State v. Chambers, 19511

• Decision Date: 01 May 1995
• Docket Number: No. 19511,19511
• Citation: 898 S.W.2d 119
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Claude CHAMBERS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 119

898 S.W.2d 119

STATE of Missouri, Plaintiff-Respondent, v. Claude CHAMBERS, Defendant-Appellant.

No. 19511.

Missouri Court of Appeals,

Southern District,

Division One.

May 1, 1995.

Rosalynn Koch, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joanne E. Beal, Asst. Atty. Gen., Jefferson City, for respondent.

FLANIGAN, Judge.

A jury found defendant guilty of forgery, § 570.090, ¹ and he was sentenced to imprisonment for 15 years. Defendant appeals.

Defendant's first point is that the evidence is insufficient to support the verdict, and the trial court erred in ruling otherwise, in that the evidence failed to establish beyond a reasonable doubt that defendant "made a check so that it purported to have a genuineness which it did not possess."

In reviewing defendant's challenge to the sufficiency of the evidence, this court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). Appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id.

In addition to its formal portions, including defendant's status as a prior and a persistent offender based on pleaded prior convictions, the information charged that defendant, in violation of § 570.090.1(3), committed forgery "in that on or about the 8th day of July, 1993, in the County of Lawrence, State of Missouri, the defendant acting either alone or in concert with another, with purpose to defraud, made a check so that it purported to have a genuineness which it did not possess." ²

State's Exhibit 5, on which the prosecution was based, was a check dated July 8, 1993, in the amount of $60, payable to "Country Market." It bore the purported signature of Densil Carney and was written on Carney's account in First Savings Bank of Aurora, Missouri. The lower left corner of the front of the check bore the notation "baby-sitting."

The state's principal witnesses were Tina Shockley, Densil Carney, and Saundra Huse. Their testimony included the following:

TINA SHOCKLEY: On July 8, 1993, I was working at Country Market, a convenience store in Aurora. State's Exhibit 5 is the check I cashed that day. I did not know the woman who gave me the check. I asked her for identification and put the numbers at the top of the check. She said that was her social security number. Her purchases cost less than $20, and I gave her the change in cash. The woman who gave me the check was with a girl named Anna whom I had seen in the store before.

DENSIL CARNEY: In June 1993, I had a checking account at First Savings Bank in Aurora. No one else was authorized to write checks on that account. In June or July 1993, I did not pay anybody to do any baby-sitting. A month or two before that, in 1993, I had some checks stolen when I was burglarized. I never traded at Ernie's Country Market in Aurora. I did not authorize anybody to cash a check at Ernie's Market on my account. I know defendant. About March or April of 1993, right before the checks were stolen, defendant stopped at my house and asked for directions. I did not write state's Exhibit 5. The signature on Exhibit 5 is not my signature. I did not authorize anybody to write that check.

SAUNDRA HUSE: On July 8, 1993, I was going to Aurora and defendant picked me up. Anna Hansen was with him. We went to Country Market. Defendant asked me if I would go in and cash Exhibit 5. Defendant handed Exhibit 5 to me. He told me to go in and get some stuff, I don't remember what. I went in and passed it off. I got change back. I brought it back to defendant and gave it to him. I did not write anything on that check. Anna Hansen was with me in the store. I asked defendant how come he didn't cash the check and he said he didn't have any identification. I did not see defendant write anything on the check.

Defendant bases his challenge to the sufficiency of the evidence on the following argument:

"A key element of the crime is that the defendant 'makes' something so that it purports to have a genuineness it does not possess. Defendant submits that the state failed to show that defendant was the one who forged the check. Ms. Huse, the only eyewitness tying defendant into the case, did not see defendant make any writing on the check. There was no evidence whatsoever that defendant wrote anything on the check.... Although both Ms. Huse and Mr. Carney denied having written on the check, that does not lead to the inference that defendant did so.... Since the state failed to present evidence showing that defendant 'made' a check, the evidence was insufficient to convict him of forgery."

"[T]he possession of and attempt to pass a forged instrument raises a presumption or inference that the person in possession forged it and, unless its possession is explained to the satisfaction of the trier of the facts, such presumption becomes conclusive." State v. Taylor, 778 S.W.2d 276, 279 (Mo.App.1989). To similar effect see State v. Jones, 703 S.W.2d 41, 42 (Mo.App.1985); State v. Gantt, 504 S.W.2d 295, 300 (Mo.App.1973).

Although the foregoing authorities involved situations where the cashing of the check was done by defendant himself rather than by an agent, this distinction is immaterial where, as here, the agent testified that her participation was innocent. It is not necessary that a defendant personally participate in each of the acts constituting the elements of the crime charged. State v. Nguyen, 880 S.W.2d 627, 634 (Mo.App.1994) (citing §§ 562.036 and 562.041)). It is sufficient if the evidence fairly shows an affirmative participation by the defendant in aiding another in the commission of the crime. Id.

The state's evidence showed that defendant possessed the check, the check was forged, and defendant, through his agent Saundra Huse, cashed the check. ³ There was also evidence that defendant was at Carney's house shortly before the check was stolen. Defendant presented no evidence. This court holds that the evidence was sufficient to support a finding that defendant made the check. Defendant's first point has no merit.

Defendant's second point is that the trial court erred in denying his motion for mistrial and in denying his motion to strike the testimony of Sheriff David Tatum to the effect that Tatum was seeking to arrest defendant but "not on that arrest warrant," because such evidence was inadmissible, irrelevant, and prejudicial to defendant in that it informed the jury that defendant was wanted for a different crime, and defendant was thereby deprived of his right to a fair trial.

The evidence challenged by defendant's second point occurred in two stages during the direct examination of state's witness David Tatum, Sheriff of Lawrence County, as follows:

Stage 1

"[The Prosecutor]: Q. As a result of Anna Hansen's interview and other evidence that you had collected in this particular case, did you seek an arrest warrant on anyone?

A. Yes, I did.

Q. Who did you seek an arrest warrant on?

A. Claude Chambers.

Q. Was a warrant issued for Mr. Chambers?

A. Yes, it was.

Q. Did you attempt to locate Mr. Chambers to serve that--that arrest warrant?

[Defense Counsel]: Objection, Your Honor. May we approach the bench?"

Stage 2

[The Prosecutor]: Q. Now, as to the arrest warrant that you had for Mr. Chambers, did you attempt to locate Mr. Chambers?

A. Not on that arrest warrant.

Q. Okay. Did you have another arrest--Well, strike that.

[Defense Counsel]: Objection, Your Honor.

[The Prosecutor]: Strike that.

The Court: Okay.

[Defense Counsel]: May we approach the bench, Judge?

The Court: Sure."

Prior to Stage 1, at a hearing on defendant's motion in limine, defense counsel asked the court to suppress evidence that defendant attempted to flee in a vehicle. The prosecutor told the court that defendant was in his car, that the sheriff told defendant he had a warrant for his arrest and attempted to arrest him, and that defendant drove away. The prosecutor also said that he understood the sheriff had informed the defendant that he was under arrest based on a warrant issued for the offense on trial.

At the bench conference after Stage 1, the court asked the prosecutor whether the prosecutor knew whether the arrest warrant was issued for the offense on trial. The prosecutor said, "I can't be clear on that, Judge, it's my understanding I think it was." The court overruled defendant's objection and proceedings returned to open court and Stage 2 occurred.

Outside the hearing of the jury, defense counsel moved for a mistrial. Apparently after conferring with the witness, the prosecutor said that the witness was there for the purpose of arresting defendant on another warrant and that he intended to stop questioning the witness at that point.

The court informed defense counsel that he would overrule the motion for a mistrial but would admonish the jury if defense counsel so requested. Defense counsel asked the court to admonish the jury to disregard "all testimony from this witness." The court said that request was denied as "overbroad." The court said to defense counsel, "Now we have two choices, some specific admonition other than what you've already asked me or just leaving it alone so as not to bring it to their attention." Defense counsel then said, "I think the best tack to take would be to just avoid it."

"The prosecution is not permitted to introduce evidence of the circumstances of the arrest of the person accused where such circumstances have no probative value in establishing his guilt." State v. Myrick, 473 S.W.2d 402, 404 (Mo.1971). However, "[c]ircumstances surrounding the arrest of a defendant are generally admissible where they tend to establish an attempt by the defendant...