State v. Fisher

• Decision Date: 11 July 1997
• Docket Number: No. 75751,75751
• Citation: 942 P.2d 49,24 Kan.App.2d 103
• Parties: STATE of Kansas, Appellee, v. Stacy Lavell FISHER, Appellant.
• Court: Kansas Court of Appeals

Page 49

942 P.2d 49

24 Kan.App.2d 103

STATE of Kansas, Appellee, v. Stacy Lavell FISHER, Appellant.

No. 75751.

Court of Appeals of Kansas.

July 11, 1997.

Syllabus by the Court

1. Forgery, as defined in K.S.A. 21-3710(a), involves an "intent to defraud" which, under K.S.A. 21-3110(9), includes an intentional deception to assume, create, transfer, alter, or terminate a right, obligation, or power with reference to property.

2. The State's administrative interest in maintaining accurate fingerprint records of arrestees does not amount to a property interest under the Kansas Criminal Code, and falsifying fingerprint records does not constitute forgery.

3. A trial court's ruling on a motion to require the State to reveal the identity of a confidential informant is reviewed under an abuse of discretion standard.

4. A criminal defendant bears the burden to demonstrate that the trial court's refusal to disclose the identity of a confidential informant prohibited the defendant from preparing his or her defense.

5. In determining whether probable cause supports a request for a search warrant, a magistrate must make a common-sense determination as to whether the totality of the circumstances indicates a fair probability that contraband or evidence of a crime will be found in the place to be searched.

6. An affidavit based largely on a confidential informant's statements is sufficient to support a search warrant if the totality of the circumstances indicates the magistrate could have reasonably determined that the informant's tip was accurate.

Michael J. Helvey, assistant appellate defender, and Steven R. Zinn, deputy appellate defender, for appellant.

Scott C. Rask, assistant county attorney, and Carla J. Stovall, attorney general, for appellee.

Before KNUDSON, P.J., MARQUARDT, J., and WAHL, Special Judge.

WAHL, Special Judge:

Stacy Lavell Fisher appeals his convictions for possession of cocaine, possession of marijuana, possession of drug paraphernalia, no tax stamp, five counts of forgery, and obstruction of official duty.

On May 4, 1995, Detective Tim Holsinger of the Labette County Sheriff's Office requested that the district court issue a warrant to search an apartment at 1544 South 25th Street, # 4, in Parsons. Detective Holsinger stated in an affidavit that a confidential informant had told Detective Steenrod of the Parsons Police Department that Fisher and his girlfriend, Lisa Poole, lived at that address and that Fisher was selling crack cocaine. The affidavit stated that the manager of the apartment complex confirmed that Lisa Poole lived at that address and that Fisher stayed with her.

The affidavit stated that on May 2, 1995, the confidential informant told Detective Steenrod that Fisher was about to obtain crack cocaine for sale. Later that day, the confidential informant told Detective Holsinger that Fisher had obtained the crack cocaine. The confidential informant said that Fisher himself had told the informant that Fisher had crack cocaine available for sale on May 3, 1995. The affidavit so stated:

"This confidential informant has provided information regarding a lot of drug activity and numerous people involved with the use or sale of drugs that has been verified and found to be reliable and true. The people mentioned by the confidential informant are known by Labette County law enforcement officers to be involved with the use or sale of drugs from other informants or past drug history."

The affidavit stated that the confidential informant said Fisher was recently graduated from the Labette Correctional Conservation Camp in Oswego and had been in trouble for selling cocaine in the past. The affidavit further stated that a computer check of Fisher's criminal record confirmed that Fisher had a prior conviction for possession of cocaine with intent to sell and that personnel at the Labette Correctional Conservation Camp confirmed that Fisher had recently completed time at the camp.

The affidavit stated that the correctional camp's records described Fisher as a 5' 7", 170-lb. black male born on April 19, 1973. Based on this information, Detective Holsinger requested a warrant to search both the apartment of Fisher and Poole and Fisher's person for drugs and paraphernalia. A district judge issued the warrant as requested.

About 6:30 p.m. that evening, Detective Holsinger and two other deputy sheriffs executed the warrant. Holsinger knocked and when Fisher came to the door, Holsinger identified himself as a police officer and ordered Fisher to put his hands on his head. Fisher was holding what appeared to be a considerable amount of cash in his hands and he did not put his hands on his head. Holsinger drew his service revolver and repeatedly demanded that Fisher put his hands on his head while Fisher backed through the apartment into a bedroom and finally complied by putting his hands on his head.

Another man, Johnny Woodson, was in the bedroom. The officers handcuffed and searched both Fisher and Woodson and found a baggie of marijuana and rolling papers on Fisher. The officers asked the two men for their names, and Fisher identified himself as Terry Johnson.

The officers searched the residence and found a rock of crack cocaine behind the television in the bedroom where the two men were handcuffed. They found another 30 rocks of individually packaged crack cocaine in the closet of the bedroom, a razor blade with cocaine residue in a hallway closet, a small amount of marijuana in a trash can in the kitchen, and rolling papers on top of the refrigerator. The officers arrested Fisher and Woodson. Based largely on the evidence seized from the apartment, the State charged Fisher with possession of cocaine with intent to sell, conspiracy to sell cocaine, possession of marijuana, possession of drug paraphernalia, and no tax stamp. For giving police a false name at the apartment, the State charged Fisher with obstruction of official duty.

At the jail, Fisher signed three fingerprint documents and one palmprint document as T.L. Johnson. He signed the palmprint documents under the assumed name twice. The State charged Fisher with five counts of forgery for using a false name in the five signatures on the fingerprint and palmprint documents.

Fisher moved the district court to suppress the evidence of the drugs seized from the apartment, claiming that the affidavit in support of the request for the search warrant did not provide probable cause to issue the warrant. The district court denied the motion.

Fisher also moved the district court to require the State to reveal the identity of the confidential informant. Fisher claimed that discovering the informant's motive would be essential to Fisher's receiving a fair trial. Defense counsel hypothesized that the informant might be someone who wanted to harm Fisher or that the informant might have evidence that the drugs in the apartment belonged to someone other than Fisher. More specifically, defense counsel said that if Woodson were the confidential informant, Fisher could attack Woodson's credibility because he had made a deal with the State in exchange for testifying against Fisher. The State responded that at trial, Fisher could examine Woodson, Poole, or any other witness Fisher thought could present evidence relevant to the issue of who possessed the drugs without the State's revealing the identity of the confidential informant. The district court agreed with the State and denied Fisher's motion.

At the close of evidence at trial, Fisher moved to dismiss the five forgery counts, claiming the State had failed to prove intent to defraud. Fisher pointed out that the crime of forgery requires an "intent to defraud" which means an intent to deceive "with reference to property" under the Kansas criminal code. Fisher argued that his signatures on the fingerprint and palmprint documents did not affect anyone's interest in property. The district court found that the government had a property interest in maintaining its records and denied the motion.

The jury could not reach a verdict on the conspiracy to sell cocaine charge. The jury found Fisher guilty of possession of cocaine as a lesser included offense of possession of cocaine with intent to sell. The jury also found Fisher guilty of possession of marijuana, possession of drug paraphernalia, no tax stamp, five counts of forgery, and obstruction of official duty.

The district court sentenced Fisher to 18 months for the possession of cocaine conviction, 5 months for the obstruction of official duty conviction, and 5 months for the no tax stamp conviction, and ordered each of those sentences to run consecutively. The trial court sentenced Fisher to 8 months for each of the forgery convictions and ordered those sentences to run concurrent with each other but consecutive to the other sentences. The court imposed two concurrent 1-year sentences, respectively, for the possession of marijuana and possession of paraphernalia convictions and ordered those sentences to run concurrent with the other sentences. Fisher's controlling sentence was 36 months. Fisher appeals.

Fisher argues that the government's interest in recording the fingerprints of arrestees is not a sufficient property interest to serve as the basis for a forgery conviction under the Kansas Criminal Code. This is an issue of statutory interpretation, and this court's review is unlimited. Foulk v. Colonial Terrace, 20 Kan.App.2d 277, Syl. p 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).

K.S.A. 21-3710(a)(1) provides in pertinent part, that forgery is knowingly and "with intent to defraud" endorsing a written instrument so that it purports to have been endorsed by another person, either fictitious or real, without that person's authority. K.S.A. 21-3110(9) defines intent to defraud in the context of the Kansas criminal code as "an intention to deceive another person, and to induce such other person, in reliance upon such...