Following a jury trial, Melissa Dale Smith was convicted of two counts of forgery in the first degree (OCGA § 16-9-1 (a) (2009)).
“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Citation and punctuation omitted.) Goss v. State,
So viewed, the evidence shows that Smith and her co-defendant, Misty Allen,
During trial, a bookkeeper for a printing and advertising company called Dixie Graphics testifiеd that she had prepared a check made payable to Dixie Graphic’s vendor, The Library Bindery Company. The bookkeeper placed the check in an envelope and put the envelope in her mailbox to go out for delivery. When the vendor cоntacted her about not receiving payment, she went online to view an image of the cashed check and discovered the inclusion of “c/o Darlene Lecroy” on the payee line along with “The Library Bindery Co.” The bookkeeper had not included nor authorizеd the inclusion of
In May 2009, Allen went to the Wal-Mart store where Smith worked in order to cash a check from the account of Dixie Graphics and made payable to “The National Library Bindery Co. do Darlene Lecroy” in the amount of $1,662.75. Allen showed identification in the name of Darlene Lecroy. Allen had obtained Lecroy’s identification card from Smith, who had retrieved it from the Wal-Mart lost and found department. The customer service associate at the service desk questioned the check, as it was against Wal-Mart policy to cash a multiple-party check. Upon Allen’s indication that Smith would approve the check, however, the customer service associate sought out Smith. Smith provided her approval, and the customer service associate proceeded to cash the check. At trial, Smith admitted that she gave her approval to cash the multiple-party check despite it being against Wal-Mart policy. Smith and Allen later split evenly the proceeds of the check.
In approximatеly June 2009, Allen stole a checkbook from her stepfather and gave it to Smith. Allen subsequently met Smith in the Wal-Mart parking lot, where Smith gave Allen one of her stepfather’s stolen checks. The check had already been signed and made payable to “Darlene Lecroy” in the аmount of $1,500. Smith told Allen to come back into the store and cash the check. After giving Smith “time to get situated inside,” Allen went into the’ Wal-Mart store to the service desk and asked for Smith. According to Allen, Smith gave her approval to the customer service associate, who then proceeded to cash the check.
1. Smith contends that the evidence was insufficient to sustain her convictions. We disagree. After viewing the evidence in the light most favorable to the prosecution, the relevant question on appeal is whether any rаtional trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
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 manner that thе 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.
(Punctuation omitted.) OCGA § 16-9-1 (a) (2009).
Based upon the testimony of Allen, along with Allen’s stepfather, the Wal-Mart customer serviсe associate, the Dixie Graphics bookkeeper and her husband, Brooks, and Smith herself, the jury was entitled to conclude that Smith was guilty of forgery in the first degree as alleged in both counts of the indictment.
Smith nevertheless contends that there was insufficient evidence to conviсt her on the count of forgery that was based upon the $1,500 check from the account of Allen’s stepfather. Smith argues that there was a failure of proof because the indictment improperly identified the check number as the bank routing number. To the extent Smith is arguing a fatal variance between the allegation in the indictment and the proof at trial, Smith’s contention fails.
The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges agаinst him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.
(Citation and punctuation omitted.) McBride v. State,
Therefore, we reject any fatal variance claim and hold the evidence was sufficient to satisfy the standard set forth in Jackson v. Virginia.
2. Smith next contends that the trial judge improperly commented on the evidence. We disagree.
“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” OCGA § 17-8-57.
[H] owever, a trial court may propound questions to a witness to develop the truth of the case, to clarify testimony, to comment on pertinent evidentiary rules and to exercise its discretion when controlling the conduct of counsel or witnesses in order to enforce its duty to ensure a fair trial to both sides.
(Citation and punctuation omitted.) Chambers v. State,
Here, Smith raises issue with the below-emphasized comments by the trial judge, made during the testimony of the customer service associate who cashed Allen’s checks:
[Prоsecution]: So when you cashed these two checks that you say were approved by Ms. Smith —
[Defense Counsel]: Objection, Your Honor. That was not the testimony.
*805 The Court: I think it’s only the one [that] was directly approved by Ms. Smith.
[Defense Counsel]: Correct, Your Honor.
The Court: [T]he first one.
After reviewing the trial transcript, we conclude that the trial judge’s comments did not amount to an improper expression of opinion with regard to Smith’s guilt or innocence or to what had or had not been proven. Significantly, a “trial judge may state his recollection as to some portion of the testimony without prejudice to the defendant.” (Citatiоn omitted.) Blackburn v. State,
3. Smith maintains that her trial counsel was ineffective because he failed to object to the trial judge’s comments, impermissiblе bad character evidence, and the admission of photocopied checks rather than originals.
To establish ineffective assistance of counsel under Strickland v. Washington,
(a) Smith’s contention that her trial counsel was ineffective for failing to object to allegedly improper comments by the trial judge is without merit. As discussed in Division 2 above, the trial judge’s comments did not amount to a violation of OCGA § 17-8-57. Thus, there would have been no merit to trial counsel’s objection, and
(b) Smith also contends that her trial counsel was ineffective for failing to object to bad character evidence in the form of witness testimony regarding Smith’s drug use. Specifically, Allen testified several times that she and Smith would use the money from the checks to buy “dope,” and that she and Smith hung out together only when they were getting high. Another witness, Allen’s girlfriend, also testified that Smith was using drugs.
At the hearing on the motion for new trial, trial counsel testified that he did not object because he did not find the witnesses credible. Cf. Ford v. State,
(c) Finally, Smith contends that trial counsel was ineffective for failing to assert a best evidence objection to the photocopied cheсks admitted into evidence. Pretermitting whether a best evidence objection had merit, Smith’s ineffective assistance claim on this ground fails because she cannot show prejudice. See Mayberry v. State,
Judgment affirmed.
Notes
This statute was substantially amended by Ga. L. 2012, p. 899, § 3-5, which did not go into effect until July 1, 2012, after the offenses occurred in this case. Thus, this case is considered under the prior version of the statute. See Ga. L. 2012, p. 899, § 9-1 (a).
At the time of Smith’s trial, Allen had already pled guilty to the charges brought against her in this case.
According to the customer service associate, however, she cashed this second check without Smith’s direct approval. She testified that because Smith had previously givеn her approval to cash Allen’s multiple-party check, she assumed that Smith would have again provided her approval to cash the second $1,500 check.
Appearing on the back of the check was a driver’s license number belonging to a Shelby Brooks. Brooks was the ex-wife of Smith’s husband and had had a contentious relationship with Smith for 13 years. According to a witness, Smith had plans to “get back at” Brooks. About one month prior to the forgery incident, Brooks had returned an item to Wal-Mart and had been required to provide her driver’s license number. Brоoks testified that Smith was at the service counter during the return and witnessed the entire transaction.
Although defense counsel failed to object to the trial judge’s comment, such failure did not waive the issue on appeal. See State v. Gardner,