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Summary of Opinion: Floyd v. The State, A01A0829 (Ga. Ct. App. Aug. 8, 2001)

Factual and Procedural Background

On April 23, 1999, two men drove a white car with a black top through a drive-through lane at First South Bank in Newnan, Georgia. The teller observed suspicious behavior: the men attempted to conceal themselves and looked away when addressed. The driver sent a check through the suction tube made payable to Keith Peters and drawn on The Bonnett Group, Inc.; the check bore a signature in the name of Clint Williams. The teller suspected the check was a forgery, notified the bank manager, and bank personnel called police while continuing the transaction.

Police intercepted a departing white car matching the description. Observing the passenger appearing to stuff paperwork between the passenger door and door panel, officers stopped the car and arrested the two men: Kenneth Floyd (driver) and Douglas Gregory Mooney (passenger). A search revealed several checks tucked into the passenger-side door panel, including a check drawn on The Bonnett Group, Inc., similar to the one just cashed.

Floyd was charged and tried on one count of first degree forgery and one count of second degree forgery. The accusation for first degree forgery alleged that Floyd made and uttered the fraudulent check passed at First South Bank; the second degree forgery accusation alleged knowing possession of the check found in the passenger door. Both accusations mistakenly listed the victim as "The Bonnell Group, Inc." (a typographical error) rather than "The Bonnett Group, Inc." At trial the State presented no handwriting expert linking Floyd to the signature and police handwriting analysis did not connect Floyd to the signature. Following denial of directed verdict motions, the jury convicted Floyd on both counts. On appeal the Court of Appeals reversed the first degree forgery conviction and affirmed the second degree forgery conviction.

Legal Issues Presented

  1. Whether the evidence was sufficient to support a conviction for forgery in the first degree as charged (i.e., that Floyd "made" and "uttered" the forged writing as alleged in the accusation).
  2. Whether the evidence was sufficient to support a conviction for forgery in the second degree based on knowing possession of the forged check found in the passenger door.
  3. Whether a variance (typographical misnomer of the victim's name in the accusation: "The Bonnell Group, Inc." v. "The Bonnett Group, Inc.") was fatal to the conviction for second degree forgery, and whether that challenge was timely.

Arguments of the Parties

Appellant's Arguments (Kenneth Floyd)

  • The State failed to prove the specific manner of the offense alleged in the first degree forgery accusation (that Floyd made and uttered the forged check) because there was no proof that Floyd signed the check — no handwriting expert and no police handwriting analysis linking Floyd to the signature.
  • There was a fatal variance between the accusation and the State's proof because the indictment alleged forging and uttering the endorsement/signature, whereas the proof at trial showed only that Floyd knowingly possessed a forged check (a different manner of committing forgery).
  • The misnomer in the accusation (naming "The Bonnell Group, Inc." rather than "The Bonnett Group, Inc.") constituted a fatal variance or defect in the accusation.

Appellee's Arguments

This opinion does not contain a detailed account of the appellee's legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Jackson v. Virginia, 443 U.S. 307 (99 S. Ct. 2781, 61 L.Ed.2d 560) [1979] Standard governing sufficiency of the evidence on appeal: appellate court determines whether some competent evidence supports each fact necessary to make out the State's case; court does not weigh evidence or determine credibility. Used as the governing sufficiency standard in evaluating Floyd's directed verdict challenge and the sufficiency of evidence for each forgery count.
De Palma v. State, 225 Ga. 465, 469 (169 S.E.2d 801) (1969) Principle that proof must show the offense as alleged in the indictment and that proving the crime in a wholly different manner than alleged subjects the accused to unfair surprise and constitutes a fatal variance. Applied to conclude that, because the accusation alleged Floyd "made" and "uttered" the forged check but the State failed to prove he made/signed it, there was a fatal variance requiring reversal of the first degree forgery conviction.
McGowan v. State, 173 Ga. App. 438, 440 (5) (326 S.E.2d 805) (1985) Authority cited in connection with O.C.G.A. § 16-9-2(a) and the elements of second degree forgery (distinguishing second degree from first degree by absence of requirement to utter or deliver the writing). Referenced as support for the proposition that second degree forgery has the same elements as first degree except there is no requirement that the accused utter or deliver the writing; used in assessing sufficiency for second degree forgery.
Johnson v. State, 211 Ga. App. 151, 152 (438 S.E.2d 657) (1993) Statement that forgery and its individual elements are capable of proof by direct and/or circumstantial evidence, and that circumstantial evidence must only exclude reasonable hypotheses. Applied to uphold the second degree forgery conviction based on circumstantial evidence (e.g., similarity of checks, possession in the vehicle, concealment behavior) that the jury could find excluded reasonable hypotheses other than guilt.
Dennard v. State, 243 Ga. App. 868, 876-877 (2) (534 S.E.2d 182) (2000) Authority for the proposition that a challenge to the form of an indictment (such as misidentification of the victim) must be raised prior to trial. Applied to hold that Floyd waived his misnomer challenge by not raising it timely (prior to trial); the court therefore affirmed that aspect of the conviction.
Arena v. State, 194 Ga. App. 883, 887 (4) (392 S.E.2d 264) (1990) Authority supporting the rule that a challenge to the form of an indictment must be timely or it is waived on appeal. Applied in conjunction with Dennard to find waiver of the misnomer challenge where it was not raised before trial.
McBride v. State, 202 Ga. App. 556, 557 (415 S.E.2d 13) (1992) Example supporting that an otherwise good indictment containing an obvious clerical error is amendable and need not be treated as fatally defective. Referenced to support the conclusion that the typographical error naming "The Bonnell Group, Inc." was a clerical error in an otherwise sufficient accusation and therefore was not a fatal variance to the second degree forgery accusation.

Court's Reasoning and Analysis

The court first stated the governing standard for directed verdict and sufficiency review (citing O.C.G.A. § 17-9-1(a) and Jackson v. Virginia): evidence must be viewed in the light most favorable to the verdict and the appellate court determines only whether there is competent evidence to support each fact necessary to make out the State's case.

On first degree forgery, the accusation alleged that Floyd "made" (i.e., signed) a forged check drawn on The Bonnell Group, Inc., purporting to have been made by Clint Williams, and that he uttered/delivered that writing to First South Bank. The court observed that the State produced no evidence that Floyd signed the check: there was no handwriting expert comparing Floyd's handwriting to the signature, and police handwriting analysis failed to show a connection to Floyd. Relying on the rule that if an indictment sets out the offense as done in a particular way the proof must show it that way (citing De Palma), the court concluded the State failed to prove the specific manner alleged (making/uttering) and that permitting proof of a different manner (possession rather than making/uttering) would be a fatal variance. Accordingly, the court reversed the first degree forgery conviction.

Turning to second degree forgery, the court noted the elements are the same as first degree except there is no requirement that the accused utter or deliver the writing (citing O.C.G.A. § 16-9-2(a) and McGowan). The court applied the standard for circumstantial evidence (citing Johnson): circumstantial evidence need only exclude reasonable hypotheses, not every possible inference. Viewed in the light most favorable to the verdict, the evidence showed: (1) a forged Bonnett Group, Inc. check had just been cashed at the bank; (2) a similar check drawn on The Bonnett Group, Inc. was found stuffed in the passenger door of Floyd's car; and (3) Floyd was the driver who had submitted the earlier forged check while attempting to conceal his identity. The jury reasonably could exclude other reasonable hypotheses and find Floyd knowingly possessed the forged check beyond a reasonable doubt; thus the court affirmed the second degree forgery conviction.

The court also addressed the accusation's typographical misnomer ("The Bonnell Group, Inc." v. "The Bonnett Group, Inc."). It held that such a challenge to the indictment's form must be raised prior to trial (citing Dennard and O.C.G.A. § 17-7-113 and Arena). Because Floyd did not raise the misnomer until his motion for directed verdict, he waived the issue on appeal. Even if not waived, the court found the misnomer to be an obvious clerical error in an otherwise sufficient accusation that was amendable and provided adequate notice of the charge.

Holding and Implications

Judgment affirmed in part and reversed in part.

Holding:

  • The conviction for forgery in the first degree is reversed because the State failed to prove the specific manner of the offense as alleged (that Floyd made/signed and uttered the forged check).
  • The conviction for forgery in the second degree is affirmed because the evidence (including circumstantial evidence) supported a finding that Floyd knowingly possessed the forged check found in the vehicle.

Implications:

  • The direct effect on the parties is that Floyd's first degree forgery conviction is vacated and his second degree forgery conviction remains in place.
  • The decision applies established sufficiency and variance principles to the facts of this case; the opinion does not announce any new legal rule beyond the application of those existing principles.

Decision rendered Aug. 8, 2001; reconsideration denied Aug. 24, 2001. Opinion by Miller, Judge; Andrews, P.J., and Eldridge, J., concur.

FLOYD v. THE STATE

MILLER, Judge.

Kenneth Floyd appeals from his convictions on one count of forgery in the first degree and one count of forgery in the second degree. We find that the evidence was insufficient to sustain a verdict on first degree forgery and reverse that conviction. We find that the evidence was sufficient to sustain the conviction on second degree forgery and affirm that conviction.

Viewed in the light most favorable to the verdict, the record reveals that on April 23, 1999, two men drove a white car with a black top into a drive-through lane at a First South Bank in Newnan, Georgia. Although all of the drive-through lanes were open, the men drove into the third drive-through lane, which was farthest from the teller window, which made it difficult for the teller to see the men in the car. The teller believed that the men were acting suspiciously, as every time she tried to speak to them they looked away and concealed themselves from the teller.

The driver sent a check through the suction tube to the window teller that was made payable to Keith Peters and drawn on the account of The Bonnett Group, Inc. The check was signed in the name of Clint Williams. The bank teller suspected that the check was a forgery, as she had been warned previously by the bank manager about fraudulent checks that had been submitted to the bank in the recent past and made out in the name of Keith Peters. The teller informed the bank manager of the suspected forgery, and as the teller continued the transaction with the men cashing the check, bank personnel called the police.

The police arrived on the scene just as a white car with a black top matching the description given by bank personnel was leaving the bank. As the police surrounded the car, they saw the passenger hold up a newspaper and begin stuffing some sort of paperwork between the door and the door panel on the passenger side of the car with his right hand. The police pulled the car over, and after concluding that the two men in the car were the suspects from the bank forgery, arrested them for forgery. Kenneth Floyd was the driver and Douglas Gregory Mooney was the passenger. A search of the car revealed several checks stuffed into the space between the passenger door and the door panel, one of which was a check drawn on the account of The Bonnett Group, Inc., similar to the one that had just been cashed at the First South Bank moments earlier.

The accusation against Floyd upon which he was convicted of first degree forgery stated that he made the fraudulent check that was passed at First South Bank. The accusation against Floyd for second degree forgery stated that he knowingly possessed the check that was stuffed between the passenger door and door panel of his car. Both accusations listed The Bonnell Group, Inc., as opposed to The Bonnett Group, Inc., as the victim of the forgeries.

Handwriting analysis by the police department failed to show that it was Floyd who signed the check passed at First South Bank. The State further provided no expert witness to show any comparison between the handwriting on the check and Floyd's handwriting. Following the denial of his motion for a directed verdict on both counts of forgery, Floyd was convicted on both counts.

1. A directed verdict is proper "[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty as to the entire offense or to some particular count or offense. . . ."

[T]he evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307 ( 99 S. Ct. 2781, 61 L.Ed.2d 560) [1979]. . . . As long as there is some competent evidence . . . to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

(Punctuation omitted.) O.C.G.A. § 17-9-1 (a).

Floyd contends that based on the manner in which the State chose to proceed, there was insufficient evidence to convict him of first degree forgery. We agree and reverse the conviction.

"A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such a manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing."

O.C.G.A. § 16-9-1 (a).

Although there are several ways to prove forgery in the first degree, the accusation states that Floyd:

did . . . unlawfully with intent to defraud, knowingly make a certain writing, [a check] drawn on the account of THE BONNELL GROUP, INC. [sic] at First South Bank; in such a manner that the writing as made purports to have been made by Clint Williams, but the signature thereon is not Clint Williams's signature and not signed with Clint Williams's and The Bonnell Group, Inc.'s [sic] authority, and said accused did utter said writing to First South Bank, contrary to the laws of said State, the good order, peace and dignity thereof.

The accusation does not state the alternative means of altering or possessing a writing and uttering or delivering same as additional bases for a conviction of forgery in the first degree.

If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. . . . [N]o averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance.

"To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance under the standards enunciated in De Palma v. State. "

(Citations and punctuation omitted.) Id.; De Palma v. State, 225 Ga. 465, 469 ( 169 S.E.2d 801) (1969).

The State presented no evidence that Floyd signed the check that was passed at First South Bank. There was no handwriting expert at trial to connect Floyd's handwriting to the signature on the check. In addition, handwriting analysis conducted by the police failed to show any connection between the forged check and Floyd.

It is of no consequence that the state's evidence may have showed and may have authorized a finding that, in violation of [O.C.G.A. § 16-9-1 (a)], appellant knowingly possessed the check containing the forged endorsement of [Clint Williams] . . . . The indictment alleged that appellant had violated [O.C.G.A. § 16-9-1 (a)] by forging the endorsement of [Clint Williams].

As such, we must reverse Floyd's conviction for first degree forgery.

However, we find that the evidence was sufficient to sustain a guilty verdict for second degree forgery. The elements for proving second degree forgery are the same as those for first degree forgery, except that there is no requirement that the accused utter or deliver the writing. Floyd contends that there was insufficient evidence to show that he knowingly possessed the forged check that was found stuffed between the door and the door frame on the passenger's side of the car, since he did not stuff the check into the door frame and the passenger held up a newspaper to obscure his view. We disagree.

See O.C.G.A. § 16-9-2 (a); McGowan v. State, 173 Ga. App. 438, 440 (5) ( 326 S.E.2d 805) (1985).

"[F]orgery and each individual factual element thereof are capable of proof by direct and/or circumstantial evidence. To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of defendant's guilt." Viewed in the light most favorable to the verdict, the evidence at trial revealed that the check found in the passenger door was drawn on the account of The Bonnett Group, Inc., just like the one that had just been submitted to the First South Bank moments earlier. Floyd was the driver of car in which the second Bonnett Group, Inc. check was found, and it was the driver who had previously submitted the other forged Bonnett Group, Inc. check to the bank while attempting to conceal his identity from the teller. We conclude that based on the evidence, the jury rationally could have excluded every reasonable hypothesis other than defendant's guilt and found Floyd guilty of second degree forgery beyond a reasonable doubt.

(Citations and punctuation omitted.) Johnson v. State, 211 Ga. App. 151, 152 ( 438 S.E.2d 657) (1993).

See id. at 151-152 (evidence supported second degree forgery conviction where defendant denied knowledge of checks found in glove compartment that were similar to a check he had earlier attempted to cash).

2. Floyd also contends that a fatal variance existed between the accusation and the State's proof at trial, since the accusation listed The Bonnell Group, Inc., as opposed to The Bonnett Group, Inc., as the victim of the forgeries for which he was convicted. Since Floyd did not raise this challenge in a timely manner and the variance was only a typographical error, we affirm.

In light of our reversal of Floyd's conviction for first degree forgery, we need only address this issue with respect to the accusation for second degree forgery.

A challenge to the form of an indictment, such as an improper identification of the victim, must be made prior to trial. If the challenge is not made in a timely manner, it is waived for appeal. Floyd did not raise any issue regarding the misnomer in the accusation until his motion for a directed verdict at trial, and he has therefore waived this issue on appeal.

See Dennard v. State, 243 Ga. App. 868, 876-877 (2) ( 534 S.E.2d 182) (2000).

O.C.G.A. § 17-7-113.

Arena v. State, 194 Ga. App. 883, 887 (4) ( 392 S.E.2d 264) (1990).

Even if the issue had not been waived, we find no fatal variance here. This court will not find a fatal variance based on something that "was obviously a clerical error in an otherwise good indictment." The indictment was easily amendable, provided sufficient information to inform Floyd of the crime with which he was charged, the date of the alleged offense, the amount of the check in question, and enough information to ensure that Floyd could not be prosecuted again for the same offense. Judgment affirmed in part and reversed in part. Andrews, P.J., and Eldridge, J., concur.

Id.

Id.

See, e.g., McBride v. State, 202 Ga. App. 556, 557 ( 415 S.E.2d 13) (1992).

MILLER, Judge.

DECIDED AUGUST 8, 2001 — RECONSIDERATION DENIED AUGUST 24, 2001.

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FLOYD v. STATE
(Aug 8, 2001)