State v. Foster

• Decision Date: 15 November 2013
• Docket Number: No. 104,083.,104,083.
• Citation: 312 P.3d 364,298 Kan. 348
• Parties: STATE of Kansas, Appellee, v. Stephen Bernard FOSTER, Appellant.
• Court: Kansas Supreme Court

298 Kan. 348

312 P.3d 364

STATE of Kansas, Appellee,

v.Stephen Bernard FOSTER, Appellant.

No. 104,083.

Supreme Court of Kansas.

Nov. 15, 2013.

Syllabus by the Court

1. A criminal defendant is not required to challenge the sufficiency of the evidence in the trial court in order to present a claim on appeal that the evidence presented at trial was legally insufficient to support the convictions.

2. The scope of the test for evidence sufficiency depends upon whether the jury is instructed that the defendant committed a single offense by one statutory means that is susceptible to being proved in different ways or whether the jury is instructed that the defendant committed a single offense by two or more distinct alternative means by which the legislature has said the crime can be committed. If the jury is instructed on alternative means for a single offense, the record must contain sufficient evidence from which a rational factfinder could have found the defendant guilty on each and every alternative means, i.e., there must be a super-sufficiency of the evidence.

3. Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.

4. Alternative means are legislatively determined, distinct, material elements of a crime, as opposed to legislative descriptions of the material elements or of the factual circumstances that would prove the crime. The legislature typically signals its intent to state alternative means through statutory structure, separating alternatives into distinct subsections of the same statute, albeit such separation is not always present.

5. In K.S.A. 21–3710(a), the legislature set forth in separate subparagraphs three types of conduct whereby the crime of forgery can be committed, i.e., three alternative means. One can commit forgery under subparagraph (1) by creating a forged instrument; one can commit forgery under subparagraph (2) by offering an instrument known to be a forgery (by whomever created); and one can commit forgery under subparagraph (3) by knowingly possessing a forged instrument (by whomever created) with the intent to offer it. The disjunctive phrases, “making, altering or endorsing” in subparagraph (a)(1) and “made, altered or endorsed” in the other two subparagraphs, simply describe ways in which a forged instrument can be created. The disjunctive phrases, “issuing or delivering” and “issue or deliver,” which are contained in subparagraphs (2) and (3), respectively, simply describe ways in which a person can offer a forged instrument.

6. Because the phrase “issuing or delivering” in K.S.A. 21–3710(a)(2) does not create alternative means of offering a forged instrument, the super-sufficiency rule does not apply and substantial competent evidence that the defendant knowingly delivered a forged written instrument, standing alone, is sufficient to support a forgery conviction under that subparagraph.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Jason E. Geier, assistant district attorney, argued the cause, and Darren E. Root, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by JOHNSON, J.:

A jury convicted Stephen Bernard Foster of certain offenses that included the crime of forgery based upon his attempt to cash a $350 check at CheckSmart. The Court of Appeals affirmed the forgery conviction in a published opinion: State v. Foster, 46 Kan.App.2d 233, 264 P.3d 116 (2011). In reaching its decision, the panel rejected Foster's argument that the terms “issuing or delivering” in K.S.A. 21–3710(a)(2) establish alternative means of committing forgery and that the State had failed to present sufficient evidence that Foster issued the forged check. We granted review of the Court of Appeals decision, in part to resolve any conflict with another panel's decision in State v. Owen, No. 102,814, ––– Kan.App.2d ––––, 2011 WL 2039738 (Kan.App.2011) (unpublished opinion),rev. granted February 17, 2012, regarding the alternative means of committing forgery.

We find that the legislature did not intend to create alternative means of committing forgery through its use of the “issuing or delivering” language in K.S.A. 21–3710(a)(2). Consequently, the State did not have to present evidence that Foster both issued the check and delivered the check; the existence of substantial competent evidence to establish that Foster delivered a fraudulent check knowingly and with intent to defraud was sufficient to support the forgery conviction. Therefore, we affirm the Court of Appeals' decision that upholds Foster's forgery conviction.

Factual and Procedural Overview

On October 8, 2008, Foster attempted to have CheckSmart cash a $900 check, payable to Foster and drawn on the account of Affordable Paintball. Foster told CheckSmart employee Kajsa Freed that he had received the check for work he had done for Affordable Paintball. Freed testified that CheckSmart requires that, before cashing a check, an employee must contact the person who wrote the check and verify the check number, the amount, and the person to whom the check is written. The company also requires the person attempting to cash the check to fill out a form with his or her personal information. Following this procedure, Freed attempted to contact Affordable Paintball but could not reach a representative. She left two messages for the company and advised Foster that she could not cash the check without verification from the maker.

The next day, Affordable Paintball's owner contacted CheckSmart and told the company not to cash checks drawn on Affordable Paintball's account because the checks had been stolen. Therefore, when Foster returned later that day with another check, in the amount of $350, drawn on Affordable Paintball's account, Freed contacted her manager, and the manager called the police. Freed kept Foster at CheckSmart until the police arrived by asking Foster to wait until she and her manager could verify the check. After approximately 10 minutes, the police arrived and arrested Foster. During a search incident to arrest, police found marijuana in Foster's keychain.

The State charged Foster with forgery, attempted theft, possession of marijuana, and possession of drug paraphernalia. At the ensuing jury trial, Affordable Paintball's owner testified that his business checkbook had been stolen from his home and that the $350 check in Foster's possession was one of the stolen checks. He denied writing, signing, or dating the check. He also testified that he did not know Foster, that Foster had never worked for him, and that he did not owe money to Foster.

Two police officers who responded to CheckSmart's call and a detective who interviewed Foster also testified. According to the responding officers, Foster explained that he had received the $350 check for doing lawn work. Foster also told one of the responding officers that he had no knowledge that the check was forged or stolen. Foster explained to the detective that he had agreed to cash the checks as a favor for a friend, Randy Ridens. Foster also told the detective that he was to receive one-third of the proceeds for cashing the checks.

Foster defended at trial on the basis that he did not know the checks were stolen. His trial testimony laid the blame on Ridens. Specifically, Foster said that Ridens owed him $350 for yard and automobile work and that Ridens came to Foster's home with a $900 check from Affordable Paintball made payable to Foster. According to Foster, Ridens told him that he worked for Affordable Paintball and had the check made payable to Foster in order to satisfy his debt to Foster. Foster testified that CheckSmart could not cash the $900 check because he arrived after 5 p.m. and CheckSmart could not reach a representative at Affordable Paintball or the bank. Foster said he returned the $900 check to Ridens, asking for a different check in the exact amount owed to him. He said that Ridens brought him a $350 payroll check the next day, which Foster took to CheckSmart to cash, only to be arrested by the police. Foster claimed that Ridens did not tell him that the check was bad and that Foster never intended to defraud anyone.

The State presented Ridens as a rebuttal witness, who testified pursuant to an immunity agreement. Ridens said that his friend, Kasey Ferguson, wrote the two checks in question. Ridens said he observed Ferguson give Foster the $350 check with the promise that Foster would receive half of the proceeds from cashing the check. Ridens denied that he ever worked for Affordable Paintball, and he declared that Foster was aware that the $350 check was not a payroll check and was stolen.

The jury convicted Foster on all counts, albeit the district court later granted Foster's motion for acquittal on the paraphernalia conviction. The Court of Appeals affirmed Foster's convictions and sentences. This court granted review on the sole issue of the sufficiency of the evidence to support the forgery conviction.

Alternative Means

The overarching question presented involves the sufficiency of the evidence to support the forgery conviction, which does not require us to engage in a preservation inquiry. See State v. Cheffen, 297 Kan. 689, 699–700, 303 P.3d 1261 (2013) (quoting State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 [2008] ) (“ ‘There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court in order to preserve it for appeal.’ ”). But the scope of the test for evidence sufficiency depends upon whether the jury was instructed that Foster was charged with having committed forgery by only one statutory means that was susceptible to being proved in different ways or whether the jury was instructed that Foster...