State v. Jensen

• Decision Date: 16 December 2004
• Docket Number: No. 20030453-CA.,20030453-CA.
• Citation: 105 P.3d 951,2004 UT App 467
• Parties: STATE of Utah, Plaintiff and Appellee, v. Lamar JENSEN, Defendant and Appellant.
• Court: Utah Court of Appeals

105 P.3d 951

2004 UT App 467

STATE of Utah, Plaintiff and Appellee, v. Lamar JENSEN, Defendant and Appellant.

No. 20030453-CA.

Court of Appeals of Utah.

December 16, 2004.

William B. Parsons III, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Karen A. Klucznik, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before BILLINGS, P.J., DAVIS and ORME, JJ.

BILLINGS, Presiding Judge:

¶1 Lamar Jensen appeals convictions of forgery and fraudulent handling of records. See Utah Code Ann. §§ 76-6-501, -503 (1999). We affirm in part and reverse in part.

BACKGROUND

¶2 Jensen was an officer of Pacific Nakon International, Inc. (Pacific). On July 2, 2001, Pacific entered into a lease agreement Lease with Baca Enterprises (BE) to develop BE's property, which is adjacent to Zion National Park. The Lease provided, in part, that upon Jensen's request, BE must subordinate its interest in the property to any developmental loans, mortgages, and deeds; and BE must execute all documents required by lending institutions.¹ ¶3 Ted Baca, who was the president of BE, and Jensen each signed three copies of the Lease. Jensen retained two copies of the Lease, and Baca retained one copy of the Lease. Afterwards, Jensen realized that the Lease needed to be notarized before it could be recorded. Jensen contacted Baca, and on July 5, 2001, the parties met to have the Lease notarized. The page Jensen provided the notary, however, was the notary page prepared for a trust deed (Deed) Jensen had negotiated prior to the Lease's execution. The purpose of the Deed was to secure a promissory note against the leased property for approximately $235,000. Jensen neither informed Baca of the Deed, nor requested that Baca sign and execute the Deed on BE's behalf.

¶4 On the same day, Jensen executed the Deed. In doing so, Jensen signed the Deed individually and on behalf of Pacific. Jensen also signed his own name on the Deed on the line reserved for BE. Next to his signature on the line reserved for BE, Jensen wrote "see lease." Upon execution of the Deed, Jensen took the Lease and Deed to Southern Utah Title Company (Southern) where an employee looked over the documents and instructed Jensen to take the documents to the Kane County Recorder's Office for recording, which Jensen did. Once Jensen recorded the Lease and Deed, he returned them to Southern; and shortly thereafter, the lenders under the promissory note forwarded the money to Jensen.

¶5 A few days later, an employee at Southern realized that the notary page on the Deed did not match the signature page. The employee contacted Baca to request a meeting. At the meeting, on July 11, 2001, Baca signed the Deed on behalf of BE.

¶6 Jensen was subsequently charged with one count of forgery and one count of fraudulent handling of records, both third-degree felonies. At trial, the jury convicted Jensen of forgery and fraudulent handling of records. Jensen appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 First, Jensen argues that the trial court erred by denying his motion for directed verdict because the State failed to present a prima facie case for each element of the crime of forgery. When reviewing a trial court's denial of a motion for directed verdict, "we review the evidence and all reasonable inferences that may fairly be drawn therefrom in the light most favorable to the party moved against, and will sustain the denial if reasonable minds could disagree with the ground asserted for directing a verdict." Smith v. Fairfax Realty, Inc., 2003 UT 41,¶ 12, 82 P.3d 1064. Because the "standard of review of a directed verdict is the same as that imposed upon the trial court," Management Comm. of Graystone Pines Homeowners Ass'n. v. Graystone Pines, Inc., 652 P.2d 896, 898 (Utah 1982) (quotations and citation omitted), we examine "the trial court's decision to determine if the evidence at trial raised a question of material fact which precluded judgment as a matter of law," Mahmood v. Ross, 1999 UT 104,¶ 16, 990 P.2d 933.

¶8 Second, Jensen maintains that the trial court erred by denying his motion to reduce the fraudulent handling of the records charge under the Shondel doctrine. SeeState v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969). "Our review under the Shondel rule focuses on the trial court's legal conclusions, which we review under a correction-of-error standard, according no particular deference to the trial court's ruling." State v. Green, 2000 UT App 33,¶ 5, 995 P.2d 1250 (quotations and citation omitted).

ANALYSIS

I. Directed Verdict

¶9 Jensen first contends that the trial court erred by denying his motion for a directed verdict because the State failed to present a prima facie case for each element of the crime of forgery. Specifically, Jensen contends that the State failed to present evidence sufficient to raise a question of material fact as to whether by signing his own name to the Deed on the line reserved for BE, Jensen was purporting his signature to be the "act of another."² We agree.

¶10 Jensen argues that his signature on the Deed, which says "Lamar Jensen," could not be deemed to have been the act of anyone other than himself. Furthermore, Jensen alleges that there is a distinction between purporting to be another and purporting to act with authority one does not have.

¶11 This court has emphasized that in forgery prosecutions the State must prove that the defendant used the name of another. See State v. Gonzalez, 822 P.2d 1214, 1216 (Utah Ct.App.1991) ("`[T]he state must show that the defendant not only used the name of another, but must also show that [she] did so without any authority to do so.'" (second alteration in original) (quoting State v. Collins, 597 P.2d 1317, 1317 (Utah 1979))). Likewise, a federal court has held that "[i]t is well established that forgery contemplates a writing which falsely purports to be the writing of another person than the actual maker." Greathouse v. United States, 170 F.2d 512, 514 (4th Cir.1948) (finding that it was not forgery for the defendant to issue a check in his own name on a bank in which he had no funds, despite the defendant's intent to defraud).

¶12 Additionally, in addressing elements of forgery similar to those articulated in our forgery statute, other states have held that one who signs his own name, purporting to act with the authority of another, is not guilty of forgery. For example, the Texas Court of Appeals has held that "one who signs his true name, and does not represent himself to be someone else of the same name, does not commit a forgery because his act does not purport to be that of another." Nobles v. Marcus, 533 S.W.2d 923, 926 (Tex.1976). In Nobles, the court found that the defendant, in signing his own name to the corporation's deed under the false power of an officer of the corporation, did not commit forgery. See id. at 925-26. The court noted that while the defendant "may [have been] guilty of falsely representing the power under which he executed the instrument ... he did not represent his act to be that of another." Id. at 926.

¶13 Similarly, the New York Court of Appeals has held that the element of purporting to be another, as required under New York's forgery statute, "consist[ed] in falsely making an instrument purporting to be made by another." People v. Mann, 75 N.Y. 484, 486 (N.Y.1878) (finding a county officer who, without authority, executed a contract in his own name was not guilty of forgery). In Mann, the court distinguished purporting to be the act of another, a requisite element of forgery, from the false assumption of authority. See id.

One who makes an instrument signed with his own name, but purporting to bind another, does not make an instrument purporting to be the act of another.... The instrument shows upon its face that it is made by himself and is in point of fact his own act. The wrong done ... consists in the false assumption of authority to bind another....

Id. at 486-87.

¶14 More recently, the New York Court of Appeals has held that" `it is not forgery for a person to sign his own name to an instrument, and falsely and fraudulently represent that he has authority to bind another by doing so' and `the signer is guilty of false pretenses only.'" People v. Cunningham, 2 N.Y.3d 593, 780 N.Y.S.2d 750, 813 N.E.2d 891, 894 (2004) (citation omitted). In Cunningham, the court concluded that a corporate consultant did not commit forgery by signing his own name to a corporate check, although his signature to the check was in excess of the authority delegated to him by the corporation. See id.780 N.Y.S.2d 750,813 N.E.2d at 892. In reaching this conclusion, the court noted that "under our present Penal Law, as under prior statutes and the common law, a distinction must be drawn between an instrument which is falsely made, altered or completed, and an instrument which contains misrepresentations not relevant to the identity of the maker or drawer of the instrument." Id.780 N.Y.S.2d 750,813 N.E.2d at 893 (quotations and citations omitted). The court in Cunningham also engages in a lengthy discussion of forgery at common law, its codification into state statutes, and the fact that most states' forgery statutes follow the common law requirement that the writing purport to be that of another. See id.780 N.Y.S.2d 750,813 N.E.2d at 894 ("Although statutes vary, most jurisdictions in this country have tended to follow the [common law] approach to forgery.").

¶15 In the present case, Jensen similarly signed his own name to the Deed on the line reserved for BE and added the words "see lease." Consequently, Jensen did not make an instrument purporting to be the act of another. Thus, while Jensen, like the defendants in Nobles and Mann, may have been guilty of fraudulent assumption of authority, see Christensen v. Nielson, 73 Utah 603, 276 P. 645, 647-48 (1929) (discussing liability for false assumption of authority), the State failed to present sufficient evidence to...