Opinion
Case No. 20060784-CA.
Filed: August 30, 2007. NOT FOR OFFICIAL PUBLICATION.
Appeal from the Third District, Salt Lake Department, 011911172, The Honorable Leslie A. Lewis.
Stanley S. Adams, Salt Lake City, for Appellant.
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee.
Before Judges Bench, Greenwood, and Billings.
MEMORANDUM DECISION
Douglas Shepard Adams appeals his conviction, following a bench trial, of thirteen counts of forgery, a third degree felony. Adams claims that the evidence was insufficient to establish that he had the requisite intent to defraud when he signed the names of two other persons on checks. See Utah Code Ann. § 76-6-501 (2003).
"When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." State v. Goodman, 763 P.2d 786, 786 (Utah 1988). "After the defendant has been found guilty beyond a reasonable doubt based upon the evidence [in the trial court], we will review the record to see if the clear weight of the evidence . . . is contrary to the verdict." Id. at 787.
At the start of the trial, the parties entered stipulations, which included a stipulation that Adams signed the names of Susie Burton and Pete Savas to the thirteen checks that were subsequently cashed or deposited by Adams with some of the proceeds ultimately ending up in Adams' company known as Bar None. Defense counsel volunteered that Bar None got the benefit of the checks and that Bar None and Adams were essentially one and the same. However, Adams contends that he signed the thirteen checks in the course of his duties as manager of the East Park Owners Association because the system of requiring multiple signatures on checks proved to be unworkable. Therefore, he signed the names of Mr. Savas and Ms. Burton on the checks and cashed them as payment for his management duties or reimbursement to him for legitimate expenses. He claims on appeal that he "provided a rational and legitimate explanation for each of the thirteen checks to which he signed the names of Peter Savas and Susie Burton." In support, he cites the entire thirty-seven pages of his trial testimony. In fact, Adams did not address any of the specific checks in his testimony and made only general assertions that all of the checks were for legitimate expenses.
In State v. Gonzalez, 822 P.2d 1214 (Utah Ct.App. 1991), the defendant challenged the sufficiency of the evidence to prove the intent to defraud. Gonzalez wrote a check from a stolen checkbook that she received from a friend. The friend said that the checkbook belonged to her sister, and she gave Gonzalez permission to use it. See id. at 1215. Gonzalez challenged the sufficiency of the evidence to establish she had a purpose to defraud. Id. We concluded that by filling in the check, signing another's name, and presenting that person's check guarantee cards, Gonzalez had completed the check while purporting to be the account holder. See id. at 1216. We held that "the act of completing the check implied a purpose to defraud." Id. We further reasoned that Gonzalez would have gained the extra cash beyond the purchase price, while her companions would have gained the advantage of the goods purchased. See id. Accordingly, there was sufficient evidence of an intent to defraud. See id. Similarly, in a case involving a forged signature on a traffic citation, we found sufficient evidence of the intent to defraud from the fact that the defendant "intended to conceal from authorities his true identity and avoid any potential criminal liability." In re P.S., 2001 UT App 305, ¶ 18, 38 P.3d 303. Stating that "a purpose to defraud can include an intent to gain some advantage," we held the trial court "erred by amending the adjudication of forgery to an adjudication of falsification of government records." Id. We likewise conclude that the evidence was sufficient in this case to establish that Adams had the requisite intent to defraud.
The State concedes that the district court failed to make a specific finding on the element of intent, but argues that the error was harmless because undisputed evidence established the purpose to defraud. We agree. Failure to make a factual finding is harmless error if the undisputed evidence clearly establishes the factor on which findings are missing. See Colonial Pac. Leasing Corp. v. J.W.C.J.R. Corp., 1999 UT App 91, ¶ 18, 977 P.2d 541. "Unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination made." Id. Adams stipulated that he signed the names of two other persons without their permission on checks that were deposited in the Bar None account, that Bar None received the benefit of the checks, and that Adams and Bar None are one and the same. There was sufficient evidence to support a finding that Adams had the purpose to defraud based upon the stipulated facts and additional testimony, and the failure to make a specific finding on intent was harmless. In addition, the trial judge recited the elements of forgery on the record, including the intent element, before ruling that the State had proven forgery beyond a reasonable doubt. Under these circumstances, it is clear that the trial court considered the evidence and necessarily found that the State proved the requisite purpose to defraud.
The remaining claim that the conviction was inconsistent with the acquittal on the charge alleging improper dealing with property by a fiduciary is without merit. The State correctly notes that the elements of the offenses are different.
We affirm.
Russell W. Bench, Presiding Judge
Pamela T. Greenwood, Associate Presiding Judge
Judith M. Billings, Judge