State v. Bray

• Decision Date: 11 July 1988
• Docket Number: No. 20938-8-I,20938-8-I
• Citation: 52 Wn.App. 30,756 P.2d 1332
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Debra Kay BRAY, Appellant.

Page 30

52 Wn.App. 30

756 P.2d 1332

STATE of Washington, Respondent, v. Debra Kay BRAY, Appellant.

No. 20938-8-I.

Court of Appeals of Washington,

Division 1.

July 11, 1988.

Tom P. Conom, Edmonds, for Debra Kay Bray.

Seth Dawson, Snohomish County Pros. Atty., Cassandra Noble, Deputy Pros. Atty., Everett, for State of Wash.

SWANSON, Judge.

Debra Bray appeals from the judgment and sentence entered following her conviction for forgery. She contends the trial court erred in instructing the jury on an alternative means of committing the crime that was not charged in the information. We agree and reverse.

By information filed March 24, 1986, Bray was charged with falsely making, completing, or altering Carol Whitney's signature on a promissory note. The charge arose from an incident on July 10, 1984, when Bray gave Whitney a $3000 personal check.

Whitney and Bray had been close friends for more than ten years. According to Whitney, the money was a gift, given to her by Bray to spite her husband at a time when the Brays were temporarily separated. Whitney maintained that there was never any discussion that the money was a loan; nor was there any discussion of a promissory note or repayment. Whitney claimed she offered to return some of the money several times, offers that Bray refused.

A short time after giving Whitney the check, Bray reconciled with her husband. Following the reconciliation, the relationship between Whitney and Bray cooled. In October 1984, Whitney received a letter from Bray's attorney, requesting repayment of the $3000 and enclosing a photocopy of a promissory note, dated July 10, 1984. The note called for repayment of the $3000 plus 10 percent interest within 60 days and contained what purported to be Carol Whitney's signature. Whitney testified that she had never seen the promissory note before and that this letter was the first indication of Bray's desire for repayment, with the exception of one brief telephone call Bray had placed to Whitney's husband. ¹

Bray gave a fundamentally different account of the transaction. According to Bray, Whitney asked to borrow $3000 to meet closing costs on a new house. Whitney explained that there had been a delay in the receipt of proceeds from a recent stock transaction and promised to repay the loan in 30 days. Bray claimed that she discussed repayment and a promissory note with Whitney, but that the two agreed a promissory note was unnecessary because Whitney was given a check rather than cash as originally requested. Bray acknowledged having prepared the promissory note on the night before giving Whitney the check.

When Whitney failed to repay the loan on schedule, Bray informed her that she was bringing the note for signature to the Whitneys' housewarming party, which occurred in September 1984. Bray testified that she left her purse in plain view on the kitchen counter; the note was sticking out of the purse and Whitney "certainly would have seen it." After leaving the party briefly, Bray returned to pick up her purse and noticed that "the promissory note had been put inside and the purse was zipped." Bray did not discover that the note had been signed until several weeks later. She denied having signed Whitney's name and having any reason to suspect that the signature on the note was not genuine.

Both sides presented handwriting experts. Timothy Nishimura, who testified for the State, opined that Whitney's signature on the note was a "simulated forgery," i.e., a conscious attempt to make the signature look genuine. Nishimura stated that it is usually impossible to identify the author of a simulated forgery. Nishimura concluded that Whitney had not signed the note, but was unable either to identify or to eliminate Bray as the writer.

Jan Beck, a forensic document examiner, testified for Bray. He agreed with Nishimura that Whitney's signature was a simulated forgery and that it is impossible to identify the author of the simulation. Beck also concluded that Whitney's endorsement on the $3000 check had not been the model for the forgery.

Bray was charged pursuant to RCW 9A.60.020(1)(a), which provides that one is guilty of forgery

... if, with intent to injure or defraud:

(a) He falsely makes, completes, or alters a written instrument ...

During trial, the State twice sought to amend the information by adding an alternative means of committing forgery pursuant to RCW 9A.60.020(1)(b), which provides that one is guilty of forgery

... if, with intent to injure or defraud:

* * *

(b) He possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged.

The State's motions were denied. Over defense objections, however, the trial court gave an instruction defining forgery in terms of both alternative means. The "to convict" instruction contained only the elements of the charged alternative. Also over defense objections, the trial court gave an accomplice instruction.

A jury found Bray guilty as charged. She was sentenced to five days confinement converted to 40 hours of community service and to 12 months inactive community supervision.

The primary issue on appeal involves instruction 5A, which provided:

A person commits the crime of forgery when, with intent to injure or defraud, he or she falsely makes, completes or alters a written instrument or possesses, utters, offers, disposes of or puts off as true, a written instrument which he or she knows to be forged.

(Italics ours.) Instruction 5A essentially set forth the two statutory means of committing forgery defined in RCW 9A.60.020. Because Bray was charged only pursuant to the first alternative, however, RCW 9A.60.020(1)(a), she contends instruction 5A erroneously permitted the jury to convict her of a crime that was not charged.

When a statute provides that a crime may be committed in alternative ways or by alternative means, the information may charge one or all of the alternatives, provided the alternatives are not repugnant to one another. State v. Severns, 13 Wash.2d 542, 548, 125 P.2d 659 (1942). When the information charges only one of the alternatives, however, it is error to instruct the jury that they may consider other ways or means by which the crime could have been committed, regardless of the range of evidence admitted at trial. State v. Severns, supra. The manner of committing a crime is an element and the defendant must be informed of this element in the information in order to prepare a proper defense. See State v. Carothers, 84 Wash.2d 256, 263, 525 P.2d 731 (1974). One cannot be tried for an uncharged offense. State v. Brown, 45 Wash.App. 571, 576, 726 P.2d 60 (1986). Thus, an instruction here in the language of the uncharged alternative means of committing forgery was error.

In State v. Severns, supra, our supreme court held that it was error to permit the jury to consider two statutory means of committing rape when only one of the alternatives was charged in the information. The faulty instruction in Severns informed the jury that the alternative definitions were "... for your consideration ..." (Emphasis in original.) Severns, 13 Wash.2d at 546, 125 P.2d 659. The court found that the error was exacerbated by the prosecutor's reference to the uncharged method during closing argument and by the absence of any subsequent instruction that expressly precluded the jury from...