State v. Burnett, WD

Citation970 S.W.2d 412
Decision Date23 June 1998
Docket NumberNo. WD,WD
PartiesSTATE of Missouri, Respondent, v. Kenneth BURNETT, Appellant. 54610.
CourtCourt of Appeal of Missouri (US)

Irene Karns, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Catherine Chatman, Asst. Atty. Gen., Jefferson City, for Respondent.

HANNA, Presiding Judge.

The defendant, Kenneth Burnett, was convicted of forgery, § 570.090, 1 and sentenced to one year imprisonment following a bench trial in the circuit court of Clay County. The defendant makes two separate arguments concerning the sufficiency of the evidence to support his conviction.

In order to convict a defendant of forgery, the state must present the following evidence: (1) a false making of a writing; (2) a fraudulent intent; and (3) a writing capable of effecting a fraud. State v. Hogshooter, 640 S.W.2d 202, 204 (Mo.App.1982)(construing § 570.090.1(1)).

In reviewing whether the evidence is sufficient to convict a defendant of a particular crime, this court must consider all of the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the verdict and disregard all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993); State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990). "The standard for reviewing the sufficiency of the evidence in a criminal case when tried by a judge is the same as when reviewing a jury-tried case." State v. Lauer, 955 S.W.2d 23, 25 (Mo.App.1997). This court neither weighs the evidence, nor determines the reliability or credibility of witnesses. State v. Idlebird, 896 S.W.2d 656, 660-61 (Mo.App.1995). Moreover, "[w]here the record contains sufficient evidence to permit a rational trier of fact to find the defendant guilty beyond a reasonable doubt, the verdict will not be disturbed on appeal." State v. Brokus, 858 S.W.2d 298, 300-01 (Mo.App.1993).

The facts stated in the light most favorable to the conviction are that on April 14, 1996, Officer Matthew Voegler of the Pleasant Valley Police Department stopped a car which appeared to have "improper registration." Officer Voegler located a driving license on Barbara Jett's person bearing the name of Pamela Carolson. Jett admitted that her license was suspended. She was then arrested and placed in the back seat of Officer Voegler's patrol car. The officer then asked the defendant, who was a passenger, for identification. The defendant presented a Kansas driving license with his picture on it, but bearing the name of Stephen Hamm. The officer took the license and ran a check which determined that it was a valid license and that there were no outstanding warrants. He returned the license to the defendant.

After this exchange, Officer Bob Lewis of the Claycomo Police Department arrived. At this point, Jett gave permission to the officers to release the car to the defendant. The defendant, however, appeared drowsy and the car smelled of liquor. As a result, Voegler administered a field sobriety test, which the defendant failed. The officers decided to give the defendant a courtesy ride back to the police station. Officer Lewis did a routine pat-down of the defendant before he put the defendant in the back of the patrol car. The officer found a box of .22 caliber shells and a ring containing numerous vending machine keys. During this pat-down, Voegler was conducting an inventory search of Jett's car at the scene and found a laminating device, another ring of keys, a lock-picking tool and a construction company check made payable to Stephen Hamm. The defendant claimed the check was his. The defendant was arrested and placed in the back of the patrol car.

At the police station, a number of papers were found on the defendant including: a pawn shop receipt bearing the name of Kenneth Burnett, two personal checks made out to Kenneth Burnett, a bail enforcement identification bearing another man's name, a Social Security card with a woman's name, an employee identification card with another woman's name, and a parole and probation officer's card. Officer Voegler then ran the name Kenneth Burnett through the computer, and discovered that his driving license had been revoked, and that Burnett had an extensive criminal history. When asked if he was Kenneth Burnett, the defendant admitted that he was.

Voegler then realized that the Kansas driving license bearing the name Stephen Hamm was not among the inventoried items taken from the defendant. Lewis went to check his patrol car and found torn up bits and pieces of a driving license on the floorboard directly beneath where the defendant had been sitting.

The defendant first argues that there was insufficient evidence to support his conviction because the state has not proven beyond a reasonable doubt that he had altered Stephen Hamm's driving license. He argues that the evidence presented establishes two equally valid inferences, one which establishes his guilt and one which establishes his innocence. Thus, the evidence cannot establish as a matter of law, guilt beyond a reasonable doubt. State v. Alul, 948 S.W.2d 215, 217 (Mo.App.1997); State v. Dooley, 919 S.W.2d 539, 541 (Mo.App.1995).

The defendant suggests that two equally plausible inferences may be drawn from his actions in destroying the license: (1) that it was destroyed because he had altered it; and (2) that he destroyed an unaltered license because he wanted to avoid problems when he went to the police station. 2 These inferences arise from the direct evidence that the defendant tore up what appeared to be a Kansas driving license. 3 Irrespective of whether there were two equally plausible inferences that could be drawn from this evidence, there was sufficient other evidence of the defendant's guilt.

The state presented the following evidence in support of its position. Voegler testified that the defendant had given him a Kansas driving license bearing the name Stephen Hamm, but with the defendant's picture on it. The officer testified, positively, that the photo on the driving license was the defendant's picture. 4 Additionally, Voegler testified that the defendant identified himself as Stephen Hamm. The defendant had several miscellaneous identification cards on his person when he was arrested. Among other items found in the car was a laminating device, which would have provided the defendant with the means to alter a driving license. The fact finder could reasonably infer from this evidence that the defendant had placed a photo of himself on the Kansas driving license of Steven Hamm. This evidence, coupled with the officer's testimony that the photo on the license was that of the defendant, provided the fact finder with substantial evidence to find that the defendant had altered the license. Thus, it is not necessary to determine what inference, if any, the court may have drawn from the evidence that the defendant tore up Hamm's driving license. It is within the fact finder's province to believe all, some, or none of the witness' testimony in arriving at its decision. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). There was sufficient evidence to support the fact that the defendant altered the driving license of Steven Hamm. Point denied.

The defendant next contends that there was insufficient...

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3 cases
  • State v. Scurlock
    • United States
    • Missouri Court of Appeals
    • August 10, 1999
    ...of fact. Id. The court "neither weighs the evidence, nor determines the reliability or credibility of witnesses." State v. Burnett, 970 S.W.2d 412, 413 (Mo.App.1998). To convict the appellant as charged, the State was required to prove each and every element of the crime of forgery beyond a......
  • State v. Scurlock, Jr.
    • United States
    • Missouri Court of Appeals
    • August 10, 1999
    ...of fact. Id. The court "neither weighs the evidence, nor determines the reliability or credibility of witnesses." State v. Burnett, 970 S.W.2d 412, 413 (Mo. App. 1998). To convict the appellant as charged, the State was required to prove each and every element of the crime of forgery beyond......
  • State v. Smothers
    • United States
    • Missouri Court of Appeals
    • November 17, 2009
    ...of justice, the "purpose to defraud" element is met. Id. at 473-74 (citing 37 C.J.S. FORGERY § 4 (1943)); see also State v. Burnett, 970 S.W.2d 412, 415 (Mo.App. W.D.1998) ("The intent to defraud may exist where property rights are not involved."); State v. Patterson, 849 S.W.2d 153, 155-56......

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