THI RD DI VI SI ON BA RN ES , P. J ., BOGG S and BRAN CH, JJ. NOTICE: Motions for reconsideratio n m ust be physically

received

in our clerk’s office with in ten days of the date

of decisi on to be deeme d timely filed. http://ww w.gaappeals.us/rules/ September 4, 2014



# In the Court of Appeals of Geo rgia
A14A0934 . BET TES v. THE STATE. B RANCH , Judge. Michael Jerome Bettes appeal s the de nialof his motion for new tri al f

ollowi ng his conviction on one count of for gery in t

he fi rst degree . He cont end s that the evidence wa s insu fficien t to su ppo rt the v erdic t and that th e trial co urt erredby

exc lu di ng c erta inevi den ce . F orth e r ea son s that fo ll ow, we a ff

ir m. On criminal appeal, a

ppellant i s no longer presumed innocent and allof the evidenc e is to be viewed i n the l ight most favo rabl e to the jury verd ict. This C ourt does no t reconsider evidence or attemp t to confirm the accur acy of t estimony. Assess ing a wit ness’ s cre dibil ity i s the resp on sib ility of th e fac tfin der , no t this Co urt. Batten v. Sta te , 295 Ga. 442, 443 (1) (Case No. S14A0941, de ci ded June 30, 2014) (ci tat ions omitted). Instead, we review the case “to det ermine if t he eviden ce, w hen2

viewed in the li ght most favorable t o the prosecuti on, supports the verdict. ” Willis v. State , 263 Ga. 597, 598 (1) ( 436 SE2d 204) (1993), cit ing Jackson v . Vir ginia, 443 U. S. 307, 319 (3) (B) (99 SCt 2781, 61 LEd2d 560) ( 1979). Upon re view of the suffici ency of the evidenc e, “t he rel evant que sti on is whether, aft er vi ew ing the evidence in the light m ost fa vor able to th e pr ose cut ion , any rati onal trier of fact co uld have found the essenti al ele ments of the cri me beyond a reasonable doubt.” Russu v. State , 321 Ga. App. 695, 696 (1) (742 SE2d 511) (2013) (appl ying Jackson v. Virg inia in a forgery case) (citation, punctuation and footno te omitted; emphasis in original). The evidenc e pres ented at trialshows that on Janu ary 6, 20 10, Bettes approached Caro l Tate , a t ell er at McIntosh State Bank i n Locust Grove , and presenteda check dated January 3, 2010, made out to “Mihael(si c) J Bettes” in the amount of $1,720, that

appear ed be drawn on the account of Southea ster

n Roof Decks, Inc. atthe McIn tosh State Bank; the c heck, with the e xception of the s ignature which purported to be th at

of Jo hn D u ma s, th e owner of Southeaster Roof Decks, was typewri tte n. Tate was aw are th at a day or two earli er, another tel ler at the same bank had cashed, for

a differ ent person, a

check that provedto be fraudulent thathad been dr awnon the same account ; Tat e had been war ned to be onaler

t for ano ther in ciden t. Tat e t here fore a sked for B ettes’s iden tificatio n, w hich he p rov ided , and Tate told3

Bettes that sh e had to ob tain v erific ati on of the account holder ’s signat ure; she then cop ied Bettes’s identificati on and p laced a telephone call to Dum as. Base d on tha t
convers ati on, Tate contacted t he police; Officer Curnutt arrived about 10 minutes later. Du ring that tim e, Be ttes did not ask for his i denti fic ati on to be r eturned and he did not fl ee. Upon Curnutt’ s arr ival , Bettes c oop erat ed w ith the office r. Cu rnu tt thereaf terarre sted Bet

tes ba sed on his convers ati on with Tat e and Bett es; he did not

con tact D um as o r an yo ne e lse a t So uth eas tern Ro of D eck s. Dum as testi fied that his comp any, which ap plies insulating concrete to roofs, has 12 full-time a nd a pproxim ately 8 part-time employe es, and that it does not hire subcontractors or day laborers. He testif ied that the signat

ure on the check present ed t o Tate by Bettes was not Dumas’s and that the bank account number thereon was inco rrect. Although one pe rson i n the company ot her than Dumas had authority to sign checks, that pers on does not sign Dumas’s nam e to checks. Dumas had never met Bettes before, di d not believe t hat Bettes had ever work ed for Sout heast ern Roof Decks, and a dmitt ed t hat Bettes probably could not recognize Dum as’s si gnature. Dum as was n ot aware of an i ncident occurr ing a f

ew days befor e Januar

y 6, 2010, involving a dif

fere nt per son att empting t o cash a f raudul ent che ck drawn on h is bu sin ess ’s ac cou nt.4

Following the above evidence, the State rested and Bett es moved for a directed verdict on th e gro und that th e Sta te fail ed to proved that Bett es knowingly comm itt ed fo rgery. The court denied the motion, concluding that t he State had pres ente d circ um stan tial e vid enc e th at B ettes acte d k no wi ng ly. Shirley Bette s then t esti fie d that immediat ely pr ior t o January 6, 2010, he r husband wa s no t em ploy ed p erm ane ntl y bu t that he wou ld attempt to secure temporary work as a day laborer . Shirl ey Bettes t estif ied that on the day her husband

was arre sted, he had came home wit h dirt y clothes af

ter being away for f

our da ys working. Thereupon, the def ense r este d; Bett es did not testify. During the deliberati on, the jur y requestedanswers to the following qu estions: “Who he re por ted to on the job? Where was the j ob sit e? Who gave him thi s check? Any witn esses to his wo rkin g? W ho w as su perin tend ent on the j ob?” The j udge instruct ed the ju ry th at the e vide nce w as clo sed a nd th at the ju ry sh ould con tinue its del ibe ratio ns. 1. Bette s con tend s the S tate faile d to p resen t suffic ie nt evidenc e, di rect or cir cumstantial , t o susta in a convi cti on of forgery in the fi rst degree because it fail ed to p rov e th at B ettes com mi tted the crim e kn ow ing ly w ith in ten t to d efra ud
. At the time of B ettes’s conviction, the crime was codified as follow s:1 The Code sect ion was modif ied i n 2012. See Ga. L. 2012, p. 899, § 3-5. 5 A pers on c om mits the o ffens e of fo rgery in the first de gree wh en w ith inte nt to de fraud he k now ingly ma kes, a lte rs, or possess es any wri ting in a f ic ti ti ous name or in such manner that the writing as made or alte red pur por ts to ha ve b een m ade b y an othe r pers on, a t ano th er tim e, with diff erent provisi on s, o r by authority of one who did not give such author ity and utte rs or de live rs suc h writing. OCGA § 16-9-1 (a) (2 011). 1 Thus, in additi on to the other el ements, the St ate was requiredto show that Bettes acted with intent to defraud and that he knowingly made, alt ered, or possesseda fra udulent check. See al so Cham bers v. State , 22 Ga. App. 748, 750 (97 SE 256) (1918) (“The i ntent of the accuse d to def

raud i s the e ssence of the

cr ime [of fo rgery] , and must

be proved be yond a rea sonable doubt. ”) (c itation and punctuation om itted). “ Bo th kn ow ledg e and inten t t o defraud may be proven by circumstant ial evidence.” Collins v. Sta te , 258 Ga. App. 400, 401 ( 1) (574 SE2d 423) (2002) (pu nctuation and foo tnote omitted). Here, the evidence establishes that B ettes was in possession of a check pur por te dly signed by Dum as but without Dumas ’s auth ority and that Bettes attem pte d to cash i t at

the bank. And because “knowi ngly pass ing as ge nuine a forge d inst rument is conclusive of t

he intent t o defraud,” M atula v. Sta te , 264 Ga . 673, 675 (2) ( 4496

SE2d 850 ) (19 94) (citatio n an d pu nctu ation om itted), if the Stat e pres ented s uffi cient evidence to show that Bett es knowingly possessed a forged check and tri ed to cas h it, then the St ate woul d have pre sente d suffi cient evidence to prove that Bettes intended to defraud the bank . Thus Bettes’s appeal turns on whether t he State pres ented suffi cient

evidence to est ablish that Bettes kno win gly possessed the for ged check. See id. Th e Sta te pre sente d no direc t e vidence t o show that Bettes knowingly possessed the check and instea d rel ied on circumstantia l evi dence t o prove this el ement of t he crim e. “To warrant

a convic tionon circumstanti al evidenc e, t he proved f

acts shallnot onl y be consistent

with the hypothesis of guilt, but shall e xclude every other

reas ona ble hypothesi s save t hat of the gui lt of

the ac cused. ” OCGA § 24 -14- 6 (fo rme rly OCGA § 24-4-6) . See a lso Gr aves v. Sta te , 172 Ga. App. 829, 830 ( 32 4 SE2d 790) (1984) (circumstant ial evidenc e that “merel y rai ses a s uspici on of g uilt is not suffi cient

to convi ct”) (ci tat ion and punctuationomitted). The proved facts “need not exclude every conceivable infer ence or hypo thesis – only those that are

reas on abl e.” Merritt v. S tate , 285 Ga. 778, 779 (1) ( 683 SE2d 855) (2009) ( cit ati ons
o mitt ed; emphasis in origi nal). “Wh ether the evidence excludes ot her reas onabl e hyp othe sis is or dinar ily a questi on for the jury, whose f inding shall not be di sturbed7

unless the verdict

of guilt i s unsupportable as a matt er of law.” Owens v. State , 28 6 Ga. 821, 825 (1) (6 93 S E2 d 49 0) (2 010 ) (citatio n om itted); Blevins v. State , 291 Ga. 814, 816 (733 SE2d 744) (2012) (same) . See a lso Bro wn v. Sta te , 285 Ga. App. 453, 454 (1) ( 646 SE2d 289) (2007) ( jury i n bett er posi tion to deter mine rea sonable ness of alternative hypothesis to forgery than ap pellate court). The circumstan tial e vide nce p resen ted in this ca se tog ether with reaso nab le inference s arisi ng from that evidence shows that although the checkwas dr awnon an account of Southeastern Roof Decks, Bett es never worked for that company as a day laborer or otherwise and that

Bettes or someone ac ting onhis behalf provided B ettes’s

name and addres s to the person who typed the check. Thus an infer ence aris es that Bettes sho uld hav e kn ow n tha t So uthe astern Ro of D ecks did n ot ow e him any money, thatthe check w as not g enu in e, and that ac cord ingly , Bette s w as no t auth orize d to prese nt the che ck for payment. I t was theref ore up t o the j ury to d ecide whe ther Bettes’s alter

native proposition suggestedby his w ife’s testimony – that he performed day labor

work enti tling him to re ceive the che ck – was exclud ed by the evidence. Although the j ury aske d questi ons that showed the mem bers of the jury wan ted more infor mationregarding Bett es’s wife’ s test imony, the j u ry rea ched a dec isi on on the issue s pres ented wi thout t hat i nformat ion.8

Final ly, we find no b asis to co nclu de th at the ju ry’s f indin g on this iss ue is

uns upp ortab le as a matter of law. See Russu , 321 Ga. App. at 698 (1) (ci rcumstantia l evidence that

defendant “attempte d to withdraw $2,100 from an ac countbelo ngin g to

an individual s he neither knew nor had any prior deal ings with, usi ng a chec k she claimedhad been del ive red to her f rom a source essenti ally unknown to her” was suffi cient to supp ort c onvict ion of f irs t degr ee for gery eve n though def endant provided vali d ident ifi cati on and her t humb print at the time s he tr ied t o cash the check and gav e an e xpla natio n of how she c am e into possession of the ch eck); Brown , 2 85 Ga. App. at 454 (1). Compare Ryle s v. Sta te , 216 Ga. App. 462, 466 (4) ( 45 4 SE2d 639) (1995) (circumstant ial evidence that witnes s had see n defendant walki ng in dire cti on of car

deale rshi p was insuf

fic ient , st anding alon e, to lin k de fend ant w ith burglary of deal ership even though de fendant was guil ty of s teal ing a vehi cle f rom the

sa me deale rshi p lat er the sam e nig ht); Sho ckley v. Sta te , 166 Ga. App. 182 ( 303 SE2d 519) (1983) ( cir cumstantialevidenc e that appell antwas merely present at his parents’ house was insuf

fic ient to convi ct appe llant of knowing pos sessi on of mari juanaplan ts growing in fl ower pots ne xt to house given that appell ant’ s brother, who live d at the house with hi s pare nts, testifi ed that he alone grew and had knowledge of the plants).9

2. Bettes also contends the trial court erre d by exclu ding statem ents h e m ade to the arrestin g officer a nd to his w ife. A lthou gh th e ope ning st atement s were not transcribed, the tria l trans crip t shows that the State objected to defen se counsel’s opening stat ement on the ground that cou nsel w as ab out to tell the ju ry ab out a
c onversat ion between Bettes and the ar rest ing off

icer ; the Stat e objec ted on the ground that Bettes’s statem ents constit uted in admi ssible, self

-ser ving hears ay. Bettes contend s thatthe tri al cour

t erred by sus tai ning thi s objec tionand erred by sustai ning a similar objection to Bettes’s wife’s te stimony about what Bettes told he r about his work pr ior to his atte mp t to cas h the chec k. B ettes, h ow ever , did not introduce any evide nce of the exclu ded te sti mony at the heari ng on the moti on for new tria l nor pr offer the testi mo ny at tria l. W here the error

allegedis that certain evid ence has b een w ron gfu lly exclude d, the rule is wel l set tle d that ther e must have been a pr offer or offerof a defini te sort

so that both t

he tria l court

and the appellate court can know w hether the e vidence r eally exist s. I n the abs ence of such a proffer, the as sign me nt of error is so in com plete a s to p reclu de its con sider ation by th is cou rt. Holder v. Sta te , 242 Ga. App. 479, 482 ( 5) (529 SE2d 907) ( 20 00) (cit ati ons and punctuation om itted). For these reasons, this assert ion of error fails. Judgment af

fir med. Barnes, P. J., and Boggs, J. , conc ur .