State v. Hicks
| Decision Date | 30 January 1986 |
| Docket Number | No. 57959,57959 |
| Citation | 714 P.2d 105,11 Kan.App.2d 76 |
| Parties | STATE of Kansas, Appellee, v. Donald E. HICKS, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The test to determine whether the charges in a complaint or information are multiplicitous is whether one offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous.
2. On a motion for judgment of acquittal, the trial court must determine whether from the evidence presented a reasonable mind might fairly conclude that the defendant was guilty beyond a reasonable doubt. If the judge concludes from the evidence that a reasonable mind might fairly decide that a defendant is guilty beyond a reasonable doubt, the case must be submitted to the jury.
3. On appellate review, the appellate court does not decide whether the evidence establishes guilt beyond a reasonable doubt but whether a rational factfinder could have found the accused guilty beyond a reasonable doubt.
4. It is the general rule that instructions should be confined to the charge in the information and that they should be neither broader nor narrower. In determining whether the rights of a defendant have been prejudiced, the adequacy of instructions is to be determined by considering them as a whole, each in conjunction with all the other instructions.
5. Where no objection is given to an instruction at trial, the instruction must be clearly erroneous to warrant reversal.
6. A statement by a criminal defendant to a court services officer during the course of the presentence investigation standing alone is not sufficient competent evidence of a former conviction for enhancement of the sentence under the Habitual Criminal Act.
It is improper for a trial court to order immediate restitution and incarceration at the same time because the two are not harmonious, and therefore the combination is not appropriate under K.S.A.1984 Supp. 21-4603(2).
Eric A. Stahl, Asst. Public Defender, for appellant.
Kimberly Gee Vines, Asst. Dist. Atty., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before MEYER, P.J., REES, J., and FRED S. JACKSON, District Judge, assigned.
The defendant, Donald E. Hicks, was charged with two counts of forgery in violation of K.S.A.1984 Supp. 21-3710. Count I charged the defendant with making the check in question and Count II charged the defendant with having issued or delivered the check in question. The charges were brought under subsections (1)(a) and (b) of the statute, respectively. Defendant was convicted by a jury on both counts and appeals.
At the trial of the case, the victim, Edmond Brown, testified that he had known the defendant for approximately two years and that he had leased an apartment to him. On August 4, 1984, defendant came to Mr. Brown's home to make a payment on the $259 debt he owed for damages to Mr. Brown's property. The defendant gave Mr. Brown a check for $349 which he said he received from a law firm as partial settlement on a car accident he was in. The check was made out to the defendant on the account of Gott, Young and Bogle, P.A., a Wichita law firm, and was signed "Gott Young." Mr. Brown did not know that "Gott Young" was not a real person connected with the firm. When Mr. Brown asked why all the names at the top of the check were not on the signature line, the defendant explained that they were not all on the case, only the man who worked for him. The defendant assured Mr. Brown that the check was good.
The defendant said he would pay $100 on his debt at that time and that he would get another settlement check on the 17th of August and pay the balance at that time. Mr. Brown took the check and gave the defendant the $249 difference between the amount of the check and the $100 paid on account. Defendant endorsed the check on the back and Mr. Brown deposited it.
On August 7, 1984, Mr. Brown received another check on the account of Gott, Young and Bogle, P.A., from a Charles Smith. The man who represented himself as Charles T. Smith was also known as James Gardner. Mr. Brown had seen Smith/Gardner with the defendant several times. Smith/Gardner told Mr. Brown that he was in the accident with the defendant, that he got a settlement like the defendant did and that the defendant told him Mr. Brown would cash the check. Smith/Gardner explained that he did not cash the check at the store because he lost his driver's license.
After Mr. Brown had cashed Smith/Gardner's check, he noticed that the address Smith/Gardner had given was a vacant lot. Mr. Brown contacted the defendant to see if the check was good and was assured by defendant that he and Smith/Gardner had been in an accident together and that the check was good.
On August 14, 1984, the check given to Mr. Brown by defendant was returned by the bank. Mr. Brown called the law firm and spoke to Mr. Bogle, who came out to Mr. Brown's house. The checks were among some 25 checks which had been stolen from Mr. Bogle's law firm and were not signed by any authorized person. There was no such person as "Gott Young" associated with the firm. The firm had never represented either the defendant or Charles Smith. Mr. Bogle suggested that Mr. Brown go ahead and deposit the second check so it could be dishonored by the bank and prosecuted.
Detective Thomas Mayhill, a Wichita Police Department Documents Examiner, examined the check given Mr. Brown by the defendant and compared it to a known sample of defendant's handwriting. Detective Mayhill concluded that the defendant signed his own name on the back of the check and that it was highly probable that most of the writing on the face of the check was done by J.D. Portley. Detective Mayhill was not sure who signed the maker's signature "Gott Young" but it was not the defendant. On rebuttal, Mr. Brown testified that he knew J.D. Portley and that he had seen the defendant and J.D. Portley talking together sometime during the summer of 1984. Detective Roy Rains testified that, during his investigation of the case, he spoke to J.D. Portley, James Gardner/Charles Smith and Garland Martin and they indicated that they knew each other.
The defendant testified at trial that he got the check which he gave to Mr. Brown from a man he did not know who said his name was Garland Martin. On direct examination, he said he sold the man a transmission out of a Buick for $400 but on cross-examination, he said he sold the whole car. He testified Martin told him the $349 check on the law firm's account was out of petty cash. The defendant did not question that, in spite of the fact that defendant never thought Martin was an attorney and had no idea what kind of business Martin had, if any. Defendant testified he then took the check to Mr. Brown, told him the check represented proceeds from the sale of a car transmission, and only mentioned he had been in an accident because he was wearing a brace. Mr. Brown then cashed the check and gave him $249.
Defendant testified he did not know J.D. Portley, whom Detective Mayhill had identified as the person who wrote the date, payee and amount on the check in question. Mr. Brown testified on rebuttal that the defendant had been with J.D. Portley, and that he had seen the defendant with Smith/Gardner several times. Mr. Brown also testified that he knew Garland Martin and had seen defendant in the company of Garland Martin.
After the jury found defendant guilty on both counts of forgery, the court ordered a presentence investigation. On January 17, 1985, the State moved to impose the Habitual Criminal Act on the basis of a prior federal felony conviction.
At the sentencing on February 13, 1985, the trial court overruled defendant's motion for judgment of acquittal. The State presented no documentary evidence of a prior felony conviction, but presented the testimony of Mr. Witham, the presentence investigator, who testified defendant told him he had previously been convicted of a federal felony. The trial court relied on this testimony to impose the Habitual Criminal Act and sentenced defendant to a period of not less than two years and not more than ten years on each charge, the sentences to run consecutively. Defendant was also ordered to make restitution in the amount of $249.
Defendant first contends in this appeal that the charges in Count I of "making" the check and Count II of "issuing" the check are multiplicitous because they are based on one check and that he cannot be punished twice for one offense of forgery.
Multiplicity is the charging of two or more counts where only a single criminal act is involved. State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978); State v. Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981). K.S.A.1984 Supp. 21-3107(1) statutorily allows charging a criminal defendant with multiple violations arising from a single transaction "[w]hen the same conduct ... may establish the commission of more than one crime under the laws of this state...."
The test to determine whether the charges are in fact multiplicitous is whether one offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous. See State v. Freeman, 236 Kan. 274, 281, 689 P.2d 885 (1984); State v. Chears, 231 Kan. 161, 643 P.2d 154 (1982); State v. James, 216 Kan. 235, 531 P.2d 70 (1975).
In this case, defendant was correctly charged with violating subsection (1)(a) of K.S.A. 1984 Supp. 21-3710, which defines the crime of forgery as making, altering or endorsing any written instrument fictitiously or without authority. In Count II, defendant was charged with knowingly issuing or delivering a forged instrument in violation of subsection (1)(b) of the forgery statute.
The two offenses do not require proof of the same elements. Forgery under (1)(...
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