Schiefer v. State , 1989 Wyo. LEXIS 126 ( 1989 )

CARDINE, Chief Justice.

Appellant, Jay Schiefer, seeks review of a judgment and sentence of the district court which, in a trial to the court without a jury, found him guilty of forgery as provided in W.S. 6-3-602(a)(ii).

We affirm the conviction but vacate the requirement that Schiefer reimburse the costs of his court-appointed counsel.

The victim of this crime, Margaret Buch-man, is an elderly woman in poor health who lived alone in a small apartment in Gillette, Wyoming. Schiefer lived across the street from Mrs. Buchman and, during a two-year period ending in September 1986, helped her by doing such things as cashing her social security checks, paying bills, shopping for groceries, doing laundry, and getting her medications. In September 1986, Mrs. Buchman’s daughter moved in with her and she no longer required Schiefer’s assistance. Mrs. Buchman’s social security check had been delivered to a post office box belonging to Schiefer’s mother. A change of address was effected by Mrs. Buchman after her daughter began living with her. Mrs. Buchman testified that, while Schiefer was helping her, he would bring her social security checks to her and she, being unable to read or write, signed her “X” and Schiefer cashed them at a local market. He then used the money to pay bills, buy groceries, and purchase her medications. While all this information is relevant to an understanding of the case, we note at this juncture that no problem ever arose with regard to the cashing of the social security checks. However, in addition to the social security checks, Mrs. Buchman received each year, in December, a sales tax refund check from the State of Wyoming. In 1985, this check was issued to her in the amount of $630. Mrs. Buch-man gave Schiefer $300 out of this check for repairs to the car he used in running the errands he did for her. Mrs. Buchman did not change the mailing address for delivery of this check and, in December 1986, it was delivered to the post office box to which Schiefer had access. Mrs. Buch-man informed Schiefer that she did not want him to cash the 1986 refund check. She testified that she never authorized Schiefer to sign her “X” to the check; did not sign her “X” to it; and specifically told Schiefer that she needed all of the money from the check but would give him $50 from it.

There was evidence presented at trial establishing that Schiefer cashed the 1986 refund check at the market where he regularly had cashed Mrs. Buchman’s other checks. The market required that the checks cashed by Schiefer have Mrs. Buch-man’s “X” on them and, in addition, that he sign as the individual who had cashed the checks. When Mrs. Buchman did not receive her 1986 refund check, she sought help from the police department. A Gillette police officer requested that Schiefer surrender the check. Schiefer provided the officer with $330, indicating that was the amount of the check he had cashed. The check itself was produced into evidence, and it was made out to Mrs. Buchman in the amount of $630 and had been cashed'by Schiefer. Although Schiefer did not testify at trial, it was not disputed that he cashed the check.

Schiefer raises three issues in this appeal:

1. He contends there was insufficient evidence of intent to commit fraud.

2. He asserts that his prior relationship with Mrs. Buchman made him her agent and this, combined with her acceptance of the $330 tendered her through the police officer, constitutes a ratification of the unauthorized signature negating the crime of forgery.

3. He contends the district court’s assessment of reimbursement for court-appointed counsel is incorrect.

SUFFICIENCY OF EVIDENCE OF INTENT

We apply the same test to a challenge of sufficiency of evidence whether trial is to the court or to a jury. Washington v. State, 751 P.2d 384, 387 (Wyo.1988). Applying that test, we determine whether the evidence is sufficient to support a reasonable inference of guilt beyond a reasonable doubt, to be drawn by the fact finder, when the evidence is viewed in a light most favorable to the State. Id.

In this case the district court made a specific finding that Schiefer “had the requisite intent to defraud by obtaining money which he was not entitled to by cashing the check.” There is no question but that the crime of forgery has as one of its elements a specific intent, i.e., a “fraudulent intent.” Grable v. State, 649 P.2d 663, 676 (Wyo.1982). Schiefer claims there was absolutely no evidence of intent to defraud and, on the contrary, the evidence showed that Schiefer told Mrs. Buchman that he had received the check, that he gave her $330 from the check, that Mrs. Buchman said she would give him $50 from the check, and that the previous year Mrs. Buchman had given Schiefer $300 from her refund check. Further Schiefer claims that

“there was only a misunderstanding of how much money [Schiefer] was entitled to for his services of cashing the check: the $300 that he received the year before, or the $50 that Mrs. Buchman said she was going to give him in 1986. This case is quite simply a contract dispute in which the State has decided to intervene and press charges.”

Initially, we must acknowledge that the evidence presented at trial does not support Schiefer’s contention that this was merely a contract dispute. Schiefer’s factual scenario is not supported by the record; but more importantly, it wholly ignores the test we apply in evaluating the sufficiency of evidence. When the evidence is viewed in a light most favorable to the State, there is sufficient evidence to support the conclusion that Schiefer cashed the 1986 refund check without having authority to do so. Indeed, Schiefer cashed the check contrary to Mrs. Buchman’s specific directions, and he did so with the intent of defrauding her of at least $300. We perceive Schiefer as really contending that there was no “direct” evidence of his intent. Specific intent to commit a crime may be shown by circumstantial evidence. Jones v. State, 568 P.2d 837, 845 (Wyo.1977). The mind of an alleged offender may be read from his acts, his conduct, his words and the reasonable inferences which may be drawn from the circumstances of . the case. To hold otherwise would create an impossible burden in a case requiring a finding of specific intent. Id. We hold that the evidence presented at trial was sufficient for the district court to draw an inference that Schiefer acted with the requisite specific intent to defraud Mrs. Buchman. See Grable, 649 P.2d at 676; State v. Grider, 74 Wyo. 88, 284 P.2d 400, 407 (1955).

RATIFICATION

Schiefer contends that Mrs. Buch-man ratified his forgery of her signature by accepting $330 from him, and therefore he is guilty of petty larceny rather than forgery. To sustain this contention, he relies upon the Uniform Commercial Code which provides that: “Any unauthorized signature may be ratified for all purposes of this article.” W.S. 34-21-341(b). The comments pertaining to this code provision state that it neither affects the criminal law nor does it relieve a signer of criminal liability. 6 Anderson, Uniform Commercial Code, § 3-404:1, p. 142 (3rd ed. 1984). Schiefer also cites the cases Rowray v. Casper Mut. Building & Loan Ass’n, 48 Wyo. 290, 45 P.2d 7 (1935) and People v. Bendit, 111 Cal. 274, 43 P. 901 (1896), in support of this argument, but we are unable to perceive any application of these cases to the issues raised here. We hold the evidence was sufficient to support the conviction of forgery.

REIMBURSEMENT FOR SERVICES OF COURT-APPOINTED COUNSEL

Schiefer asserts that the district court improperly required him to reimburse the State of Wyoming and the County of Campbell for the services of his court-appointed counsel as a part of his sentence. In Schiefer’s sentence, the district court directed that he reimburse $1500 for his court-appointed counsel and, further, the district court reserved the right to make an additional assessment for attorney’s fees at the conclusion of any appeal. We agree that the entire assessment is improper. The assessment was made pursuant to W.S. 7-6-106(d) which had an effective date of May 22, 1987. That statute provides that where probation is granted, as it was in this case, “the court shall order the needy person * * * to repay the state for expenses and services provided by appointed attorneys pursuant to the state public defender’s standard fee schedule.” Schiefer committed his crime and was found guilty prior to the effective date of W.S. 7-6-106(d). There was no similar provision in the statutes in existence at the time Schiefer committed his crime. See Public Defender Act, §§ 7-1-107 through 122, W.S.1977 (currently W.S. 7-6-102 through 114).

We have recently held in a similar context that an increase in the potential sentence for a crime, which becomes effective after commission of the criminal act, is a substantive detriment in violation of the ex post facto prohibition of the Wyoming Constitution, Art. 1, § 35, and the United States Constitution, Art. 1, § 10, Loomer v. State, 768 P.2d 1042 (Wyo.1989). The statutory provision at issue here is a substantive detriment; therefore the district court could not require Schiefer to make reimbursement for the costs of court-appointed counsel. Although our disposition of this issue also precludes the district court from reserving the right to assess additional attorney fees for an appeal, such issue may likely arise again, and so we address it briefly. The statutes make no provision for assessment of attorney fees by the district court upon conclusion of the appeal. Such assessment cannot be made before or after the effective date of W.S. 7-6-106(d). Paragraph 6 of the sentence is vacated.

The judgment and sentence of the district court is affirmed except as modified.

URBIGKIT, J., files a dissenting opinion.