State v. Hopson, 35,436-KA.
| Decision Date | 28 December 2001 |
| Docket Number | No. 35,436-KA.,35,436-KA. |
| Citation | 803 So.2d 1090 |
| Parties | STATE of Louisiana, Appellee, v. Anthony HOPSON, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Wilson Rambo, Counsel for Appellant.
Richard Ieyoub, Attorney General, William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Penny Wise Douciere, Assistant District Attorney, Counsel for Appellee.
Before NORRIS, WILLIAMS and DREW, JJ.
Convicted of two counts of forgery, Anthony Hopson was adjudicated a second felony offender, and sentenced to two consecutive terms of 15 years at hard labor, without benefit of probation, parole or suspension of sentence. We affirm the defendant's convictions. However, we vacate his sentences and remand this matter to the trial court for resentencing. Our review of the record suggests that the sentence re-imposed not exceed 15 years at hard labor, to be served concurrently, and without benefit of probation or suspension of sentence.
Hopson and Janie D. Mercer were longtime family friends, and lived on the same street in Winnsboro. Mercer had recently moved back to Winnsboro from Baton Rouge and Mississippi. Mercer received a phone call from a local store that two checks written on her account had been returned marked "account closed." The checks, dated June 6, 1999 and June 16, 1999 (10 days apart) were written on a Baton Rouge account that Mercer had closed when she moved back to Winnsboro. Each check was in the amount of $60.00, had a signature of "Janie D. Mercer" and was payable to the defendant, "Anthony Hopson." Mercer had not written any of the writing on either of the two checks. The back of each check had the defendant's endorsement, phone number and address. These were pathetic crimes, destined to fail.
Mercer testified that she contacted the defendant, who admitted writing the checks to pay a cellular phone bill. Mercer was unsure how the defendant obtained the checkbook, but at trial testified that she had thrown the checkbook in the trash. Mercer further testified that she would have loaned the defendant the money if he had asked. She then asked the defendant to go down and pay off the checks. When he did not, the present forgery charges were filed.
The defendant testified at trial, and admitted that he had written the checks, including signing Mercer's name. He testified that he had done so with the permission of Mercer, because she had trouble cashing checks with out-of-town identification. He did not explain why Mercer did not sign the checks. He testified that he gave Mercer the money from cashing the two checks. He further testified that he had worked out an agreement with the store to pay off the checks, but was unable to do so after he was picked up on a parole violation of having a "dirty" urine screen. When the defendant was arrested on the present charge in August 1999, he gave a statement basically the same as his trial testimony. A six-person jury heard both versions of the incident and unanimously voted to convict the defendant.
After his conviction, the state filed a habitual offender bill of information, alleging that, with the present convictions, the defendant was a fourth felony offender. The alleged felony convictions were:
1. September 25, 1995 conviction in Franklin Parish for access device fraud.
2. February 4, 1997 conviction in Franklin Parish for access device fraud.
3. May 18, 1998 conviction in Catahoula Parish for forgery.
4. The present convictions for forgery.
The defendant filed written objections to the habitual offender bill of information, alleging defects with the 1995 Franklin Parish conviction and the 1998 Catahoula Parish conviction. The defendant did not assert any objections to the 1997 Franklin Parish conviction.
On May 8, 2001, a hearing was held on the defendant's habitual offender status. Before the hearing began, the state stipulated that the defendant's objections were correct as to alleged procedural defects in the 1995 Franklin Parish and the 1998 Catahoula Parish convictions. The state proceeded forward, alleging the defendant to be a second felony offender, based on using the February 4, 1997 Franklin Parish conviction as a predicate offense.
The state called Franklin Parish Deputy Sheriff Tim Pylant as a witness. Prior to his testifying, the state sought to introduce into evidence the bill of information, transcript and minutes of the February 4, 1997 Franklin Parish conviction. The defendant objected to lack of foundation and lack of identification of the defendant being the same "Anthony Hopson" in that felony conviction. The trial court deferred a ruling on this evidence, pending the state establishing the proper foundation through the deputy's testimony.
Deputy Pylant then testified that he was the investigating officer in the charges that lead to the February 4, 1997 conviction. He identified the defendant as the "Anthony Hopson" arrested and subsequently convicted on February 4, 1997. The deputy identified the bill of information, guilty plea transcript and minutes of the February 4, 1997 conviction, as applying to the defendant. After this testimony, the state moved to introduce those exhibits into evidence. The defendant asserted no new objection to the introduction of the proof of the February 4, 1997 conviction. The defendant did not question Deputy Pylant.
The trial court adjudicated the defendant as a second felony offender. In sentencing the defendant, the trial court extensively reviewed the defendant's PSI, which showed the defendant had at least six felony convictions, dating from 1967. Several involved some type of petty forgery, theft, or similar artifice.
The defendant argued to the trial court not to imprison him because he needed to take care of his aged mother. However, this argument was apparently not persuasive, as the trial court sagely noted that one of the defendant's prior felony convictions involved theft by fraud from his mother.
The trial court sentenced the defendant as a habitual offender to two 15-year sentences, without benefit of probation, parole or suspension of sentence, and ordered the sentences be served consecutively.
The first issue raised by defendant is whether there was sufficient evidence to convict. The standard of review for a sufficiency of evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).
At trial, the defendant and the victim gave the jury two different versions as to why the two checks were entirely written by the defendant. The defendant testified that he did it to help Mercer cash an outof-town check. She testified that she knew nothing about the defendant writing the checks, and did not receive any of the money. She further testified that the defendant admitted to her that he used the money to pay his phone bill. The defendant is now arguing that the jury was in error to accept the victim's version of the facts.
The jury found Ms. Mercer's version of events more credible. The defendant has provided this court no basis or authority by which to substitute the defendant's version.1 The question then becomes whether the state's evidence, viewed in a light most favorable to the state, supports a verdict of guilty of forgery.
La. R.S. 14:72 defined the crime of forgery (at the time of the offense) as:
Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.
A forgery must be committed with the specific intent to defraud. State v. Wade, 375 So.2d 97 (La.1979), U.S. cert. denied. "An essential ingredient of the crime of forgery is specific intent... ." State v. Jackson, 258 La. 632, 247 So.2d 558, 560 (La.1971). See also the Reporter's Comment to La. R.S. 14:11, which states, in part:
... in some crimes the production of certain consequences plus a specific intent to produce or accomplish some prescribed consequences is necessary (for example, "Forgery is the false making or altering, with intent to defraud, of any signature ..."). Such an intent is a "specific intent."
In this case there is no question that the defendant "forged" Mercer's signature on her checks. That element of the crime was established. But, the defendant strenuously argues that the state has not proven that his writing out Mercer's signature on the checks was done with the intent to defraud anybody. Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.), writ denied, 544 So.2d 398 (La.1989). Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), U.S. cert. denied. State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993).2
Viewed in a light most favorable to the state, this evidence clearly establishes that the defendant, when he forged Mercer's signature on her checks, had the specific intent to defraud her, the convenience store, and the bank of money. This assignment is therefore without merit.
Second, the defendant asserts there was insufficient evidence to adjudicate him as a habitual offender. He does not assert any specific errors or defects. Instead...
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... ... See State v. Boudreaux, 41,660 (La.App.2d Cir.12/13/06), 945 So.2d 898.201 So.3d 1002In State v. Hopson, 35,436 (La.App.2d Cir.12/28/01), 803 So.2d 1090, the defendant took two checks from a family friend, wrote them out to himself for $60.00 each and ... ...
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