State v. Hogshooter

• fullCitation: State v. Hogshooter, 640 S.W.2d 202 (Mo. App. 1982)
• Decision Date: 27 September 1982
• Citation: 640 S.W.2d 202
• Docket Number: No. 12246,12246
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert J. HOGSHOOTER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 202

640 S.W.2d 202

STATE of Missouri, Plaintiff-Respondent, v. Robert J. HOGSHOOTER, Defendant-Appellant.

No. 12246.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 27, 1982.

Motion for Rehearing or Transfer

Denied Oct. 12, 1982.

Application to Transfer Denied

Nov. 15, 1982.

Linda K. Thomas, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., John Jacobs, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

A jury found defendant Robert J. Hogshooter guilty of forgery in violation of § 570.090.1(1), RSMo 1978. ¹ The trial court found defendant to be a persistent offender within the meaning of § 558.016.2 and assessed his punishment at imprisonment for a term of 7 years. Defendant appeals.

In recounting the evidence adduced by the State--defendant did not testify--we address defendant's contention that the State failed to make a submissible case. Defendant asserts that the burden of proof is on the State to establish by evidence the guilt of the accused beyond a reasonable doubt, citing State v. Howard, 540 S.W.2d 86, 88 (Mo. banc 1976). We agree. Nevertheless, in determining whether the evidence is sufficient to support the verdict, the facts in evidence and all favorable inferences to be drawn therefrom must be considered in the light most favorable to the State and all evidence and inferences to the contrary must be disregarded. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

So taken and considered, the record shows that about the first of February 1980, defendant entered into a brief liason with one LeNetia Barrett. LeNetia then had a checking account at the Bank of Urbana, Missouri. After she and the defendant parted company "the last week in February," LeNetia discovered that a pad of her blank checks, numbered 125 to 150, was missing. To protect herself, LeNetia "froze" her bank account. According to her banker, "freezing" meant that the bank would neither accept deposits to nor checks drawn on the account. LeNetia categorically denied she had ever given the defendant a) blank checks; b) any checks signed in blank, or c) permission to draw checks on her account. After LeNetia had "frozen" her account, the defendant "came back up to [her] house ..., [and she] asked [defendant] about the checks being gone, and [defendant] said, yes, he did take them."

Walter Locke, who had been head bartender at a bar in south Springfield in March 1980, testified that defendant appeared in the bar about 6 p.m. on March 3, 1980. Locke did not know the defendant's name, but recognized him as a regular customer. Defendant asked Locke if he would cash a check. Locke agreed.

The defendant then tendered a check to be cashed. The check is before us as State's exhibit 1. The name "LeNetia Barrett," with an address, is printed on the face of the check at the upper left; at the upper right corner, the number 131 is printed. The name of the drawee bank, The Bank of Urbana, is printed at the lower left on the face of the check, and at the bottom, below the signature line, the digits "12 395 1" appear in computer-legible type. The following writing appears on the face of the check: "3-3-80" as the date the check was drawn; "R.J. Hogshooter" as the name of the payee; "30.00" and "Thirty dollars + no/100 ______" as the amount for which the check was made, and upon the signature line the name "LeNetia Barrett" appears.

Locke testified the check had already been "filled out" when it was presented. Defendant endorsed the check "R.J. Hogshooter" in Locke's presence; Locke gave defendant $30.00 in cash. This check was shown to LeNetia upon direct examination; she stated it was one of the checks taken from her, and further testified she had not signed it. Examination of State's exhibit 2, the signature card executed when the account was opened, shows that the drawee bank assigned the number 12-395-1 to LeNetia's account.

The State also had the evidence of Detective Sergeant McGuire, an expert in handwriting analysis and identification. McGuire's qualification is not in issue. Detective McGuire had examined the signature card, the check whic defendant cashed, and eight handwriting exemplars furnished by the defendant at the court's order. McGuire testified that in his opinion, the handwriting on the check was not that of LeNetia Barrett, but that of the defendant.

We hold that any rational trier of fact could find or infer the existence of every element of the crime charged beyond a reasonable doubt. Inasmuch as the defendant's argument deteriorates into an argument that LeNetia's testimony was not substantial evidence, we need not fully construe § 570.090.1(1); the language of that subsection is at least broad enough to comprehend the elements of common-law forgery; i.e., 1) a false making or other alteration of an instrument of writing; 2) a fraudulent intent, and 3) an instrument so altered as to be apparently capable of effecting a fraud. State v. Andrews, 297 Mo. 281, 288-289, 248 S.W. 967, 969 (1923). The evidence amply warrants a finding that defendant falsely altered one of LeNetia Barrett's blank checks so as to make it appear to have been made by her; the instrument, even before endorsement, was a check, an instrument capable of effecting a fraud. An intent to defraud could be inferred from the act of forgery or transferring the forged instrument. State v. Douglas, 312 Mo. 373, 394-395, 278 S.W. 1016, 1022 (1926); State v. Gantt, 504 S.W.2d 295, 300 (Mo.App.1973); State v. Massey, 492 S.W.2d 48, 51-52 (Mo.App.1973). The defendant's argument that LeNetia's testimony did not amount to substantial evidence is unavailing here. The determination of the credibility of witnesses and the weight to be given their testimony are matters for the jury to determine. State v. Newberry, 605 S.W.2d 117, 121 (Mo.1980); State v. Kellick, 521 S.W.2d 166, 167 (Mo.App.1975). In reviewing a jury verdict in a criminal case, the appellate court does not undertake to determine the credibility of the witnesses nor weigh the evidence. State v. Small, 423 S.W.2d 750, 751 (Mo.1968); State v. Nolan, 499 S.W.2d 240, 250 (Mo.App.1973). As presented, the point is without merit.

The defendant has briefed several diffuse assignments of error addressed to the production and use of the handwriting exemplars. We have examined these involuted points and find that only three of the specific points briefed were assigned as error in defendant's motion for new trial. Rule 29.11(d) provides, with certain exceptions not immediately material to the assignment of error, that "In jury tried cases, allegations of error to be preserved for appellate review must be included in a motion for new trial ...." Rule 29.12(b) permits an appellate court to consider plain error in its discretion, but appellate counsel's expansion of trial counsel's assignments 2, 3 and 4 in the motion for new trial raise no spectre of "manifest injustice or miscarriage of justice." We may say, however, that the brief represents admirable compliance with the duties imposed on appellate counsel by our Supreme Court in State v. Gates, 466 S.W.2d 681 (Mo.1971).

Assignments 2 and 3 in the Motion for New Trial are, in substance, that the trial court erred in admitting Detective McGuire's testimony or in refusing a continuance because McGuire's testimony was not disclosed to counsel until the day of trial and trial counsel was unable to obtain rebuttal evidence. These points are singularly without merit.

The record before us, by which we are bound, State v. Neal, 476 S.W.2d 547, 549[2, 3] (Mo.banc 1972); State v. Friend, 607 S.W.2d 902, 904 (Mo.App.1980), indicates that on December 3, 1980, defendant appeared in court with appointed trial counsel and asked for a continuance. The State agreed to the continuance. The trial court then announced:

"The State has filed a Motion For Production Of Handwriting Sample Of Defendant Robert Jackson Hogshooter Pursuant To Rule 25.06."

Defendant's counsel objected on the ground that such action would infringe defendant's Fifth Amendment rights. The court's attention was called to Rule 25.06(B)(6), whereupon the trial court granted the State's motion. The State announced that it "understood" defendant was in jail and would attempt to obtain the exemplars at a convenient time.

Before McGuire testified, defendant's counsel made an anticipatory objection to any testimony McGuire might give because the handwriting samples had not been taken...