Opinion
No. 108,038.
2013-09-27
STATE of Kansas, Appellee, v. Earnest CRAWFORD, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Sherri L. Becker, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Sherri L. Becker, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM:
Earnest Crawford was charged with solicitation to commit forgery after he made several suspicious jail telephone calls in March of 2010. In the recorded calls, Crawford told his girlfriend to use stolen checks to purchase a TV from Walmart then and return the TV for a cash refund. Crawford was convicted at trial. On appeal, Crawford notes that the criminal statute under which he was convicted defines forgery as “making, altering or endorsing” the written instrument, and he argues that this creates three separate and alternative means of committing the offense. He seeks reversal of his conviction because, he says, the State didn't provide evidence that he committed the crime through each of the separate means.
But our court has recently determined that the forgery statute does not create separate means that each must be proven at trial. See State v. Coleman, 47 Kan.App.2d 658, 665–67, 277 P.3d 435 (2012), rev. denied 296 Kan. –––– (March 28, 2013); State v. Foster, 46 Kan.App.2d 233, Syl. ¶ 1, 264 P.3d 116 (2011), rev. granted February 17, 2012. We agree that the analysis of these cases is sound and is consistent with the alternative-means analysis set out by the Kansas Supreme Court in State v. Brown, 295 Kan. 181, 199–200, 284 P.3d 977 (2012). We therefore reject Crawford's claim that the State had to prove that he solicited the making, altering, and endorsing of each forged instrument on which he was convicted of solicitation to commit forgery.
Crawford makes one other argument on appeal. On the morning the jury trial began, Crawford's defense attorney requested to withdraw, citing a poor relationship with Crawford. The district court denied the request to withdraw, and Crawford argues that the district court abused its discretion in doing so. But to justify changing an appointed defense attorney, the defendant must show “justifiable dissatisfaction” with his attorney, such as an irreconcilable conflict or a complete breakdown in communications. Crawford's vague complaints did not require that the district court remove his attorney and appoint a new one. Because we find no error on the issues Crawford has raised on appeal, we affirm the district court's judgment.
Factual and Procedural Background
Earnest Crawford was charged with solicitation to commit forgery for events occurring between March 22 and March 28, 2010. The case proceeded to jury trial early in 2012.
To prove Crawford's alleged solicitation of forgery, the State presented evidence of recorded phone conversations between Crawford—an inmate at Leavenworth County Jail—his girlfriend, Jamie Dibble, and his uncle, Bob Beatty. The conversations took place over several different phone calls between March 23 and March 29, 2010. Excerpts from the recordings were played in front of the jury in open court.
Dibble testified that, with Beatty's assistance, she stole several checks from Tom Heintzelman by taking a checkbook from his house. She testified that Heintzelman had never signed a check for her. Heintzelman testified that he was missing a checkbook after his home was broken into and that he didn't give Dibble permission to use his checking account for any purpose. Dibble confirmed that she told Crawford she had stolen the checkbook.
Dibble said that Crawford initially asked her not to sign any of the stolen checks. But Dibble explained that Crawford later asked her to buy electronics at Walmart with the stolen checks and then return the electronics for a cash refund. As part of the plan, Dibble said that Crawford asked her to write her own name on the checks. Dibble testified that, a few days later, she told Crawford she was scared to carry out the plan and that she ripped up several checks because she didn't want them.
Dibble testified that she gave a stolen check to her friend Howie, who bought a TV at Walmart on March 28, 2010. A detective testified that Heintzelman's name was on the signature line of the check. Dibble said she then immediately helped Beatty return the TV for a refund. Dibble testified that she was convicted for her part in this scheme.
Dibble also said she cashed another check for $70. Dibble testified that Crawford asked her to put her name on the $70 check. Heintzelman later received a copy of this check and said that Dibble had signed a check made out to herself.
Crawford testified that he told Dibble to stay out of trouble and only asked her “to cash some checks, herself, with her own ID and her name.” Crawford maintained that he did not ask Dibble to commit forgery—“I didn't want her signing checks and committing forgeries that way.” Crawford believed the plan to buy a TV from Walmart and then return it would work if Dibble took Heintzelman's checks and signed her own name because Crawford believed Walmart wouldn't cross-reference the IDs to the checks—instead, he believed that Walmart would only cross-reference the IDs to the signature on the checks. Crawford said that he knew the checks were stolen and that he still asked Dibble to use them to carry out this plan. Crawford also conceded that he told Dibble she could have someone else write on the checks as well.
The jury instruction stated that to establish solicitation to commit forgery, it must be proved that Crawford intentionally encouraged Dibble to commit forgery. The instruction then defined forgery as “[t]hat a check was made [,] altered[,] or endorsed so it appeared to have been made by Thomas Heintzelman, who did not give such authority,” done with the intent to defraud on the dates and location alleged. Crawford did not object to the instruction. The jury convicted Crawford, and the district court gave him a 10–month prison sentence.
On the day of the jury trial, Crawford's attorney, James Colgan, notified the district court that he believed that Crawford was dissatisfied with his performance. Colgan told the court that Crawford got upset with him for not providing statutes and caselaw or responding to his needs in a timely fashion. Colgan wanted to make a record of this dissatisfaction and “make sure that [Crawford's] comfortable going forward with me.” After Colgan made those statements, Crawford initially wanted to know why Colgan was aware of his statements complaining about Colgan that Crawford had made to his mother on the jail phones. But Crawford went on to say that he was comfortable with Colgan representing him in this case. Nonetheless, Crawford wanted Colgan removed on his two other pending cases.
At this point, Colgan interjected and informed the court that he was not comfortable going forward with this arrangement: “I can see a [motion] coming down the road on this. And I ... get the impression from my client that we're kind of playing games here a little bit.” Colgan said he believed that Crawford wanted to remove him from the case but that Crawford felt it would be impractical to do so. Colgan stated that Crawford had lost confidence in him and that their relationship was “really destroyed .” Colgan then asked the court to remove him from the case.
Crawford responded, explaining his desire to keep Colgan for this case but to have him removed for the others:
“I have full confidence in you for this case. But on my other cases, I think you've already got a predetermined feeling on them....”
“With this case ... I'm fine; but I'm facing a lot more time on the other cases, and ... we're not clicking together like I'd like to on that serious of a matter.”
The court noted that Colgan had been very active in this case and had promoted Crawford's best interests with no decline in his representation. But just as the court seemed prepared to deny Colgan's request to withdraw, Crawford interjected: “I'd like to take that back. I don't think I feel confident if my attorney doesn't ... feel comfortable and confident in himself.”
The court took the matter under consideration while it proceeded with jury selection. After the jury had been selected, the court returned to this issue, denying Colgan's request to withdraw and Crawford's request to have Colgan removed. The court explained that “there was a little complaint that maybe [Colgan] didn't respond as quickly [as Crawford wanted], but there's been no complaint that [Colgan] has not done what [Crawford's] asked him to do.”
Crawford has appealed to this court.
Analysis
1. “Making, Altering, or Endorsing” a Written Instrument Constitutes a Single Means of Committing Forgery.
Crawford first argues that the State failed to provide sufficient evidence to support each alternative means of solicitation to commit forgery. In the jury instructions, forgery was defined as making, altering, or endorsing a check. Crawford concedes that there was evidence presented at trial that he solicited the making and alteration of checks, but he asserts that the State failed to present any evidence that he solicited endorsement of the checks. An endorsement on a check is the signature (and potentially some additional language) found on the back.
On review, we must look at Crawford's challenge to the evidence, and we must also examine whether this is actually an alternative-means case. A challenge that the evidence wasn't sufficient to convict arises on appeal only after a conviction, of course, meaning that the fact-finder—usually a jury—has found the evidence sufficient beyond a reasonable doubt. Since that jury, not the appellate court, is the fact-finder, we must consider the evidence on appeal in the light most favorable to the State, along with any reasonable inferences to be drawn from the facts, to determine whether a rational factfinder could conclude beyond a reasonable doubt that the defendant committed the charged offense. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). If there truly are alternative means of committing a crime, then substantial evidence must support each means presented to the jury. Otherwise, the conviction cannot stand. See State v. Rojas–Marceleno, 295 Kan. 525, Syl. ¶ 14, 285 P.3d 361 (2012). Whether alternatives within a statute define alternative means of committing a crime—each requiring proof—presents a legal question that we must consider independently, without any required deference to the district court. See Brown, 295 Kan. at 193–94;State v.. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Crawford was charged with and convicted of solicitation to commit forgery. At the time of the crime, criminal solicitation was defined as “commanding, encouraging or requesting another person to commit a felony, attempt to commit a felony or aid and abet in the commission or attempted commission of a felony for the purpose of promoting or facilitating the felony.” K.S.A. 21–3303(a). And forgery was defined as knowingly and with the 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;
“(2) issuing or delivering such written instrument knowing it to have been thus made, altered or endorsed; or
“(3) possessing, with intent to issue or deliver, any such written instrument knowing it to have been thus made, altered or endorsed.” K.S.A. 21–3710(a).
The jury instruction only dealt with subsection (a)(1) and defined forgery as “ma[king,] alter[ing,] or endors[ing a check] so it appeared to have been made by Thomas Heintzelman, who did not give such authority,” done with the intent to defraud on the dates and location alleged.
Crawford does not dispute that he solicited the making or altering of the stolen checks. He claims only that the State never presented evidence that he solicited a fraudulent endorsement of the stolen checks. Indeed, the evidence reflects that Crawford wanted Dibble to write her own name on the Walmart checks and the $70 check. If Crawford wanted Dibble to sign her own name on the back of a check, this would not be a forged endorsement under the statute because Dibble would not be endorsing the check in a manner purporting to make the check appear to have been endorsed by another person. See K.S.A. 21–3710(a)(1).
Alternative means essentially entail materially different ways of committing the same crime. State v. Schreiner, 46 Kan.App.2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011), rev. denied 296 Kan. –––– (February 20, 2013). Statutes present alternative means when they create two or more distinct ways of committing an offense. But statutes may use synonymous or redundant terms to define the prohibited conduct without necessarily presenting alternative means. 46 Kan.App.2d 778, Syl. ¶¶ 1, 5. Our Supreme Court recently tried to lessen confusion in this area in Brown, 295 Kan. at 199–200:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence.... On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.”
In addition, and potentially of significance in this case, “[t]ypically, ... a legislature will signal its intent to state alternative means through structure, separating alternatives into distinct subsections of the same statute.” 295 Kan. at 196 (citing State v. Smith, 159 Wash.2d 778, 784–86, 154 P.3d 873 [2007] ).
Several important terms we must interpret are not clearly defined in the context of forgery—the forgery statute does not define making, altering, or endorsing. K.S.A. 21–3710. But we do have several resources at hand that can provide guidance. The Kansas Uniform Commercial Code's (UCC) definition of “making” a written instrument means signing it as a person (the “maker”) undertaking to pay. K.S.A.2012 Supp. 84–3–103(a)(5). Similarly, the term “make” is defined in Black's Law Dictionary 1041 (9th ed.2009) to include “executing, signing, or delivering” a document. The UCC definition of “altering” means (1) making an unauthorized change to an instrument that purports to modify the obligation of a party or (2) making an unauthorized addition of words or numbers or other change to an incomplete instrument relating to the obligation of a party. K.S.A. 84–3–407(a). Similarly, Black's Law Dictionary 90 (9th ed.2009) defines “alteration” to include “the changing of a term in a negotiable instrument without the consent of all parties to it.” The term “endorsing” under the UCC means signing the written instrument (in a capacity other than drawer, maker, or acceptor) for the purpose of (1) negotiating the instrument, (2) restricting payment of the instrument, or (3) incurring liability to pay on the instrument. K.S.A. 84–3–204(a). According to Black's Law Dictionary 843 (9th ed.2009), “indorse” means “[t]o sign (a negotiable instrument), usu[ally] on the back, either to accept responsibility for paying the obligation memorialized by the instrument or to make the instrument payable to someone other than the payee.—Also spelled endorse.” With those definitions in mind, we will discuss Crawford's case as it relates to other Kansas caselaw.
One of our court's unpublished cases supports Crawford's argument that the forgery statute contains alternative means. In State v. Owen, No. 102,814, 2011 WL 2039738, at *5 (Kan.App.2011) (unpublished opinion), rev. granted February 17, 2012, a panel of this court determined that making, altering, and endorsing were alternative means of committing forgery. Owen was charged with two counts of forgery, utilizing the “made, altered or endorsed” language of K.S.A. 21–3710(a)(1) and K.S.A. 21–3710(a)(2). A jury found Owen guilty on both counts. On appeal, Owen sought to have both forgery convictions overturned based on insufficient evidence to support each alternative means of forgery charged. The Owen court concluded—though without any detailed analysis of the forgery statute—that making, altering, and endorsing were alternative means and that the State failed to show that Owen endorsed—signed the back of—the check. 2011 WL 2039738, at *5. Accordingly, Owen's forgery convictions were reversed. 2011 WL 2039738, at *5.
In Foster, 46 Kan.App.2d 233, Syl. ¶ 1, a panel of this court reached a different conclusion. Foster was convicted of forgery. He appealed, arguing that “issuing” and “delivering” were alternative means under the statute. 46 Kan.App.2d at 237. On appeal, the Foster court noted that the Kansas criminal statutes did not provide a definition for the words making, altering, or endorsing. 46 Kan.App.2d at 240. Because the forgery statute relates to negotiable instruments, the Foster court relied on the UCC definitions of making, altering, and endorsing: “Although adopted by our legislature for purposes of regulating negotiable written instruments in a civil context, we find the UCC definitions ... are equally applicable in a criminal context to the forgery statute at issue here.” 46 Kan.App.2d at 241. With regard to the phrase “making, altering or endorsing,” the Foster court concluded that the UCC definitions demonstrate that each act is related to “the creation of an instrument for the purpose of negotiating it, whether it is the first or a subsequent negotiation.” 46 Kan.App.2d at 240. Accordingly, the court held that the “making, altering or endorsing” language describes only one means of committing forgery. 46 Kan.App.2d 233, Syl. ¶ 1. The Foster court stated that this interpretation was necessary to make the forgery statute “consistent, harmonious, and sensible.” 46 Kan.App.2d at 243.
The Foster court acknowledged the Owen opinion, which had reached the opposite conclusion. Foster, 46 Kan.App.2d at 242. The disagreement between Foster and Owen was even noted by our Supreme Court in Brown, 295 Kan. at 192, which then went on to consider an alternative-means challenge to a different statute, not resolving the differences between Owen and Foster. The Foster court criticized the Owen court for “[c]iting only a limited portion of the generic definition [of ‘endorse’ and ‘endorsement’] set forth in Black's Law Dictionary” and relying on this definition to hold as a matter of law that “endorsing” under the forgery statute was limited to merely “ ‘signing the back of a check.’ “ Foster, 46 Kan.App.2d at 242–43; see Black's Law Dictionary 843 (9th ed.2009). Rejecting this approach, the Foster court instead held that UCC definitions should be incorporated into interpretation of the forgery statute. 46 Kan.App.2d at 243. See Coleman, 47 Kan.App.2d at 665–67 (following Foster ).
Ultimately, Foster's and Coleman's analyses are more persuasive—and more consistent with the analytical scheme explained in Brown—than Owen's. Although the Foster opinion did not describe the statute in these terms, the “making, altering or endorsing” language describes options within a means—options that merely describe a material element or describe a factual circumstance that would prove the element. In the language of Brown, the common actus reus—or wrongful deed—is the act of writing on the instrument; the common mens rea—or criminal intent—is the intent to use such writing to defraud the payer of the amount of the instrument. See Brown, 295 Kan. at 199–200. The Foster opinion persuasively demonstrates that considering “making, altering or endorsing” to be a single means of committing forgery is necessary to make the forgery statute “consistent, harmonious, and sensible.” 46 Kan.App.2d at 243.
Additionally, the structure of the statute provides some insight into the legislature's intent. See Brown, 295 Kan. at 196. The words “making,” “altering,” and “endorsing” are used together in each of the three subsections of K.S.A, 21–3710(a). The only exception to this is a phrase in the middle of K.S.A. 21–3710(a)(l) that states that forgery may be committed by “altering any written instrument in such a manner that it purports to have been made at another time or with different provisions without the authority of the maker thereof.” The acts of making or endorsing would not apply to that scenario. But the legislature did not separate each word in “making, altering or endorsing” into different subsections. In contrast, the legislature did separate “making, altering or endorsing,” “issuing or delivering,” and “possessing” into three different subsections. See K.S.A. 21–3710(a)(l)–(3).
Making, altering, or endorsing are mere options within a means. The members of the legislature grouped together certain potentially distinct and potentially overlapping items, which must mean they did not want jurors to have to split hairs over whether a forgery was committed by making a written instrument, altering the instrument, or endorsing the instrument. Accordingly, there was sufficient evidence to convict Crawford of soliciting forgery because there was evidence that he solicited the making or altering of checks.
2. The District Court Did Not Abuse Its Discretion in Denying Defense Counsel's Request to Withdraw and Crawford's Request to Remove Defense Counsel.
Crawford also argues that the district court abused its discretion in denying his defense attorney's request to withdraw prior to trial and Crawford's request to remove defense counsel. Crawford asserts that the comments before trial showed that Crawford and his attorney had an irreconcilable conflict.
A district court's refusal to appoint new counsel is reviewed for abuse of discretion, meaning that no reasonable person could have agreed with the district court's decision. State v. Sappington, 285 Kan. 176, 196, 169 P.3d 1107 (2007). At the district-court level, to warrant appointment of new counsel, a defendant must show “ ‘justifiable dissatisfaction’ “ with counsel. This “ ‘may be demonstrated by showing a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the defendant and his or her appointed attorney.’ “ State v. Richardson, 290 Kan. 176, 184, 224 P.3d 553 (2010) (quoting State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 [2006] ). A district court must conduct some sort of investigation when determining whether to appoint new counsel. Sappington, 285 Kan. at 199. But ultimately, “ ‘ “[a]s long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel. [Citation omitted.]” ‘ “ Sappington, 285 Kan. at 196 (quoting State v. Ferguson, 254 Kan. 62,70, 864 P.2d 693 [1993] ).
Here, the district court investigated by hearing Colgan's concerns and Crawford's responses when they were raised the morning of jury trial. Rather than dismiss Colgan's and Crawford's concerns out of hand, the court took time to consider the matter, issuing a ruling later that day. The court also based its ruling on its own observations of Colgan's performance as counsel over the course of the representation. According to the record on appeal, Colgan's performance observed by the court included multiple actions to protect Crawford's rights, including filing a motion in limine, filing a motion to change venue, and handling other pretrial matters. Overall, the court concluded that Colgan had performed at a high level of advocacy on Crawford's behalf.
As an indigent defendant with a court-appointed attorney, Crawford was not entitled to an attorney of his own choosing. See State v. Cromwell, 253 Kan. 495, 499, 856 P.2d 1299 (1993), modified on other grounds by State v. Willis, 254 Kan. 119, 864 P.2d 1198 (1993). Despite Colgan's concerns, Crawford voiced his support for Colgan remaining on this case. Crawford only changed his mind when Colgan expressed his own desire to withdraw. While these comments certainly reflect a conflict and a breakdown in communications between Crawford and Colgan, they do not demonstrate an irreconcilable conflict or a complete breakdown in communications. See Richardson, 290 Kan. at 184. As the district court found, although there was dissatisfaction and tension between Crawford and Colgan, there was no suggestion that that Colgan had failed to represent Crawford's interests, nor that Colgan was incapable of aiding in Crawford's defense.
Despite some mutual dissatisfaction between Crawford and Colgan, there was a reasonable basis for the district court to believe that the attorney-client relationship had not deteriorated to the point where a new attorney had to be appointed. Crawford did not show “justifiable dissatisfaction” with his attorney, e.g., an irreconcilable conflict or a complete breakdown in communications. Accordingly, the district court did not abuse its discretion in refusing to appoint new counsel and proceeding to trial.
The district court's judgment is therefore affirmed.