Opinion
No. 22391-4-III
Filed: May 10, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No. 03-1-00434-4. Judgment or order under review. Date filed: 09/10/2003. Judge signing: Hon. Vic L. VanderSchoor.
Counsel for Appellant(s), Sharon Marie Brown, Attorney at Law, PO Box 2173, Hillsboro, OR 97123-2173.
Counsel for Respondent(s), Terry Jay Bloor, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Pl, Kennewick, WA 99336.
This is an appeal from a conviction for forgery. The main challenge is to the sufficiency of the evidence. But Amber Baldwin also asserts prosecutorial misconduct as grounds for reversal. The evidence is sufficient to convict here. And the prosecutor's comments did not deprive her of a fair trial. We therefore affirm her conviction.
FACTS
Teena Minic owns and manages Wild Palm's Tanning. Becky Stevens was a customer. Ginger Johnson makes gift baskets and floral arrangements. She left business brochures and Home Interior books at the tanning salon. Ms. Minic talked to both Ms. Stevens and Ms. Johnson. She asked them to give statements in the dissolution and custody case between Danielle and Bradley Purvis. Ms. Johnson agreed to talk but would not put her comments in writing. Ms. Stevens did not want to get involved.
Amber Baldwin worked at the tanning salon. She is Mr. Purvis's girl friend. Ms. Baldwin handed Mr. Purvis written declarations purporting to be from Ms. Stevens and Ms. Johnson. Mr. Purvis in turn handed them to his attorney and Heather Thomas, the guardian ad litem.
Neither Ms. Stevens nor Ms. Johnson wrote or signed the declarations. Ms. Stevens confronted Ms. Minic. Ms. Minic called Ms. Stevens and asked if Ms. Baldwin could call her to apologize. Ms. Baldwin called Ms. Stevens and told her `[s]he was sorry' she had written the statement. Report of Proceedings (RP) (Sept. 9, 2003) at 16. She told Ms. Stevens that Mr. Purvis did not know how she secured the declarations and asked her not to involve him. Ms. Baldwin was `very upset' and `crying.' Id. at 17, 28. And she was `[v]ery apologetic about writing the statement.' Id. at 28. The State charged Ms. Baldwin with one count of forgery. A jury convicted her.
DISCUSSION Sufficiency of the Evidence
Ms. Baldwin argues that the evidence to convict is insufficient. We review a challenge to the sufficiency of the evidence in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The challenge admits the truth of the State's evidence and all reasonable inferences. Id. We defer to the trier of fact and will affirm where it could have found the essential elements of the crime beyond a reasonable doubt. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992); Salinas, 119 Wn.2d at 201.
Forgery requires an `intent to injure or defraud.' RCW 9A.60.020(1). And the defendant must either falsely make, complete, or alter a written instrument or possess, utter, offer, dispose of, or put off as true a written instrument which she knows to be forged. RCW 9A.60.020(1)(a), (b). Ms. Baldwin wrote the declarations underlying the charge here. She called Ms. Stevens and told her `[s]he was sorry.' RP (Sept. 9, 2003) at 16. She said that `her boyfriend didn't know about it' and `she didn't want [him] to find out.' Id. at 28, 17. `She did not want [Ms. Stevens] to be involved.' Id. at 17. `She was very upset' and `crying at the time.' Id.
An expert for the State testified there are two types of forgeries — simple forgeries and simulated forgeries. A simulated forgery requires access to the genuine signature; a simple forgery does not. The expert identified these signatures as simulated forgeries. Ms. Stevens had a signature card on file at Wild Palm's Tanning. And Ms. Johnson's signature was on the back of the Home Interior books she left at the salon. Ms. Baldwin worked at Wild Palm's Tanning and had access to both signatures. The evidence here is more than sufficient to satisfy the elements of forgery.
Prosecutorial Misconduct
Ms. Baldwin next argues that the prosecutor made several improper and prejudicial comments during the closing arguments.
Prosecutorial misconduct may deny a criminal defendant the right to a fair trial. State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984). But the defendant must show that the prosecutor made improper comments and that the comments prejudiced the jury. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). And there must be a `substantial likelihood' that the jury verdict was affected. State v. Trout, 125 Wn. App. 403, 417, 105 P.3d 69 (2005). We review the prosecutor's comments in the `context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.' Russell, 125 Wn.2d at 85-86.
The mere fact that an improper comment was made does not require reversal. Id. at 86. The remark must be so prejudicial that it could not have been cured by an instruction or admonition to the jury. Id.
A criminal defendant has no obligation to present evidence of his innocence. State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 (1996). The burden is on the State to prove each element of the crime. Id. The prosecutor may not argue facts not introduced into evidence. State v. Smith, 67 Wn. App. 838, 844, 841 P.2d 76 (1992); see State v. Barrow, 60 Wn. App. 869, 873-74, 809 P.2d 209 (1991). The prosecutor is also prohibited from expressing his personal opinion about the credibility of a witness or the guilt of the accused. State v. Robinson, 44 Wn. App. 611, 624, 722 P.2d 1379 (1986); State v. Allen, 57 Wn. App. 134, 142, 788 P.2d 1084 (1990). The prosecutor may, however, argue inferences from the record. Robinson, 44 Wn. App. at 624.
The problem here is that the prosecutor waded into facts during his closing arguments that were not addressed during trial. Specifically, he discussed the dates Ms. Thomas was involved as a guardain ad litem in Mr. and Ms. Purvis's dissolution matter. And those dates are not part of this record. The fact question he tried to discuss with the jury was whether there was an overlap between the time Ms. Thomas worked on the Purvis dissolution case and the time she hired Mr. Purvis's attorney in her own dissolution proceeding. Ms. Baldwin argues the dates introduced by the prosecutor were incorrect. She suggests that the correct dates would have shown Ms. Thomas's bias when she investigated the forged declarations since she did not investigate Mr. Purvis's attorney. There are several problems with the argument.
First, Ms. Baldwin did not object to the comments during closing arguments or request a curative instruction. Second, Ms. Thomas' investigation, biased or not, does not change our conclusion that the facts supported the essential elements of this crime. Ms. Baldwin gave the declarations to Mr. Purvis. Mr. Purvis gave the same declarations to his attorney. The attorney did not produce or alter the declarations. He filed the declarations given to him.
Ms. Baldwin also cites as error the prosecutor's statement that she could have called Ms. Minic to testify. But the comment was in response to the defense's closing argument. The defense asked why the State had not called Ms. Minic to testify. The comment does not suggest that Ms. Baldwin was required to call a witness, or even that she should have. Instead, the comment was limited to:
Likewise they don't have to — the defense can call anybody they want to call. The police officer went out to the tanning salon. He tried to reach Teena Minic. He left responses. If they wanted information they want to bring up the defense has the — they can do the same thing they could have called her —
RP (Sept. 9-10, 2003) at 102.
Ms. Baldwin objected to the comment. But the statement, even if improper, was not so prejudicial as to require reversal. Russell, 125 Wn.2d at 85; State v. Cleveland, 58 Wn. App. 634, 648, 794 P.2d 546 (1990).
Ms. Baldwin also challenges the prosecutor's comments about the credibility of one of the State's witnesses: `My colleague also talked about Becky Stevens. If you heard any inconsistencies in her testimony, fine. I can tell you there weren't any as far as I can remember. Or as far as I can recall. And you know I was paying pretty darn good attention.' RP (Sept. 9-10, 2003) at 103.
These comments appear to represent the prosecutor's recollection of the evidence; not his personal opinion. Allen, 57 Wn. App. at 142. And they certainly would not overcome the jury's ability to analyze the credibility of the witness. Barrow, 60 Wn. App. at 878-79.
Additional Grounds for Review
Ms. Baldwin raises additional arguments as to the sufficiency of the evidence and the comments made by the prosecutor during closing arguments. There is, however, sufficient evidence for the conviction. Ms. Baldwin also did not object to any of the statements she now challenges. The statements do not meet the required level of prejudice for reversal. Trout, 125 Wn. App. at 417; Barrow, 60 Wn. App. at 878-79; Allen, 57 Wn. App. at 142.
We affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and BROWN JJ., Concur.