State v. Brooks, 2973.

• Citation: 335 S.C. 140,515 S.E.2d 764
• Decision Date: 05 April 1999
• Docket Number: No. 2973.,2973.
• Parties: The STATE, Respondent, v. Ivadella BROOKS, Appellant.
• Court: South Carolina Court of Appeals

335 S.C. 140

515 S.E.2d 764

The STATE, Respondent, v. Ivadella BROOKS, Appellant.

No. 2973.

Court of Appeals of South Carolina.

Submitted March 9, 1999.

Decided April 5, 1999.

Rehearing Denied June 19, 1999.

Certiorari Granted November 16, 1999.

Assistant Appellate Defender Melody J. Brown, of SC Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh and Assistant Deputy Attorney General Salley W. Elliott, all of Columbia; and Solicitor Walter M. Bailey, Jr., of Summerville, for respondent.

HOWELL, Chief Judge:

Ivadella Brooks appeals from her conviction for forgery. We affirm.

I.

On November 11, 1996, Ivadella Brooks presented a check dated the same day for $70 to a cashier at a Winn Dixie grocery store to pay for some paper items and receive some cash. The cashier asked the head cashier, Hattie Mae Glover, for a check approval. The account on the check belonged to Arthur Moss, Sr. or Vernelle M. Thomas. In addition, the check was written to the "order of Winn Dixie ... for housekeeping." Glover recognized the names of Moss and Thomas as relatives of hers and knew both Moss and Thomas to be dead at the time—Moss for eight years and Thomas for several months. Glover asked Brooks a few questions, including how Brooks got the check and who signed it. Brooks responded that she did some work for Moss and that he had signed the check. At some point, Brooks endorsed the check. She was eventually arrested. While in custody, Brooks gave a statement to the police. In that statement, she claimed that the cashier had written Winn Dixie on the check and that Blanche Thomas, whose husband had previously been married to Vernelle M. Thomas, had given the check to Brooks's mother as repayment of a loan. Brooks's mother then gave the check to Brooks to cash.

At trial, Blanche Thomas denied borrowing money from Brooks or her mother, denied ever having seen the check, and noted that she often gave clothes to Brooks for Brooks's daughters. Further, the State introduced evidence that the Moss account was closed in 1994 and that Brooks committed a prior forgery by writing a check on a closed account on Sept. 25, 1995. The State claimed the prior forgery evidence was admissible as an exception to Rule 404(b), SCRE to show absence of mistake or accident and intent in the current forgery. Brooks objected, arguing the evidence was not relevant and, even if relevant, was more prejudicial than probative. The trial court overruled the objection and held the evidence was proper under State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923)¹ because the two forgeries were "similar in that both accounts were closed ... and either she knew, or should have known, that the account ... was closed."

II.

Brooks contends the trial court erred in admitting the evidence of the prior forgery. We agree.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.

Rule 404(b), SCRE.

Evidence of other crimes must be put to a rather severe test before admission. The acid test of admissibility is the logical relevancy of the other crimes. The trial judge must clearly perceive the connection between the other crimes and the crime charged. Further, other crimes which are not the subject of the conviction must be proven by clear and convincing evidence.

State v. Cutro, 332 S.C. 100, 103, 504 S.E.2d 324, 325 (1998) (citation omitted).

[I]n analyzing whether evidence is relevant under Rule 404(b), it "must tend to prove or disprove an issue actually in dispute, without relying upon forbidden inferences of predisposition, character, or propensity. In other words, no link in the chain of inferences justifying relevance can be derived from the prior conduct's tendency to show character or disposition."

State v. Nelson, 331 S.C. 1, 13, 501 S.E.2d 716, 722 (1998) (quoting State v. Melcher, 140 N.H. 823, 678 A.2d 146, 149 (1996));² accord Walter A. Reiser, Jr., Evidence of Other Criminal Acts in South Carolina, 28 S.C.L.Rev. 125, 127 (1976) ("Lyle, nevertheless, is precedent for the proposition that evidence of other crimes is admissible if it can reasonably lead to an inference of guilt by a chain of logic that does not include an inference link concerning the character of the defendant."). Even if evidence of a prior bad act is otherwise proper under 404(b), the act may not be admitted into evidence if its prejudicial effect outweighs its probative value. See State v. Carter, 323 S.C. 465, 467, 476 S.E.2d 916, 918 (Ct.App.1996)

.

The State has not claimed that the two instances constitute a common scheme or plan to forge checks on closed accounts. Instead, it argues that the prior conviction is admissible to show intent or absence of mistake or accident. We disagree.

Admitting the prior forgery in the current case would require an impermissible inference of fact based on character. For the prior forgery to be relevant to any factual issue in the forgery at bar would require us to assume that, because Brooks previously pleaded guilty to an unrelated forgery of a check on a closed account, she had the intent or knowledge required to commit the current forgery, which also involved a check on a closed account. This reasoning amounts to a presumption that, because Brooks committed the prior forgery, she is a dishonest person with a propensity to commit forgeries and, therefore, must have committed forgery in the current case. This type of inference is exactly what Rule 404 and Lyle seek to prohibit. See State v. King, 334 S.C. 504, 514 S.E.2d 578 (1999)

("[E]vidence of prior bad acts is inadmissible to show criminal propensity or to demonstrate the accused is a bad person."); Nelson, 331 S.C. at 7-10,

501 S.E.2d at 719-21 (prohibiting admission of evidence where the evidence "could only invite the jury to infer Petitioner was acting in conformity with this character trait when he committed the crimes with which he was charged"); id. at 6, 501 S.E.2d at 718-19 (noting that the Lyle rule is "grounded on the policy that character evidence is not admissible `for the purposes of proving that the accused possesses a criminal character or has a propensity to commit the crime with which he is charged'") (quoting State v. Peake, 302 S.C. 378, 380, 396 S.E.2d 362, 363 (1990)).³

However, we must affirm the trial court's decision if its error can be considered harmless beyond a reasonable doubt. See Nelson, 331 S.C. at 16 n. 18,

501 S.E.2d at 725 n. 18. When the other evidence of guilt is overwhelming, any error in the admission of a prior bad act is harmless beyond a reasonable doubt. See State v. Garner, 304 S.C. 220, 222, 403 S.E.2d 631, 632 (1991) (finding error in admission of prior bad act evidence harmless due to overwhelming evidence of appellant's guilt). This is just such a case. Here, the State presented evidence that, when attempting to pass the check, Brooks claimed she had received the check from Mr. Moss for work she had done. Despite Moss's death in 1988, the check was dated November 1996. Although Brooks later claimed the check to be repayment for a loan to Blanche Thomas, this story does not explain why the words, "for housekeeping" were written on the check. Brooks's inconsistent statements give rise to an inference of guilt. See State v. Scott, 330 S.C. 125, 131, 497 S.E.2d 735, 738 (Ct.App.1998) (finding inconsistent statements can be evidence of criminal knowledge and intent). Additionally, Blanche Thomas denied ever borrowing money from Brooks or her mother and ever having seen the check. In fact, Mrs. Thomas testified that she usually gave clothes to Brooks for her daughters. In light of this evidence, we conclude that the properly admitted evidence against Brooks was overwhelming and the error in admitting evidence of the prior forgery was harmless.⁴

For the above reasons, Brooks's conviction is

AFFIRMED.

GOOLSBY, J., concurs in a separate opinion and CONNOR, J., concurs in part and dissents in part in a separate opinion.

GOOLSBY, Judge, concurring:

I agree with the result reached by the majority and would likewise affirm. I would hold, however, the trial court properly admitted the evidence of the prior forgery. Rule 404(b), SCRE.

Intent is an element of forgery. See S.C.Code Ann. § 16-13-10 (Supp.1997); State v. Wescott, 316 S.C. 473, 477, 450 S.E.2d 598, 601 (Ct.App.1994) ("The three important factors requisite to constitute forgery by uttering or publishing a forged instrument are: (1) it must be uttered or published as true or genuine; (2) it must be known by the party uttering or publishing it that it is false, forged, or counterfeited; and (3) there must be intent to prejudice, damage, or defraud another person."). Although "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," evidence of that sort may be admitted "to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent." Rule 404(b), SCRE.

Evidence of Ivadella Brooks's previous forgery conviction for cashing a check on a closed account was logically relevant to her criminal intent and to the lack of mistake or accident regarding the offense for which she was then being tried. That Brooks's act in presenting the check in question was prompted by criminal intent rather than by mistake or accident was the issue at trial. Given the importance of the evidence of intent and the absence of mistake or accident, the prejudice Brooks sustained as a result of the trial court's admitting the challenged evidence does not substantially outweigh its probative value.

What the majority appears to have done here is to read the "intent" and ...