Ford v. State

• Decision Date: 25 August 2011
• Docket Number: No. S–11–0021.,S–11–0021.
• Citation: 2011 WY 122,259 P.3d 1178
• Parties: Myra Jean FORD, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

259 P.3d 1178

2011 WY 122

Myra Jean FORD, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–11–0021.

Supreme Court of Wyoming.

Aug. 25, 2011.

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Meri V. Geringer, Senior Assistant Attorney General. Argument by Ms. Geringer.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.HILL, Justice.

[¶ 1] Appellant, Myra Jean Ford (Ford), was convicted of seven counts of forgery. In this appeal Ford contends that the district court abused its discretion when it denied her motion for judgment of acquittal at the close of the State's presentation of evidence. Ford maintains that the evidence the State produced was not sufficient to prove any of the fundamental elements of the crime of forgery. We will reverse and remand with directions that the information be dismissed with prejudice.

ISSUE

[¶ 2] Ford raises this issue:

Did the trial court abuse its discretion by denying Myra Ford's motion for acquittal after the prosecution failed to produce evidence sufficient to prove the elements of forgery required by W.S. § 6–3–602(a)(ii), (b)?

The State rephrases that issue somewhat, but in essence mirrors Ford's articulation of it.

FACTS AND PROCEEDINGS

[¶ 3] Before the trial began, the parties agreed to these facts having been proved. The stipulation was read to the jury as an instruction at the end of the trial, but before closing arguments:

Ladies and Gentlemen, the parties have stipulated that all of the people named in all of the charges actually received counseling services from [Ford].

Further, the parties have stipulated that the Campbell County Memorial Hospital did not suffer monetary loss as a result of [Ford's] actions. As you were instructed in Jury Instruction No. 3, you must accept these stipulated facts as proved.

[¶ 4] Ford worked as a substance abuse therapist at Campbell County Memorial Hospital (CCMH). Count 1 of the charges against Ford alleged that under the date of December 17, 2007, she sent a letter written on CCMH letterhead stationery to the Wyoming Department of Family Services advising that her patient, AB, did not require substance abuse treatment. Ford did not treat AB at CCMH, but rather did so on her own time and at her home, without charging AB a fee of any sort. This is true with respect to all of the counts which follow hereafter. Count 2 alleged that Ford corresponded to the Wyoming Department of Corrections on CCMH stationery on January 23, 2009, informing that agency that she had provided counseling services to RB. Count 3 alleged that Ford corresponded on CCMH stationery to the Campbell County Circuit Court on March 11, 2008, recommending that GB receive treatment for substance abuse. Count 4 alleged that on January 26, 2009, Ford corresponded to the Wyoming Department of Corrections, Division of Field Services, on CCMH stationery asserting that she had provided counseling services to BB. Count 5 alleged that on October 2, 2008, Ford corresponded on CCMH stationery with Crook County Circuit Court asserting that she had provided treatment to MP. Count 6 alleged that on April 20, 2007, Ford corresponded on CCMH stationery with the Wyoming Department of Corrections, Division of Field Services, describing services she provided to LM. Finally, Count 7 alleged that on March 17, 2008, Ford corresponded on CCMH stationery with the Natrona County Circuit Court reporting that she had provided counseling services to JP. Ford did not present any evidence in her defense.

[¶ 5] Ford was interviewed by police officers, and she admitted to providing the counseling at issue to friends who could not afford CCMH's fees for that service, that she knew CCMH personnel policies did not permit her to do such a thing without the express permission of CCMH administrators, and that she knew it was unethical and wrong. Ford was discharged from her employment because of the conduct described above. At the time the presentence investigation report was prepared, Ford's license(s) to practice as a counselor were under review but no final action had been taken. That report also indicates that Ford was working as a receptionist at a salon, rather than as a counselor, at the time the report was prepared.

DISCUSSION

Standard of Review

[¶ 6] In Taylor v. State, 2011 WY 18, ¶ 10, 246 P.3d 596, 598–99 (Wyo.2011) we held:

We have described the standard applicable to a review of a denial of a motion for a judgment of acquittal as follows:

Our responsibility in considering the propriety of a ruling on a motion for judgment of acquittal is the same as that of the trial court. Cloman v. State, Wyo., 574 P.2d 410 (1978). The question raised is the sufficiency of the evidence to sustain the charge, which is a matter to be determined within the sound discretion of the trial court. Chavez v. State, Wyo., 601 P.2d 166 (1979); Montez v. State, Wyo., 527 P.2d 1330 (1974). In making that determination the district court must assume the truth of the evidence of the State and give to the State the benefit of all legitimate inferences to be drawn from that evidence. If a prima facie case is demonstrated when the evidence is so examined, the motion for judgment of acquittal properly is denied. Russell v. State, Wyo., 583 P.2d 690 (1978). It is proper to grant a motion for judgment of acquittal only if there is no substantial evidence to sustain the material allegations relating to the offense that is charged. Heberling v. State, Wyo., 507 P.2d 1 (1973), cert. denied 414 U.S. 1022, 94 S.Ct. 444, 38 L.Ed.2d 313 (1973); Fresquez v. State, Wyo., 492 P.2d 197 (1971). Such a result is indicated if the evidence requires the jury to speculate or conjecture as to the defendant's guilt or if a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime when the evidence is viewed in the light most favorable to the State. Chavez v. State, supra; Russell v. State, supra.

Martinez v. State, 2009 WY 6, ¶ 11, 199 P.3d 526, 530 (Wyo.2009) (quoting Aragon v. State, 627 P.2d 599, 602 (Wyo.1981)).

Forgery

[¶ 7] Wyo. Stat. Ann. § 6–3–602 (LexisNexis 2011) provides:

§ 6–3–602. Forgery; penalties.

(a) A person is guilty of forgery if, with intent to defraud, he:

(i) Alters any writing of another without authority;

(ii) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or

(iii) Utters any writing which he knows to be forged in a manner specified in paragraphs (i) or (ii) of this subsection.

(b) Except as provided in subsection (c) of this section, forgery is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.

(c) Forgery is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the writing is a:

(i) Permit required by W.S. 11–21–102 through 11–21–104; or

(ii) Number or check number placed on a car or pit car in or about a mine. [Emphasis added.]

Ford was charged with violating § 6–3–602(a)(ii) and (b) in each of the seven counts. Each count was described in a separate instruction, and we will give one instruction as an example:

Jury Instruction No. 10. The elements of the crime of forgery as charged in Count 3 of this case are:

One, on or about March 11, 2008;

Two, in Campbell County, Wyoming;

Three, the defendant, Myra Jean Ford;

Four, with the intent to defraud;

Five, made a writing so it purported to be the act of another, to wit, submitted a certification to the Campbell County Circuit Court confirming that [GB] had received counseling issued on letterhead and purporting to have been authorized by Campbell County Memorial Hospital;

And, six, Campbell County Memorial Hospital did not authorize that act.

If you find from your consideration of all of the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty of Count 3.

If, on the other hand, you find from your consideration of all of the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty of Count 3.

[¶ 8] Ford contends that a person cannot commit forgery by signing an instrument in his or her own name, citing 37 C.J.S. Forgery § 8 (2008 and 2010 Cum. Supp.). The exact wording includes the following:

Subject to statutory variations, the false making or alteration of some instrument in writing is an essential element of the crime of forgery. The essence of forgery is that the writing must purport to be the writing of another than the person making it. In the paradigmatic case of “forgery” at common law, the instrument is not what it purports to be, because it purports to be written by someone who did not actually write it. Furthermore, assuming the requisite knowledge and intent, one commits forgery when he or she makes up the instrument, whether such person or someone else places the false signature on it.

Forgery cannot be committed by the making of a genuine instrument, although the statements made therein are untrue. A false making must relate to the genuineness of the execution of a document, not to the genuineness of its contents. Thus, where the falsity lies in the representations of facts, not in the genuineness of execution, it is not “forgery.”

Under some statutes, the completion of...