State v. Bedoni, 1

• Decision Date: 29 August 1989
• Docket Number: CA-CR,No. 1,1
• Citation: 161 Ariz. 480,779 P.2d 355
• Parties: STATE of Arizona, Appellee, v. Darrell BEDONI, Appellant. 88-617.
• Court: Arizona Court of Appeals

Page 355

779 P.2d 355

161 Ariz. 480

STATE of Arizona, Appellee, v. Darrell BEDONI, Appellant.

No. 1 CA-CR 88-617.

Court of Appeals of Arizona Division 1, Department A.

Aug. 29, 1989.

Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Criminal Div., Diane M. Ramsey, and Paul McMurdie, Asst. Attys. Gen., Phoenix, for appellee.

Aspey, Watkins & Diesel by Wendy F. White, Flagstaff, for appellant.

OPINION

JACOBSON, Presiding Judge.

Appellant Darrell Patrick Bedoni (defendant) appeals from his convictions of forgery, driving while under the influence of intoxicating liquors (DUI) with two prior convictions, and DUI on a revoked license. The main issue on appeal is whether the signing of a fictitious name to a traffic citation can constitute the crime of forgery. We affirm the convictions, but remand for resentencing because defendant's sentence was improperly enhanced by conviction of two crimes committed on the same occasion.

Facts

The following facts are viewed in the light most favorable to sustaining the convictions. See State v. Olivas, 119 Ariz. 22, 579 P.2d 60 (App.1978). On October 4, 1987, Sergeant Ray Martinez of the Flagstaff Police Department stopped a vehicle after observing that it was being driven slowly, it stopped past the stop line at one intersection, and it went over the yellow line after a right turn at another intersection.

As he approached the vehicle, Martinez smelled the odor of liquor coming from inside the car. Defendant was in the driver's seat, appeared dazed, and had alcohol on his breath. When asked for his license, defendant said he had left it at home, but told Martinez his name was John Begay and that he had a valid New Mexico license.

Officer Frank Manson then arrived at the scene. Manson advised Martinez that there was an outstanding warrant for the arrest of the owner of the car. Manson also had information on the vehicle and the physical description of the registered owner, "John Bedoni."

Martinez began to give the field sobriety test to defendant. He testified that defendant failed the balance test. He could not recall any other details of the test because no field sobriety test form had been prepared due to a miscommunication between Martinez and Manson. Manson, who testified he had observed the tests, testified defendant could not stand on one leg, and failed the heel-to-toe test.

Manson wrote defendant a traffic citation for driving without a license. He offered it to defendant to sign the "promise to appear" portion of the ticket. Defendant first started writing a "D," then wrote over it "John Begay." One of the two passengers in the vehicle, who had previously denied knowing defendant, called defendant "Darrell."

Martinez then searched the vehicle. Defendant at that time had not been placed under arrest. Martinez found three items of identification in the name of Darrell Bedoni stuck between the door jamb and the left side of the front seat. He also found empty and full beer cans and bottles stuffed under the front seat. Manson showed the identification to defendant, who then admitted he was Darrell Bedoni. Defendant was arrested, and refused to take the breath test.

Defendant was convicted of forgery, DUI with two prior convictions, and DUI on a revoked license. His motion for new trial was denied. Defendant was given one-year, concurrent sentences on the DUI convictions. The court utilized the DUI conviction as a prior felony for the purpose of enhancing the forgery conviction and sentenced defendant to four years of imprisonment on the forgery conviction, to run concurrently with the other sentences. The court also imposed a fine of $500 and a felony assessment of $100 on both DUI offenses. Defendant timely appealed.

Forgery Count

Defendant's main argument on appeal is that the trial court erred in not directing a verdict as to the forgery count. Defendant contends his conduct did not constitute forgery because his conduct violated only A.R.S. § 13-2907.01 (forbidding giving false information to a police officer). Defendant also contends that the traffic citation was not "a written instrument" under A.R.S. § 13-2002; that he did not defraud anyone by signing the citation "John Begay" because to defraud means to deprive a person of property or any interest estate or right; and that the false signature did not change the legal effect of the instrument. We disagree.

"Forgery" is defined, in relevant part, as follows:

A person commits forgery if, with intent to defraud, said person:

(1) Falsely makes, completes or alters a written instrument ....

A.R.S. § 13-2002(A) (emphasis added). "Written instrument" is defined, in relevant part, as:

Any paper, document or other instrument containing written or printed matter or its equivalent.

A.R.S. § 13-2001(9)(a) (emphasis added). The issue is whether a traffic citation falls within the definition of this broadly-worded statute. That defendant could have been prosecuted for giving false information is not relevant; choosing the appropriate crime with which to charge a defendant is a matter of prosecutorial discretion. E.g., State v. Sommer, 155 Ariz. 145, 745 P.2d 203 (App.1987).

In our opinion, there is no question that a traffic citation constitutes "any paper" and is within the broad statutory definition of a written instrument. The acknowledgement signed by defendant states, "Without admitting responsibility, I acknowledge receipt of this complaint." Defendant signed it "John Begay."

Next we address whether such an act constitutes an "intent to defraud." Although we have not found a case holding that signing such an acknowledgement constitutes a forgery, in three cases a defendant's false signature on a police fingerprint card has been held to constitute a forgery of a written instrument. See People v. Bigus, 115 A.D.2d 751, 497 N.Y.S.2d 145 (App.Div.1985); People v. Hennessy, 133 A.D.2d 174, 518 N.Y.S.2d 988 (App.Div.1987); State v. Edwards, 201 Conn. 125, 513 A.2d 669 (1986). We believe the rationale of those cases is applicable here.

In People v. Bigus, the court considered whether signing a fingerprint card constitutes a forgery of a written instrument under New York Penal Law § 170.00(1), which defines "written instrument" as:

[A]ny instrument or article containing written printed matter or the equivalent thereof ..., which is capable of being used to the advantage or disadvantage of some person.

Like defendant's argument here, Bigus argued that the fingerprint card was not capable of being used to "the advantage or disadvantage of some person." The court disagreed:

This contention is without merit, for it ignores the very real advantage gained by the criminal suspect who, in signing a name other than his own, is thereby able to conceal from the authorities, at least temporarily, his true identity and any criminal history which he might have. As other courts have observed, such an intentional deception could lead the authorities to reasonably (albeit incorrectly) conclude that the suspect has no criminal record, and there might be a release on the suspect's own recognizance or upon greatly reduced bail....

115 A.D. 751, 497 N.Y.S.2d at 146. This opinion was affirmed on review for the reasons stated in the lower appellate court's decision. People v. Bigus, 68 N.Y.2d 723, 506 N.Y.S.2d 333, 497 N.E.2d 700 (1986). Bigus was followed in People v. Hennessy, which held that an indictment which alleged the signing of a false name to a fingerprint card contained sufficient allegation of fraudulent intent that the defendant "falsely made" a written instrument. 133 A.D.2d at 174, 518 N.Y.S.2d at 988.

State v. Edwards also involved a defendant who signed a fingerprint card with a name other than his own. The Connecticut Supreme Court found sufficient evidence of all elements, including "intent to defraud, deceive or injure," to support a forgery conviction. 513 A.2d at 683. Although the Connecticut statute is more specific than the Arizona statute in providing that forgery includes false completion of a public record, the Connecticut statute like the Arizona statute requires an "intent to defraud."

Contrary to defendant's argument, defendant's false signature on the form does constitute an "intent to defraud." See People v. Hennessey. The false signature changes the effect of the acknowledgement of receipt and promise to appear. Obviously such acknowledgement and promise to appear by a fictitious person is meaningless. It deceives the officer and the court system, not to mention risking trouble for some unknown person named "John Begay." It conceals the true identity of the perpetrator of the alleged crime and seeks to obtain the release, without incarceration, of someone not entitled to release. In our opinion, all of these acts could be found by a jury to constitute an "intent to defraud."

Validity of Search

Defendant's next argument is that the trial court erred in denying his motion to suppress evidence seized from the car. We disagree. Even though defendant had not yet been arrested, it is clear from the officer's observation that probable cause existed for an arrest for driving while under the influence. The officer did not act unreasonably by searching the car before instead of after the arrest. See State v. Carroll, 111 Ariz. 216, 526 P.2d 1238 (1974); State v. Clevidence, 153 Ariz. 295, 736 P.2d 379 (App.1987). Also, in view of the warrant information about the owner of the car, defendant's peculiar signing of the complaint, and the fact that the passenger called defendant "Darrell," the officer had probable cause to believe that defendant had given a false name to the officers and to further believe that the car contained evidence that would support that conclusion. See State v. Dixon, 127 Ariz. 554, 622 P.2d 501 (App.1980). Furthermore, because the smell of alcohol was coming from the car, the officer could reasonably believe that the vehicle might contain evidence...