ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

ANGELA MCCONNELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1066

May 2, 2001

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

CR 98-397

HON. JOHN S. PATTERSON, JUDGE

AFFIRMED

Appellant Angela McConnell was charged with forgery, arising from her use of another person's name upon being arrested for and pleading guilty to a charge of shoplifting. Specifically, she was alleged to have forged criminal plea documents filed as a public record in Russellville Municipal Court. After a bench trial, the court found her guilty and sentenced her to serve twelve months in the Regional Punishment Facility and suspended imposition of an additional sentence for three years. On appeal, appellant argues that the evidence was insufficient to support her conviction. We affirm.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). We will affirm the conviction if there is substantial evidence to support it,when viewed in the light most favorable to the State. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).

On April 27, 1998, appellant was arrested for shoplifting in a Hastings video store. Officer Tracy Edgin of the Russellville Police Department arrived at the store and learned that a white female had exited the store, setting off the security alarm. The store clerk informed the officer that the woman refused to return to the store and left in a vehicle. The store clerk gave the officer a description of the vehicle and the license plate number. Officer Shane Bewley located the vehicle and brought the driver to Hastings, where the store clerk identified appellant as the shoplifter. Edgin testified that appellant told him she was Treva Marie Tienter and provided him a date of birth, social security number, address, and employer.

Officer Bewley testified that he stopped appellant after verifying the license plate number he had been given. He stated that when he made contact with the driver, she identified herself as Treva Tienter and gave him a date of birth. He recalled her stating that she had been at Hastings. Bewley transported her to Hastings where she was identified, and she was then taken to jail.

Appellant was processed as Tienter, and ultimately pled guilty to shoplifting in Russellville Municipal Court. The municipal judge ordered her to pay a $350 fine, placed her on supervised probation for one year, and sentenced her to ten days in jail, with ten days suspended. Appellant's probation officer was Mary Alice House.

Ms. House testified that she recognized appellant at the initial meeting, but could not put a name with her face. House mailed a letter to the address given by appellant for Tienter and requested that she come in within ten days. House stated that she then received a phone call from Tienter's mother informing her that her daughter had never been arrested for shoplifting. Upon request, Tienter met with House. House testified that she immediately recognized that Tienter wasnot the person who had appeared in court. She asked Tienter whether she knew who would be using her name, and Tienter showed her a picture of a woman that House recognized as being appellant. Appellant was subsequently arrested for forgery.

An investigator for the Russellville Police Department, William McKinney, testified that appellant stated that she talked with Tienter about using her information if she was stopped by the police and claimed that she had Tienter's permission. Appellant admitted to McKinney that she did not have permission to obtain criminal charges in Tienter's name.

Appellant also testified at trial. She admitted to pleading guilty to shoplifting under Treva Tienter's name. She stated that she did not receive anything of value as a result of signing the guilty plea. Further, appellant testified that she did not give her own name because she had outstanding warrants and did not want to go to jail.

The State argues that appellant's challenge to the sufficiency of the evidence is not preserved for review because she failed to move for dismissal at the close of the evidence pursuant to Ark. R. Crim. P. 33.1. We agree. Rule 33.1(b) provides:

A defendant's failure to make a timely motion for dismissal constitutes a waiver on appeal of any question pertaining to the sufficiency of the evidence. Ark. R. Crim. P. 33.1(c).

In the present case, the abstract does not reflect that appellant moved for dismissal at the close of the evidence. Rather, the abstract suggests that appellant argued the insufficiency of the State's evidence as part of her closing argument, which was after the State's closing argument. Even if we considered the argument to constitute a motion to dismiss, it was not timely because, accordingto the abstract, it was made after the State's closing argument and not at the close of the evidence. J.R. v. State, ___ Ark. App. ___, ___ S.W.3d ___ (April 4, 2001). See also Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). Appellant's failure to make a timely motion for dismissal precludes us from reviewing her sufficiency argument on appeal.

We note, however, that had appellant preserved her argument for appeal, it would be without merit. Appellant contends that the trial court erred in convicting her of forgery because she did not have the "purpose to defraud" as required by Ark. Code Ann. § 5-37-201(a) (Repl. 1997). However, the State presented evidence that appellant pled guilty to shoplifting under Ms. Tienter's name. She signed Tienter's name on the waiver of rights and entry of guilty plea form. This form was filed in the Russellville Municipal Clerk's office. Appellant herself admitted that she used Tienter's name upon arrest for shoplifting because she had outstanding warrants and did not want to be arrested. Contrary to appellant's contention, the forgery statute does not require a "change in the status of property." The appellant, by using Tienter's name, hoped to avoid criminal liability while subjecting Tienter to the possible long-term consequences of a criminal record. The evidence was sufficient to support the trial court's finding that appellant had the purpose to defraud.

Affirmed.

Robbins and Crabtree, JJ., agree.