McGarvey v. State

2002 WY 149, 55 P.3d 703, 2002 Wyo. LEXIS 164, 2002 WL 31206400
CourtWyoming Supreme Court
DecidedOctober 4, 2002
Docket01-133
StatusPublished
Cited by10 cases

This text of 2002 WY 149 (McGarvey v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGarvey v. State, 2002 WY 149, 55 P.3d 703, 2002 Wyo. LEXIS 164, 2002 WL 31206400 (Wyo. 2002).

Opinion

VOIGT, Justice.

[T1] This is an appeal from an Amended Judgment and Sentence issued by the district court on April 20, 2001. A jury conviet-ed the appellant, Karen McGarvey (McGar-vey), of one count of burglary in violation of Wyo. Stat. Aun. § 6-8-301(a) (LexisNexis 2001) and two counts of forgery in violation of Wyo. Stat. Ann. § 6-3-602(a)(ii) (Lexis-Nexis 2001)-one felony count relating to the passing of checks and one relating to credit card use. The district court imposed concurrent prison sentences of five to ten years for each conviction. McGarvey appeals only the burglary and check forgery convictions. We affirm.

ISSUES

[12] The issues presented by McGarvey are:

1. Whether the evidence presented to the jury was sufficient to sustain a conviction for forgery, when the best evidence offered by the State was the testimony of its expert witness who could only testify that it was probable that Ms. McGarvey wrote the checks?
2. Whether the evidence presented to the jury was sufficient to sustain a conviction for burglary, when the State failed to prove more than that Ms. McGarvey was in possession of recently stolen property?

FACTS

[13] On November 6, 2000, between the hours of 4:00 p.m. and 6:49 p.m., a car burglary occurred at the Sands Cafe Restaurant in Rock Springs. Leah Bucknell (Bucknell), the owner of the vehicle, reported that her black purse had been stolen, and that it contained a Gold MasterCard, a checkbook, her driver's license, and a spare key to the car.

[14] On November 7, 2000, Bucknell and her husband reported to police that their credit card had been used at several area businesses, including the Days Inn. Officers went to the Days Inn and discovered that an individual purporting to be Bucknell had rented room 863 for two days. The officers went to the room and made contact with that person, who turned out to be McGarvey. Officers also discovered McGarvey's vehicle at the Days Inn, and they learned that there was an active warrant for her arrest. During a search incident to McGarvey's arrest on the outstanding warrant, Bucknell's checkbook was found in McGarvey's coat pocket. The police also found Bucknell's Gold MasterCard, driver's license, and the spare car key in McGarvey's possession. An officer observed a black purse on the floor of McGarvey's car, and Bucknell subsequently identified the purse and the other items as hers. Bucknell also noted that four checks were missing from the checkbook. .The desk clerk at the Days Inn identified McGarvey from a photo lineup as the person who signed the name Leah Bucknell to the guest register and to the credit card receipt for rental of *705 the room. Bucknell's first name had been misspelled on the receipt as "Legh" rather than "Leah."

STANDARD OF REVIEW

[T5] The standard of review has been stated as:

When addressing a claim that the evi-denee is not sufficient to sustain the conviction for a crime ... [wle assess whether all of the evidence ... presented was adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a fact-finder when that evidence is viewed in a light most favorable to the State. We will not substitute our judgment for that of the jury when we apply [this] rule, and our only duty is to determine whether a quorum of reasonable and rational jurors would, or even could, have come to the same result as the jury actually did in the case under review.

Mueller v. State, 2001 WY 134, 1 22, 36 P.3d 1151, 1159 (Wyo.2001).

DISCUSSION

CBECcK

[T6] McGarvey contends that this Court: should reverse her conviction for check forgery because the State's best evidence was insufficient to support a guilty verdict. She argues that the State's primary evidence was its handwriting expert, who testified that there were only "indications" that McGarvey had written the checks. 1

[T7] With regard to forgery, Wyo. Stat. Ann. § 6-3-602(a)(ii) provides, in pertinent part:

A person is guilty of forgery if, with intent to defraud, he:
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(ii) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act[.]

[18] The evidence presented at trial revealed a chain of events beginning with McGarvey checking into a room at the Springs Motel in Rock Springs in the late afternoon or early evening of November 6, 2000. By 6:49 p.m., the rear passenger side window of Bucknell's vehicle had been broken out, her purse had been stolen from it, and someone had used her credit card and checkbook. Four checks were written from the checkbook, numbers 245, 246, 247 and 249, and someone used or attempted to use the credit card three times on the evening of November 6th.

[19] An individual identified as McGar-vey arrived at the Days Inn around 10:30 pm., and used Bucknell's credit card to rent room 363. McGarvey signed the register as "Legh Bucknell," a misspelling of Leah Bucknell's name. Bucknell's check number 245 was passed at Smith's grocery at 6:49 pm. and was also signed "Legh Bucknell."

[110] The following morning at approximately 10:30 a.m., McGarvey was found in room 363 at the Days Tun, arriving sometime between 9:00 am. and 10:30 am. When McGarvey arrived at room 868, she had Bucknell's driver's license, credit card, checkbook, and spare car key that had been in Bucknell's purse. The stolen purse was in the vehicle registered to McGarvey, which was parked in front of room 368. McGarvey also had in her possession a Smith's grocery store cash register receipt that contained information concerning goods purchased with check number 245 from Bucknell's checkbook.

[T11l Based on the foregoing, the jury concluded that McGarvey unlawfully had passed a check from Bucknell's checkbook. McGarvey possessed the stolen checkbook *706 that contained the forged checks, and she also had the cash register receipt corresponding to the items purchased at Smith's grocery store the previous evening. In addition, it is undisputed that McGarvey used Bucknell's credit card to rent the room at the Days Inn, and used the same misspelling of Bucknell's first name as that found on check number 245. This evidence indicated that McGarvey not only had the opportunity to pass herself off as Bucknell, but also showed her disposition to do so. The evidence of opportunity to commit the act is a link which, considered in connection with other incriminating facts, can prove that McGarvey committed the alleged crime. See Jones v. State, 568 P.2d 837, 845 (Wyo.1977).

[T12] While the State's handwriting expert could not conclusively determine that McGarvey had signed the forged checks, he could not exclude her either. The signature on all the forged checks showed "indications" that McGarvey had signed them. This, in itself, would not suffice to convict McGarvey, but is probative and corroborative evidence that McGarvey executed the checks.

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Bluebook (online)
2002 WY 149, 55 P.3d 703, 2002 Wyo. LEXIS 164, 2002 WL 31206400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgarvey-v-state-wyo-2002.