Opinion
No. 108,247.
2013-08-9
STATE of Kansas, Appellee, v. Phillip L. GERMANN, Jr., Appellant.
Appeal from Lyon District Court; Jeffry J. Larson, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Amy L. Aranda, assistant county attorney, Vernon E. Buck, first senior county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; Jeffry J. Larson, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Amy L. Aranda, assistant county attorney, Vernon E. Buck, first senior county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Phillip L. Germann, Jr., appeals his convictions of four counts of forgery and four counts of theft. Germann argues: (1) the district court erred in allowing the State to amend the charges to add an additional theory of liability after it had rested its case; and (2) the four counts of theft were multiplicitous. The State concedes that Germann's theft convictions are multiplicitous; accordingly, we reverse three of those convictions as multiplicitous. Germann's remaining theft conviction and his forgery convictions are affirmed.
During the summer of 2011, Melissa Albertsen received a statement from the credit union where she had previously maintained an account. She had closed the account in March 2010. She discovered that four checks had been written on the closed account. Her middle initial was missing and her last name was misspelled on the signature line of the checks. The checks had been written to four local liquor stores.
Albertsen found an old checkbook from her credit union in the pants of her live-in boyfriend, Germann. Albertsen contacted the police. Employees at the liquor stores identified Germann on surveillance videos as the individual who wrote checks on Albertsen's account in their stores. Germann was charged with four counts of forgery for making each of the checks and four counts of theft for taking each of the checks. Initially, the four forgery counts of the complaint alleged:
“Phillip L. Germann, Jr, then and there being, did unlawfully willfully, and with the intent to defraud, make, alter or endorse a written instrument, ... bearing Melissa A Albertsen as the owner of the account, and done in such a manner that it; purports to have been made, altered or endorsed by Melissa A. Albertsen, who did not authorize the making, altering or endorsing of said written instrument....” (Emphasis added.)
At the conclusion of the State's case, and over a defense objection, the district court allowed the State to amend the forgery counts of the complaint to read:
“Phillip L. Germann Jr, then and there being, did unlawfully willfully, and with the intent to defraud, make, alter or endorse a written instrument ... bearing Melissa A Albertsen as the owner of the account, and done in such a manner that it; purports to have been made, altered or endorsed with the authority of Melissa A Albertsen, who did not authorize the making, altering or endorsing of said written instrument....” (Emphasis added.)
When the district court asked defense counsel if he objected, counsel stated that the requested amendments were unnecessary. Defense counsel made no claim that he was not ready to present his defense or that the late amendment prejudiced his ability to present a complete defense. The district court allowed the amendment, stating: “I think the proposed language probably clarifies a little bit more what the State is alleging here, also confirms to the evidence. I am going to allow the amendment.”
A jury convicted Germann of all counts. Germann appeals his convictions.
First, Germann asserts the district court erred in allowing the State to amend the charges after the State had presented its evidence. Germann contends that he was prejudiced by the late amendment because he had already conducted cross-examination of all of the State's witnesses and he was unable to present an adequate defense.
Under K.S.A. 22–3201(e), the district court “may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
We employ a two-step analysis in resolving this issue. First, we determine whether the amendment charges an additional or different crime. If so, we then must determine whether the substantial rights of the defendant are prejudiced by the amendment. State v. Spangler, 38 Kan.App.2d 817, 824, 173 P.3d 656 (2007). “Prejudice is the determining factor. We review the determination on the prejudice prong for abuse of discretion.” 38 Kan.App.2d at 824. Our Supreme Court has given prosecutors wide discretion in amending the original complaint or information. See State v. Ransom, 288 Kan. 697, 715–16, 207 P.3d 208 (2009); State v. Bischoff, 281 Kan. 195, 205, 131 P.3d 531 (2006); State v. Tyler, 251 Kan. 616, 643, 840 P.2d 413 (1992).
The State's amendment of a complaint to charge an alternative theory for committing the same crime does not constitute the charging of an additional or different crime. State v. Calderon–Aparicio, 44 Kan.App.2d 830, 847–50, 242 P.3d 1197 (2010), rev. denied 291 Kan. 913 (2011); see K.S.A. 21–3710(a) (elements of forgery). Germann was charged under subsection (a)(1) in both the original complaint and in the amended complaint. This subsection sets forth the act of creating an instrument for the purpose of a negotiation and creates one means for committing forgery. See State v. Foster, 46 Kan.App.2d 233, Syl. ¶ 1, 264 P.3d 116 (2011), rev. granted February 17, 2012. Both the original complaint and the amended complaint put Germann on notice that he was accused of creating the checks for the purpose of negotiating the checks at the four liquor stores. Germann was charged with one crime under K.S.A. 21–3701(a).
Germann complains that the original complaint required a jury to find that he had made or altered the checks to make it appear that Albertsen had made them. Germann argues that he relied on the State's requirement to prove this theory. He claims that his theory of defense was that he wrote the checks with Albertsen's approval. Because Germann presented no evidence, he claims he did not have the opportunity to amend his strategy or adapt to the amended complaint, though his counsel at trial expressed no such concern.
Germann asserted a theory that Albertsen had authorized Germann to make the checks to buy rum, Albertsen's drink of choice. Germann contends that if the jury believed this theory, it would not also believe that Germann attempted to make it appear as though Albertsen wrote the checks. Germann argues “the district court thwarted this defense by allowing the jury to convict [Germann] only if it believed that [Albertsen] had not authorized [Germann's] making of the checks.”
In Spangler, the defendant was charged with conspiracy to manufacture methamphetamine. 38 Kan.App.2d at 818–19. Just before the State closed its case, the district court allowed it to amend the charge to extend the charging date for a 6–month period of time. 38 Kan.App.2d at 823–24. The amendment allowed the State to rely on many more incidents or overt acts of manufacturing methamphetamine occurring within the newly expanded time frame that were not included in the initial charge. 38 Kan.App.2d at 824, 827. Our court found that defense counsel was prejudiced because he could not go back and change his strategy to include the newly asserted overt acts. The defense was specific to the original charging date. 38 Kan.App.2d at 828–29.
The State argues that the present case is distinguishable from Spangler because the amendment in the present case did not require Germann to defend against any new acts not contained in the original complaint. The State maintains that the amendment did not change the charges which Germann was required to defend against and did not affect his defense strategy.
The State points to State v. Calderon–Aparicio for a case with more similar facts. In Calderon–Aparicio, the State was allowed to amend the complaint 3 days prior to trial from an allegation of possession of marijuana with intent to sell, to possession of marijuana with intent to sell, deliver, or distribute. 44 Kan.App.2d at 832, 847. The court found the amendment did not charge a new or different crime because the amended complaint merely stated more than one way of committing a single offense. 44 Kan.App.2d at 848–49. The court found that the defendant's substantial rights were not prejudiced because the evidence in the case was the same whether he was charged with possession with intent to sell or possession with intent to sell, deliver, or distribute. The court further noted that the defendant failed to state how his defense would have changed to meet the amendment. The court found no abuse of discretion in permitting the amendment. 44 Kan.App.2d at 849–50.
Here, the amendment merely modified one of the ways in which forgery under K.S.A. 21–3710(a) may be committed. The State emphasizes that the evidence required to prove the charge remained the same.
The original complaint may not have expressly mentioned a lack of authorization; however, Germann has not shown that the amendment prejudiced his defense. Germann's defense was that Albertsen had authorized him to write the checks to purchase rum. If the jury believed Germann's theory, it would not have convicted him under either theory because he would have had the authority of Albertsen to write the checks.
Germann does not assert how his theory of defense would have changed if he had had time to prepare for the amended complaint. Germann knew that the absence of authority to use Albertsen's checks was an element of the crime with which he was charged. The amendment to the complaint did not prejudice Germann. Thus, we affirm his forgery convictions.
Germann also argues that his four convictions for theft were multiplicitous because they relied on the single act of taking Albertsen's checkbook. The State presented evidence that Germann took the checkbook from Albertsen and wrote four checks to four separate liquor stores. Germann argues that the State's charges were based on the unitary act of taking the checkbook from Albertsen.
The State concedes that Germann's convictions for theft were multiplicitous and that three of his theft convictions should be vacated. See State v. Hood, 297 Kan. ––––, 300 P.3d 1083 (2013) (only one conviction may arise from a single act of theft; additional convictions are multiplicitous). Thus, we vacate three of Germann's theft convictions and reverse and remand for resentencing.
Affirmed in part, reversed in part, vacated in part, and remanded.