State v. Knoche

• Decision Date: 04 May 1994
• Docket Number: No. 18424,18424
• Citation: 515 N.W.2d 834
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Robert G. KNOCHE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 834

515 N.W.2d 834

STATE of South Dakota, Plaintiff and Appellee, v. Robert G. KNOCHE, Defendant and Appellant.

No. 18424.

Supreme Court of South Dakota.

Submitted on Briefs Feb. 15, 1994.

Decided May 4, 1994.

Mark Barnett, Atty. Gen., Patricia J. Froning, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Sean M. O'Brien, Brookings, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Following extradition from Indiana, appellant Robert G. Knoche (Knoche) was arraigned on April 27, 1993 for forgery and a Part II information: habitual offender. On May 27, 1993, the jury found him guilty of forgery. The following day, Knoche was re-arraigned on the habitual information. A new jury thereafter found Knoche to be a habitual offender, whereupon he received a 13-year sentence plus restitution to the victim in the amount of $321.31. On appeal, Knoche raises these issues:

I. Did the trial court err in admitting evidence of prior bad acts?

II. Did the trial court err in failing to give Knoche's proposed instructions to the jury?

III. Did the trial court err in ordering Knoche to display the tattoo on his forearm?

IV. Was the evidence sufficient to convict?

V. Did the trial court err by informing the habitual offender jury of the underlying conviction?

VI. Did the trial court err in not excusing a juror for cause who stated that she did not think she could presume Knoche innocent?

VII. Did the trial court err in failing to strike the habitual offender information?

VIII. Was Knoche's arraignment on the habitual offender charge a nullity because it was held prior to his conviction of the underlying charge?

IX. Did the trial court err in failing to dismiss the separate information for habitual offender because Knoche was not convicted of a crime of violence?

We affirm.

FACTS

Deloris Fawley cooked and cleaned for the Dakota Inn restaurant until August 31, 1989. Often, Knoche would go to the restaurant and wait for Deloris to get off work. Two weeks after Deloris left this employment, R.J. Reimers (Reimers), owner of the restaurant, learned that the Dakota Inn checking account was overdrawn. After discovering checks numbered 968-1064 were missing from her check ledger and the signature on the cashed checks, which had been forwarded to her bank, was not hers, Reimers filed an affidavit of forgery with the sheriff's office.

One of the forged checks was made payable to "Humphrey" and signed by "Robert Knoche." Knoche was not authorized to sign checks for Dakota Inn. Other checks were made payable to Knoche and signed by "R.J. Reimers" with a "payroll" notation at the bottom. Knoche had never been employed by R.J. Reimers, nor did Reimers make such notations on her checks.

Knoche was charged in Brookings County with one count of forgery, referring to check number 1049: a "payroll" check in the amount of $321.31. This check had been cashed at a White Mart store in Brookings to purchase an electric keyboard.

At trial, testimony, concerning other forged checks for purposes of identification and to show a common scheme, was admitted. A limiting instruction was given to the jury for each witness who testified concerning other bad acts. Four witnesses testified that when Dakota Inn checks were presented at their business, each had requested some identification. The identification shown contained Knoche's photo, driver's license number, and Social Security number. Arnold Dolecheck, manager of White Mart, specifically remembered that the check-casher had a tattoo of "DEB" or "DEBI" on his left forearm. Knoche has a "DEBI" tattoo. Each witness also positively identified Knoche as the one passing the forged checks. Knoche, believing the State had not proven its case, called no witnesses. The jury disagreed and found Knoche guilty of forgery.

Upon motion by Knoche, a new jury was selected for the habitual offender charge. At the start of this proceeding, the trial court, over objection by Knoche, informed the jury that the forgery conviction gave rise to the habitual offender charge. Their job was to determine if Knoche was the same person convicted of eight prior felonies. Following the testimony by jailers, law enforcement personnel, and an employee from the State Crime Laboratory, as well as records of the convictions, the jury found Knoche to be a habitual offender. He was sentenced to 13 years in the state penitentiary.

DECISION

I. Prior bad acts were properly admitted.

State sought to admit testimony that Knoche had passed other forged checks during the two days prior to the forgery with which he was charged. Per SDCL 19-12-5, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Knoche objected to admission of these bad acts arguing that they served no other purpose than to portray him as a "bad person."

When ruling on the admissibility of other acts testimony, the trial court must determine if the intended purpose for offering the other acts evidence is relevant to some material issue in the case. State v. McDonald, 500 N.W.2d 243, 245 (S.D.1993). Once "deemed relevant, [the evidence] may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Such determination by the trial court will not be disturbed absent an abuse of discretion." State v. McCord, 505 N.W.2d 388, 392 (S.D.1993) (citing State v. Means, 363 N.W.2d 565, 568-69 (S.D.1985)).

Whereas Knoche denied he had been passing forged checks, the trial court found that the proffered evidence was relevant and probative as to identity and common plan, two exceptions admissible under SDCL 19-12-5. State v. Werner, 482 N.W.2d 286, 289 (S.D.1992). Finding that the probative value substantially outweighed any prejudicial effect, the evidence was admitted. As an added precaution, the trial court gave limiting instructions to the jury each time evidence of these prior acts was admitted and during the final instructions to the jury. Hence, we find no abuse of discretion. ¹

II. Jury was correctly instructed on the law of the case.

According to the Indictment, Knoche was accused of violating SDCL 22-39-36: "Any person who, with intent to defraud, falsely makes, completes or alters a written instrument of any kind, or passes such an instrument is guilty of forgery." ² (Emphasis added.) The jury received the following instruction (# 9):

The elements of the crime as charged in the indictment, each of which the state must prove beyond a reasonable doubt, are:

1. That the defendant at the time and place alleged in the indictment falsely passed a business check of Dakota Inn, Brookings, South Dakota, to White Mart of Brookings, South Dakota in the amount of $321.31, made payable to Robert G. Knoche and bearing the signature of R.J. Reimers.

2. That at the time the check was passed, the defendant knew that the signature of R.J. Reimers was forged.

3. That the defendant did so with the intent to defraud.

Knoche objected to the instruction claiming it did not contain all the elements of forgery as listed in the indictment and proposed the additional elements of:

^* That the defendant knew that said check was not a true and genuine check of said Dakota Inn and the said R.J. Reimers.

^* That the defendant knew that the signature on said check was not the signature of R.J. Reimers.

The trial court rejected the proposed instruction due to redundancy. We agree. Under the second element of Instruction # 9, Knoche had to know that the signature of R.J. Reimers was forged. If forged, it obviously did not contain R.J. Reimer's actual signature and therefore was not a true and genuine check.

Our stance on this is all too familiar. Jury instructions are sufficient if they correctly state the law and inform the jury. State v. Burtzlaff, 493 N.W.2d 1 (S.D.1992); State v. Martin, 449 N.W.2d 29, 33 (S.D.1989); State v. Cook, 319 N.W.2d 809, 814 (S.D.1982). Not only must Knoche show error in the instructions, he must also show that the jury probably would have returned a different verdict if his instruction had been given. State v. Stapleton, 387 N.W.2d 28 (S.D.1986). He has not done so.

Because no one testified that Knoche knew the check's signature was not authentic, Knoche claims the elements of fraud were not met. Under oath, Reimers stated that she never wrote a check to Knoche, particularly one labeled "payroll" as Knoche was never an employee of Reimers. Knoche did not dispute this testimony. A jury verdict shall be set aside only where the evidence and the reasonable inferences to be drawn from the evidence do not sustain a rational theory of guilt. State v. Lewandowski, 463 N.W.2d 341, 344 (S.D.1990). The evidence was sufficient to uphold the verdict that Knoche passed a forged check. Knoche was not prejudiced by the instructions.

Additionally, Knoche contends the trial court erred in refusing his falsus in uno ³ instruction. Citing State v. Frey, 440 N.W.2d 721 (S.D.1989), he implies that his theory of the case depends on this instruction. He is very specific in claiming that the veracity of Arnold Dolecheck's testimony is in question. When first interviewed by Detective Stoltenburg, Dolecheck stated that the man who passed the forged check at White Mart had a tattoo on his left forearm. At trial, Dolecheck testified that the tattoo was on Knoche's right forearm, but corrected himself when it was revealed that the tattoo was, in fact, on Knoche's left forearm. Although Dolecheck erred in his testimony, there is no indication that he testified falsely. Furthermore, Knoche fails to explain how such testimony impedes his theory of the case--a theory he does not bother to reveal. (In Frey, the defendant alleged self defense.)

"The burden...