Appeal from Superior Court of Whatcom County. Docket No: 94-1-00672-2. Date filed: 11/09/94. Judge signing: Hon. Michael F. Moynihan.
Authored by C. Kenneth Grosse. Concurring: Walter E. Webster, Ronald E. Cox.
The opinion of the court was delivered by: Grosse
GROSSE, J. -- John C. Rideout appeals his conviction of forgery, claiming the evidence was insufficient to sustain the conviction because it was based on the fact that Rideout endorsed his own name on the back of a check and made no misrepresentations as to its genuineness. Finding the evidence insufficient, we reverse and dismiss the conviction.
This opinion will not be published. The facts are known to the parties and will be mentioned only insofar as necessary to an understanding of this opinion.
The forgery statute provides that a person is guilty of forgery if, with intent to injure or defraud, that person either "falsely makes, completes, or alters a written instrument" or "possesses, utters, offers, disposes of, or puts off as true a written instrument which [the person] knows to be forged." RCW 9A.60.020(1)(a) and (b). Rideout was charged with violating both subsections (a) and (b).
Evidence is sufficient if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. *fn1 The trial court found, and Rideout does not disagree, that endorsing a check in one's own name does not constitute a forgery. *fn2 Rather, Rideout contends that the trial court erred by finding him guilty of forgery based on his addition of the words "Pay to John Rideout" on the back of the check, because such action, without more, is insufficient to constitute a forgery. We agree.
The landmark case on forgery in Washington is Dexter Horton Nat'l Bank v. United States Fidelity & Guar. Co. *fn3 Although it is a civil case involving an action under an insurance policy and although it predates the criminal forgery statute, Dexter Horton is cited in recent criminal cases involving this statute as a valid interpretation of principles relating to forgery. The courts note, however, that if the case involves the criminal statute, as here, the statute must be strictly construed in favor of the defendant. *fn4 In Dexter Horton, an employee of Crenshaw & Bloxom named H.N. Howe endorsed, without authority, a check payable to Crenshaw & Bloxom as follows: "Crenshaw & Bloxom, H.N. Howe, Cashier." The court held that this endorsement was not a forgery and quoted with approval the following from the case of People v. Bendit: *fn5
"A false statement of fact in the body of the instrument, or a false assertion of authority to write another's name, or to sign his name as agent, by which a person is deceived and defrauded, is not forgery. There must be a design to pass as the genuine writing of another person that which is not the writing of such other person. The instrument must fraudulently purport to be what it is not."
Dexter Horton, 149 Wash. at 348. Thus, the court concluded as to the facts before it, that "while the endorsement thus inferentially contains a false statement of fact and was made for an unlawful purpose, still the writing, while false in the sense that it spoke a lie, was not falsely made, in that it purported to be anything different from what it actually was." *fn6
In his treatise, LaFave states: "Though a forgery, like false pretenses, requires a lie, it must be a lie about the document itself: the lie must relate to the genuiness of the document." *fn7 Thus, "forgery does not involve the making of false entries in an otherwise genuine document.
It does involve the manufacture of a false or spurious document made to appear to be other than what it actually is." *fn8
In State v. Mark, *fn9 the defendant, a pharmacist, was charged with forgery based upon his submission of claim forms for Medicaid reimbursement which misrepresented the number and kind of prescriptions he had received.
The Supreme Court reversed the defendant's forgery conviction, stating: "A misrepresentation of fact, so long as it does not purport to be the act of someone other than the maker, does not constitute forgery." *fn10 The court noted that in writing the physicians' names on the claim forms, the defendant represented that the physicians had submitted prescriptions to him (which was not always true), but that the defendant did not represent that the doctors themselves had signed the claim forms. Thus, applying the principles set forth in Dexter Horton, the court concluded: "Since the claim forms submitted by the defendant were exactly what they purported to be, it was error to instruct the jury that it could properly find the defendant guilty of forgery[.]" *fn11
In the present case, Rideout did not represent that Cascade Towing had authorized payment of the check proceeds to him. Nor did he represent that the endorsement or the signature on the back of the check were the writings of anyone but himself. His signature was genuine. The check was never represented to be anything other than that which it purported to be, namely a check issued by the Hertz Corporation payable to Cascade Towing, with an endorsement making it payable to Rideout. This is unlike the situation in State v. Scoby *fn12 wherein the court affirmed a forgery conviction based upon the defendant's alteration of a $1 bill to look ...