Randall L. Hodgkinson and Washburn student intern Allie Prester won in State v. Christopher Ward, No. 111,640 (Kan. January 12, 2018), obtaining reversal of Johnson County theft and making a false information convictions. The COA had reversed the convictions, which stemmed from construction partnership finances. The state alleged that Mr. Ward added his name as payee to a check made out to the partnership and cashed it, unknown to his partner. The state charged Mr. Ward with theft by deception, naming the partnership or the bank as the entity deceived, and making a false information based on allegations that the check falsely stated some material matter. The KSC agreed that the evidence was insufficient, albeit for slightly different reasons than the COA.
With regard to the theft by deception conviction, the Court agreed that there was no evidence that the persons charged as victims were deceived:
We agree with the Court of Appeals that the State presented insufficient evidence
on deception of and reliance by ACG. ACG qualified as an owner because it had an
interest in the $20,000 based on its status as the intended payee of Sweeney's check, and
Ward was acting as an agent of ACG when he accepted the check from Sweeney. But
"ACG was not deceived by Ward's alteration of Sweeney's check as it neither had the
opportunity to inspect nor to be fooled by the altered check." Instead, from the time the check was given to Ward until he deposited it in his
personal account at First National Bank, he remained the only person affiliated with ACG
who knew of the check's existence or of its original or altered state. In vintage cinema
parlance, Ward pulled "an inside job," an embezzlement of company funds. See K.S.A.
2016 Supp. 21-5801(a)(1). His insider status put him in position to take possession of
ACG's check, alter its payee line, and then exert unauthorized control over it by
depositing it into his personal account—while everyone else at the company remained
none the wiser. In essence, Ward stepped out of his role as loyal company agent and into
a role acting as himself for only himself. He could not deceive himself.
We also agree with the Court of Appeals that the State presented insufficient
evidence on deception of and reliance by Bank of America, although we do not rely on its
rationale that Bank of America cashed the check presented by First National Bank in
reliance on Uniform Commercial Code transfer warranties. Rather, the evidence as to theft by deception from Bank of America fails as a matter
of law because Ward did not deceive that bank. Ward presented the check to his own
bank, First National, and, as one of the bank's representatives testified, it would not have
allowed Ward to deposit the check in his personal account but for his addition of "or
Chris Ward" to the payee line. Bank of America then honored the check when it was
presented by First National Bank because Bank of America's depositor, Sweeney, had
signed it. The signature line was the line on the check upon which Bank of America
relied, not the altered payee line. While First National Bank undoubtedly was deceived
by Ward's actions, Bank of America was not.
With regard to the making a false writing claim, the KSC analyzed its previous case law and myriad COA cases related to the relationship between the crime of making a false information and forgery. The KSC overruled its previous caselaw that held that making a false writing should be "related to the defendant's own business or affairs." But the KSC went on to hold that making a false writing requires the defendant to "make" a record and that the record did not support a finding that Mr. Ward made the check at issue in this case:
to convict of making false information in this case, the State must have
proved that: (1) Ward knowingly made a written instrument; (2) Ward knew the
instrument to be false; (3) Ward had the intent to defraud; and (4) Ward obstructed the
detection of a theft or felony or induced official action.
The Legislature has not defined the term "make" in this context. See K.S.A. 2016
Supp. 21-5111 (definitions). But plain words should be given their ordinary meaning, and
dictionary definitions can be good sources for such meanings. Black's Law Dictionary defines "make" as "1. To cause (something) to exist . 2. To enact (something) . 3. To acquire (something) . 4. To legally perform, as by executing, signing, or delivering (a
document) ." The
evidence in this case showed only that Ward altered a check already filled out in full by
Sweeney. He did not "make" the check in any of the senses recognized in Black's.
In addition, the Uniform Commercial Code, which Kanas adopted in 1992,
governs negotiable instruments such as checks. Although it is not directly applicable to this criminal case, it offers valuable, common-sense guidance on who qualifies
as the "maker" of a check. A maker is a "person who signs or is identified in a note as a
person undertaking to pay." K.S.A. 2016 Supp. 84-3-103(5). Under the UCC, Sweeney
was the maker of the check. Ward was merely the alterer of that check.
In short, the State failed to meet its burden to prove the first element of the crime
of making false information.
Because the evidence did not support either conviction, they were reversed.
