November 27, 1990
DOROTHEA WHITE, APPELLANT
UNITED STATES, APPELLEE
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 definition of the crime itself. Accordingly, we reversed the conviction and remanded for a new trial.
The government here acknowledged at oral argument *fn6 that the value of the forged instrument is an element of the forgery offense, where such value is used to fix the forgery at either the highest or intermediate level. Although the government suggested that the failure to give the value instruction could be deemed harmless either because appellant admitted cashing the checks and their value was uncontroverted or because the verdict form included a dollar amount, we think that the per se rule of Kind bars any such Disposition of the issue. Plainly the required minimum dollar value of the instruments is as much a "central" or "core" element of the intermediate level of forgery as the required minimum knife length was in the Kind offense.
However, there is ample evidence to justify appellant's conviction under the lowest level catchall provision of § 22-3842(c). Under analogous circumstances in Moore v. United States, 388 A.2d 889 (D.C. 1978), we agreed with appellant that the evidence presented at trial was insufficient to support a grand larceny conviction. Under the now repealed larceny statutes, the value of the stolen goods had to exceed $100 to convict the defendant of grand larceny, with petit larceny covering property valued at less than $100. The government failed to present evidence that would give a jury a firm basis for determining value without conjecture. Id. at 891. An appropriate appellate Disposition in such cases, we said, is to reverse the grand larceny conviction and remand the case for entry of judgment of conviction for petit larceny and for resentencing. Id. at 892. Said Disposition is equally appropriate here. *fn7 Accordingly, we reverse appellant's conviction under subsection (b) forgery and remand for entry of judgment for subsection (c) forgery and resentencing. *fn8
The next issue is whether appellant's convictions for forgery should merge with her convictions for uttering. Initially, it should be noted that forgery and uttering constitute two distinct offenses, albeit contained in a single statutory provision. Driver v. United States, 521 A.2d 254, 258 n.5 (D.C. 1987). *fn9 Therefore, the issue is whether, under the test established by Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the legislature intended to authorize imposition of separate penalties. Appellant acknowledges, as she must, that in their abstract elements, each of the two crimes requires proof of a fact which the other does not; viz., forgery requires proof that the defendant altered or falsely made a document, while uttering requires proof that the defendant passed an instrument known to be false. Otherwise put, to convict of forgery, there need not be proof that the defendant passed or attempted to pass the document, and conversely, in order to convict for uttering, there need not be proof that the defendant was the person who forged the document.
Appellant argues, however, that under a line of cases of this court such as Curtis v. United States, 568 A.2d 1074 (D.C. 1990), following Arnold v. United States, 467 A.2d 136 (D.C. 1983), we must look as well to the specific facts of this case. While the government challenges the continued validity of these holdings in light of recent Supreme Court decisions, citing Schmuck v. United States, 489 U.S. 705, 109 S. Ct. 1443, 103 L. Ed. 2d 734 (1989), *fn10 we need not decide this issue since even under an examination of the facts here, no merger occurs.
We do not deal here with a single unitary transaction, where the totality of the proof of one offense was equally necessary to prove a requisite component of the other offense, thus effectively making the first offense a factual lesser-included of the other offense. Here, the forgery was temporally and conceptually a distinct event from the uttering. In particular, the government was required to prove that specific intent to defraud and absence of authority existed both at the time of the making of the forgery and at the time of the uttering. Proof that such intent existed at one point will not suffice to prove that it also existed at the other. *fn11 Furthermore, the fact that forgery must precede the uttering will almost always provide the "fork in the road" separation of two distinct offenses so as to warrant separate punishments. Owens v. United States, 497 A.2d 1086, 1095 (D.C. 1985), cert. denied, 474 U.S. 1085, 106 S. Ct. 861, 88 L. Ed. 2d 900 (1986) (quoting Irby v. United States, 129 U.S. App. D.C. 17, 22-23, 390 F.2d 432, 437-38 (1967) (en banc)). See Read v. United States, 55 App. D.C. 43, 45, 299 F. 918, 922, cert. denied, 267 U.S. 596, 45 S. Ct. 352, 69 L. Ed. 805 (1924) (when instrument is falsified, offense is complete; when instrument is subsequently uttered, "another and distinct offense is committed"). *fn12
Thus, it is not remarkable that we have affirmed cases involving multiple sentencing for forgery and uttering convictions, albeit without directly dealing with the merger issue presented here. In Driver, supra, the defendant stole blank money orders and presented them to a bank teller. The teller instructed the defendant to fill in the money orders with his name and address, which he did. We noted "that he did not complete them prior to entering the bank, but rather did so at the teller's window upon her instruction, is irrelevant." 521 A.2d at 259. While the question of merger was not distinctly raised, the issue before us was whether the defendant was guilty of both forgery and uttering, which we held to be distinct offenses. Likewise, in Gholson v. United States, 532 A.2d 118 (D.C. 1987), we affirmed convictions for twelve counts of both forgery and uttering, where the defendant submitted time slips that did not represent work he had performed. We see no reason to arrive at a different result here.
Finally, appellant argues that the cumulative impact of three asserted trial court errors requires reversal. First, she challenges the trial court's exclusion as irrelevant two proffered documents which allegedly would have established that appellant appeared at the Apollo Club in November 1986 and November 1987, *fn13 both times separated by many months from the time in question. "An evidentiary ruling by a trial Judge on the relevancy of a particular item is a 'highly discretionary decision' that will be upset on appeal only upon a showing of 'grave abuse.'" Roundtree v. United States, 581 A.2d 315 (D.C. 1990). Furthermore, subsequent tv the ruling excluding these documents, appellant had an opportunity to testify with respect to these documents but instead effectively confirmed their irrelevance. *fn14 We find no abuse of discretion in the ruling.
Second, appellant challenges, for the first time on appeal, the limited questioning by the trial Judge of the appellant about possible support for her testimony as to the alternate sources of funds deposited in her account during the relevant period. We recently had occasion to restate several of the settled principles relevant here. "A trial Judge, of course, has 'not only the right but the duty . . . to participate directly in the trial, including the propounding of questions when it becomes essential to the development of the facts of the case.' This power should be sparingly exercised, however, for it is primarily the task of counsel, not the court, to develop the facts essential to the jurors' understanding of the case." Davis v. United States, 567 A.2d 36, 39 (D.C. 1989) (citations omitted). We do not think the "sparing exercise" of questioning by the trial court here violated these precepts so as to warrant reversal. The participation was not hostile nor did it contain critical remarks. The answers might have supported the defendant's case. The jury was given the standard instruction that actions of the court in questions to witnesses are not to be taken as any indication of how the jury should determine issues of fact. Criminal Jury Instructions for the District of Columbia, No. 2.02 (3d ed. 1978).
Finally, appellant argues that the trial court, over appellant's objection, erroneously gave an instruction to the jury that in considering the credibility of the defendant, the jury may take into account that the defendant has a "vital interest" in the outcome of the trial. Id. No. 2.27. We have previously indicated our agreement with then Judge Blackmun that, "as a general rule, 'we would prefer that the defendant not be singled out but instead were included by reference in the court's general instructions as to all witnesses.'" Clifford v. United States, 532 A.2d 628, 640 (D.C. 1987) (quoting from Taylor v. United States, 390 F.2d 278, 285 (8th Cir.), cert. denied, 393 U.S. 869, 89 S. Ct. 155, 21 L. Ed. 2d 137 (1968)). However, in that case, as here, "the instruction given here was well balanced and very mild. It was not inflammatory and did not suggest that defendant should not be believed. It stated no more than what should be obvious to common sense. . . ." Id. Thus, in that case, as here, the instruction given "was not so harmful to the defendant . . . as to warrant reversal." Id. at 641 (quoting from United States v. Saletko, 452 F.2d 193, 198 (7th Cir. 1971), cert. denied, 405 U.S. 1040, 92 S. Ct. 1311, 31 L. Ed. 2d 581 (1972)).
Accordingly, the conviction of first degree theft is affirmed. The convictions on all counts of forgery and uttering under D.C. Code §§ 22-3841, -3842(b) are reversed and the case remanded for entry of judgments of conviction of forgery and uttering under D.C. Code § § 22-3841, -3842(c) and for resentencing.
STEADMAN, Associate Judge, Concurring in part and Dissenting in part: I do not think the principle of Kind v. United States, 529 A.2d 294 (D.C. 1987), is controlling here, and therefore I would affirm all the convictions.
In United States v. North, 285 U.S. App. D.C. 343, 910 F.2d 843 (1990), the defendant was convicted, inter alia, on a count of aiding and abetting the obstruction of a congressional inquiry. A statutory element of the charged offense was that an "inquiry or investigation is being had" by either House or Senate or a committee thereof. 18 U.S.C § 1505 (1988). The trial court erroneously removed this element of the offense from the jury by instructing that as a matter of law, congressional inquiries were pending. Nevertheless, the appellate court applied a "harmless error" test, holding that "the mere fact that an error 'deprives the jury of its fact-finding role' is not per se grounds for reversal and is subject to harmless error analysis when no rational jury could find the other elements of the offense without finding the fact presumed." 910 F.2d at 893 (citing Carella v. California, 491 U.S. 263, 109 S. Ct. 2419, 105 L. Ed. 2d 218 (1989)).
If harmless error may be applied in such circumstances where the trial court affirmatively removed an element of an offense from jury consideration, I think that plainly it may be applied where an element was not explicitly included in the trial court's instructions but the jury in convicting must necessarily have found the omitted element to have been proven. *fn1 Such is the case before us.
Here, the indictment specifically charged that each of the eleven checks had a value of $250 or more, and included a photostat of each check. Eight of the checks were for $1,000; two of the checks for $2,000; and the altered check for $3,050. The checks themselves were introduced into evidence. The verdict form itself, sent to the jury room, likewise specified with respect to each check its exact amount. In convicting, the jury could only have found that the offenses were committed with the exact checks included in the indictment and submitted into evidence. No rational jury could have otherwise convicted the defendant. *fn2
In this regard, the case differs from Kind. In that case, the defendant was convicted of possession of a prohibited weapon, namely, a knife, with intent to use it unlawfully against another person, as well as of assault and destruction of property. The underlying incident was an altercation in an automobile between the defendant and a woman involving a knife. The government introduced into evidence a knife recovered after Kind's arrest from the back floorboard of the car in which the assault took place. 529 A.2d at 296 n.3. However, particularly under the charge as actually given by the trial court in which no minimum knife length requirement was mentioned, conviction did not necessarily require that the jury accept the proposition that the knife in evidence was the actual knife used in the assault.
I might add that, more generally, I join in the view expressed recently in several federal circuits questioning whether the broad per se reversal doctrine of the Kind case is "long for this world in light of recent Supreme Court trends." United States v. Dotson, 895 F.2d 263, 265 (6th Cir. 1990) (citing Carella v. California, supra; Pope v. Illinois, 481 U.S. 497, 501-04, 107 S. Ct. 1918, 95 L. Ed. 2d 439 (1987); Rose v. Clark, 478 U.S. 570, 576-84, 92 L. Ed. 2d 460, 106 S. Ct. 3101, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)). See also United States v. Kerley, 838 F.2d 932 (7th Cir. 1988) (no per se reversal where essential element of offense is omitted in instructions).