Defendant acknowledges that our cases repeatedly have held that the characterization by some such word as "uncontroverted" — such as "unchallenged", or "undisputed", or "uncontradicted" is not a forbidden reference to defendant's failure to testify. State v. Jones, 491 S.W.2d 271, 274 (Mo. 1973); State v. Loggins, 698 S.W.2d 915, 919 (Mo.App. 1985): State v. Sanford, 605 S.W.2d 219, 222 (Mo.App. 1980). Defendant calls attention, though, to another statement of the prosecutor in closing argument, where he said: " Now, what about what the defendant says?
In State v. Gantt, 504 S.W.2d 295, 300 (Mo.App. 1973), the court stated "that the possession of and an attempt to pass a forged instrument raises a presumption that the person in possession forged it". See also State v. Bailey, 659 S.W.2d 559, 562 (Mo.App. 1983) (this principle more properly described as creating an inference); State v. Sanford, 605 S.W.2d 219, 221 (Mo.App. 1980) (recognizing principle but finding it immaterial to the charge of uttering a forged instrument). Defendant acknowledges such decisions but states, "In spite of earlier court decisions, Defendant contends that it is unreasonable for the act of cashing a forged check to raise the inference that the possessor of the check forged it. Accordingly, Defendant contends that the evidence was insufficient to sustain his conviction."
These elements are taken as established. State v. Sanford, 605 S.W.2d 219, 221[3] (Mo.App. 1980), citing, State v. Gantt, 504 S.W.2d 295, 300[6] (Mo.App. 1973). In order to rebut the inference, the defendant must explain his possession of the instrument to the satisfaction of the trier of the fact.
Defendant contends that because while they were in the bank Phelps possessed the check, and attempted to cash it, the jury should have been advised that there was a presumption that he forged it or caused it to be forged. Although as defendant states, it is sometimes described as a presumption, see State v. Sanford, 605 S.W.2d 219, 221 (Mo.App. 1980), we believe that what defendant is contending is a presumption might more properly be described as creating an inference. See State v. Dennis, 622 S.W.2d 404, 405-406 (Mo.App. 1981).
There was no prejudice to defendant by the remark nor was there any abuse of discretion by the trial court in sustaining the objection on the basis of relevancy of the question. State v. Rothaus, 530 S.W.2d 235, 237 (Mo.banc 1975); State v. Brueckner, 617 S.W.2d 405, 409-10 (Mo.App. 1981); State v. Sanford, 605 S.W.2d 219, 222 (Mo. App. 1980); Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.App. 1975). Defendant's counsel actually made "a motion to strike the reference of the prosecutor that he anticipated the defense is going to be consent ...., which we interpret as a request to instruct the jury to disregard the remark.
When the prosecutor's remarks are not direct and certain references to the absence of testimony by defendant, the reviewing court must consider the context in which the statement appears and will not interfere unless the record reveals an abuse of trial court discretion to the prejudice of defendant. State v. Rothaus, 530 S.W.2d 235, 237 (Mo.banc 1975); State v. Brueckner, 617 S.W.2d at 410; State v. Sanford, 605 S.W.2d 219, 222 (Mo. App. 1980); Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.App. 1975). A potentially prejudicial comment may be rendered harmless by prompt trial court action sustaining defendant's objection and instructing the jury to disregard the offensive remark.