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IN THE COURT OF APPEALS 10/29/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-01451 COA DONALD O'BRYANT APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ELZY JONATHAN SMITH, JR. COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: GLENN H. WILLIAMS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEIDRE MCCRORY DISTRICT ATTORNEY: CLYDE HILL NATURE OF THE CASE: FORGERY TRIAL COURT DISPOSITION: GUILTY OF FORGERY - SENTENCED TO SERVE TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND MAKE FULL RESTITUTION TO THE VICTIM

BEFORE THOMAS, P.J., COLEMAN, SOUTHWICK, AND DIAZ, JJ.

DIAZ, J., FOR THE COURT:

Donald O'Bryant (Donald) was convicted, in the Bolivar County Circuit Court, of the crime of forgery. He was sentenced to serve a term of ten years and to make restitution to the victim. The Appellant raises three issues to be considered on appeal. After thoroughly reviewing the record and applicable law, we find that there is no basis to reverse the conviction, and we, therefore, affirm.

FACTS On May 21, 1993, Johnny O'Bryant (Johnny) entered the Sunburst Bank in Cleveland, Mississippi to purchase a cashier's check for $20.00. Janine Lee (Lee), a customer service representative, issued to him check number 906899882 in the requested amount. Johnny asked that the check be made payable to Fred Townsend and Lee complied. Johnny received the check and left the bank. Shortly thereafter, Johnny returned to Lee and explained that his wife had already paid the bill that the check was intended for. Thus, Lee returned Johnny's money and voided the check. The following day, a man came into Sunburst bank claiming to be Larry Jones. He purchased a $20.00 cashier's check from Edward Herrington, another bank employee. Check number 906809884 was made payable to Frank Kemp, as requested, and presented to "Jones." Herrington later identified Donald O'Bryant as the individual purporting to be Larry Jones. Donald O'Bryant and Johnny O'Bryant are relatives, however, the record does not reveal to what degree. Both transactions were recorded on the bank's video surveillance equipment. On May 22, 1993, Johnny purchased $85.00 to $90.00 worth of merchandise from Cecil's Package Store. Edward Soliz, the manager of the store, testified that Johnny presented a cashier's check in the amount of $2,020.00 to pay for the liquor. The number on the check was 900809884. According to Soliz, Johnny explained that the check was from State Farm Insurance Company. The check was made payable to, and endorsed by, Lonnie H. Ryant. Soliz cashed the check and gave Johnny the change from his purchase. Later, Soliz noticed that the check appeared to be altered and he telephoned the store owner, Mary Taylor. Taylor gave the check to the Cleveland Police Department. Two officers from the Cleveland Police Department viewed the video surveillance tape from Sunburst Bank and recognized Donald O'Bryant as the individual who purchased the money order on May 22, 1993. Donald was subsequently arrested, tried and convicted of forgery in the Bolivar County Circuit Court. DISCUSSION 1. Did the Court Err in Denying the Motion for Directed Verdict and the Request for Peremptory Instruction at the Close of the Defendant's Case?

The standard of review for whether a peremptory instruction should be granted and whether a directed verdict should be granted are the same. Alford v. State, 656 So. 2d 1186, 1189 (Miss. 1995), Wilner v. Miss. Export R.R. Co., 546 So. 2d 678, 681 (Miss. 1989). The trial court must consider the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable inferences that may be drawn therefrom; unless the plaintiff's evidence is so lacking that reasonable jurors could not reach a verdict for the plaintiff, the [instruction] should be [given].

Wilner, 546 So. 2d at 681. Additionally, Mississippi case law clearly holds that a trial court should submit an issue to the jury if the evidence creates a question of fact in which reasonable jurors could disagree. Vines v. Windham, 606 So. 2d 128, 131 (Miss. 1992). Donald argues that his motion for directed verdict and peremptory instruction should have been granted because the State failed to prove that Sunburst Bank was the injured and defrauded party as alleged in the indictment. According to Donald, it was Cecil's Liquor Store that was defrauded, not Sunburst Bank. The State counters that the indictment charged that Donald intended to defraud Sunburst Bank and that the evidence is sufficient to prove that Donald's intent was such.

The indictment charged in pertinent part that Doanld O'Bryant: on or about the 22nd day of May, . . . , did unlawfully, wilfully and feloniously with intent to defraud, falsely forge a cashier's check, namely official check number 900809884 on the Sunburst Bank, Cleveland, Mississippi, made payable to Lohnnie H. Ryant in the amount of $2,020.00, purporting to be the act of Lohnnie H. Ryant with the intent to injure and defraud the said Sunburst Bank, a corporation.

Donald was indicted and convicted under section 97-21-35 of the Mississippi Code which reads as follows: Every person who, with the intent to injure or defraud, shall falsely make, alter, forge, or counterfeit any instrument or writing being or purporting to be any process issued by any competent court, magistrate, or officer, or being or purporting to be any pleading or proceeding filed or entered in any court of law or equity, or being or purporting to be any certificate, order, or allowance, by any competent court, board, or officer, or being or purporting to be any license or authority authorized by any statute, or any instrument or writing being or purporting to be the act of another, by which any pecuniary demand or obligation shall be or purport to be created, increased, discharged, or diminished, or in any

manner affected, by which false making, forging, altering or counterfeiting any person may be affected, bound, or in any way injured in his person or property, shall be guilty of forgery.

Miss. Code Ann.

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