Appeal from the Superior Court of the District of Columbia; Hon. George Herbert Goodrich, Trial Judge
Vacated by Order of the Court May 31, 1991. Rehearing Denied and Rehearing En Banc Granted May 31, 1991,
Ferren, Terry and Steadman, Associate Judges. Opinion Concurring in part and Dissenting in part by Steadman, Associate Judge.
The opinion of the court was delivered by: Per Curiam
Appellant Dorothea White over a one-month period cashed ten different checks on which her employer's signature had been forged and an eleventh check which had been altered in amount. She was convicted by a jury of one count of first-degree theft, D.C. Code §§ 22-3811, -3812(a) (1989), eleven counts of forgery, and eleven counts of uttering. Id. §§ 22-3841, -3842. *fn1 We reverse and remand for resentencing because of plain error in failing to instruct the jury that to convict appellant of the level of forgery charged, it must find that each check's value was at least $250. We find without merit appellant's arguments that the forgery and uttering convictions should merge and that other alleged trial court errors, taken together, constitute grounds for a retrial.
The facts are straightforward. In the relevant time frame of May and June 1987, the complaining witness, Joseph de Assereto, was the owner of the restaurant Cantina D'Italia and maintained a business account with Madison National Bank, on which only he was authorized to sign checks. His personal account was with First American Bank. De Assereto rarely visited the bank himself because of a disabling injury, but appellant Dorothea White, who worked at the restaurant as a cashier, was authorized to deposit checks in the restaurant account and also to cash checks signed by de Assereto. When de Assereto needed money for his personal use, he would write a check to himself on the business account. He would then have appellant cash it at Madison and deposit the cash in his personal account. Blank checks were kept in an office to which only four people, including appellant, had keys.
De Assereto came to realize that certain checks had been written on the business account which he had not signed. Ten checks dating from May through early June 1987 were identified as fraudulently signed and endorsed with his signature and the amount of an eleventh check had been altered from $350 to $3050. He had received from appellant a deposit slip showing that she had deposited $350 in his account on the altered check, but had received no further proceeds from that check or from any of the other ten checks.
At trial, bank tellers at Madison, who were familiar with appellant because of her banking activities on behalf of her employer, identified appellant as having cashed the eleven checks in question. The custodian of records at appellant's own bank authenticated a bank statement showing an unusual pattern of ten significant cash deposits made by appellant during the May-June period that she was cashing the checks on the Madison account and significantly correlative in time and amount to those checks. A handwriting expert testified that de Assereto did not sign the checks but could not state whether appellant had done so, since the signor had attempted to copy de Assereto's genuine signature.
Appellant in her testimony acknowledged that she believed she had cashed the checks in question but had either deposited the money in de Assereto's personal account or brought the money back to him. As for the deposits to her own account, appellant stated that the money came from her boyfriend, her family, and singing contests at the Apollo Club in New York City. At the close of defense counsel's redirect examination of appellant, the court asked appellant whether she had any documentation supporting the alleged sources of the funds deposited in her account during May and June, and replied that she did not.
The present District of Columbia provisions relating to forgery in effect create a three-level hierarchy of offenses based upon the types of writings involved or the value of those writings. The highest level, providing for a maximum fine of $10,000, 10 years imprisonment or both, applies to, inter alia, forgeries of written instruments having a value of $10,000 or more. D.C. Code § 22-3842(a)(7) (1989). The intermediate level covers written instruments with a value of $250 or more, and provides for a maximum fine of $5,000 or five years imprisonment. Id. § 22-3842(b)(3). Finally, there is a lowest "catchall" level applying to all forgeries, and providing for a fine of $2,500 or three years imprisonment. Id. § 22-3842(c). *fn2
The trial court in its instructions failed to make any mention whatever of any need for the jury to make a finding as to the value of the allegedly forged or altered checks. *fn3 Although appellant made no objection to the instructions as given, she now claims that the failure to instruct on the need for such a finding was "plain error," relying upon Kind v. United States, 529 A.2d 294 (D.C. 1987). We agree.
In Kind, appellant was convicted of possession of a prohibited weapon, in violation of D.C. Code § 22-3214(b) (1989). The case proceeded under the theory that the prohibited weapon was, as the section provides, *fn4 a "knife with a blade longer than 3 inches." However, the trial court simply instructed the jury that it should convict if it found first, "the defendant possessed a knife, and second, at the time he possessed the knife he had the specific intent to use it unlawfully against any other -- against another person." Id. at 295 n.2. The instructions said nothing about a blade in excess of three inches.
We deemed ourselves bound by existing case law establishing that "the failure to instruct the jury on every essential element of the crime is per se reversible 'plain error,' notwithstanding a defendant's failure to object to the instructions as given." Id. at 295. *fn5 We noted the "element of centrality" of the requirement of knife length, part of the statutory ...