People v. Rubanowitz
| Decision Date | 04 September 1984 |
| Docket Number | No. 82SA88,82SA88 |
| Citation | 688 P.2d 231 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald RUBANOWITZ, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Nathan B. Coats, Valerie McNevin-Peterson, Asst. Attys. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Barbara S. Blackman, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant, Ronald Rubanowitz, appeals his jury convictions of child abuse, contributing to the delinquency of a minor, three counts of theft, criminal impersonation, charitable fraud, second degree forgery, and conspiracy to commit charitable fraud and second degree forgery. We affirm in part and reverse in part.
An information filed on November 8, 1979, alleged the commission of numerous offenses by defendant during his tenure as organizer and primary fiscal controller of The Untouchables Youth Rapport, Inc. (Untouchables). The information was filed after an extensive investigation by police officials into the fund raising activities and program operations of the Untouchables. The following facts established by the evidence at trial suggest the general context of the issues raised by defendant's appeal. Additional facts will be discussed when necessary to resolve specific issues.
In May 1976, the Untouchables began to solicit funds from private donors for its programs. Defendant was at that time the director of operations for a Littleton, Colorado fast food restaurant frequented by high school students. With the assistance of Duane Geerdes and two other friends, defendant publicized the Untouchables as an organization seeking to develop alcohol and drug rehabilitation programs, halfway houses, training centers, skating rinks and social clubs to assist troubled teenagers. Funds were collected in jars placed at local business establishments, and defendant obtained and publicized endorsements from several persons well-known to Denver area residents to encourage large scale support for the organization. Defendant also prepared and distributed written summaries of information purporting to illustrate the successes of the program. High school students, several of whom lived with defendant for various periods of time, often participated in solicitations for the program. In January of 1979, the Untouchables held a Las Vegas night, which included an auction and games of chance, to raise funds.
Only a small portion of funds collected during the solicitations were expended for the benefit of children. Much of the money was used by defendant for his own benefit. He consciously misrepresented the number of youths involved in the program, and instructed teenage fund raisers to misrepresent their experiences with drugs and alcohol and to exaggerate the rehabilitative effect of their association with the program. A young girl who resided with defendant for a period of time was subjected to physical abuse by defendant and at defendant's direction. Defendant also prepared false information describing the nature and extent of programs of the Untouchables, the qualifications and activities of persons administering such programs, and successes of the programs.
Defendant asserts that the prosecution's evidence failed to support his conviction of second degree forgery. We agree.
The written instruments relied upon by the prosecution to establish this charge against defendant were certain receipts prepared by various retail stores evidencing purchases of groceries by store patrons. As part of his fund raising efforts, defendant requested numerous persons to save the receipts from purchases of groceries and to give those receipts to the Untouchables. Defendant represented that a supermarket chain had agreed to pay to the Untouchables one cent for each dollar spent at any of the chain's retail markets, as evidenced by receipts. This representation was false.
The evidence with respect to defendant's utilization of grocery receipts established that defendant received numerous grocery receipts from friends and acquaintances representing purchases of goods from various grocery stores; that defendant maintained a grocery receipts column in the accounting records of the Untouchables purportedly representing expenses of the organization; that defendant also created an anonymous donations column in the account books; and that the dollar amounts entered in the grocery receipts column were based upon grocery receipts supplied by others, fictitious grocery receipts, and expenditures of funds by the Untouchables. To the extent the grocery receipts column reflected fictitious sums, the anonymous donor column which defendant also maintained reflected identical fictitious "donations." The inflated income and expense figures were used by defendant to present a false picture of the activities of the corporation.
The offense of second degree forgery is presently codified in section 18-5-103, 8 C.R.S. (1978), and states in pertinent part as follows:
(1) A person commits second degree forgery, if, with intent to defraud, he falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
(a) A deed, will, codicil, contract, assignment, commercial instrument, promissory note, check, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status ....
(emphasis added) "Utter" and "written instrument" are defined in section 18-5-101, 8 C.R.S. (1978), as follows:
(8) "Utter" means to transfer, pass, or deliver, or attempt or cause to be transferred, passed, or delivered, to another person any written instrument, article, or thing.
(9) "Written instrument" means any paper, document, or other instrument containing written or printed matter or the equivalent thereof, used for purposes of reciting, embodying, conveying, or recording information, and any money, credit card, token, stamp, seal, badge, or trademark or any evidence or symbol of value, right, privilege, or identification, which is capable of being used to the advantage or disadvantage of some person.
Both sections 18-5-101 and 18-5-103 were enacted by the General Assembly in 1971. See Ch. 121, §§ 40-5-101 & 40-5-103, 1971 Colo.Sess.Laws 433, 433-35. Prior to this enactment, forgery offenses were charged pursuant to C.R.S. 1963, § 40-6-1. Section 40-6-1 contained no definitional section. It did, however, prescribe punishment for uttering a written instrument. Section 40-6-1 provided in pertinent part as follows:
Every person who ... shall utter, publish, or pass, as true and genuine, or cause to be uttered, published, or passed as true and genuine, any of the above named false, altered, forged or counterfeited matters as above specified and described, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person, body politic or corporate, whether the person, body politic or corporate, reside in this state or not; every person so offending shall be deemed guilty of forgery, and upon conviction thereof shall be punished by confinement in the penitentiary for a term not less than one year nor more than fourteen years.
The language is essentially equivalent to the contents of the initial forgery statute adopted by the Territorial Legislature of Colorado in 1861. See 1861 Terr. Laws Colo., Div. VII, § 67, at 302-03.
In Cameron v. People, 170 Colo. 504, 462 P.2d 606 (1969), we held that to obtain a conviction of forgery under the then applicable statutory provisions the prosecution must establish that the instrument in question was false and that the defendant knew or must have known of the falsity of the instrument when the defendant participated in the passing of the instrument. That guilty knowledge of a defendant accused of passing a forged instrument must be established under the provisions of the present statute was assumed, if not decided, in People v. Brown, 193 Colo. 120, 562 P.2d 754 (1977). The People argue that the present statute permits a conviction of forgery based on proof that a valid instrument was passed (uttered) with the intent to defraud. We find nothing in the statute, however, to suggest that the General Assembly intended to remove the requirement that a person guilty of forgery must have knowledge that the instrument in question is false or fictitious. If such interpretation were adopted, the forgery statute could well overlap other statutes, such as section 18-4-401(1), 8 C.R.S. (1979), prohibiting theft by deception.
We hold that conviction of the offense of second degree forgery in the circumstances of an alleged uttering of an instrument requires proof that the instrument itself was false or fictitious and that the accused knew that the instrument was false or fictitious. The People do not suggest that, at the time of their use, the grocery receipts in question here were false or fictitious. Thus, as defendant argues, the evidence necessarily failed to establish that he knowingly uttered false documents. We therefore reverse defendant's conviction of second degree forgery.
Defendant contends that his conviction of charitable fraud, in violation of section 18-5-115(1)(a), 8 C.R.S. (1978), must be set aside because that statute is unconstitutionally vague. In People v. Moyer, 670 P.2d 785 (Colo.1983), we held that the term "primary benefit" was too vague to satisfy due process requirements of the federal and Colorado constitutions. That decision is dispositive of the issue here raised. Accordingly, we reverse defendant's charitable fraud conviction. 1
Defendant seeks reversal of two of his three convictions of theft on the ground that the information did not...
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