State v. Ward ( 2018 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 111,640
STATE OF KANSAS,
Appellee,
v.
CHRISTOPHER R. WARD,
Appellant.
SYLLABUS BY THE COURT
1.
On the facts of this case, there was insufficient evidence to support the
defendant's conviction of theft by deception; both the charging document and the
instruction to the jury named two possible victims, and there was no proof that either was
deceived by defendant.
2.
A defendant's conviction for making false information can be affirmed regardless
of whether the criminal conduct pertains to his or her own business or affairs. Any earlier
statement in or impression from State v. Rios, 246 Kan. 517, 792 P.2d 1065 (1990), and
State v. Gotti, 273 Kan. 459, 463, 43 P.3d 812 (2002), to the contrary is explicitly
rejected.
3.
On the facts of this case, evidence that the defendant altered the payee line of a
check was insufficient to prove the defendant made false information.
1
Review of the judgment of the Court of Appeals in 52 Kan. App. 2d 663, 372 P.3d 417 (2016).
Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge. Opinion filed January 12, 2018.
Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is
reversed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and Allie J.
Prester, legal intern, was with him on the brief for appellant.
Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
BEIER, J.: In this appeal the State challenges a Court of Appeals panel's reversal of
defendant Christopher Richard Ward's convictions for theft by deception and making
false information. See State v. Ward, 52 Kan. App. 2d 663, 372 P.3d 417 (2016). We
agree with the panel that the evidence to support the convictions was insufficient and
affirm its decision; our reasoning differs slightly from that of our colleagues on the Court
of Appeals. Defendant is entitled to reversal of both of his convictions.
FACTUAL AND PROCEDURAL BACKGROUND
Ward and his friend Andrew Rhodes formed and operated a construction business,
All Construction Guaranteed Roofing and Restoration (ACG). Their financial
arrangement was a loose one. They merely orally agreed to become general contractors
who would supply materials and hire subcontractors to perform work on projects. Neither
had a set salary; occasionally they would estimate profits and divide them evenly.
A 2011 hailstorm in Johnson County provided plentiful work for ACG, but the
next year brought fewer opportunities. ACG struggled before winning a bid for a large
2
painting project at a townhome complex, which promised a healthy profit. Still, ACG's
cash flow was insufficient, and Ward told Rhodes that he would approach Orin Sweeney
about a loan to the company.
Sweeney, who owned two construction businesses, would eventually testify in
Ward's trial that he met with Ward and gave him a $20,000 check, Number 1073, which
was made payable to "ACG Restoration." The check was drawn on Sweeney's business
checking account with Bank of America. Although Ward had asked Sweeney to add
Ward's name as a payee on the check, Sweeney refused.
Undeterred, Ward added "or Chris Ward" on the payee line of the check after
leaving the meeting with Sweeney. Later the same day he deposited the check into his
personal account at First National Bank.
Rhodes did not learn of the check until weeks later, when Sweeney, unsuccessful
in contacting Ward, turned to Rhodes to obtain repayment of the loan. When Sweeney
discovered that Ward had added his name as an alternative payee of the check, he
reported Ward's actions to law enforcement.
As a result, the State charged Ward with two counts:
"COUNT I: That on or about the 22nd day of May, 2012, . . . CHRISTOPHER
RICHARD WARD did . . . obtain control over property or services by deception, to-wit:
cash, with the intention to permanently deprive the owner, to-wit: ACG Restoration or
Bank of America of the possession, use or benefit of the property, . . . in violation of
K.S.A. 21-5801, K.S.A. 21-6804 and K.S.A. 21-6807. (theft)
"COUNT II: Further, that on or about the 22nd day of May, 2012, . . . CHRISTOPHER
RICHARD WARD did . . . with intent to defraud make a written instrument to-wit: check
3
#1073, with knowledge that such information falsely states some material matter or is not
what it purports to be, . . . in violation of K.S.A. 21-5824, K.S.A. 21-6804, and K.S.A.
21-6807. (making []false information)"
During opening statements at trial, Ward's counsel introduced the defense theory
that Ward had sold the entire apartment complex project to Sweeney and that the $20,000
was to be Ward's share of profit from the sale. In short, according to Ward, he had not
done anything more than claim his ultimate due early in the transaction.
The testimony of Sweeney and Rhodes did not support Ward's version of events.
Sweeney testified that Ward arrived for their meeting with a preliminary
handwritten loan agreement. The agreement included a signature purporting to be that of
Rhodes. Sweeney refused to sign the agreement but, after some negotiation, assented to
making the $20,000 loan to ACG. According to Sweeney, ACG would keep the next two
payments from the project on the complex; then all future payments would go to
Sweeney's company. Sweeney's company would also receive $15,000 of the realized
profit once ACG completed the project, leaving any remaining profit for ACG. Sweeney
was clear—he intended only to provide temporary financial backing. Bank of America
reimbursed Sweeney $20,000 when it was alerted to Ward's alteration of the payee line
on the check.
Rhodes testified that Ward insisted on meeting with Sweeney alone, because
Rhodes and Sweeney had not previously been acquainted. Rhodes' understanding of the
agreement between Sweeney and ACG was substantially similar to that of Sweeney.
Rhodes testified that shortly after Ward's meeting with Sweeney, Ward told him Sweeney
had agreed to help ACG for $15,000 of the profit from the project, but ACG would finish
the project. Ward said nothing about Sweeney's $20,000 check. Rhodes denied signing
4
the preliminary handwritten loan agreement Ward had presented to Sweeney. He also
testified that Ward left town sometime after meeting with Sweeney.
A representative from First National Bank testified that Ward would not have been
permitted to deposit Sweeney's check into his personal account but for the presence of "or
Chris Ward" on the payee line. The representative also said Ward had called the bank the
day he deposited the check to try to get immediate access to the cash, which was refused.
First National Bank eventually reimbursed Bank of America for the amount Bank of
America reimbursed Sweeney.
The State also introduced Ward's personal bank statements into evidence; they
revealed that, in the days before his meeting with Sweeney, Ward withdrew substantial
sums of money through ATMs at local casinos. Moreover, his personal account was
overdrawn in the days before he met with Sweeney. As soon as Sweeney's check cleared,
Ward again made numerous withdrawals through ATMs at local casinos.
The State did not call a representative from Bank of America to testify, but check
Number 1073 was introduced into evidence.
In addition to testifying to his understanding of the deal, as outlined in his
counsel's opening statement, Ward acknowledged before the jury that Sweeney had
declined his request to add his name to the payee line of the check. Ward admitted that he
had added his name but said Sweeney knew he had done so.
The judge gave the following jury instruction for the theft by deception charge:
"The defendant is charged in Count 1 with the crime of theft. The defendant
pleads not guilty. To establish this charge, each of the following claims must be proved:
5
"1. That ACG Restoration or Bank of America was the owner of the property;
"2. That the defendant obtained control over the property by means of a false
statement or representation which deceived ACG Restoration or Bank of America who
had relied in whole or in part upon the false representation or statement of the defendant;
"3. That the defendant intended to deprive ACG Restoration or Bank of America
permanently of the possession, use or benefit of the property;
"4. That the value of the property was at least $1,000 but less than $25,000; and
"5. That this act occurred on or about the 22nd day of May, 2012, in Johnson
County, Kansas."
After conviction on both counts, Ward was given a total sentence of 30 months in
prison and was ordered to pay $20,000 in restitution to First National Bank.
On appeal, Ward argued that the evidence of theft by deception was insufficient,
and that the State proved the crime of forgery rather than making false information,
compelling reversal of both convictions. He also raised an instruction issue, challenged
the denial of a defense motion for mistrial, and argued that cumulative error required
reversal.
The Court of Appeals panel ruled that Ward had not "deceived" either "owner"
identified by the State in its complaint—Bank of America or ACG—which meant that the
evidence of theft by deception was insufficient. It also agreed with Ward that his conduct
satisfied the elements of forgery rather than making a false information. The panel
therefore reversed both convictions. State v. Ward, 52 Kan. App. 2d 663, 677-78, 372
P.3d 417 (2016).
6
SUFFICIENCY OF EVIDENCE OF THEFT BY DECEPTION
When sufficiency of the evidence is challenged in a criminal case, we view the
evidence in the light most favorable to the prosecution and determine whether we are
convinced that a rational factfinder could have found the defendant guilty beyond a
reasonable doubt. If so, we affirm; if not, we reverse. On the way to the outcome, we "do
not reweigh evidence, resolve evidentiary conflicts, or make witness credibility
determinations." State v. Qualls, 297 Kan. 61, 66, 298 P.3d 311 (2013).
Ward was convicted of theft by deception from ACG or Bank of America. In
Kansas theft by deception is defined as: "[W]ith intent to permanently deprive the owner
of the possession, use or benefit of the owner's property or services . . . obtaining control
over property or services, by deception." K.S.A. 2016 Supp. 21-5801(a)(2). Under this
definition, we have consistently required the State to present evidence that the person
relinquishing control of the property "'was actually deceived and actually relied upon the
false representation in order for the defendant to be found guilty . . . .' State v. Finch, 223
Kan. 398, 402, 573 P.2d 1048 (1978)." State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080(2015).
Based on the State's charge and the district judge's jury instruction, in order for us
to affirm Ward's conviction, we must see sufficient evidence in the record that (1) either
ACG or Bank of America was an owner of the $20,000, (2) Ward obtained control over
$20,000 by means of a false statement or representation, (3) the false statement deceived
either ACG or Bank of America, which relied upon the deception, and (4) Ward intended
to deprive ACG or Bank of America permanently of the $20,000. See PIK Crim. 4th
58.010.
7
The Legislature has defined certain terms used in the theft statute. An "owner" is
"a person who has any interest in property." K.S.A. 2012 Supp. 21-5111(s). And
"deception" "means knowingly creating or reinforcing a false impression, including false
impressions as to law, value, intention or other state of mind." K.S.A. 2012 Supp. 21-
5111(e). We also note that Black's Law Dictionary identifies an "interest" in property as
"a legal share in something; all or part of a legal or equitable claim to or right in
property." Black's Law Dictionary 934 (10th ed. 2014).
We agree with the Court of Appeals that the State presented insufficient evidence
on deception of and reliance by ACG. ACG qualified as an owner because it had an
interest in the $20,000 based on its status as the intended payee of Sweeney's check, and
Ward was acting as an agent of ACG when he accepted the check from Sweeney. But
"ACG was not deceived by Ward's alteration of Sweeney's check as it neither had the
opportunity to inspect nor to be fooled by the altered check." Ward, 52 Kan. App. 2d at
670. Instead, from the time the check was given to Ward until he deposited it in his
personal account at First National Bank, he remained the only person affiliated with ACG
who knew of the check's existence or of its original or altered state. In vintage cinema
parlance, Ward pulled "an inside job," an embezzlement of company funds. See K.S.A.
2016 Supp. 21-5801(a)(1). His insider status put him in position to take possession of
ACG's check, alter its payee line, and then exert unauthorized control over it by
depositing it into his personal account—while everyone else at the company remained
none the wiser. In essence, Ward stepped out of his role as loyal company agent and into
a role acting as himself for only himself. He could not deceive himself.
We also agree with the Court of Appeals that the State presented insufficient
evidence on deception of and reliance by Bank of America, although we do not rely on its
rationale that Bank of America cashed the check presented by First National Bank in
reliance on Uniform Commercial Code transfer warranties. See Ward, 52 Kan. App. 2d at
8
670. Rather, the evidence as to theft by deception from Bank of America fails as a matter
of law because Ward did not deceive that bank. Ward presented the check to his own
bank, First National, and, as one of the bank's representatives testified, it would not have
allowed Ward to deposit the check in his personal account but for his addition of "or
Chris Ward" to the payee line. Bank of America then honored the check when it was
presented by First National Bank because Bank of America's depositor, Sweeney, had
signed it. The signature line was the line on the check upon which Bank of America
relied, not the altered payee line. While First National Bank undoubtedly was deceived
by Ward's actions, Bank of America was not.
For the foregoing reasons, the State did not prove that Ward committed theft by
deception of ACG or Bank of America, and we affirm the Court of Appeals panel's
reversal of his conviction on that count of the complaint.
SUFFICIENCY OF THE EVIDENCE OF MAKING FALSE INFORMATION
The State next defends Ward's conviction for making false information, arguing
that there was sufficient evidence for the jury to find Ward guilty under K.S.A. 2016
Supp. 21-5824.
The parties' arguments are predicated on statutory interpretation of the making
false information and forgery statutes. "'Issues of statutory interpretation and construction
. . . raise questions of law reviewable de novo on appeal.'" State v. Brown, 295 Kan. 181,
193-94, 284 P.3d 977 (2012). Once that interpretation is accomplished, we again are
called upon to review the sufficiency of the State's evidence; our standard of review is the
same as that set out above with regard to theft by deception.
The controlling making false information statute requires:
9
"making, generating, distributing or drawing, or causing to be made, generated,
distributed or drawn, any written instrument, electronic data or entry in a book of account
with knowledge that such information falsely states or represents some material matter or
is not what it purports to be, and with intent to defraud, obstruct the detection of a theft or
felony offense or induce official action." K.S.A. 2016 Supp. 21-5824(a).
The forgery statute in effect at the time of Ward's conduct read in pertinent part:
"Forgery is, with intent to defraud:
"(1) Making, altering or endorsing any written instrument in such manner that it
purports to have been made, altered or endorsed by another person, either real or
fictitious, and if a real person without the authority of such person; or altering any written
instrument in such manner that it purports to have been made at another time or with
different provisions without the authority of the maker thereof; or making, altering or
endorsing any written instrument in such manner that it purports to have been made,
altered or endorsed with the authority of one who did not give such authority." K.S.A.
2016 Supp. 21-5823(a).
The State argues, relying on earlier caselaw, that Ward's conduct in adding his
name to the payee line of Sweeney's check involved his own "business or affairs" and
therefore legally constituted only making false information and not forgery. Ward has
also focused on distinguishing making false information and forgery, insisting that the
State may have had a sufficient case for forgery but not for making false information.
We begin our analysis with a brief recitation of the statutory history.
Nearly a century ago, the legislature defined offenses affecting records, currency,
written instruments, and securities in Chapter 21, Article 6 of the 1923 General Statutes.
10
Those statutes, G.S. 1923, 21-601 through 21-637, proscribed a variety of conduct.
Although they set out degrees of forgery, there was no crime called "making false
information," or its eventual predecessor, "making a false writing." See K.S.A. 1970
Supp. 21-3711. But the historical statutes are correctly listed as sources for modern
versions of both the making false information and the forgery statutes, because some of
the modern language now found in K.S.A. 2016 Supp. 21-5824 and K.S.A. 2016 Supp.
21-5823 can also be found in G.S. 1923, 21-601 through 21-637 from 1923.
For example, two of the historical statutes, G.S. 1923, 21-604 and 21-605, defined
second-degree forgery:
"Every person who, with intent to defraud, shall falsely make, alter, destroy, corrupt or
falsify, or procure to be falsely made, altered, destroyed, corrupted or falsified—First,
any record of any will, conveyance or other instrument, the record or the copy of the
record of which by law shall be evidence; or, second, any record of any judgment or
decree of any court of record; or, third, any entry in any book, record, journal or account
book, required or authorized by the laws of this state to be kept in any country, township
or school-district clerk, or other public officer, or by any officer of this state, or of any
county or other municipal corporation, or school district; or fourth, the return of any
officer, court or tribunal to any order, writ or process of any court, shall upon conviction
be adjudged guilty of forgery in the second degree. [G.S. 1923, 21-604.]
....
". . . Every person who shall falsely make, forge or alter, or cause or procure to
be falsely made, forged or altered, any entry in any book of records, or any instrument
purporting to be any record or return, specified in the last section, with intent to defraud,
shall upon conviction be adjudged guilty of forgery in the second degree. [G.S. 1923, 21-
605.]"
11
Both statutes covered alteration, the specific conduct in which Ward engaged. But
alteration language is included only in the modern forgery statute.
Many other of the 1923 statutes include language that the prohibited conduct is
conduct that "purport[s]" to be something other than what it actually is, such as "to be the
act of another" (G.S. 1923, 21-601); "to have been issued under the authority of this
state" (G.S. 1923, 21-602); and "to be the impression of [a] seal" (G.S. 1923, 21-603).
These statutes that criminalized a masquerade of some type evolved into the modern-day
forgery statute, and the behavior they criminalized was consistent with that criminalized
by today's forgery statute.
Other sources of prior law for the modern crime of making false information
include portions of the chapter regulating grain and forage and sections of the tax code.
See L. 1967, ch. 237, § 3 (history of K.S.A. 1968 Supp. 34-295c: creating felony for
keeping false grain storage records); L. 1949, ch. 242, § 61 (history of G.S. 1949, 41-509:
criminalizing making or possessing false tax stamps); L. 1930, ch. 14, § 2 (history of G.S.
1935, 79-316a: criminalizing making false personal property records for taxation
purposes); L. 1933, ch. 122, § 17 (Special Session) (history of G.S. 1935, 79-3320:
criminalizing, with intent to defraud the State, "mak[ing], alter[ing], forg[ing] . . . any
license or stamp"). Again, the behavior criminalized by these statutes is similar to that
criminalized by today's making false information statute. It differs from the behavior on
which the forgery statute and its predecessor language have focused; it does not require
that the offender masquerade as another person, only that he or she engage in the
deceitful creation or presentation of inaccurate information. See K.S.A. 2016 Supp. 21-
5824(a) (making false information).
When the 1969 Legislature heavily amended the criminal code, effective July 1,
1970, it repealed all of the predecessor statutes cited above—G.S. 1923, 21-604, G.S.
12
1923, 21-605, K.S.A. 1968 Supp. 34-295c, G.S. 1949, 41-509, G.S. 1935, 79-316a, and
G.S. 1935, 79-3320. See L. 1969, ch. 180, § 21-4701. Replacement provisions included
Kansas' earliest version of the statute on making a false writing—the intervening
predecessor to today's making false information statute—and the modern forgery statute.
See K.S.A. 1970 Supp. 21-3710 (forgery); K.S.A. 1970 Supp. 21-3711 (making a false
writing).
The 1969 Legislature defined making a false writing as:
"making, drawing or keeping or causing to be made, drawn or kept any written
instrument or entry in a book of account with knowledge that such writing falsely states
or represents some material matter or is not what it purports to be, and with intent to
defraud or induce official action." K.S.A. 1970 Supp. 21-3711.
And it defined forgery as:
"knowingly and with intent to defraud:
"(a) Making or altering any written instrument in such manner that it purports to have
been made by another person or at another time or with different provisions or by
authority of one who did not give such authority; or
"(b) Issuing or delivering such written instrument knowing it to have been thus made or
altered; or
"(c) Possessing, with intent to issue or deliver, any such written instrument knowing it to
have been thus made or altered." K.S.A. 1970 Supp. 21-3710.
In 1996, the legislature changed the making a false writing statute to a making
false information statute. K.S.A. 1996 Supp. 21-3711. Since then, K.S.A. 21-3710 and
13
21-3711 have been periodically amended and expanded, and they were recodified as
K.S.A. 2016 Supp. 21-5823 and K.S.A. 2016 Supp. 21-5824 along with the rest of the
criminal code in 2010, but they cover generally the same substantive ground today.
Moving to caselaw growing out of the statutory history, the Court of Appeals
panel observed in this case that "a treatise could be written on the foggy delineation
between forgery and making false information in Kansas." 52 Kan. App. 2d at 671. We
agree that this "foggy delineation" could support at least a respectable student-produced
law review note. It has arisen over time in the context of various challenges to
convictions in which the defendants have asserted that they were found guilty of the
wrong offense—sometimes styled as evidence sufficiency problems, sometimes as
defective charging document problems, sometimes as some sort of hybrid problems. As
the following discussion illustrates, both this court and several Court of Appeals panels
have been caught up in trying to draw a defensible line between the two crimes at the
expense of necessary focus on the statutory elements of the charged crime and the
presence or absence of evidence to support them.
The genesis of the "own business or affairs" language relied upon by the State is
this court's 1990 decision in State v. Rios, 246 Kan. 517, 792 P.2d 1065 (1990).
In Rios our predecessors considered the consolidated appeals of two defendants,
Richard M. Rios and William S. Johnson, who had created bogus refund vouchers to
cover up their prior thefts of money from their department store employer. Based on the
nature of defendants' challenge, the court evaluated whether their conduct "legally
constitute[d] the making of a false writing," which was the crime of conviction, or
forgery, the crime the defendants argued that they had actually committed. 246 Kan. at
528.
14
Instead of articulating a standard of review or other established legal principles to
launch its analysis, the Rios court identified "two basic questions" it needed to answer:
(1) "the nature of the instruments themselves"; and (2) "the intended and actual use of the
instruments." 246 Kan. at 528. In other words, the court put its energy into categorization
of defendants' conduct rather than evaluating whether the elements of the charged crime
had been proved.
Addressing the first question, the court said:
"Previous cases of making a false writing coming before us involved: statements in an
application for a bank loan, State v. Roberts-Reid, 238 Kan. 788, 714 P.2d 971 (1986);
statements in a false bank loan extension intended by bank officials to deceive bank
examiners, State v. Kee, 238 Kan. 342, 711 P.2d 746 (1985); statements made on city
license and sales tax registration applications, State v. Cuezze, Houston & Faltico, 225
Kan. 274, 589 P.2d 626 (1979); and statements in campaign finance reports, State v.
Doyen, 224 Kan. 482, 580 P.2d 1351 (1978)." Rios, 246 Kan. at 528-29.
The Rios court synthesized these cases to mean that a criminally actionable
statement in a false writing should be "related to the defendant's own business or affairs."
Rios, 246 Kan. at 528-29. In fact, the elements of the crime did not include such a
requirement. See K.S.A. 21-3711(Ensley 1988). In contrast, the Rios court concluded,
"the forgery statute specifically proscribed the making of an instrument which appears to
have been made by another without that person's consent." (Emphasis added.) 246 Kan.
at 529. With this comparison established, the court held that the evidence was insufficient
to support the defendants' convictions of making a false writing. 246 Kan. at 531. This
comparison was used as a proxy for a conventional sufficiency analysis. See, e.g., State v.
Robinson, 306 Kan. 1012, 1022-25, 399 P.3d 194 (2017) (court evaluates whether
evidence presented satisfies elements of crime); State v. Banks, 306 Kan. 854, 858-61,
397 P.3d 1195 (2017) (court examines evidence in support of premeditation element).
15
More than a decade later, this court compared the later making false information
offense and forgery. In that case, State v. Gotti, 273 Kan. 459, 463, 43 P.3d 812 (2002),
defendant Story L. Gotti created false refund vouchers and gave them to another person
to use in defrauding Gotti's department store employer. Gotti challenged his conviction
for making false information, framing the issue before the court as a defective charge.
The Gotti court mentioned the two questions Rios had set forth as central to the
false writing statute and, as the court did in Rios, used them to guide its analysis rather
than focusing on the statutory elements. It twice referred specifically to Rios' language
about the defendant's own "business or affairs" and held that the weakness in the State's
case lay in the nature of the instruments. 273 Kan. at 465. The making false information
statute, the court said, "requires that the making of false information be done in the
writer's own name. [And a] forgery is a writing which purports to be that of another." 273
Kan. at 464. The Gotti court reversed the defendant's conviction of making false
information, holding that his conduct constituted forgery. 273 Kan. at 465.
The Court of Appeals panel in this case accurately and succinctly described the
complications that have ensued before other panels of its court when they faced
arguments similar to those advanced in Rios and Gotti:
"The references by both the Rios and Gotti courts to making false information as
involving the defendant's own business or affairs may have led another panel of our court
to elevate the description of making false information as involving the defendant's own
business or affairs to the primary distinguishing test between making false information
and forgery. In State v. Dahlke, No. 92,755, 2006 WL 851235 (Kan. App.) (unpublished
opinion), rev. denied 282 Kan. 792 (2006), the defendant made a false check in his own
name, purportedly drawn on the account of Primerica Financial Services, and cashed it at
a grocery store. Dahlke was charged and convicted of making false information. Again,
16
like in the present case, Dahlke argued he was guilty of forgery, not making false
information. Despite noting that the Gotti court held that the defendant was not guilty of
making false information because 'the writing was not made in regard to the defendant's
own affairs because it was made in the name of the other employee [and] a false writing
must be done in the writer's own name,' 273 Kan. at 464, the Dahlke panel upheld the
defendant's making false information conviction:
'Dahlke appears to misconstrue the legal issue as acting in one's
own name when the real question is whether the false statements are
related to the defendant's own business or affairs. [Citation omitted.] In
Gotti and Rios, the courts concluded that the statements were not related
to the defendant's affairs because they were done entirely in someone
else's name. However, the Primerica check was made out to Dahlke and
he cashed it by presenting his own driver's license, which was recorded
on the check. The claim that the check was not related to Dahlke's affairs
is against reason. Therefore, Dahlke was not improperly charged. 2006
WL 851235, at *11.'
"We respectfully disagree. . . . [O]ur Supreme Court held that the defendants in
both Rios and Gotti were not guilty of either making a false writing or making false
information because the false instruments they created were purportedly made by
another, not because the documents related or did not relate to the defendants' 'own
business or affairs.' Rios, 246 Kan. at 529; see Gotti, 273 Kan. at 463-65. In fact, we
observe that the term 'own business or affairs' is not defined, nor is it contained in the
elements of either forgery or making false information. Repeated holdings by our
Supreme Court have stated that the plain language of the statute governs. See, e.g., State
v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014). Therefore, in our view, the
question is whether one is acting in one's own name and not 'whether the false statements
are related to the defendant's own business or affairs.' See Dahlke, 2006 WL 851235, at
*11.
"Two other panels of our court have followed Dahlke down this path. In State v.
Spencer, No. 102,339, 2010 WL 3731585 (Kan. App.) (unpublished opinion), rev. denied
17
291 Kan. 917 (2010), the defendant falsified his proof of insurance card and presented it
to an employee of the local county treasurer in an effort to renew his motorcycle
registration. The defendant was ultimately charged with and convicted of making false
information; on appeal, the defendant argued that his conduct constituted forgery instead.
The panel affirmed his conviction, stating:
'Here, Spencer was attempting to renew the license plate on his
motorcycle. In order to do so, he had to present proof that he had
insurance coverage on the motorcycle. Spencer presented the County
with a document in his own name that falsely stated he had insurance on
his motorcycle. Although Spencer alleged the card was made by the
insurance company, it was a falsification of Spencer's own insurance
card in an effort to renew his license plates.' 2010 WL 3731585, at *2.
"Again, we disagree. Spencer was correct that his acts constituted forgery
because he created a false document purportedly from his insurance company. The
employee of the county treasurer's office would not have accepted any document
purportedly made by the defendant and would have renewed Spencer's motorcycle
registration only because of the credibility of a document purportedly from the insurance
company. That was the essence of the fraud, and that was forgery according to Rios and
Gotti.
"In State v. Odegbaro, No. 108,493, 2014 WL 2589707 (Kan. App. 2014)
(unpublished opinion), rev. denied 302 Kan. 1018 (2015), the error, in our view, is the
same. There, one of the conditions of Odegbaro's probation was that she maintain full-
time employment. To enforce this requirement, her probation officer required that she
submit pay stubs at each of their monthly meetings. Odegbaro represented to her
probation officer that she was both an employee and part-owner of a company called
Cokeza Styles and subsequently provided pay stubs and a paycheck, listing her as the
payee and signed by Michael Bassey, all of which were purportedly from Cokeza Styles.
After an investigation revealed that Odegbaro had been receiving unemployment benefits
during the time she was supposedly working for Cokeza Styles, she was charged and
convicted of multiple counts of making false information. As in the other cases,
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Odegbaro asserted on appeal that she was guilty of forgery, not making false information,
because each of the documents she submitted appeared to be made by someone other than
her. Relying on Dahlke and Spencer, in addition to quoting from Gotti, 273 Kan. at 465,
that 'making false information involves the perpetrator's own business or affairs,' the
panel held that since Odegbaro 'acted to further her own business affairs,' her actions
constituted making false information. Odegbaro, 2014 WL 2589707, at *4. However, like
in Spencer, the essence of the fraud was that the documents Odegbaro gave to her
probation officer had the air of authenticity because they were purportedly made by
another—the defendant's fictitious employer—which allowed Odegbaro to escape
(temporarily) the consequences of being unemployed contrary to the conditions of her
probation. Her actions constituted forgery for that reason." 52 Kan. App. 2d at 675-77.
In another Court of Appeals case cited but not discussed by the panel in this case,
State v. Greathouse, No. 110,344, 2014 WL 6775814 (Kan. App. 2014) (unpublished
opinion), defendant Lance Greathouse had passed $60 in counterfeit cash to a
correctional officer in an effort to bail a friend out of jail. The panel recognized that other
appellate courts had construed the making false information statute and the forgery
statute "in such a way that forgery requires a writing in the name of another while making
false information is a writing in one's own name or concerning oneself." Greathouse,
2014 WL 6775814, at *2. It also—perhaps drolly—observed that "[t]his distinction has
been the source of some confusion over the years." 2014 WL 6775814, at *2. It
ultimately ruled that "the counterfeit instruments did not contain information related to
the defendant's own business or concerns, nor were they made in the writer's own name.
The instruments were simply counterfeit legal tender. These facts would support a
conviction for forgery." 2014 WL 6775814, at *3.
Having reviewed the statutory language and the case precedent, today we return to
the basics referenced by the Court of Appeals in this case. We do not customarily add
language to clear statutes. See State v. Ardry, 295 Kan. 733, 737, 286 P.3d 207 (2012)
(not function of appellate court to delete or add language to statute). And the clear
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language of the making false information statute requires no such addition here. This
compels us to explicitly reject any earlier statement in or impression from Rios and Gotti
that a defendant's conduct must pertain to his or her own business or affairs before a
conviction for making false information can be affirmed.
This directs us to the question that is the true heart of this appellate challenge by
Ward: Did the State present sufficient evidence to support the actual elements of making
false information, regardless of whether it could have successfully prosecuted Ward for
forgery?
Again, to convict of making false information in this case, the State must have
proved that: (1) Ward knowingly made a written instrument; (2) Ward knew the
instrument to be false; (3) Ward had the intent to defraud; and (4) Ward obstructed the
detection of a theft or felony or induced official action.
The Legislature has not defined the term "make" in this context. See K.S.A. 2016
Supp. 21-5111 (definitions). But plain words should be given their ordinary meaning, and
dictionary definitions can be good sources for such meanings. See Midwest Crane &
Rigging, LLC v. Kansas Corp. Comm'n, 306 Kan. 845, 850, 397 P.3d 1205 (2017).
Black's Law Dictionary defines "make" as "1. To cause (something) to exist . 2. To enact (something) . 3. To acquire (something) . 4. To legally perform, as by executing, signing, or delivering (a
document) ." Black's Law Dictionary 1099 (10th ed. 2014). The
evidence in this case showed only that Ward altered a check already filled out in full by
Sweeney. He did not "make" the check in any of the senses recognized in Black's.
In addition, the Uniform Commercial Code, which Kanas adopted in 1992,
governs negotiable instruments such as checks. Although it is not directly applicable to
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this criminal case, see State v. Foster, 298 Kan. 348, 357, 312 P.3d 364 (2013) ("UCC
addresses unique and specialized area of the law"; its provisions "do not always translate
precisely into other areas"), it offers valuable, common-sense guidance on who qualifies
as the "maker" of a check. A maker is a "person who signs or is identified in a note as a
person undertaking to pay." K.S.A. 2016 Supp. 84-3-103(5). Under the UCC, Sweeney
was the maker of the check. Ward was merely the alterer of that check.
In short, the State failed to meet its burden to prove the first element of the crime
of making false information. This conclusion eliminates the need for us to discuss
whether there were shortcomings in the State's proof of the other elements of the crime.
Ward's conviction of making false information must be reversed.
CONCLUSION
The judgment of the Court of Appeals is affirmed and the judgment of the district
court is reversed.
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