State v. Edwards

• Court: Kansas Supreme Court
• Writing for the Court: SIX
• Citation: State v. Edwards, 250 Kan. 320, 826 P.2d 1355 (Kan. 1992)
• Decision Date: 28 February 1992
• Docket Number: No. 65626,65626
• Parties: , 73 Ed. Law Rep. 815 STATE of Kansas, Appellee, v. Sherman C. EDWARDS and Wanda J. Edwards, Appellants.

Page 1355

826 P.2d 1355

250 Kan. 320, 73 Ed. Law Rep. 815

STATE of Kansas, Appellee, v. Sherman C. EDWARDS and Wanda J. Edwards, Appellants.

No. 65626.

Supreme Court of Kansas.

Feb. 28, 1992.

Syllabus by the Court

1. Knowledge is an essential element of the offense of making a false writing that the State must prove to obtain a conviction under K.S.A. 21-3711. Knowledge means actual information that the writing falsely states or represents some material matter and is intended to defraud or induce some official action. Speculation, opinion, or constructive notice that the writing falsely represents a material matter is not sufficient.

2. When sufficiency of the evidence is challenged in a criminal case, the standard of review on appeal is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

3. Information is considered material under K.S.A. 21-3711 (making a false writing) if a reasonable person would attach importance to the information in choosing a course of action in the transaction in question.

4. K.S.A. 21-3107(1) formulates the limitations upon unfair multiplicity of convictions and prosecutions. The concern with multiplicity is that it creates the potential for multiple punishments for the same offense, which is prohibited by the double jeopardy clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Bill of Rights.

5. Under K.S.A. 21-3107(1), a prosecutor is free to charge multiplicious crimes, but the defendant cannot be punished more than once for the same crime.

6. K.S.A. 21-3303, criminal solicitation, and K.S.A.1991 Supp. 21-3205(1), aiding and abetting, are discussed and applied and the charges filed under both statutes in the case at bar are held neither to have merged nor to have been multiplicious.

7. An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.

Thomas Jacquinot, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellants.

Jeffrey E. Goering, Asst. Dist. Atty., argued the cause, and Thomas J. Robinson, Asst. Dist. Atty., Nola Foulston, Dist Atty., and Robert T. Stephan, Atty. Gen., were with him on the briefs for appellee.

SIX, Judge:

This consolidated criminal appeal arises from the operation of an alleged higher education "loan scam." Sherman C. Edwards and Wanda J. Edwards were convicted of multiple counts of making a false writing, K.S.A. 21-3711, and of criminal solicitation, K.S.A. 21-3303, in connection with the guaranteed student loan applications of eight purported students. Sherman and Wanda were also convicted of submitting false applications on behalf of themselves. Wanda was convicted of submitting a false application under the name of Jerline Johnson, a real person who did not give Wanda permission for the use of her name. Wanda and Sherman were also convicted of submitting a false application under the name of "Ann Dawson," who was a fictitious person.

The issues are: (1) sufficiency of the evidence; (2) whether the false information was material under K.S.A. 21-3711; (3) multiplicity--merger (whether the charge of aiding and abetting in making a false writing merged with the charge of solicitation to make a false writing); and (4) alleged factfinding errors.

The Court of Appeals in an unpublished opinion filed August 9, 1991, reversed the trial court and vacated the sentences. 815 P.2d 128.

The Court of Appeals reasoned that the Edwards actively recruited eight persons to apply for admission to Wichita State University (WSU) and for guaranteed student loans. The Edwards were active in helping the eight fill out forms, shepherding them through the enrollment process, and collecting their money. However, the Court of Appeals stated:

"The record is silent on whether any of the false statements made in the applications were in any way material to the question of whether the applicants would be admitted and receive aid.

....

"Although we have some tantalizing hints, there was no direct testimony that any of the false statements were in fact material. We do not know that the false statements made the applications any more likely to be accepted than if the truth had been stated."

The convictions, except count 13, were reversed as to Sherman on the basis of materiality. All of Wanda's convictions, except counts 3 and 13, also were reversed for lack of materiality. Counts 3 and 13 involved applications for Jerline Johnson (count 3), who did not give her permission for the application to be made, and for "Ann Dawson" (count 13), a fictitious person. Sherman's conviction on count 13 was reversed because there was no evidence in the record to show how Sherman was involved in the "Ann Dawson" application. Wanda's convictions on counts 3 and 13 were reversed because Wanda was improperly charged with making a false writing rather than the appropriate charge of forgery.

Jurisdiction is under our grant of the State's petition for review.

The State does not seek review of the dismissal of counts 3 and 13 relating to Wanda or of count 13 as it relates to Sherman. Our opinion in State v. Rios, 246 Kan. 517, 792 P.2d 1065 (1990), controls the disposition of counts 3 and 13. We affirm the Court of Appeals in reversing counts 3 and 13. We reverse the Court of Appeals and affirm the trial court on the other counts.

Facts

The 27-count complaint/information charging Sherman and Wanda with the crimes of criminal solicitation and making false writings arose out of an alleged "student loan scam." The Edwards, who were married, solicited and assisted eight recruits in submitting false applications for admission to WSU. They also solicited and assisted in the submission of false applications for federally guaranteed student loans in exchange for a "cut" of the loan proceeds. The Edwards were charged with one count of solicitation and one count of making a false writing for each of the eight recruits. They were also charged with making a false writing in connection with their own applications, an unauthorized application (Jerline Johnson), and that of a fictitious person (Ann Dawson).

None of the eight individuals who received student loans attended classes at any time. Each one testified, however, that at application time he or she intended to go to school but that circumstances conspired to prevent each one from attending.

The assistance Wanda and Sherman provided usually consisted of Wanda filling out and filing the necessary paperwork on behalf of the applicants. Wanda and Sherman would notify the applicants when the loan checks were received by WSU. Sherman and Wanda drove the applicants to WSU to enroll, obtain student identification cards, and receive a "rebate check" for the difference between tuition and fees and the loan amount. After receiving the rebate checks, Sherman and Wanda often provided rides to various banks so that the applicants could cash the loan checks and pay to the Edwards the "assistance" fee of $200-$300.

A secretary in the WSU housing office became suspicious. A man she identified as Sherman Edwards, at intervals throughout one afternoon, brought several individuals to the financial aid office. Edwards then accompanied the individuals to her office to pick up their student identifications. The secretary recorded the license number of the car being used to transport the applicants. She gave the car tag number to a co-worker who called the WSU police. The WSU police, joined by the Federal Bureau of Investigation and the United States Department of Education, investigated. The car was rented by Sherman. Several of the admission and loan applications contained incorrect information.

The State dismissed three counts (Nos. 1, 26, and 27) as to each defendant at the close of its case. At the conclusion of a bench trial, Sherman was found guilty of 10 counts of making a false writing and 8 counts of criminal solicitation. Wanda was convicted of 11 counts of making a false writing and 8 counts of criminal solicitation. The trial court found both defendants not guilty on four counts (Nos. 16, 17, 18, and 19).

Sufficiency of the Evidence

Sherman and Wanda contend the evidence was insufficient to convict them of the crimes charged. They reason that eight of the convictions of making a false writing should be vacated. The Edwards assert the State failed to prove actual knowledge of the false information contained in the applications of eight of the purported WSU students.

Our standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the Edwards guilty beyond a reasonable doubt. See State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).

The crime of making a false writing is "making or drawing or causing to be made or drawn any written instrument ... with knowledge that such writing falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action." (Emphasis added.) K.S.A. 21-3711.

Knowledge is an essential element of the offense of making a false writing that the State must prove to obtain a conviction. Knowledge means actual information that the writing falsely states or represents some material matter and is intended to defraud or induce some official action. State v. Conner, 4 Kan.App.2d 207, 208-09, 603 P.2d 1038 (1979), rev. denied 227 Kan. 927 (1980). Speculation, opinion, or constructive notice that the writing falsely represents a material matter is not sufficient. 4 Kan.App.2d at 209, 603 P.2d...