                                                                                                                     ILE0l
                                                                                                            w l f,f i OF APPE& S
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                                                                                                         2014 APIA - I    fill 9: 25




       IN THE COURT OF APPEALS OF THE STATE OF WASH]

                                                        DIVISION II

STATE OF WASHINGTON,


                                           Respondent,                                   No. 44087 -3 -II


          IPA                                                                       UNPUBLISHED OPINION


DAINA S. SMITH,


                                           Appellant.




          MAXA, J. — Daina             Smith appeals her conviction on one of two forgery counts ( count III),

arguing that the State' s evidence was insufficient. She also argues that in the event we reverse

her conviction, we must remand for resentencing on the remaining forgery conviction (count II).
                                                                                                                               1
We     agree,   and reverse      Smith' s    conviction on count        III_and   remand   for resentencing   on_count   II.

                                                              FACTS .


          Smith started working for American Legion Post 150 as a part-time bar manager in

October 2010.          She was trained to complete the accounting forms used by Post 150, including .

how to account for bar and gambling receipts in a daily cash report form.

          On January 16, 2011, Jennifer Mitchell, a bartender, counted money received from a pull-

tab gambling       game operated          by Post    150   called "   Super   Big   Casino."   Report of Proceedings ( RP)


    Feb. 26, 2012)     at   37 -3 8.   She   wrote   the total ($ 1360)   on a sticky note and put the money in a


i
    A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 14       and   then    referred   it to   a panel of judges.
No. 44087 -3 -II



manila envelope. On January 17, 2011, Smith initially created a daily cash report showing the

amount reported by Mitchell in her note. However, Smith later discarded that report and

Mitchell' s note.


          Smith then filled out a second daily cash report that did not mention any proceeds from

the Super Big Casino game. The State presented evidence that Smith prepared the inaccurate

report to cover up the fact that she had taken some of the cash that had been placed in the

envelope. Preparing the second report that included inaccurate information formed the basis for

the forgery charge in count III.

          Smith initially listed the proceeds from the Super Big Casino game on the monthly

income summary. However, she later altered that report by whiting out the reference to Super

Big Casino. This alteration formed the basis for the forgery charge in count II.

          A jury convicted Smith on both count III and count II. The jury, by special verdict, found

the crimes aggravated by Smith' s use of a position of trust, confidence or fiduciary

responsibility. The trial court sentenced Smith to concurrent exceptional sentences of 12 months

and one day on each forgery conviction.

                                               ANALYSIS


A.        FORGERY


          Smith argues that here conduct did not fall within the statutory definition of forgery and

therefore there is insufficient evidence to support her conviction. A challenge to the sufficiency

of the evidence admits the truth of the State' s evidence, and all reasonable inferences therefrom

are drawn in the light most favorable to the State. State v.Hosier, 157 Wn.2d 1, 8, 133 P. 2d 936

 2006).    Evidence is legally sufficient to support a guilty verdict if any rational trier of fact,

viewing the evidence in the light most favorable to the State, could find the elements of the

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No. 44087 -3 -II



charged crime beyond a reasonable doubt. State v. Montgomery, 163 Wn.2d 577, 586, 183 P. 3d

267 ( 2008).


         RCW 9A.60. 020( 1) provides:


         A person is guilty of forgery if, with intent to injure or defraud:

            a) He falsely makes, completes, or alters a written instrument or;
            b) He possesses, utters, offers, disposes of, or puts off as true a written
           instrument which he knows to be forged.


The   parties   do   not   dispute that the document    was a " written   instrument." Former RCW


9A.60. 010( 1) (     1999).   The issue is whether Smith falsely made, completed or altered the daily

reports. These terms are all defined informer RCW 9A.60.010:

            4)       To " falsely make" a written instrument means to make or draw a complete
         or incomplete written instrument which purports to be authentic, but which is not
         authentic either because the ostensible maker is fictitious or because, if real, he or
         she did not authorize the making or drawing thereof,
            5)   To " falsely complete ". a written instrument means to transform an
         incomplete written instrument into a complete one by adding or inserting matter,
         without the authority of anyone entitled to grant it;
            6)   To " falsely alter" a written instrument means to change, without
         authorization by   anyone   entitled to  grant it, a written instrument, whether


         complete or incomplete, by means of erasure, obliteration, deletion, insertion of
         new matter, transposition of matter, or in any of er manner.

         The State argues that Smith falsely completed or made the second daily cash report when

she failed to include accurate information regarding the Super Big Casino game in that report.

We disagree for two reasons.


         First, our Supreme Court has held that an employee does not commit forgery by falsely

completing a genuine document that he or she otherwise has the authority to complete. See In re

Pers. Restraint of Keene, 95 Wn.2d 203, 210 - 11, 622 P. 2d 360 ( 1980). In Keene, the owner of a


business left      a signed $   100 check that did not have the payee section completed with an


employee    to     use   for " business   purposes."   Keene, 95 Wn.2d    at   210 -11. However, the employee


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No. 44087 -3 -II



completed the check by designating himself as the payee and did not use the money as intended.

Keene, 95 Wn.2d           at   211.   The court concluded that these facts did not support a forgery

conviction because the employee was authorized to complete and cash the check:


               The petitioner completed the check. However, he was authorized to do so by ...
          his employer, who had signed it. He was also authorized to cash it. What he was
          not authorized to do was to use the money for nonbusiness purposes. Thus,
             defendant]'       s unauthorized personal use of             the $   100 constituted third degree theft
          under      [ former] RCW 9A.56. 050 [( 1975)],                  not forgery as defined in [ former RCW
             9A. 60. 020 [( 1975)].


Keene, 95 Wn.2d at 211.


             Here, the State does not dispute that as the bar manager, Smith was authorized to


complete the daily cash reports. Although Post 150 may have expected Smith to follow correct

procedures when filling out the reports, when she incorrectly completed the second daily cash

report she was acting within her authorization, just like the employee in Keene.

             Second, even if Smith was not authorized to fill out the daily cash reports in any manner

she chose, the State presented insufficient proof of forgery because the daily cash report itself

was genuine;          i. e., Smith    was   the   in     of the report. Division.One of this court stated that


     f]orgery does      not    involve the making        of   false   entries   in   an otherwise genuine   document." State


v.   Esquivel, 71 Wn.          App.   868, 870, 863 P. 2d 113 ( 1993). "              A misrepresentation of fact, so long

as it does not purport to be the act of someone other than the maker, does not constitute forgery."

State   v.   Mark, 94 Wn.2d 520, 523, 618 P. 2d 73 ( 1980). Several cases draw a distinction between


a forged document and a genuine document that contains false information. Dexter Horton Nat' l

Bank    v.    US. Fid. & Guar. Co., 149 Wash. 343, 345, 270 P. 799 ( 1928) ( " When the crime is


charged to be the false making of a writing, there must be the making of a writing which falsely

purports       to   be the writing     of another. ");   accord State v. Marshall„ 25 Wn. App. 240, 242, 606


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No. 44087 -3 -II



P. 2d 278 ( 1980) (         genuine Medicaid reimbursement forms containing false information did not

support forgery conviction).

         Here, simply because Smith completed a daily cash report form with false information

regarding gambling proceeds does not mean that she committed forgery. Smith prepared the

report, and the report did not purport to be anything other than what it was. Esquivel, 71 Wn.

App. at 871 ( noting the difference between " false statements in a document and a false
document "); Marshall,           25 Wn. App. at 242.

         The State also argues that Smith falsely altered the first daily cash report by discarding it

and replacing it with the second daily cash report that did not include proceeds from the Super

Big Casino game. However, the definition of "to falsely alter" a written instrument includes

only   acts   that "   change"    an   instrument. Former RCW 9A.60. 010( 6). The plain terms of the


statutory definition do not include discarding a document and replacing it with a second genuine,

but   falsely   completed, one.         Former RCW 9A.60. 010( 6) ( "    To ` falsely alter' a written instrument

means to change, without authorization by anyone entitled to grant it, a written instrument.'?).

          We Bold that Smith' s including false information the-second daily cash report did not

constitute falsely making, completing or altering an instrument. As a result, although Smith' s

conduct    may have          supported another criminal charge —such as       theft —it   was not forgery.

B.        SENTENCING


          Smith argues that in the event we reverse her conviction on count III, we must remand for


resentencing      on count       II.   She relies on the trial court' s statement during sentencing that " I

certainly feel that [ Smith' s sentence] needs to be substantially more than [ the standard range of]

90 days based          on   the fact there' s two counts."   RP ( Sept. 28, 2012) at 24. We agree that


resentencing on count II is appropriate.

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No. 44087 -3 -II



            An exceptional sentence may be upheld on appeal even where all but one of the trial

court' s reasons for the sentence have been overturned. However, remand for resentencing is

necessary where it is not clear whether the trial court would have imposed an exceptional
sentence on     the basis   of   only the   one   factor   upheld."    State v. Gaines, 122 Wn.2d 502, 512, 859


P. 2d 36 ( 1993) (   citation omitted).      Here, we cannot conclude that the trial court would have


imposed the same exceptional sentence on count II if Smith had not been convicted on count III.

A review of the court' s oral opinion at Smith' s sentencing reveals that it placed emphasis on the

existence of more than one forgery conviction in declaring Smith' s sentence. As a result, what

sentence the trial court would have imposed if Smith had been convicted only of count II is not

clear. Accordingly, resentencing is required for count II.

        We vacate Smith' s conviction on count III and remand for resentencing on count II.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.



                                                                                     f

                                                                     MAXA, J.
We concur:




   6RCJ ,     J: /




LEE




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