State v. RuffinsState v. Ruffins
- Reporters:
- , ,
- Before:
- Wilson
OPINION
WILSON, Justice.
The court of appeals certified this matter to us, pursuant to
BACKGROUND
This case arose from the following facts. On December 18, 1986, Martha Ruffins (Ruffins), defendant-appellant, and three male companions visited an Allsups store and asked the night clerk, Pauline Halley (Halley), for directions. The four left the store and later returned. During the second visit Halley scolded Ruffins for walking behind the counter area, which was prohibited to customers. The four then left the store. After Ruffins’s second visit Halley noticed her purse, which contained her checkbook, was missing and called the police.
On December 19, 1986, Ruffins and her companions visited Cook’s Truck Stop (Cook’s). Ruffins handed the cashier, June Sonnemaker (Sonnemaker), a two-party check to cash. Ruffins’s companions indicated that she wanted to cash the check to pay for gas while they waited for food at the restaurant. The check, drawn from Daniel and Pauline Halley’s account, was payable to Ruffins for $80 and was signed “Mrs. Pauline Halley.” Ruffins insisted that Sonnemaker cash the check, claiming she knew the restaurant’s cook and had identification. Sonnemaker refused to cash the check, gave it back to Ruffins and canceled the foursome’s food order. The four then left Cook’s, presumably taking the forged check with them.
Ruffins was charged with forgery and larceny under $100, based on these events. A jury acquitted Ruffins of the larceny charge, but convicted her of forgery. Ruffins was sentenced to one year imprisonment, to be served concurrently with a one year habitual offender enhancement, and two years suspended. Ruffins appealed her conviction and sentence to the court of appeals, which then certified this matter to us to resolve conflicts in New Mexico’s legal requirements for a completed forgery.
ISSUES
On appeal Ruffins claims: (1) her acts constituted attempted forgery and her counsel’s failure to request such a jury instruction rendered him ineffective; and (2) the State’s failure to introduce the forged check precluded her conviction. We examine each issue in turn.
I. FORGERY
(A) Statutory Elements of Forgery Under our statute, forgery consists of:
A. falsely making or altering any signature to, or any part of, any writing purporting to have any legal efficacy with intent to injure or defraud; or
B. knowingly issuing or transferring a forged writing with intent to injure or defraud.
(B) New Mexico Case Law
Several New Mexico cases construe our forgery requirements. In State v. Tooke the court of appeals upheld a conviction of attempted forgery where the defendant presented a forged check to a clerk to cash, and the clerk told the defendant the check must be “okayed.” The defendant then physically gave the check to the “okayer,” who held the check while calling “Safety Check” to verify its validity. The “okayer”
In applying the forgery statute to these facts, the court interpreted the statute’s terms “issuing” and “transferring” to “encompass a delivery to one who is a holder with the passing of interests from one to another.” Id. at 619, 471 P.2d at 189. In interpreting the forgery statute, the court relied on the following UCC definitions:
(1) “issue” is “the first delivery of an instrument to a holder,”
(2) “delivery” is a “voluntary transfer of possession,”
(3) A check‘s “holder” is one who has legally acquired its possession by indorsement or delivery,
(4) A “transfer” occurs when an instrument vests the transferor’s rights in the transferee,
Based on the above considerations, the court of appeals concluded that the defendant’s physical transfer of the check to the “okayer” did not pass any interests in the check. Thus, the crime of forgery was incomplete and the defendant was properly convicted of attempted forgery.
Seven years later in State v. Linam, 90 N.M. 729, 730, 568 P.2d 255, 256 (Ct.App.), cert. denied, 91 N.M. 3, 569 P.2d 413 (1977), the court of appeals upheld a defendant‘s forgery conviction on facts similar to those in Tooke. In Linam, the defendant physically gave a forged check to a bank teller to cash. The teller questioned the check’s validity and took it to her supervisor. The supervisor compared the payor’s indorsement on the check with that on the signature card, and concluded they did not match. The police were then called and arrested the defendant. The defendant argued that the evidence only supported a conviction for attempted forgery, since the facts in his case were indistinguishable from those in Tooke. The court of appeals disagreed and reasoned that in this case “interests” passed to the teller, who had immediate authority to cash the check; whereas in Tooke, the check was referred to an “okayer” as a preparatory step to cashing the check. The fact that the teller referred the check to her supervisor did not convert the forgery into an attempt. Thus, the defendant was properly convicted of forgery.
Judge Sutin, specially concurring in Linam, determined that the court’s distinction between Tooke and Linam was “a distinction without a difference.” In his view, the defendants’ actions in these two cases were virtually identical and both defendants should be guilty of the same offense. Judge Sutin reasoned that Tooke was overruled by the jury instruction requiring the jury to determine only physical delivery, and a transfer of interests was not required to prove forgery. See Linam, 90 N.M. at 731, 568 P.2d at 257.
(C) Clarification
In our view, a forgery is completed when a defendant possessing the requisite intent: (1) falsely makes or alters a writing which purports to have legal efficacy; (2) physically delivers a forged writing; or (3) passes an interest in a forged writing. See
(1) Delivery
Under our statute, physical delivery of a forged instrument is sufficient to constitute “issuing or transferring” a forged instrument and no “interests” need pass.
While examination of the UCC definitions is illuminating, in a criminal case it is even more important that a person of ordinary intelligence have adequate warning of what conduct is forbidden. When a statute does not define its terms, general rules of statutory construction dictate that we interpret those terms in the common, ordinary sense. United States v. Mayberry, 774 F.2d 1018, 1020 (10th Cir.1985), superseded on other grounds,
Applying these definitions to our statute, a defendant issues a forged writing when he or she knowingly physically delivers the false instrument, offers the false instrument, or otherwise makes the false instrument available for action. A defendant transfers a forged writing when he or she knowingly conveys an interest contained in the false instrument. For instance, a stock certificate may be forged to indicate a false owner. The false owner could then transfer the ownership of the forged stock by a written assignment. Although the forged certificate itself would not be physically delivered to the party to be defrauded, the assignment of ownership would be a transfer of interest in a forged instrument, and the crime of forgery would be complete.
Therefore, a defendant may issue or transfer a forged writing either by a physical delivery of the forged instrument for action by a third party or by passing an interest in the forged instrument to a third party. Accordingly, we overrule Tooke and Linam to the extent they conflict with this opinion.
(2) Acceptance of Delivery
Forgery is complete when the false instrument is issued or transferred with the requisite intent, regardless of its acceptance. State v. Garcia, 26 N.M. 70, 72, 188 P. 1104 (1920); 37 C.J.S. Forgery § 3 (1943). Our forgery statute does not require that the defendant gain, or that the prospective victim experience a loss or injury to complete the crime. See Linam, 90 N.M. at 730, 568 P.2d at 256. A prospective victim’s refusal to accept a forged check, does not change the fact that the defendant offered it for action as genuine. In that situation, the defendant’s actions would constitute forgery rather than an attempt. Thus, we conclude that acceptance of a forged instrument is unnecessary to complete the crime of forgery. We overrule State v. Lopez, 81 N.M. 107, 464 P.2d 23 (Ct.App.1969), cert. denied, 81 N.M. 140, 464 P.2d 559 (1970), to the extent it suggests otherwise.
Under our forgery statute, as clarified, Ruffins’s actions constituted the completed crime of forgery and she was not entitled to a jury instruction for attempted forgery. Ruffins was not denied effective assistance of counsel. Having found that physical
II. FAILURE TO INTRODUCE THE FORGED CHECK
Ruffins next contends that the prosecution‘s failure to enter the forged check into evidence at trial precludes her conviction for the offense. Ruffins relies on Woods v. State, 142 Tex.Crim. 569, 155 S.W.2d 615 (1941) to support her position. In Woods, the check was available, the State marked it as an exhibit, and a witness identified it. However, the State did not formally introduce the check into evidence, as Texas law required.
New Mexico law allows proof of a material fact by circumstantial evidence and inference. State v. Brown, 100 N.M. 726, 676 P.2d 253 (1984). Thus, a forged check proven by these means need not be introduced into evidence. In this case the forged check was returned to Ruffins and was not available at trial. However, Sonnemaker’s description of the check’s contents was sufficient proof under New Mexico law. Adopting the Texas rule would preclude convicting all forgers wise enough to regain possession of their forged checks when potential victims refused to cash them. We conclude that the State’s failure to introduce the forged check at trial did not preclude Ruffins’s conviction for forgery. We affirm Ruffins’ conviction and sentence.
IT IS SO ORDERED.
SOSA, C.J., and RANSOM, BACA and MONTGOMERY, JJ., concur.