627 P.2d 517 | Or. Ct. App. | 1981
Defendant appeals from his conviction of Forgery in the First Degree for passing a counterfeit $100 bill. Trial was to the court. Defendant assigns erroi to: (1) the use of a "practically certain” standard to find that defendant knew the bill was counterfeit; and (2) the denial of defendant’s motion for directed verdict for lack of sufficient evidence on the two elements of knowledge and intent to defraud. We affirm.
We review the facts in the light most favorable to the state. State v. Steffen, 39 Or App 571, 573, 592 P2d 1081 (1979). In cashing a third-party check for $2,000 at a bank in Milton-Freewater, defendant obtained the $100 bill in question. Later that day at a bank in Hermiston, he attempted to make a deposit which included the bill. The bank teller thought the bill felt funny and "stuck out like a sore thumb.” She called over the manager, who decided that he would not accept the bill. The manager explained to defendant that the bill could be sent to Portland for analyzing. If it turned out to be good, his account would be credited with $100; if not, he would lose the $100. Although it was usual bank policy to take currency suspected to be counterfeit and have it analyzed, in this case the bank manager did not follow that procedure. Defendant took the bill back. He told the teller he did not want to "get stuck” with the bill. He made a small tear in the top of it and said: "Yeah, it is a fluke, all right,” in the presence of the teller. He made up the difference in the deposit by check.
Defendant did not return the bill to the batik in Milton-Freewater. The next day he had dinner at a restaurant in Long Creek, a community in which he had been a well-known resident for many years. After dinner, he went to the bar and sat down at a table with a number of other persons he knew. When it became his turn to buy a round of drinks, he pulled out the $100 bill. The bill was discussed by those at the table. Defendant stated that if the bill was good, he would spend it. If it was bad, he would "pick it up.” He also told someone at the table that he himself thought the bill was bad. That person expressed the opinion that anybody could see the bill was counterfeit. The bartender, who was somewhat rushed, picked up the bill at the table.
ORS HJS.OC^lXb)
The trial judge here explained the standard he was employing on the element of knowledge:
"I find then that the defendant believed the bill to be counterfeit, but I cannot make a finding that he knew that beyond a shadow of a doubt in his own mind. He was I believe practically certain it was counterfeit, but I cannot find that he was absolutely certain of that.”
We interpret this to mean that the trial judge found that defendant believed the bill was counterfeit, or was "practically certain” it was, but that his knowledge was less than absolute.
We turn to the sufficiency of the evidence on the elements of knowledge and intent to defraud. From the evidence in the record, the trier of fact could rationally have concluded that defendant believed the bill was counterfeit when he made the observation, "Yeah, it is a fluke, all right.” This inference is supported by the bank’s unwillingness to accept the bill without having it examined in
Defendant’s primary argument with respect to intent to defraud is that because defendant intended to reimburse the owner of the bar if the bill turned out to be counterfeit, the requisite intent was lacking. The commentary of the Criminal Law Revision Obmmission, however, states:
"The prosecution need not prove an intent to defraud a particular person, a general intent to defraud being sufficient. State v. Frasier, 94 Or 90, 180 P 520 (1919); ORS 165.190.” Proposed Oregon Criminal Code, 159, Commentary, § 152 (1970).
As mentioned before, there was evidence showing that defendant’s chief concern was avoiding being stuck with a phony bill. The trial court made the following point:
"The defendant has argued, and I am sure it is quite true, that if [sic] he is a well-known person in Long Creek and that under those circumstances he wouldn’t pass a bill he knew to be bad. I believe all the evidence I have heard about Mr. Weissenfluh’s standing in Long Creek. This I believe though could be the very reason that the defendant would do it. He probably thought that if the bank didn’t take the bill, that [the owner of the bar] would let him know and he could make it good. I don’t believe that alters the fact that he intended to try to recoup, however, by passing the bill to another, and the natural consequence of that is to injure that person or somebody down the line who would come into possession of that bill.
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*67 "As I said, I am aware of the evidence concerning the defendant’s reputation and standing in the community of Long Creek. I don’t think there is any question. He obviously was not an actively criminal person; normally, usually an honest and upright person. As I said, however, in this case, I believe that the defendant misconstrued his ability to make it right when the counterfeit bill was discovered. In a close community, a belief can be understood, but I don’t think it can be considered as wiping out the general intent to defraud or injure somebody by this act, because if he succeeded passing which I find he thought to a practical certainty was a forged bill, somebody down the line was going to be defrauded obviously.”
We conclude the evidence was sufficient to support the trier of fact’s finding that defendant had a generalized intent to defraud someone by passing a counterfeit bill.
Affirmed.
ORS 165.007(l)(b) provides:
"(1) A person commits the crime of forgery in the second degree if, with intent to injure or defraud, he:
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"(b) Utters a written instrument which he knows to be forged.”
ORS 161.085(8) provides:
"As used in chapter 743, Oregon Laws 1971, and ORS 166.635, unless context requires otherwise:
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"(8) 'Knowingly’ or "with knowledge,’ when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that his conduct is of a nature so described or that a circumstance so described exists.”
The source of the trial court’s use of this term in this context is the discussion by the Criminal Law Revision Commission in the Proposed Oregon Criminal Code, 10, Commentary, §§ 7 to 10 (1970). Oregon follows the New York approach of substituting the concept of "intentionally” instead of "knowingly,” in the sense in which a person achieves a given result "knowingly” when he is "practically certain” that his conduct will cause that result. Hence, Oregon does not use the word "knowingly” in defining "result” offenses, hi defining classes of culpability, Oregon otherwise follows the Model Penal Code.
As the Comments to the Model Penal Code make clear, (see All, Model Penal Code, Tentative Draft No. 4 (1955), § 2.02 at 124), material elements of offenses vary in that they may involve (1) the nature of the forbidden conduct, (2) the attendant circumstances or (3) the result of conduct. With respect to degrees of culpability, including knowledge, the drafters felt these distinctions were necessary and sufficient for the purposes of penal legislation. The borrowing of the term "practically certain” from the category of result offenses to be used to define elements involving "attendant circumstances” tends to muddy these distinctions. The best approach is simply to adhere to the statutory phrase "awareness * * * that a circumstance * * * exists.”