State v. McCardell

• Decision Date: 27 August 1982
• Docket Number: No. 17718,17718
• Citation: 652 P.2d 942
• Parties: STATE of Utah, Plaintiff and Respondent, v. Eugene McCARDELL, Defendant and Appellant.
• Court: Utah Supreme Court

Page 942

652 P.2d 942

STATE of Utah, Plaintiff and Respondent, v.Eugene McCARDELL, Defendant and Appellant.

No. 17718.

Supreme Court of Utah.

Aug. 27, 1982.

Stephen L. Hansen, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

The defendant and appellant, Eugene McCardell(McCardell) was tried before a jury in the Third Judicial District Court and found guilty on two counts of forging an endorsement on a check.McCardell advances four points of error on appeal: (1) there was insufficient evidence to support the conviction; (2)the trial court erred in refusing to instruct the jury as requested by the defendant; (3) it was abuse of discretion for the trial court to allow certain blank checks into evidence; and (4)he was denied a fair trial because "mug shots" of him were allowed into evidence over his objections.We affirm.

According to the testimony adduced at trial, McCardell and an unidentified female companion drove to the drive-in window of a bank in southern Salt Lake County and received a deposit slip from the teller.The woman filled out the deposit slip and endorsed two checks; all three items were then handed to the teller by McCardell.The deposit slip indicated that the two checks were to be deposited in the account of Karen O. Johnson, located at another branch of the bank, and $300.00 in cash was to be paid to the depositor.Both checks were made out to Karen O. Johnson, one drawn on the account of a private individual and the other on a business account.The teller's suspicion was aroused because the business check had been filled out with a magic marker pen, McCardell seemed nervous, and his companion was unable to produce any identification.The teller then attempted to call another branch to verify the existence of Ms. Johnson's account.McCardell offered to park his car and come into the bank if there were any problems.Whereupon McCardell drove away and the teller wrote down the license number of the car.A search of the auto records revealed that the car was owned by McCardell and, a little over a week later, the bank teller identified McCardell from a photo lineup as the driver of the auto.At the time of his arrest, McCardell's car was searched with his permission, and blank checks were found in the glove compartment.Two of the checks belonged to the private individual and the company whose checks had been presented earlier at the drive-in bank.Neither check presented to the bank was drawn by anyone with the authority to prepare or sign the checks.

I

Before turning to McCardell's first assignment of error, insufficiency of evidence to support the conviction, we will address the question of the admission into evidence of the blank checks asserted in his third point.The question of the sufficiency of evidence to support the conviction will necessarily depend upon a determination of what evidence was properly before the jury.

McCardell was stopped and arrested while driving his automobile, which fit the description and bore the license plate number provided to the police by the bank teller.The arresting officer asked McCardell's permission to search the automobile.McCardell responded that the officer could look any place he wanted and volunteered that there were some checks in the glove compartment given to him by a Kim Carpenter.

The officer did in fact find blank checks identical to the personal check given to the bank teller and a business check; the machine stamp on the latter was for the same amount of money as appeared on the check passed to the bank teller, but the check in the car had no payee or authorizing signature.McCardell argued at trial, as he does on appeal, that it was unduly prejudicial to allow these checks into evidence because they appeared to be evidence of a crime, possession of stolen checks, other than the crime with which he was charged.McCardell contended that the admission of this evidence could mislead, confuse and severely prejudice the jury.In addition, he argued that the checks found in the glove compartment had no tendency to establish any material element of the forgery charge and were, therefore, irrelevant.Specifically at issue is whether the trial court abused its discretion under Rules 45and55 of the Utah Rules of Evidence.This Court will not interfere with a trial court's ruling under Rule 45 unless it clearly appears that the court so abused its discretion that there is a likelihood that injustice resulted.State v. Danker, Utah, 599 P.2d 518(1979).Rule 45 states:

Except as in these rules otherwise provided, the judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will ... (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury ....

Rule 55 states:

Subject to Rule 47 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to Rules 45and48, such evidence is admissible when relevant to prove some other material fact including absence of mistake or accident, motive, opportunity, intent, preparation, plan, knowledge or identity.

We reject McCardell's claim that this evidence was irrelevant.The evidence at trial indicated that McCardell did not endorse the checks and that his female companion was the one who endorsed the checks at the time they were given to the bank teller.Therefore, McCardell's criminal culpability could be founded on Sec. 76-2-201, U.C.A., 1953 (1978 Supp.), which makes one person criminally responsible for the direct commission of an offense by another if the person "requests ... encourages or intentionally aids another person to engage in conduct which constitutes an offense."In addition, the forgery statute holds a person criminally accountable if he acted "with purpose to defraud ..., or with knowledge that he[was] facilitating a fraud ...."Sec. 76-6-501, U.C.A., 1953 (1978 Supp.).Even if this information can be fairly characterized as evidence of commission of some other crime or civil wrong, it is admissible under the general rule embodied in Rule 55 as evidence that is relevant to and probative of material elements of the crime for which McCardell was on trial.State v. Forsyth, Utah, 641 P.2d 1172(1982).This evidence would support an inference of McCardell's knowledge of the fraud and intentional participation in the forgery.Forsyth, supra(Stewart, J., concurring);State v. Johns, Utah, 615 P.2d 1260(1980).

We also reject McCardell's contention that, even if this evidence is relevant and admissible under Rule 55, the court abused its discretion under Rule 45(b) in failing to disallow it because of its extreme prejudicial effect.The question before the trial court is not simply one of the presence or absence of any potential for prejudice, but whether "its probative value is substantially outweighed by the risk that its admission will ... (b) create substantial danger of undue prejudice ...."Utah R.Evid. 45(emphasis added).We believe that the trial court could reasonably conclude, in light of the State's burden to show that McCardell intentionally encouraged or aided the unidentified woman in the commission of this forgery, that the probative value of this evidence was not substantially outweighed by its potential prejudicial effect.It is the function of the prosecutor in an adversary proceeding to bring before the jury all evidence admissible within the Rules of Evidence.While the evidence in question here may create some danger of prejudice, it does not create a "substantial danger of undue prejudice" and, therefore, we hold that the trial court did not abuse its discretion in permitting this evidence to be presented to the jury.

II

We now return to McCardell's first point of alleged error, that there was insufficient evidence to support the conviction of forgery.McCardell claims that there was insufficient evidence to support the required statutory finding that he acted "with purpose to defraud ..., or with knowledge that he[was] facilitating a fraud ...."Sec. 76-6-501, U.C.A., 1953 (1978 Supp.).This Court will not lightly overturn the findings of a jury.We must view the evidence properly presented at trial in the light most favorable to the jury's verdict, and will only interfere when the evidence is so lacking and insubstantial that a reasonable man could not possibly have reached a verdict beyond a reasonable doubt.State v. Asay, Utah, 631 P.2d 861(1981);State v. Lamm, Utah, 606 P.2d 229(1980);State v. Gorlick, Utah, 605 P.2d 761(1979);State v. Logan, Utah, 563 P.2d 811(1977).We also view in a light most favorable to the jury's verdict those facts which can be reasonably inferred from the evidence presented to it."Thus, intent to commit [a crime] ... may be found from proof of facts from which it reasonably could be believed that such was the defendant's intent."State v. Kazda, 15 Utah 2d 313, 317, 392 P.2d 486(1964).We hold that in light of the competent and admissible evidence outlined above, there was sufficient evidence to support the jury's verdict and we will not overturn McCardell's conviction.

III

McCardell further alleges as grounds for reversal of his conviction the fact that the trial court refused to instruct the jury as requested by him.McCardell specifically claims that the trial court gave instruction number 12 despite his timely objection.The instruction, almost a word-for-word paraphrase of Sec. 76-2-202, U.C.A., 1953 (1978 Supp.), was as follows:

You are instructed that every person acting with the mental state required for the commission of an offense who...