State v. Meyer

• Citation: 832 P.2d 357,17 Kan.App.2d 59
• Decision Date: 15 May 1992
• Docket Number: No. 66801,66801
• Parties: STATE of Kansas, Appellee, v. Otto L. MEYER, Appellant.
• Court: Court of Appeals of Kansas

Page 357

832 P.2d 357

17 Kan.App.2d 59

STATE of Kansas, Appellee, v. Otto L. MEYER, Appellant.

No. 66801.

Court of Appeals of Kansas.

May 15, 1992.

Syllabus by the Court

1. A writing invalid on its face cannot support a charge of forgery. A writing valid on its face can support a charge of forgery, even though inquiry into extrinsic facts would show it to be invalid.

2. A valid debt or claim against the person whose name is forged is not a defense to a charge of forgery.

3. A verdict or judgment in a criminal bench trial is only inconsistent where the essential elements and facts of the count resulting in acquittal are necessary to prove guilt on the count resulting in conviction. Verdicts or judgments are not inconsistent if they can be reconciled in any manner upon any rational basis.

4. Inconsistent verdicts or judgments in a criminal bench trial are not permissible and constitute reversible error.

5. The record is examined and it is held : Under these circumstances, the trial court's judgments finding the defendant not guilty of forgery, but guilty of issuing or delivering a forged instrument, are inconsistent.

Thomas M. Warner, Jr. of Pullman & Warner, Chartered, Wichita, for appellant.

Jeffrey E. Goering, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRAZIL, P.J., and GERNON, J., and DONALD L. WHITE, District Judge Retired, assigned.

GERNON, Judge:

Otto Meyer appeals his conviction for issuing or delivering a forged instrument.

Meyer's trial on forgery and issuing or delivering a forged instrument was to the court. The court found Meyer not guilty of forgery. The focal point of Meyer's appeal is whether an individual can be found guilty at a trial to a judge of issuing or delivering a forged instrument, when the same court found the defendant not guilty of forging the same instrument.

This criminal case grew out of a landlord-tenant dispute between Robert Walker and Otto Meyer. Walker agreed to rent an apartment owned by Meyer. The two of them agreed to meet later to execute a formal lease agreement. The lease was executed, specifying a term of six months. In addition to the lease, Meyer presented a document entitled "Rental Information." The bottom portion of the document contains several paragraphs that purport to be an agreement between the parties and states in part that the lessee agrees to "live in the unit at least 12 months to be eligible for deposit refund."

Walker testified he signed the lease, an inventory sheet, and an inspection report, but did not sign the rental information sheet or give Meyer permission to affix his signature to the document. Walker moved out of the apartment after six months and contacted Meyer regarding return of the security deposit. Meyer eventually wrote Walker a letter in which he refused to return any of the security deposit and stated that: (1) Walker had violated the lease terms by allowing a second party to move into the premises, requiring extra clean-up; (2) rent payments were late; and (3) the rental information sheet required a tenant to live in a unit at least 12 months to be eligible for a deposit refund.

Walker denied he had ever seen the rental information sheet until a copy was provided to him by Meyer with the letter. Meyer testified he informed Walker about the rental information sheet and showed him a copy of what the document looked like. Meyer stated that the information needed for the form came from Walker and that he tried to arrange another meeting with Walker to complete the form, but Walker responded, "[N]o, you have all the information, just sign my name on it, just put my name on it.... I've already signed the lease anyway."

Meyer acknowledged he affixed Walker's signature to the rental information sheet by photocopying the signature from one of the other documents.

Two witnesses supported Meyer's position that Walker had authorized Meyer to sign Walker's name. One testified that Walker did not want to set up another meeting to complete the document and told Meyer to "take care of it for me." The other witness indicated Walker stated, "[Y]ou can sign it for me.... I don't mind if you sign my name."

The trial court concluded there was sufficient reasonable doubt as to whether Meyer was guilty of forgery and found Meyer not guilty on that count. However, the court had no reasonable doubt that Meyer had sent the same document to Walker with intent to defraud and, therefore, found Meyer guilty of issuing or delivering a forged instrument. Meyer appeals.

On appeal, we must determine: (1) whether the rental information sheet was a "written instrument" subject to the provisions of K.S.A. 21-3710; (2) whether the alleged preexisting debt owed by Walker to Meyer prevented a finding that Meyer had the required intent to defraud; and (3) whether Meyer's acquittal on the charge of forgery required the trial court to also find Meyer not guilty on the charge of issuing or delivering a forged instrument.

Was the rental information sheet a "written instrument"?

Meyer argues his conviction should be reversed because the rental information sheet is not a "written instrument" within the meaning of K.S.A. 21-3710. Specifically, Meyer contends the document is unenforceable and, thus, is not "capable of being used to the advantage or disadvantage of some person." K.S.A.1991 Supp. 21-3110(25). We disagree with Meyer's argument on this issue.

K.S.A.1991 Supp. 21-3110(25) defines "written instrument" and provides:

" 'Written instrument' means any paper, document or other instrument containing written or printed matter or the equivalent thereof, used for purposes of reciting, embodying, conveying or recording information, and any money, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person."

The Kansas Supreme Court considered a similar argument by a defendant in State v. Hilton, 35 Kan. 338, 11 P. 164 (1886). In Hilton, the defendant submitted several affidavits and other documents to an insurance company in an effort to collect life insurance benefits. The documents were physically attached to each other. One of the documents listed a burial date of March 4, 1885, while other documents indicated the date of death was May 2, 1885; a discrepancy which the insurance company "at once" discovered. 35 Kan. at 347, 11 P. 164. The Kansas Supreme Court rejected the defendant's claim that his forgery conviction should be reversed based upon "the rule of criminal law that an instrument void upon its face cannot be the subject of forgery, because it has no legal tendency to effect a fraud." 35 Kan. at 347, 11 P. 164. The court concluded:

"We concede that a writing invalid on its face cannot be the subject of forgery, but a false instrument, which is good on its face, may be legally capable of effecting a fraud, though inquiry into extrinsic facts would show it to be invalid, even if it were genuine; therefore the forging of such an instrument is a crime." 35 Kan. at 348, 11 P. 164.

The court held that each document should be considered as a separate entity and, thus, the defendant's false affidavit could support a forgery charge. 35 Kan. at 348, 11 P. 164. The court reasoned:

"We do not think that where a certain number of written instruments are required to be presented in connection with each other as indispensable to establish any alleged fact, that a person who falsely and fraudulently makes one or more of these written instruments is guiltless of offense because he does not falsely make all, or because in some of the other written instruments to be presented a discrepancy or defect occurs which prevents the accomplishment of his fraudulent purpose.... The fraud of the defendant was not defeated by the form of the forged affidavit, or the forged certificate, but only through an examination of the other written instruments. That these written instruments are connected or attached together, we do not think exculpates the defendant. The case before us is the same as where the invalidity of an instrument depends on some fact not appearing on its face; that is, not appearing upon the face of the forged paper or instrument." 35 Kan. at 348-49, 11 P. 164.

Here, nothing on the face of the rental information sheet would reveal its invalidity. As noted, the bottom half of the document appears to establish an agreement between the parties. The purported agreement includes a number of terms commonly included in leases, including rent payment date, late fees, liability for damage, written notice to vacate, a provision excluding pets, and a clause concerning deposit refund.

We also reject Meyer's argument that the rental information form is not a legally binding contract, is not a promise to pay, and is superseded by the lease agreement. The rental information sheet itself does contain a promise "to pay rent in advance."

We conclude the rental information sheet is not invalid on its face. Its invalidity can only be established by examining extrinsic facts. Therefore, Meyer's claim does not constitute a defense to a forgery charge.

Did the alleged preexisting debt prevent a finding that Meyer had the required intent to defraud?

Meyer next asserts the trial court erred by refusing to permit the introduction of evidence concerning his right to keep the security deposit under the terms of the lease. Specifically, Meyer contends he could not have acted with an intent to defraud if he was entitled to retain the security deposit under other provisions of the agreement, such as the late payment clause. Meyer cites no authority for this proposition, nor can we find any.

K.S.A.1991 Supp. 21-3110(9) defines "intent to defraud" and provides: " 'Intent to defraud' means an intention to deceive another person, and to induce such other person, in reliance upon such...