State v. Roberts

275 S.E.2d 536 (1981)

STATE of North Carolina
v.
Floyd Luther ROBERTS.

No. 8010SC845.

Court of Appeals of North Carolina.

March 17, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elisha H. Bunting, Jr., Raleigh, for the State.

Emanuel & Thompson by W. Hugh Thompson, Raleigh, for defendant-appellant.

CLARK, Judge.

The defendant argues that the trial court erred in charging as follows:

"I instruct you that it is the law that when a person is found in the possession of a forged check and he is endeavoring to obtain money or advances upon it, this raises a presumption that the defendant either forged or consented to the forging of such check, and nothing appearing, the person would be presumed to be guilty of forgery."

Defendant relies on State v. White, 300 N.C. 494, 268 S.E.2d 481 (1980), contending that the presumption as charged was mandatory and violated due process in shifting the burden of persuasion to the defendant. We find defendant's reliance on White is misplaced. White involved the mandatory presumption that the defendant-husband was the father upon proof that the child was born during the marriage of her mother and defendant, unless there was some evidence that defendant could not have had access to the mother during a reasonable period of gestation. The court approved the trial court's instructions on this mandatory presumption and held that it did not violate due process by shifting the burden of persuasion to the defendant.

In the case before us it is apparent that the instruction describes a permissive inference, and that due process was not violated because (1) there is a rational connection between the basic and elemental facts such that upon proof of the basic facts (possession of a forged check and endeavoring to obtain money from it), the elemental facts (either forged or consented to forging of such check) are more likely to exist; and (2) there is other evidence in the case which, taken together with the inference of presumption, is sufficient for a jury to find the elemental facts beyond a reasonable doubt. The elemental fact was not conclusively prejudged and the burden to disprove the existence of the elemental fact was not actually shifted to the defendant.

Before giving the questioned instruction the trial court instructed as to the State's and defendant's evidence. The presumption instruction ended with the words "and nothing appearing, the person would be presumed to be guilty of forgery." The trial court then charged that the State must prove each of the elements of the offense beyond a reasonable doubt. The State offered substantial direct evidence of the basic facts and additional evidence connecting defendant with the lost checks, evidence unquestionably sufficient to support the jury verdict. Finally, we do not think the challenged presumption either places an unfair burden on the defendant or otherwise results in substantive injustice. This assignment of error is overruled.

The trial court did not err in refusing to charge, as requested by the defendant, that when a defendant signs the name of another to an instrument it is presumed he did so with authority. In State v. McAllister, 287 N.C. 178, 214 S.E.2d 75 (1975), it was held that such instruction was not appropriate where defendant offered no evidence that he signed the checks with authority but testified that he did not sign the checks. In the case sub judice, the defendant did not offer evidence that he signed the checks but testified that he had never seen the checks.

We have carefully considered the defendant's other assignments of error and the arguments in his brief, relating to evidentiary matters, in light of the rule that a new trial will be granted only if the error is prejudicial or harmful. State v. Stanfield, 292 N.C. 357, 233 S.E.2d 574 (1977); State v. Cottingham, 30 N.C.App. 67, 226 S.E.2d 387 (1976). A defendant is prejudiced when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial. G.S. 15A-1443(a). The record on appeal reveals that the State's evidence of defendant's guilt is substantial.

No error.

HEDRICK and ROBERT M. MARTIN, JJ., concur.