Opinion
102,814.
03-13-2015
STATE of Kansas, Appellee, v. Christy D. OWEN, Appellant.
Meryl Carver–Allmond, of Capital Appellate Defender Office, argued the cause and was on the briefs for appellant. Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, Steve Six, former attorney general, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Meryl Carver–Allmond, of Capital Appellate Defender Office, argued the cause and was on the briefs for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, Steve Six, former attorney general, and Derek Schmidt, attorney general, were with him on the brief for appellee.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Christy Owen of two counts of forgery and one count of identity theft based on making and delivering a forged check to a grocery store. The Court of Appeals reversed the convictions in an unpublished opinion: State v. Owen, No. 102,814, 2011 WL 2039738 (Kan.App.2011) (unpublished opinion). With respect to the forgery convictions, the panel opined that the crime-defining statute for each count established alternative means of committing forgery. Because the jury was instructed on all alternative means but the State failed to present evidence of one of the means, i.e., that Owen endorsed the check, the panel reversed the forgery convictions for insufficient evidence pursuant to this court's holdings in State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), disapproved on other grounds State v. Nunez, 298 Kan. 661, 316 P.3d 717 (2014). We granted the State's petition for review of the Court of Appeals' reversal of the forgery convictions. Owen, 2011 WL 2039738, at *5. Based on the issues preserved for our review, we affirm in part and reverse in part.
Factual and Procedural Overview
On September 16, 2008, Owen attempted to pay for her grocery store purchases and obtain $50 cash back with a check written on Rachel Mendenhall's account. The store's computer system indicated a potential problem with the check, and a customer service representative noticed that one of the numbers in the check's account field was scratched out. The representative also suspected that Owen's identification was fake.
The police were called and the customer service representative tried to stall Owen, but she ran from the store and entered the passenger side of a vehicle that then left the parking lot. Ultimately, a police officer dispatched to investigate the forgery stopped the vehicle and apprehended Owen. According to the officer, Owen volunteered that she had never done “this” before, that she had found the check at a friend's house, that she was sorry, and that she just needed the extra cash.
Another officer, who assisted with the arrest, testified that after he read Owen her Miranda rights, she told him that she was having financial problems when she came across Mendenhall's checks at a friend's home and took them. Owen explained that she went to the grocery store, did some shopping, and attempted to buy groceries and receive cash back with one of Mendenhall's checks. Owen admitted that she filled out the check and signed Mendenhall's name. She also confessed that she altered the account number on the check in an attempt to confuse the store's computer system.
The State charged Owen with two counts of forgery and one count of identity theft. At the jury trial, the State introduced the check Owen attempted to pass and presented Mendenhall's testimony that she had not written or signed the check or given anyone else permission to do so. The customer service representative also testified that he saw Owen make out, sign, and hand the check to the cashier. A detective trained in financial crimes testified that one of the digits in the check's account number had been altered.
The jury convicted Owen on all three counts, and she appealed to the Court of Appeals. On appeal, the State conceded that it had failed to prove the identity theft charge, and it does not seek review of that conviction's reversal.
Regarding Owen's forgery convictions, the panel recited that
“the State charged Owen with two counts of forgery, one for making the forged instrument and one for delivering it. The first count was capable of being committed in more than one way—‘making, altering or endorsing.’ The second count also was capable of being committed in more than one way, by ‘delivering or issuing.’ As a result, it is our opinion that this case presents an alternative means issue and not a multiple acts scenario.” Owen, 2011 WL 2039738, at *2.
The panel found that the State had failed to present evidence to support all of the alternative means and had, therefore, failed to carry its burden of proof on the forgery charges. 2011 WL 2039738, at *5. The panel rejected the State's argument that any evidentiary deficiency was corrected when the prosecutor's closing argument effectively elected the means upon which the State was relying. 2011 WL 2039738, at *2–3.
The State petitioned this court to review the Court of Appeals' reversal of Owen's forgery convictions. The State's petition recited that the issue for which review was sought was as follows:
“As a matter of first impression, when the prosecutor's election in closing argument informs the jury which means of commission it is relying upon for a conviction, a defendant is not entitled to reversal of an otherwise valid conviction simply by alleging a lack of jury unanimity due to insufficient evidence on a particular means expressly excluded by the prosecutor's election.”
In the petition for review, the State first argued that Wright was wrongly decided, in view of the prior United States Supreme Court decision in Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). The State contends that Griffin stands for the proposition that giving the jury factually inadequate theories of conviction is not reversible error.
Alternatively, the State argued that the prosecutor's closing argument effectively “elected” to rely on the means of making the check and altering the check. Therefore, the State contends that the means of endorsing the check was eliminated from the jury's consideration, so that jury unanimity was unaffected by including “endorsing” in the jury instructions.
Issues Preserved for Review
At the time this court granted the State's petition for review in this case, there was a conflict among Court of Appeals panels as to whether forgery was an alternative means crime. The panel here determined that the statute created alternative means, while the panel in State v. Foster, 46 Kan.App.2d 233, 264 P.3d 116 (2011), held that it did not. Subsequently, this court granted review in Foster and affirmed that panel's result, specifically reciting:
“In K.S.A. 21–3710(a), the legislature set forth in separate subparagraphs three types of conduct whereby the crime of forgery can be committed, i.e., three alternative means. One can commit forgery under subparagraph (1) by creating a forged instrument; one can commit forgery under subparagraph (2) by offering an instrument known to be a forgery (by whomever created); and one can commit forgery under subparagraph (3) by knowingly possessing a forged instrument (by whomever created) with the intent to offer it. The disjunctive phrases, ‘making, altering or endorsing’ in subparagraph (a)(1) and ‘made, altered or endorsed’ in the other two subparagraphs, simply describe ways in which a forged instrument can be created. The disjunctive phrases, ‘issuing or delivering’ and ‘issue or deliver,’ which are contained in subparagraphs (2) and (3), respectively, simply describe ways in which a person can offer a forged instrument.” State v. Foster, 298 Kan. 348, Syl. ¶ 5, 312 P.3d 364 (2013).
Pointedly, however, the State's petition for review in this case did not ask this court to review the portion of the Court of Appeals' decision that determined how the statutory language of the forgery statute creates alternative means of committing the crime. Our general rule is that “[t]he court will not consider issues not presented or fairly included in the petition [for review].” Supreme Court Rule 8.03(a)(4)(C) (2014 Kan. Ct. R. Annot. 77). “Under Supreme Court Rule 8.03(g)(1), a party must allege that an issue was decided erroneously by the Court of Appeals in order for the issue to be properly before the Supreme Court on petition for review.” State v. Allen, 293 Kan. 793, Syl. ¶ 2, 268 P.3d 1198 (2012). The State did not allege that the Court of Appeals erroneously found the existence of alternative means in this case and, consequently, that issue is not before us to review. Thus, we will limit our review to the two issues that we deem to be fairly included in the State's petition for review: (1) Whether Wright was wrongly decided on the question of whether insufficient evidence of an included alternative means mandates reversal; and (2) whether a prosecutor's closing argument can functionally elect the alternative means upon which the State is relying, in contravention of the elements jury instruction.
Revisiting Wright
The State argues that Owen's forgery convictions should have been affirmed because Wright was wrongly decided. A brief overview of how this court reached its decision in Wright is helpful in analyzing the State's claim.
In State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash.2d 403, 410, 756 P.2d 105 [1988] ), this court established: “ ‘[W]here a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.’ “ The part of the Timley holding that required the record to contain sufficient evidence from which a rational jury could have found the defendant guilty on each and every alternative means for which the jury was instructed would later be dubbed the “super-sufficiency” requirement. Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 283, 294, 296–99 (2005). In Wright, we reiterated that jury unanimity is statutorily required in Kansas and explained that the alternative means rule and super-sufficiency requirement emanating from Timley “is the only choice to ensure a criminal defendant's statutory entitlement to jury unanimity.” Wright, 290 Kan. at 206, 224 P.3d 1159.
The State does not argue that it met Timley 's super-sufficiency evidentiary requirement that we reiterated in Wright, but instead it argues that we should decline to follow that precedent. Implicitly, then, the State is asking this court to deviate from the doctrine of stare decisis, which provides that “ ‘once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised.’ “ Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004) (quoting Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 [1990], overruled on other grounds Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 [1991] ). While this court is not inexorably bound by its own precedent, it will follow the law of earlier cases unless “ ‘ “clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.” ‘ “ Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010) (quoting Crist, 277 Kan. at 715, 89 P.3d 573 ).
The State suggests that Wright was originally erroneous, notwithstanding that its holding was founded on the earlier decision in Timley. The State's specific assertion is that “Wright was wrongly decided in that it is contrary to the view expressed by the United States Supreme Court in [Griffin ].” But that argument is based upon the faulty premise that Wright was based upon the defendant's due process rights under the federal Constitution, rather than protecting the defendant's Kansas statutory right to a unanimous jury verdict. Whereas the decisions of the United States Supreme Court are binding on this court when we are interpreting the United States Constitution or applying federal law, we are not bound by its views when we deal with Kansas constitutional or statutory law.
The issue addressed by the Griffin Court was “whether, in a federal prosecution, a general guilty verdict on a multiple-object conspiracy charge must be set aside if the evidence is inadequate to support conviction as to one of the objects.” (Emphasis added.) 502 U.S. at 47. The underlying facts in the case were that Griffin was charged with a single count of conspiring to defraud an agency of the federal government, but the government alleged that the conspiracy “had two objects: (1) impairing the efforts of the Internal Revenue Service (IRS) to ascertain income taxes; and (2) impairing the efforts of the Drug Enforcement Adminstration (DEA) to ascertain forfeitable assets.” 502 U.S. at 47. The evidence against the defendant with regard to the DEA did not materialize at trial, but the trial court nevertheless allowed the jury to be instructed on both objects of conspiracy. In other words, the resulting conspiracy conviction could have been based upon the allegation that the defendant conspired to impair the efforts of the DEA to ascertain forfeitable assets, even though the prosecution presented no evidence to support that allegation.
The appellant in Griffin asserted violations of her due process rights under the Fifth Amendment to the United States Constitution and her jury trial rights under the Sixth Amendment, but the Supreme Court only addressed “the Due Process Clause and also the various case precedents relied upon by petitioner.” 502 U .S. at 48–49. Ultimately, Griffin refused to reverse the conviction, noting that it was aware of no case “in which we have set aside a general verdict because one of the possible bases of conviction was neither unconstitutional as in Stromberg [v. California, 283 U.S. 359, 367–68, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) ], nor even illegal as in Yates [v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) ], but merely unsupported by sufficient evidence.” Griffin, 502 U.S. at 56. The Court opined that the term “ ‘legal error’ “ applies only to “a mistake about the law, as opposed to a mistake concerning the weight or the factual import of evidence,” basing that rationalization upon the curious notion that the intelligence and expertise of jurors cannot save them from a legally inadequate theory but jurors are well equipped to spot and reject a factually inadequate theory. 502 U.S. at 59.
Interestingly, Griffin 's rationale has not been universally embraced and “a number of state courts have rejected [Griffin's ] analysis on state law grounds, holding that there must be sufficient evidence to support each alternative theory submitted to the jury to uphold a general verdict of guilty.” State v. Jones, 96 Hawai‘i 161, 179, 29 P.3d 351 (2001). But see also Comment, Due Process—The Due Process Clause of the Colorado Constitution Does Not Require Alternative Theories of Liability Presented to a Jury in a Criminal Case to be Proven Beyond a Reasonable Doubt, Provided that the Evidence is Sufficient to Support Conviction on One Theory. People v. Dunaway, 88 P.3d 619 (Colo.2004), 36 Rutgers L.J. 1341, 1356 n. 1 11 (2005) (discussing state courts' adherence to or rejection of Griffin rationale).
Wright was not constrained by Griffin 's application of federal constitutional law to a federal criminal prosecution because “[j]ury unanimity on guilt in a criminal case is statutorily required in Kansas. See K.S.A. 22–3421 ; Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 277–79 (2005).” Wright, 290 Kan. at 201, 224 P.3d 1159. Even before Wright, this court declared that “the right to a unanimous jury verdict in a Kansas court is not a federal constitutional right or a state constitutional right, but rather a state statutory one.” State v. Voyles, 284 Kan. 239, 250, 160 P.3d 794 (2007). See also State v. Newcomb, 296 Kan. 1012, 1014, 298 P.3d 285 (2013) (“A criminal defendant has a statutory right to a unanimous jury verdict.”).
Granted, a recent commentator criticized Wright for reading a super-sufficiency requirement into what he referred to as the “verdict procedure statute,” K.S.A. 22–3421, and urged the court to view the circumstance as a jury instruction problem subject to a common law harmless error determination. See Mott, Alternative Means Jurisprudence in Kansas: Why Wright is Wrong, 62 Kan. L.Rev. 53, 73–75, 91–92 (2013). Moreover, jurists in our court system have spoken in favor of some form of harmless error analysis. See State v. Brown, 295 Kan. 181, 222–28, 284 P.3d 977 (2012) (Moritz, J., concurring) (urging a modified harmless error analysis specifically rejected by the Griffin Court); State v. Shaw, 47 Kan.App.2d 994, 1009–19, 281 P.3d 576 (2012), (Malone, J., concurring), rev. denied 297 Kan. 1255 (2013) (alternative means should be treated as trial error subject to harmless error analysis).
But the State did not pursue such a tack, electing to rely solely upon its allegation that “Griffin establishes that a general guilty verdict satisfies the due process clause of the Fifth Amendment of the federal constitution, notwithstanding an absence of unanimity on an underlying means supported by sufficient evidence.” But based upon Kansas precedent applying Kansas law, the Court of Appeals correctly determined that the State was required to present sufficient evidence to support each alternative means on which the jury was instructed.
Electing an Alternative Means in Closing Argument
As an alternative, the State argues that the failure to present sufficient evidence on the one alternative means—endorsed—was cured or negated when the prosecutor's closing argument “elected” the means upon which the State was relying—made or altered. The State's argument lacks both factual and legal support.
First, the transcript of the prosecutor's closing does not disclose that the endorsement alternative means was “expressly excluded by the prosecutor's election,” as declared in the State's petition for review. In fact, as set forth in the State's own petition, the prosecutor specifically included that means as part of the jury's decision, as follows: “The law—if you'll turn to Instruction No. 8, it indicates made, altered, or endorsed. It's for you to decide.” Moreover, the prosecutor clarified that the acts were “disjunctive ... not conjunctive” and the jury could just “pick one.”
Granted, the prosecutor went on to argue why the jury should find that the defendant made the check and altered the check. But the prosecutor's legal argument actually matched the judge's jury instructions in telling the jury it could convict Owen of forgery upon finding that she committed any one of the three listed acts—making, altering, or endorsing the check. In other words, the transcript does not support the State's contention that the prosecutor made an election, functionally or otherwise.
But even if one were to read the prosecutor's argument as being the functional equivalent of an election to rely exclusively on the two alternative means of making or altering the check, the State's argument is nevertheless legally infirm. The State acknowledges that the “elect or instruct” requirement has heretofore only been applied to multiple acts cases, i.e., those cases where the evidence indicates “distinct incidents separated by time or space,” any one of which would support the charged crime, but where the State has chosen to proceed on but one count in the charging document. See PIK Crim.3d 68.09–B, Notes on Use. To put the distinction in perspective under the facts of this case, Owen made, altered, or endorsed only one check, so that she could not have been convicted on multiple counts under that statutory subsection, even though her one count could have been committed by alternative acts of forgery upon the one check. If the State had charged her with one count of forgery but put on evidence that she forged three checks on different days, a multiple acts scenario would have been created whereby the State would have to elect the one check that supported the one forgery count or the court would have to instruct the jury to be unanimous as to the forged check that supported the one forgery count. But that was not the case at hand.
Notwithstanding the State's understanding of this distinction, it attempts to insert the proverbial square peg in a round hole, by making the simplistic argument: “If election or its functional equivalent is sufficient to secure jury unanimity in a multiple acts setting, logically then, a similar election should be sufficient to provide unanimity in an alternative means scenario.” The fallacy of that premise is rooted in the allocation of responsibilities in a jury trial. The prosecutor has the authority and discretion to draft and file a charging document and can choose the evidence that the State will present to the jury. Accordingly, it is within the prosecutor's province to elect the evidence that the State wishes the jury to consider in determining the defendant's guilt on a particular count. Although the trial judge can tell a jury that the law mandates that it be unanimous on the particular evidence that will support the single count, it cannot tell the jury which specific evidence it must consider. In sum, it is the prosecutor that elects the evidence for the jury.
But on the flip side, the prosecutor cannot elect which law it wants the jury to apply to a particular case; it is solely the trial judge's authority and responsibility to instruct the jury on the elements of the crime that must be proved beyond a reasonable doubt to effect a conviction. If the judge instructs the jury that the elements of the crime include that the defendant endorsed a check, the prosecutor is not imbued with the authority to countermand that instruction and say that it is acceptable to convict the defendant without evidence of that instructed element. In short, although a prosecutor can elect the facts that the jury should unanimously consider, he or she cannot elect the law that the jury should unanimously apply.
Accordingly, the prosecutor's closing argument did not cure the district court's error in instructing the jury on an alternative element of the crime of forgery that was unsupported by the evidence. The Court of Appeals did not err in rejecting that argument.
Reversal and Remand for New Trial
Finally, the State makes a brief argument that challenges the disposition utilized by the Court of Appeals. The panel simply reversed Owen's convictions. The State contends that Owen was not acquitted of forgery, but rather she was convicted based upon sufficient evidence of only two of the charged three alternative means. Therefore, the State contends that the appropriate disposition is to reverse the conviction and remand for a new trial on the alternatives for which there was sufficient competent evidence in the first trial. That way, we can preserve the concept that it is the jury's function to determine guilt, while still preserving the concept that a defendant has a right to jury unanimity. We agree. Owen was not acquitted of forgery, albeit she was not legitimately convicted of having endorsed the check.
Reversed and remanded.
MORITZ, J., not participating.