Summary 2011 WY 158

Summary of Decision November 18, 2011


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Case Name: Rodgers v. State

Citation: 2011 WY 158

Docket Number: S-11-0044

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464854

Appeal from the District Court of Platte County, Honorable John C. Brooks, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellant Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Wyoming Public Defender Program.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

Date of Decision: November 18, 2011

Facts: Appellant was convicted of check fraud, driving while intoxicated, felony identity theft, and two counts of forgery. The instrument involved in the check fraud charge was an EFS Transcheck, which is a negotiable instrument in the name of a private company, EFS Transportation Services, payable through the Regions Bank in Memphis, Tennessee. As in the case of a typical check, an EFS check contains the name of the payee, the amount to be paid, and the date. Unlike a typical check, however, an EFS check requires a valid transaction number, an issuer number, and an authorization number. The intended payee, as dictated on the face of the EFS check, is responsible for obtaining and/or verifying the authorization number as a precondition to accepting the check.

In addition to the misdemeanor check fraud and DUI charges, the State charged Appellant with felony identity theft, alleging that he used the identity of another to avoid prosecution on two earlier misdemeanor charges and “in doing so attempted to gain an economic benefit of more than $1,000.00 by avoiding the fines associated with the misdemeanors.” The State also charged him with two counts of forgery, both felonies, for signing the name of another on court documents. He appeals those convictions raising, among other things, claims of evidentiary insufficiency and a speedy trial violation under W.R.Cr.P. 48(b).

Issues: Whether the Information states facts constituting the offense. Whether the instrument involved [constitute a “check” as defined in § 6-3-701(a). Whether there was sufficient proof presented that the check was not paid for insufficient funds. Whether the document given to the jury as the “Information” was not the actual Information which it was considering. Whether there was sufficient evidence to support finding an economic benefit over $1,000. Whether Appellant was denied his right to a speedy trial under W.R.Cr.P. 48(b).

Holdings: At trial, and in accordance with Wyo. Stat. 6-3-702(a) (2011), the district court instructed the jury that it should not convict Appellant unless it found the State had proven beyond a reasonable doubt that the Appellant knowingly issued a check in the amount of less than $1,000.00 which check was not paid because the drawer of the check had insufficient funds or credit with the drawee.

The most fundamental problem with Appellant’ check fraud conviction is that, as a matter of law, is that the EFS check is not a “check” as defined by Wyo. Stat. Ann. § 6-3-701(a)(i) (2011). This statute defines a “check” as “a written unconditional order to pay a sum certain in money drawn on a bank, payable on demand and signed by the drawer.” The EFS check clearly states on its face “DO NOT CASH WITHOUT CALLING.” It further states: “This check is not valid and will not be honored without obtaining an authorization number before cashing. To obtain an authorization number [contact EFS]. . . . If this check already has an authorization number, please call and verify the number.” Given this language, it is clear that the EFS check is not an “unconditional order to pay.”

Additionally, Appellant’s criminal culpability was based on the fact that he was the “drawer” of the check. A “drawer” is defined as “a person either real or fictitious whose name appears on a check as the primary obligor whether the actual signature is that of himself or of a person authorized to draw the check in his behalf.” Wyo. Stat.§ 6-3-701(a)(iv). Appellant’ name does not appear on the EFS check as the primary obligor. Rather, that distinction belongs to EFS Transportation Services.

While a crime was committed by Appellant, the facts simply do not support a conviction for check fraud as defined by Wyoming law. Accordingly, Appellant’s check fraud conviction is reversed.

Appellant does not dispute that he committed the crime of identity theft. Rather, his complaint concerns the felony grading of his criminal conduct. Appellant’s challenge is three-fold. First, he contends that his successful intent to avoid criminal fines in the first criminal case did not constitute an “economic benefit” for purposes of the grading provisions of Wyo. Stat. 6-3-901(c). Second, Appellant contends the State improperly aggregated the economic benefits of two separate acts of identity theft to reach the felony threshold amount of $1,000.00. Lastly, he claims the State presented insufficient evidence to support the jury’s finding of an economic benefit in the felony amount of $1,000.00 or more.

Appellant’s felony conviction is based on the notion that he used another’s identity in an effort to avoid the monetary penalties associated with his initial DUI and check fraud charges. However, the attempted avoidance of a potential financial obligation is not tantamount to the acquisition of a financial advantage. In the former situation, the individual is essentially seeking to avert a financial loss in order to maintain his financial status quo; whereas in the latter situation, the individual is seeking to enhance his wealth or financial position. There is nothing in this case to support a conclusion that Appellant sought to enhance his financial well-being in the initial criminal case. Consequently, Appellant’ conviction for felony identity theft cannot stand.

Although Appellant’s felony conviction is reversed, it has long been recognized that the Court has the authority to order that the defendant be resentenced on the lesser-included offense if the jury verdict supports a conviction for that offense. Here, no question exists that the jury’s verdict also supports a conviction on the lesser offense of misdemeanor identity theft. Accordingly, the Appellant’s felony conviction is set aside and the entry of a misdemeanor identity theft conviction is ordered. The matter is remanded to the district court for resentencing on the misdemeanor conviction.

There is no question in this case that Appellant’ trial was not held within 180 days of his arraignment. However, the record reveals that the district court initially set Appellant’s trial in compliance with, but directly on the 180-day limit of Rule 48(b). Five days before the scheduled trial date, and 175 days after arraignment, the district court continued that trial setting to accommodate defense counsel’s request for an evaluation of Appellant’s mental competency to proceed. Because Appellant’s mental competency to stand trial was at issue, Wyoming law, as well as the due process protections of the United States and Wyoming constitutions, required the district court to suspend the criminal proceeding pending a determination that Appellant was, indeed, competent to stand trial. Once the district court postponed the original trial date, it would have been a practical impossibility for Appellant’ trial to be held within the five days remaining on the 180-day speedy trial clock of Rule 48(b) – witnesses had to be subpoenaed, a new jury panel had to be summoned, and time had to be afforded for Appellant to contest the forensic evaluation findings and for the district court to make a final determination concerning Appellant’ fitness to proceed. Rule 48(b) anticipates such a situation. It allows for a continuance of the 180-day limit if required for the due administration of justice and there is no resulting prejudice to the defendant. W.R.Cr.P. 48(b)(4)(B)(iii). In the present action, no prejudice flowed from the continuance. Thus, under the facts of this case, the continuance of Appellant’ trial was in compliance with Rule 48(b). Appellant’ argument that his speedy trial right was violated because of a failure to comply with Rule 48(b) fails.

Appellant’ right to a speedy trial under W.R.Cr.P. 48(b) was not violated under the facts of this case. There is insufficient evidence to support his convictions for check fraud and felony identity theft, and these convictions are reversed. However, the jury’s verdict supports Appellant’ conviction for the lesser-included offense of misdemeanor identity theft. Therefore an entry of a conviction on the crime of misdemeanor identity theft is ordered and the matter is remanded to the district court for resentencing on that conviction. Finally, Appellant’s convictions for DUI and forgery are affirmed.

J. Golden delivered the opinion for the court.