State v. Scurlock
| Decision Date | 10 August 1999 |
| Docket Number | Nos. WD,s. WD |
| Parties | STATE of Missouri, Respondent, v. Robert John SCURLOCK, Jr., Appellant. 52037, WD 55936. |
| Court | Missouri Court of Appeals |
Amy M. Bartholow, Columbia, for Appellant.
Daniel W. Follett, Jefferson City, for Respondent.
Before: EDWIN H. SMITH, P.J., and HANNA and SPINDEN, JJ.
Robert J. Scurlock appeals 1 the circuit court's judgment of his jury conviction of one count of forgery, § 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 case 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, § 558.016, with one count of forgery, § 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, § 570.090.1(1), and sentencing him as a prior and persistent offender, § 558.016, to twenty years in the Missouri Department of Corrections.
On February 23, 1996, the appellant filed his pro se Rule 29.15 3 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, § 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 458 (1998) (quoting State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989)). In making this determination, the court must accept as true all evidence favorable to the State and reasonable inferences drawn therefrom, and disregard all evidence and inferences to the contrary. Id. " '[T]he relevant question 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 beyond a reasonable doubt.' " Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)). In reviewing whether the evidence presented is sufficient to sustain a criminal conviction, the court must give great deference to the trier of fact. Id. The court "neither weighs the evidence, nor determines the reliability or credibility of witnesses." State v. Burnett, 970 S.W.2d 412, 413 (Mo.App.1998).
To convict the appellant as charged, the State was required to prove each and every element of the crime of forgery beyond a reasonable doubt. State v. Roberts, 948 S.W.2d 577, 590 (Mo. banc 1997), cert. denied, --- U.S. ----, 118 S.Ct. 711, 139 L.Ed.2d 652 (1998). The appellant was charged under § 570.090.1(1), which provides, in pertinent part:
1. A person commits the crime of forgery if, with the purpose to defraud, he
(1) Makes, completes, alters or authenticates any writing so that it purports to have been made by another or at another time or place or in a numbered sequence other than was in fact the case or with different terms or by authority of one who did not give such authority....
Thus, to convict the appellant of forgery under this provision of the statute, the State was required to prove beyond a reasonable doubt that: (1) he made a false writing; and (2) he did so with the purpose to defraud. § 570.090.1(1); MAI-CR 3d 324.20.1. 4 It is the first element that is in dispute here.
With respect to the first element of forgery, making a false writing, the appellant claims that the evidence was insufficient to prove beyond a reasonable doubt that he wrote the check in question. Specifically, he contends that the evidence was insufficient to establish this element because the only evidence presented by the State thereon was that he passed a check drawn on Whitten's account which did not bear Whitten's signature. For its part, the State contends that this evidence was sufficient to establish the requisite element in question, relying on State v. Chambers, 898 S.W.2d 119 (Mo.App.1995), which held that " 'the possession of and attempt to pass a forged instrument raises a presumption or inference that the person in possession forged it and, unless its possession is explained to the satisfaction of the trier of facts, such a presumption becomes conclusive.' " Id. at 121-22 (quoting State v. Taylor, 778 S.W.2d 276, 279 (Mo.App.1989)) (emphasis added). The appellant recognizes not only the holding in Chambers, but numerous other decisions of the Missouri Court of Appeals so holding. 5 However, he contends that these decisions, in creating a presumption of the making of a writing based on the specified circumstantial evidence, allow the State, in effect and in derogation of due process, to shift the burden to the defendant of disproving a requisite element of the offense charged. In so contending, he relies on Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39, 51 (1979) (quoting Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 2329, 53 L.Ed.2d...
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