State v. Scurlock, Jr.
| Decision Date | 10 August 1999 |
| Docket Number | WD52037 |
| Citation | 998 S.W.2d 578 |
| Parties | State of Missouri, Respondent, v. Robert John Scurlock, Jr., Appellant. WD52037 and 55936 Missouri Court of Appeals Western District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Morgan County, Hon. Mary A. Dickerson
Counsel for Appellant: Amy M. Bartholow
Counsel for Respondent: Daniel W. Follett
Opinion Summary: Robert J. Scurlock appeals the circuit court's judgment of his jury conviction of one count of forgery, section 570.090.1(1), for which he was sentenced to twenty years in the Missouri Department of Corrections.
The appellant raises three points on appeal. In his first point, he claims that the trial court erred in overruling his motions for judgment of acquittal at the close of the State's and all the evidence because the State failed to prove beyond a reasonable doubt each and every element of the crime of forgery, specifically, that he had "made a writing." In his second point, he claims that the trial court erred in allowing the prosecutor to introduce evidence of uncharged crimes because such evidence was not logically or legally relevant to the crime with which he was charged. In his final point, he claims that the trial court plainly erred in failing to declare a mistrial, sua sponte, because the prosecutor, in his closing argument, made an impermissible reference to the appellant's post-arrest refusal to give a handwriting sample.
Division II holds: As to the appellant's Point I, the record reflects that there was evidence that the appellant was in possession of and attempted to pass the admittedly forged check of the victim and that he had access to the victim's car from which the check was taken. Thus, there was sufficient evidence from which a reasonable jury could infer, beyond a reasonable doubt, that he made a false writing.
As to Point II, the appellant first challenges a portion of the victim's testimony regarding another forged check. However, he did not object when the victim first testified as to the other forged check, waiving his objection to this testimony. And, this portion of the victim's testimony does not reveal any obvious and clear error that would result in manifest injustice or a miscarriage of justice such that we decline to review for plain error. The appellant next challenges another portion of the victim's testimony. As to that portion of his testimony, the appellant objected to it at trial and the trial court sustained his objection. As such, because the appellant received all the relief he requested, he cannot now complain on appeal concerning that testimony.
The appellant next challenges a portion of a police officer's testimony. However, he did not object to this testimony at trial and, thus, did not preserve this issue for appellate review. Furthermore, a review of the alleged error does not facially establish substantial grounds for believing that manifest injustice or a miscarriage of justice has resulte. Thus, the Court declines to review for plain error. The appellant also challenged several portions of a detective's testimony. As to the first challenged portion, the trial court did not abuse its discretion in admitting this testimony. As to the second challenged portion, the evidence in question was both logically and legally relevant in rebutting the issue raised by the appellant's counsel on cross-examination and, thus, the trial court did not abuse its discretion in allowing this testimony.
As to the appellant's final point, the appellant concedes that he did not preserve this claim for appellate review and asks for plain error review. The Court finds no plain error on its face and, even if the Court were to decide that there was plain error, the Court does not find manifest injustice or a miscarriage of justice to reverse given the other evidence in the case that was sufficient to convict.
Robert J. Scurlock appeals1 the circuit court's judgment of his jury conviction of one count of forgery, section 570.090.1(1),2 for which he was sentenced to twenty years in the Missouri Department of Corrections.
The appellant raises three points on appeal. In his first point, he claims that the trial court erred in overruling his motions for judgment of acquittal at the close of the State's and all the evidence because the State failed to prove beyond a reasonable doubt each and every element of the crime of forgery, specifically, that he had "made a writing." In his second point, he claims that the trial court erred in allowing the prosecutor to introduce evidence of uncharged crimes because such evidence was not logically or legally relevant to the crime with which he was charged. In his final point, he claims that the trial court plainly erred in failing to declare a mistrial, sua sponte, because the prosecutor, in his closing argument, made an impermissible reference to the appellant's post-arrest refusal to give a handwriting sample.
We affirm.
On July 24, 1994, David Whitten took his Chevy S-10 Blazer to Russ Morris Chevrolet in Eldon, Missouri, to have it repaired. He left his keys at the dealership and was told that his Blazer would be ready in a couple of hours. With this in mind, he left his checkbook in the locked glove compartment of the Blazer. He was later notified by the dealership that his Blazer would not be ready until the next day.
The following morning Whitten picked up his Blazer. Several days later Whitten received an overdraft statement from his bank. He was also advised that the bank had received several of his checks that appeared to have been signed by someone other than him. Upon examining his checkbook, Whitten found that five checks were missing, three of which had been received by the bank. The bank stopped payment on one of the checks containing a forged signature, which had been issued on or about July 30, 1994, to A-K Small Engine Works in the amount of $119. 05.
The initial investigation into the alleged forgery was conducted by Missouri Highway Patrolman, Jimmy Mace. His investigation identified the appellant as a possible suspect. The appellant was employed as a mechanic at Russ Morris Chevrolet during the time when Whitten's Blazer was being repaired and would have had access to the keys and locked glove compartment of the Blazer. Officer Mace questioned the appellant about the forgery on two occasions. During the second interrogation at the Eldon Police Department, Officer Mace requested a handwriting sample from the appellant, which he refused to provide.
Tommy Capps, a detective from the Morgan County Sheriff's Department, also took part in the investigation. Detective Capps interviewed several witnesses at the A-K Small Engine Works who were present on the day the forged check was negotiated, including the owner, Adam Kilmer, and two employees, Moses Kilmer and Harold Newswanger. Detective Capps showed the witnesses a single photograph of the appellant, which had been obtained from a Miller County deputy who was conducting a related forgery investigation in Miller County. All three men identified the appellant as the person who came into the shop and purchased auto parts with the forged check.
The appellant was subsequently arrested and charged by information, as a prior and persistent offender, section 558.016, with one count of forgery, section 570.090.1(1), for the check negotiated at A-K Small Engine Works. Prior to trial, the appellant filed a motion in limine seeking to preclude the State from introducing evidence that the appellant had committed other forgeries. This motion was sustained.
The case was tried to a jury on September 7, 1995, in the Circuit Court of Morgan County. At trial, Moses Kilmer and Newswanger positively identified the appellant as the individual who had entered the shop on July 30, 1994, and purchased several items with Whitten's check. However, neither witness testified that he saw the appellant make out the check. Whitten testified that he did not write the check that was negotiated to A-K Small Engine Works. Detective Capps testified that he identified the appellant as a suspect in the charged forgery after learning that he was a suspect in a forgery that was being investigated in Miller County.
At the close of the State's evidence, the appellant moved for judgment of acquittal, which motion was denied. He presented no evidence on his own behalf. He then filed a motion for judgment of acquittal at the close of all the evidence, which was also denied. The jury found the appellant guilty.
The appellant filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, which was denied. On November 15, 1995, the trial court, the Honorable Mary A. Dickerson, entered its judgment convicting the appellant of one count of forgery, section 570.090.1(1), and sentencing him as a prior and persistent offender, section 558.016, to twenty years in the Missouri Department of Corrections.
On February 23, 1996, the appellant filed his pro se Rule 29.153 motion to vacate, set aside or correct the judgment and sentence. An amended motion was filed by appointed counsel on June 12, 1996. On June 6, 1997, an evidentiary hearing was held before the trial court. On May 6, 1998, the court entered its judgment denying the appellant's motion.
This appeal follows.
In his first point, the appellant claims that the trial court erred in overruling his motions for judgment of acquittal at the close of the State's and all the evidence because the State failed to prove beyond a reasonable doubt each and every element of the crime of forgery, section 570.090.1(1), specifically, that he had "made a writing." We disagree.
Our "'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.'" State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc), cert. denied, --U.S.--, 119 S. Ct. 551, 142 L. Ed. 2d...
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