Opinion
No. 25853-0-III.
April 29, 2008.
Appeal from a judgment of the Superior Court for Franklin County, No. 06-1-50308-1, Vic L. VanderSchoor, J., entered January 29, 2007.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Brown, J., and Thompson, J. Pro Tem.
Katrina Ann Dale appeals her forgery conviction, claiming insufficient evidence supports the conviction and prosecutorial misconduct denied her a fair trial. We affirm.
FACTS
On February 3, 2006, Ms. Dale entered the Pasco branch of Money Tree to cash three money orders. A store clerk confirmed that Ms. Dale had an account with Money Tree, but discovered that the money orders had been reported stolen. The clerk asked Ms. Dale if she knew who purchased the money orders. Ms. Dale initially denied knowing the purchaser, but later stated Joel Ham had given them to her. This name did not match store records and the police were called. Ms. Dale fled. The State charged Ms. Dale with forgery.
At trial, the owner of the money orders testified that they had been lost or stolen while she was shopping. She stated that Ms. Dale did not have permission to cash them.
Ms. Dale testified that she attempted to cash the money orders at Money Tree as a favor for Joel Ham, an acquaintance. According to Ms. Dale, Mr. Ham assured her the money orders were not stolen. However, Ms. Dale was suspicious and allegedly called a 1-800 number to verify the validity of the money orders. She claimed she was told the orders were valid. Mr. Ham testified that he did not know Ms. Dale or give her the money orders.
Carl Burk, Ms. Dale's former roommate, corroborated Ms. Dale's version of events. He testified that he was present when Mr. Ham asked Ms. Dale to cash the money orders for him. He stated that he heard Mr. Ham assure Ms. Dale that the money orders were not stolen.
During closing argument, the prosecuting attorney noted Ms. Dale's failure to provide evidence that she called Money Tree to verify the money orders. Defense counsel objected that Ms. Dale had no burden to produce evidence. The prosecuting attorney responded, "Ms. Dale brought up the idea that she called this 1-800 number. She didn't bring anything to back it up. . . . You think that would be important to bring it in." Report of Proceedings at 69-70. The trial court overruled defense counsel's objection.
A jury convicted Ms. Dale as charged. This appeal followed.
ANALYSIS
Ms. Dale claims that the evidence does not support her conviction for forgery. The test for determining the sufficiency of the evidence is whether, 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. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. Id.
Citing State v. Mark, 94 Wn.2d 520, 618 P.2d 73 (1980) and State v. Marshall, 25 Wn. App. 240, 606 P.2d 278 (1980), Ms. Dale argues that "[f]orgery does not involve the making of false entries in an otherwise genuine document." Br. of Appellant at 6. She reasons that because the money orders in this case were genuine documents in that they were what they purported to be, they could not be forgeries.
Ms. Dale's reliance on Mark and Marshall is misplaced. Both cases distinguish between a forged document and a genuine document that contains false information. In those cases, pharmacists submitted claim forms using their true names and names of local doctors. They did not forge signatures. But they falsely indicated that doctors had prescribed medications. Both courts held that forgery does not involve the making of false entries in otherwise genuine documents. Mark, 94 Wn.2d at 523-24; Marshall, 25 Wn. App. at 241-42.
In contrast to Mark and Marshall, the documents at issue here did not purport to be just money orders; they purported to be money orders belonging to Ms. Dale. Ms. Dale altered the money orders by writing in her name as the "Purchaser, Signer for Drawer" and signing them. Ex. 1. In Mark and Marshall, the pharmacists actually had the authority to sign prescription forms on behalf of doctors. But here, as the State correctly notes, "the Defendant wasn't merely misusing her authority, she was actually altering the document to give her the authority to cash it." Br. of Respondent at 7. Thus, this case involves a material alteration not present in Mark and Marshall. The money orders did not correctly identify the purchaser, and thus were not the documents they purported to be.
Ms. Dale's argument is further undermined by Washington's forgery statute. Ms. Dale ignores the statutory provisions of forgery, which provide that a person is guilty of forgery if with intent to injure or defraud, "[h]e possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged." RCW 9A.60.020(1)(b). A forged instrument is defined as "a written instrument which has been falsely made, completed, or altered." RCW 9A.60.010(7). RCW 9A.60.010(5) defines to "falsely complete" as "transform[ing] an incomplete written instrument into a complete one by adding or inserting matter, without the authority of anyone entitled to grant it." Thus, to prove that Ms. Dale possessed a forged instrument, the State had to show that Ms. Dale filled in the money orders without the owner's permission.
The evidence establishes that Ms. Dale completed the money orders by filling in her name and then signing them. Ms. Dale did not have permission to sign and cash them. Thus, as per the forgery statute, Ms. Dale transformed an incomplete instrument into a complete one by adding her name and signature and did so without permission from the owner. Accordingly, sufficient evidence supports Ms. Dale's forgery conviction.
Ms. Dale next contends that prosecutorial misconduct denied her a fair trial. She argues the prosecutor's comment on her failure to produce evidence that she called Money Tree to verify the validity of the money orders improperly shifted the burden of proof to her. Relying on State v. Traweek, 43 Wn. App. 99, 715 P.2d 1148 (1986), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991), she argues that she had no duty to present evidence to prove her innocence.
An appellant claiming prosecutorial misconduct bears the burden of establishing the impropriety of the prosecutor's comments and their prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Comments are only prejudicial where there is a substantial likelihood the misconduct affected the jury's verdict. However, even improper remarks do not justify reversal "if they were invited or provoked by defense counsel and are in reply to his or her acts and statements." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
While a defendant is not obligated to produce any evidence, a prosecutor is allowed to comment on a defendant's failure to support his or her own factual theories. "When a defendant advances a theory exculpating him, the theory is not immunized from attack. On the contrary, the evidence supporting a defendant's theory of the case is subject to the same searching examination as the State's evidence." State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114 (1990).
Here, the prosecutor's reference to Ms. Dale's failure to produce evidence of her call to Money Tree did not impermissibly shift the burden of proof. Contrary to Ms. Dale's argument, Traweek does not stand for the proposition that the State may never comment on a defendant's failure to produce evidence. In Traweek, the defendant did not testify or call any witnesses. Nevertheless, during closing argument the prosecutor commented on the defendant's failure to produce witnesses or evidence. The court held that under these circumstances, the prosecutor's comment was improper. Traweek, 43 Wn. App. at 106-07.
But our case is distinguishable. Unlike Traweek, the prosecutor here was attempting to refute the defendant's testimony. Ms. Dale testified that she was aware that Money Tree tracks its money orders and that she called the company's 1-800 number to verify the authenticity of the money orders. But Ms. Dale failed to mention the 1-800 call before trial and the State never had the opportunity to investigate her claim. Under these facts, the State was allowed to comment on Ms. Dale's failure to produce any evidence to support her claim. This was reasonable prosecutorial argument and did not shift the burden of proof. There was no prosecutorial misconduct.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Brown, J.
Thompson, J. Pro Tem.