Stallings v. Tansy

• Decision Date: 01 June 1994
• Docket Number: No. 93-2100,93-2100
• Citation: 28 F.3d 1018
• Parties: Ricky G. STALLINGS, Petitioner-Appellant, v. Robert J. TANSY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1018

28 F.3d 1018

Ricky G. STALLINGS, Petitioner-Appellant, v. Robert J. TANSY, Warden, Respondent-Appellee.

No. 93-2100.

United States Court of Appeals, Tenth Circuit.

June 1, 1994.

Juan A. Gonzalez, Albuquerque, NM, for petitioner-appellant.

Tom Udall, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, NM, for respondent-appellee.

Before BRORBY and EBEL, Circuit Judges, and KANE, ^* District Judge.

EBEL, Circuit Judge.

Petitioner, who was convicted on five counts of passing forged checks in violation of N.M.Stat.Ann. Sec. 30-16-10(B), seeks habeas relief pursuant to 28 U.S.C. Sec. 2254 on the grounds that the trial court's examination of petitioner at trial deprived him of a fair trial and that insufficient evidence was adduced at trial to support petitioner's convictions. Petitioner raised both of these issues on direct appeal to the New Mexico Court of Appeals, which affirmed his convictions. State v. Stallings, 104 N.M. 660, 663, 725 P.2d 1228, 1228, 1231 (Ct.App.), cert. denied, 104 N.M. 632, 725 P.2d 832 (1986) (table). Petitioner then presented the same issues to the district court, which denied petitioner habeas relief and dismissed his petition with prejudice. After a careful review of the state court record, we conclude that the evidence was not sufficient to support a finding of all the essential elements of the forgery charges and, therefore, we reverse. ¹

The evidence clearly established that petitioner passed five forged checks made payable to him. Petitioner argued, however, that he did not know the checks were forged at the time he cashed them. Petitioner contended that the person who wrote the checks represented himself to be the named owner of the account and petitioner had seen the person's identification, which confirmed his representation. Petitioner maintained that he received the checks in payment for goods he sold and services he provided to the maker of the checks and that he negotiated the checks quite openly at a grocery store where he was well known.

The critical issue in this case, then, is whether the evidence established that petitioner knew the checks were forged when he cashed them. On that issue, the record is devoid of any evidence. Because petitioner's knowledge was an essential element of the State's case, see N.M.Stat.Ann. Sec. 30-16-10(B) (defining forgery as "knowingly issuing or transferring a forged writing with intent to injure or defraud"), we must conclude that the forgery convictions violated petitioner's due process rights. Having reached this conclusion, we need not consider whether the trial court's examination of petitioner also denied him a fair trial.

Whether the evidence was sufficient to sustain petitioner's conviction is a question of law that we review de novo. Kelly v. Roberts, 998 F.2d 802, 807 (10th Cir.1993); Tapia v. Tansy, 926 F.2d 1554, 1562 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 115, 116 L.Ed.2d 84 (1991). In conducting our review, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). "[W]e may not weigh conflicting evidence or consider the credibility of witnesses. Instead, we must 'accept the jury's resolution of the evidence as long as it is within the bounds of reason.' " Kelly, 998 F.2d at 808 (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir.1993)).

In its case-in-chief, the State adduced evidence that petitioner cashed each of the third-party checks, which were drawn on an Oklahoma bank account in the name of Randy Thacker, at a grocery store in Farmington, New Mexico, during late June and early July of 1984. The owner of the account testified that he discovered his checkbook was missing from his Farmington apartment in July 1984, that he did not write any of the five checks at issue, and that he had never met petitioner. The evidence established that petitioner was well known at the grocery store, that he presented proper identification when cashing the checks at issue, and that he had cashed third-party checks there in the past. Finally, the State adduced evidence that all of the checks petitioner negotiated were returned to the store unpaid and marked "forgery." When Jack Morrison, the store owner, told petitioner that one of the checks was returned unpaid, petitioner replied that he did not have any money to make good on the check.

At the conclusion of the State's case, petitioner moved for a judgment of acquittal, arguing that the State had produced no evidence to show that he either knew the checks were forged or intended to injure or defraud the grocery store when he cashed them. The State argued that petitioner's knowledge and intent were established by his statement to Morrison that he did not have the money to make good on the returned check. The trial court denied petitioner's motion without comment. In so ruling, the trial court erred.

We must bear in mind that petitioner was not charged with forging the checks himself and there was no evidence to suggest that he had. In addition, these were third-party checks, i.e., the checks were not drawn on an account that petitioner represented to be his own. Under these circumstances, the jury could not logically infer from petitioner's statement, that he did not have the money to make good on the check, that petitioner knew at the time he negotiated any of the checks that they were forged. Petitioner was in the same position as someone who innocently negotiates a third-party check that turns out not to be backed by sufficient funds; the person negotiating the check may or may not have sufficient funds of his own to make good on the check. Thus, the State presented no evidence in its case-in-chief on one of the essential elements of the crime: that petitioner knew the checks were forged when he passed them. ²

After the trial court denied petitioner's motion for judgment of acquittal, petitioner took the stand and testified in his defense. Petitioner thereby waived any claim he had based on the insufficiency of the State's evidence at the conclusion of its case-in-chief. See United States v. Hack, 782 F.2d 862, 868 (10th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986); United States v. Foster, 783 F.2d 1082, 1085 and n. 1 (D.C.Cir.1986) (in banc) (citing other circuit cases in accord). Our review of petitioner's sufficiency claim, therefore, must take into account not only the evidence adduced during the State's case-in-chief, but also the evidence adduced by the defendant in his case and the rebuttal evidence.

We turn, then, to the evidence presented after the State rested. Petitioner admitted at the outset of his testimony that he had a prior felony conviction for attempted burglary and motorcycle theft. Petitioner then explained how he came to be in possession of the forged checks. In May 1984, petitioner became acquainted with a person who said his name was Randy Thacker, and with whom petitioner shared an interest in cars. Over the course of the summer, the two became friends and petitioner sold Thacker a number of personal items, including stereo and martial arts equipment, for which Thacker paid with the checks at issue. Thacker also gave petitioner a check for the expenses petitioner incurred when he drove Thacker to Iowa. Petitioner said he had no reason to believe the person with whom he was dealing was not Randy Thacker, because he had seen Thacker's identification. Petitioner did admit that, to assist him in cashing the checks at the grocery store, he asked Thacker to make notations in the memo sections of some of the checks indicating that petitioner received the checks in the course of his employment. Petitioner explained that he frequently received checks in connection with his employment and cashed them at the grocery store because he did not have a checking account at a bank. Petitioner presented no other witnesses in his defense.

On rebuttal, Morrison testified that sometime after the bank returned the checks unpaid, he told petitioner he did not get paid on one of them. Petitioner replied that he did not know why the check would have been returned, and, as far as he knew, the check was good. Petitioner told Morrison that he had only $400.00 in his savings account to pay on the check, which Morrison said was not enough. Petitioner did not pay Morrison any money on the checks.

At the close of all the evidence, petitioner moved again for a judgment of acquittal, arguing that the evidence did not establish that he knew any of the checks were forged at the time he cashed them or that he acted with intent to injure or defraud the grocery store. The trial court denied petitioner's motion and sent the case to the jury, which convicted petitioner on all five counts of forgery.

"To be sufficient, the evidence supporting [a] conviction must be substantial; that is, it must do more than raise a mere suspicion of guilt." Beachum v. Tansy, 903 F.2d 1321, 1332 (10th Cir.), cert. denied, 498 U.S. 904, 111 S.Ct. 269, 112 L.Ed.2d 225 (1990). Knowledge can be proven by circumstantial evidence. See State v. Hermosillo, 88 N.M. 424, 425, 540 P.2d 1313, 1314 (Ct.App.1975). "The proven circumstances from which an accused's state of mind or intent can be inferred are his acts, conduct and words." State v. Gattis, 105 N.M. 194, 200, 730 P.2d 497, 503 (Ct.App.1986).

In upholding petitioner's convictions on direct appeal, the New Mexico Court of Appeals concluded that the following circumstantial evidence established beyond a reasonable doubt that petitioner knew the checks were forged: (1) he failed to pay the store after being told that one of the checks was returned unpaid; (2) he had a prior felony conviction; and (3) he admitted that he asked the maker of the checks to put false notations on the checks indicating he received them in the course of his employment so the checks would be easier to cash. Stall...