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State v. Foster

Supreme Court of Kansas

November 15, 2013

STATE OF KANSAS, Appellee,
v.
STEPHEN BERNARD FOSTER, Appellant

Page 365

Review of the judgment of the Court of Appeals in 46 Kan.App.2d 233, 264 P.3d 116 (2011).

Appeal from Shawnee District Court; MARK S. BRAUN, judge.

SYLLABUS

BY THE COURT

1. A criminal defendant is not required to challenge the sufficiency of the evidence in the trial court in order to present a claim on appeal that the evidence presented at trial was legally insufficient to support the convictions.

2. The scope of the test for evidence sufficiency depends upon whether the jury is instructed that the defendant committed a single offense by one statutory means that is susceptible to being proved in different ways or whether the jury is instructed that the defendant committed a single offense by two or more distinct alternative means by which the legislature has said the crime can be committed. If the jury is instructed on alternative means for a single offense, the record must contain sufficient evidence from which a rational factfinder could have found the defendant guilty on each and every alternative means, i.e., there must be a super-sufficiency of the evidence.

3. Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.

4. Alternative means are legislatively determined, distinct, material elements of a crime, as opposed to legislative descriptions of the material elements or of the factual circumstances that would prove the crime. The legislature typically signals its intent to state alternative means through statutory structure, separating alternatives into distinct subsections of the same statute, albeit such separation is not always present.

5. 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.

6. Because the phrase " issuing or delivering" in K.S.A. 21-3710(a)(2) does not create alternative means of offering a forged instrument, the super-sufficiency rule does not apply and substantial competent evidence that the defendant knowingly delivered a forged written instrument, standing alone, is sufficient to support a forgery conviction under that subparagraph.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Jason E. Geier, assistant district attorney, argued the cause, and Darren E. Root, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were on the brief for appellee.

OPINION

Page 366

[298 Kan. 349] JOHNSON, J.

A jury convicted Stephen Bernard Foster of certain offenses that included the crime of forgery based upon his attempt to cash a $350 check at CheckSmart. The Court of Appeals affirmed the forgery conviction in a published opinion: State v. Foster, 46 Kan.App.2d 233, 264 P.3d 116 (2011). In reaching its decision, the panel rejected Foster's argument that the terms " issuing or delivering" in K.S.A. 21-3710(a)(2) establish alternative means of committing forgery and that the State had failed to present sufficient evidence that Foster issued the forged check. We granted review of the Court of Appeals decision, in part to resolve any conflict with another panel's decision in State v. Owen, 251 P.3d 673, 2011 WL 2039738 (Kan. App. 2011) (unpublished opinion),

Page 367

rev. granted February 17, 2012, regarding the alternative means of committing forgery.

[298 Kan. 350] We find that the legislature did not intend to create alternative means of committing forgery through its use of the " issuing or delivering" language in K.S.A. 21-3710(a)(2). Consequently, the State did not have to present evidence that Foster both issued the check and delivered the check; the existence of substantial competent evidence to establish that Foster delivered a fraudulent check knowingly and with intent to defraud was sufficient to support the forgery conviction. Therefore, we affirm the Court of Appeals' decision that upholds Foster's forgery conviction.

Factual and Procedural Overview

On October 8, 2008, Foster attempted to have CheckSmart cash a $900 check, payable to Foster and drawn on the account of Affordable Paintball. Foster told CheckSmart employee Kajsa Freed that he had received the check for work he had done for Affordable Paintball. Freed testified that CheckSmart requires that, before cashing a check, an employee must contact the person who wrote the check and verify the check number, the amount, and the person to whom the check is written. The company also requires the person attempting to cash the check to fill out a form with his or her personal information. Following this procedure, Freed attempted to contact Affordable ...


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