State v. Tomlinson

450 So. 2d 380, 1984 La. App. LEXIS 8447
CourtLouisiana Court of Appeal
DecidedMarch 26, 1984
DocketNo. 15826-KA
StatusPublished
Cited by3 cases

This text of 450 So. 2d 380 (State v. Tomlinson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tomlinson, 450 So. 2d 380, 1984 La. App. LEXIS 8447 (La. Ct. App. 1984).

Opinion

MARVIN, Judge.

Tomlinson appeals his conviction of transferring with intent to defraud, a forged writing, known by him to have been forged (LRS 14:72, in part) and his sentence to five years at hard labor. LSA-Const. Art. 1, § 20.

Defendant’s first three assignments essentially question the legal sufficiency of the bill of information and of the evidence upon which the conviction is based. We affirm.

On the morning of March 12, 1982, an employee of a savings and loan bank in Ouachita Parish, Ms. Banks, was asked by the defendant, who was sitting in a truck in the bank parking lot before the bank opened, whether she was a bank employee and whether she would make a deposit for him. She agreed and watched defendant write what she said was a deposit slip, which he gave her with two checks and some money. The deposit slip listed $231 in cash, a personal check of Donald Brown payable to defendant’s order for $56.56, and a check of the Louisiana Office of Employment Security payable to the order of GARY L. ELLIS for $164. The $56.56 check payable to defendant was endorsed by defendant. The $164 check payable to Gary L. Ellis was endorsed Gary Brooks Ellis. The bank credited defendant’s account with the deposit as the deposit slip directed. A copy of the deposit slip and of the GARY BROOKS ELLIS endorsement on the reverse of the $164 check is reproduced here:

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Ms. Jackson, another employee of the bank, who had seen defendant and Ms. Banks in the parking lot, received the deposit from Ms. Banks. Before crediting the deposit to defendant’s account, Ms. Jackson wrote “for deposit” on the reverse of the $164 check and placed defendant’s account number thereon because the bank required this information on the check.

Donald Brown testified that he wrote the $56.56 check to defendant to pay defendant for mechanical work defendant did on Brown’s automobile. Gary L. Ellis testified that he did not know defendant, had never dealt with defendant, did not know how defendant came into possession of the $164 check, that he did not receive his state unemployment check for the week of February 27, and that the endorsement GARY BROOKS ELLIS on the check was not his signature or a name which he had ever used. Police witnesses testified that the driver’s license number written beneath the endorsement did not relate to any GARY [383]*383BROOKS ELLIS but belonged to a white 51-year-old female in Lake Charles, Louisiana, a Ms. Chasson.

Exemplars of defendant’s handwriting and signature, the deposit slip and the $164 check were given to the Northwest Louisiana Criminalistics Laboratory for analysis. The crime lab was also given exemplars from Gary L. Ellis. The handwriting expert reported that Gary L. Ellis did not endorse the $164 check, that there were some similarities between the defendant’s exemplars and the writing on the deposit slip and the endorsement on the check, that neither the writer of the deposit slip nor the writer of the endorsement GARY BROOKS ELLIS could be identified from the handwriting, and that the endorsement was “disguised” writing.

Defendant did not testify. He argues that identification of him by the two bank employees is suspect or suggested and does not prove that he was the man who gave the checks and deposit slip to Ms. Banks. We find this argument without merit. Both of the bank employees picked defendant’s picture from a photographic line-up when the police conducted an investigation and both identified him in the courtroom as the man in the parking lot. This is direct evidence that defendant was the person who wrote something and who gave the deposit slip, the checks and the money to Ms. Banks and asked her to make the deposit for him when he learned she was a bank employee. Defendant effectively “transferred" these items to Ms. Banks, an employee of the savings and loan bank, in the parking lot just as if he had waited until the bank opened and had conducted business over the counter with her.

The evidentiary issue in these circumstances' is not whether the state proved that defendant transferred a forged writing. The forgery and the transfer were clearly proved by direct evidence and beyond a reasonable doubt. The issue is whether the check was known by defendant to be a forged writing, and if so, whether defendant transferred it with the intent to defraud. LRS 14:72.

Defendant argues that the only evidence from which it could be concluded that he knew the endorsement on the check was forged was the fact of his unexplained possession of the check (assuming its transfer by defendant, which he does not concede, but which we find was proved). From this premise, defendant asserts that his unexplained possession of the check cannot be the basis of proof of knowledge because it would reflect upon his constitutional right to remain silent and to be presumed innocent. The fact of possession of a forged writing, defendant says, is unlike the possession of goods recently stolen, and does not give rise to a presumption of knowledge or a presumption that the possessor is the forger. Compare LRS 15:432. See also State v. Spears, 363 So.2d 479 (La.1978); State v. Bergeron, 371 So.2d 1309 (La.1979); State v. Fournier, 395 So.2d 749 (La.1981); State v. Kaufman, 278 So.2d 86 (La.1973); State v. Rock, 162 La. 299, 110 So. 482 (1926); State v. Goiner, 410 So.2d 1085 (La.1982).

While we do not agree with defendant’s premise or with his ultimate conclusion, we agree that the state bears the burden of proving every element of the crime charged beyond a reasonable doubt and that the mere possession of a forged writing does not prove beyond a reasonable doubt that the possessor knows that the writing is forged. LRS 15:271. State v. Goiner, supra.

In Goiner, Helen Goiner presented a prescription for a CDS to a pharmacist that was written by a doctor to Helen Johnson. Suspecting, and later confirming, that the doctor’s signature on the prescription was a forgery, the pharmacist alerted the police. After Ms. Goiner returned and picked up the prescribed CDS, she was arrested by the police and was charged with knowingly obtaining a CDS by fraud and deceit and with possession of CDS. The trial judge acquitted Ms. Goiner of the charge of obtaining by fraud and deceit and convicted her of possession of CDS. The su[384]*384preme court reversed that conviction on appeal, saying that the acquittal of the charge of obtaining by fraud and deceit eliminated any evidence of the guilty knowledge element of the possession charge.

In the crime charged in Goiner, it was necessary that the state prove guilty knowledge in two respects, defendant’s knowledge that she possessed a CDS and defendant’s knowledge that the CDS had been obtained by a forged prescription. LRS 40:969 C, 410 So.2d at 1088. When Ms. Goiner was acquitted of the charge of obtaining by fraud and deceit (knowledge of the forged writing), there was, in fact, no evidence upon which to base proof of Ms. Goiner’s possession of CDS with knowledge that it had been obtained by an invalid or forged prescription.

Knowledge, like intent, must often be inferred from the totality of the circumstances of a transaction when it is an element of the crime charged. It need not be proven as a tangible fact. See LRS 15:445.

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Related

State v. Ford
473 So. 2d 931 (Louisiana Court of Appeal, 1985)
State v. Tomlinson
452 So. 2d 168 (Supreme Court of Louisiana, 1984)

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Bluebook (online)
450 So. 2d 380, 1984 La. App. LEXIS 8447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tomlinson-lactapp-1984.