgery of the seal of the Secretary of State, and sentence to fifteen years as a habitual offender under Miss.Code Ann. Sec. 99-19-81.
Most of his assignments of error involve well-settled questions, or which are factually of no merit, and require no comment.
We do address his contention that the State failed to make a jury issue on his guilt of forgery, his claim of prejudicial comment by the prosecuting attorney in the State's opening statement, and refusal to grant a lesser included offense instruction.
We find no error and affirm.
On March 25, 1983, Sam Scarbrough (Scarbrough), a resident of Tate County, Mississippi, from 1975 to 1984, lost his job with the Firestone Tire and Rubber Company when the plant in Memphis was closed. He received from Firestone approximately $23,000 in severance pay.
He and his wife Judy planned to use a large portion of this money to purchase a fast food franchise from Taco Bell, a California corporation with a chain of restaurants specializing in Mexican/American cuisine. Scarbrough approached the defendant, a business man in Coldwater, Mississippi, for some business advice. Scarbrough had befriended him after Rowland joined the Coldwater Baptist Church in the early part of 1983.
Scarbrough and Rowland made an oral agreement to become partners in a business venture targeted at the purchasing of a Taco Bell franchise. They agreed that Rowland would be in charge of applying for and seeking the franchise. Rowland agreed to make the necessary contacts with the people at Taco Bell and, during a period of time, led the Scarbroughs to believe that he was actively engaged in doing so.
On August 31, 1982, Rowland gave Scarbrough a document purporting to be a Certificate of Incorporation of Scarland Restaurants, 1 Inc., issued that same day, under hand and Seal of Office, by Edwin Lloyd Pittman, Secretary of State. The defendant informed Scarbrough he had gone to Jackson that day and "... got us incorporated." 2
Scarbrough, who relied upon the authenticity of the certificate of incorporation, gave Rowland a personal check in the amount of $17,500 for his part of the Taco Bell franchise.
In January, 1984, the Scarbroughs learned that Rowland had deposited the $17,500 in his personal account. All that Scarbrough received from Rowland out of the deal was a pen set engraved with the words "Taco King."
Scarbrough later telephoned Rowland and inquired about his money, who replied, "I don't deny taking your money ... you will get your money back."
Shortly thereafter Scarbrough had another telephone conversation with Rowland. The content of that conversation is found in the following colloquy:
Q. Don't tell us where he was. Tell us what he said about Taco Bell and your business?
A. Oh, okay. He said that he wanted me to do something, and I told him that I couldn't because I had found out what he had been doing on Taco Bell wasn't so. And I couldn't do what he wanted me to do. And then at first, he said, yes, it is. And I said, no, it is not. I told him how I checked how we had checked to find out. And he said, okay, but I have got your money. He said, I will give it back to you.
Q. Now, in specifics, Mr. Scarbrough, did Mr. Rowland at any time during the phone call tell you whether or not there was a business called Scar/Land registered with the Secretary of State of Mississippi?
A. No, sir, I told him after I told him about the papers up there wasn't true then I told him that we, also, called Jackson, Mississippi, and I found out that Scar/Land Restaurants Q. Rowland admitted that?
was not true, you know, and he said, I know that.
A. Yes, sir.
Q. Did you, also tell him about the supposed franchise agreement with Taco Bell?
A. Yes, sir.
Q. What did he say about that?
A. At first he said it was. And then I told him how we called and found how it wasn't, then he said, I know it. And then he said, if you will just do something for me, he said, you know, you are going to get your money.
Q. Mr. Scarbrough, still talking about this phone conversation between you and Rowland that you received at the church that Wednesday night.
A. Yes, sir.
Q. In relation to Exhibit S-1 did he tell you that was genuine or that was false?
A. He said it was false.
Q. Now, relating to the supposed franchise agreement between Scar/Land and Taco Bell, did the defendant tell you that was genuine or that was false?
A. False, which I told him that wasn't true, and he said, it is, you know, it is not.
Q. Now, did he make any reference to the Seventeen Thousand Five Hundred Dollars ($17,500.00)?
A. He just said I would get it back.
Q. Now, subsequent to that phone call did you have any other contact with the defendant Rowland?
A. Yes, sir, a few nights later.
Q. A few nights later, where did you see him?
A. At my house.
Q. And what happened when he came to your house?
A. He just called first, wanted to know if he could come out to see us. And we said, yea. And he came out, and I asked him why that he did all that, and he said, I can't explain it but one of these days I will.
Q. You asked him why did what?
A. Why he took my money and the contract on the Taco Bell franchise wasn't true and the corporation wasn't true.
Q. Did he try to explain it to you?
A. No, sir.
Q. What did he say?
A. He just said, I will explain it to you one of these days.
(Vol. III, pp. 317-319) [Emphasis added]
In opening statement, the prosecutor said "the proof will further show ... that Rowland paid the sum of $800 to Sam Scarbrough in an effort to repay the $17,500 false pretense exchange, and to have Mr. Scarbrough not proceed with criminal prosecution." (R.277) Defense counsel objected to the mention of two other crimes for which Rowland was not standing trial.
The jury returned a verdict of guilty, and Rowland, following the introduction of previous felony conviction records, was sentenced to fifteen years without parole as a habitual offender under Miss.Code Ann. Sec. 99-19-81 (Supp.1987).
Rowland was charged under Miss.Code Ann. Sec. 97-21-47:
Sec. 97-21-47. Seal of state and other government and
corporate seals or their impressions.
Every person who shall forge or counterfeit the great seal of this state, the seal of any public office or officer authorized by law, the seal of any court of record, the seal of any county, city, town or village, or the seal of any body-corporate, duly incorporated, or who shall falsely make, forge, or counterfeit any impression purporting to be the impression of any such seal, with intent to defraud, shall be guilty of forgery.
The indictment in pertinent part reads:
KENNETH WAYNE ROWLAND ... during August and September 1983 ... did unlawfully and wilfully feloniously Rowland contends that the State failed to make a jury issue on forgery. In State v. Ellis, 161 Miss. 361, 137 So. 102, 103 (1931), involving forgery of a marriage license, this Court held:
falsely make, forge or counterfeit an impression purporting to be the impression of the Seal of the Secretary of State of Mississippi with the intent of the said KEN ROWLAND to defraud, cheat and embezzle Sam and/or Judy Scarbrough, in direct violation of Sec. 7 97-21-47, Mississippi Code 1972 Annotated, as amended; ...
The essential elements of forgery are thus tersely stated: "To constitute the crime of forgery proper, it is essential that three things should exist: (1) there must be a false making or other alternation of some instrument in writing; (2) there must be a fraudulent intent; and (3) the instrument must be apparently capable of effecting a fraud." See 26 C.J. Sec. 4, page 897.
In Moore v. State, 107 Miss. 181, 65 So. 126, 127 (Miss.1914), this Court said: "In order that forgery may be committed, the writing alleged to have been forged must be one which, if genuine, might injure another." Also, Dunson v. State, 223 Miss. 551, 78 So.2d 580 (1955); Laird v. State, 406 So.2d 35 (Miss.1981).
Clearly the elements of forgery are present in this case. The instrument and seal affixed thereto were proved false, there was an intent to use it to defraud Scarbrough, and finally it was used to perpetrate the fraud on Scarbrough.
Rowland argues, however, that there was no proof that he was the one who forged the seal. Laird v. State, supra, answers this contention. It is well settled that either unexplained or unsatisfactorily explained possession of a forged instrument by the defendant is prima facie evidence that he either committed the forgery himself, or procured another to do so. Also, Green v. State, 152 Miss. 282, 119 So. 808 (1929). Rowland makes the argument that Laird involved a check, and this was an altogether different kind of instrument. This, of course, makes no difference whatever in the rationale behind the rule.
Rowland contends reversible error was committed by the opening statement made by the prosecutor that Rowland paid $800 to Scarbrough in an effort to repay the $17,500 and induce Scarbrough not to have him prosecuted.
There is no dispute but that Rowland did in fact pay $800 to Scarbrough. Rowland argues that in making this statement the prosecutor was referring to the crime of uttering a forged document, and an attempt by Rowland to obstruct justice.
Of course, proof of payment of $800 was relevant evidence of Rowland's fraudulent intent in obtaining $17,500, as well as an effort to make amends to Scarbrough. Forgery is close kin...
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