Lapp v. State

2004 WY 142, 100 P.3d 862, 2004 Wyo. LEXIS 181, 2004 WL 2599938
CourtWyoming Supreme Court
DecidedNovember 17, 2004
Docket03-136, 03-137
StatusPublished
Cited by12 cases

This text of 2004 WY 142 (Lapp v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lapp v. State, 2004 WY 142, 100 P.3d 862, 2004 Wyo. LEXIS 181, 2004 WL 2599938 (Wyo. 2004).

Opinion

KITE, Justice.

[¶ 1] Donna Lapp was found guilty by a jury of one count of forgery in violation of Wyo. Stat. Ann. § 6-3-602(a)(ii) (LexisNexis 2003) and two counts of check fraud in violation of Wyo. Stat. Ann. § 6 — 3—702(b)(iii) (LexisNexis 2003). She appeals the convictions, claiming plain error occurred in the manner in which the district court instructed the jury concerning intent to defraud. She also claims insufficient evidence was presented to support the convictions. We affirm the forgery conviction and reverse the check fraud convictions.

ISSUES

[¶ 2] Ms. Lapp presents the following issues:

I. Whether plain error occurred when the jury was not instructed on the meaning of the critical element intent to defraud or specific intent.
II. Whether it was plain error for the jury to be instructed on the presumption of intent to defraud when the state failed to present the prima facie evidence necessary for the presumption.
III. Whether there was sufficient evidence to support a finding of the intent to defraud element for the fraud by check convictions.
*864 IV. Whether there was sufficient evidence to prove beyond a reasonable [doubt] that Ms. Lapp signed Mr. Evans’ signature with an intent to defraud.

[¶3] The State rephrases the issues as follows:

I. Did the district court commit plain error when it failed to instruct the jury as to the definition of the term “intent to defraud?”
II. Did the state present sufficient evidence from which the jury could find that appellant failed to pay the two insufficient funds checks within five days of notice of their dishonor, thereby supporting the jury instruction that such failure may be evidence of an intent to defraud?
III. Did the state present sufficient evidence to support the jury’s finding that appellant was guilty of fraud by check?
IV. Did the state present sufficient evidence to support the jury’s finding that appellant authenticated the unauthorized signature of Gary Evans with intent to defraud?

FACTS

[¶ 4] In February of 2002, Ms. Lapp asked a co-worker to notarize an automobile title bearing the name Gary Evans on the front and what Ms. Lapp represented to be Mr. Evans’ signature on the back. A few months later, Mr. Evans attempted to obtain a bank loan and was asked to provide the automobile title as collateral. He searched his home and could not find the title. Although Ms. Lapp helped Mr. Evans look for the title and spoke to the bank loan officer, she did not reveal that she previously removed the title from his home, represented the signature on the back as being his and had it notarized. Mr. Evans testified the signature on the title was not his and he did not give Ms. Lapp permission to sign his name on the title. No evidence was presented concerning what happened to the title after it was notarized.

[¶ 5] In March of 2002, Ms. Lapp wrote a check for $1,800 to her former husband, Curtis Lapp. After he deposited the check in his bank account, Mr. Lapp received notice that there were insufficient funds to cover the amount. In June of the same year, Ms. Lapp again wrote a check to Mr. Lapp, this time in the amount of $4,800. As with the prior check, Mr. Lapp was notified after he deposited the check and withdrew a slightly smaller amount from his account that there were insufficient funds to cover Ms. Lapp’s check. A bank representative contacted Mr. Lapp and informed him he was responsible for bringing his account current. Mr. Lapp obtained another check from Ms. Lapp. This time, however, Mr. Lapp’s bank contacted the bank the check was written on to verify that funds were available to cover the check. The bank was informed the funds were not available. Ultimately, Ms. Lapp repaid Mr. Lapp all of the money she owed him as a result of the insufficient funds checks.

[¶ 6] The State filed charges against Ms. Lapp, alleging she committed one count of forgery in violation of § 6-3-602(a)(ii) and two counts of issuing checks in amounts exceeding $500 without sufficient funds in violation of § 6-3-702(b)(iii). The charges were joined for purposes of trial, which was held April 3 and 4, 2003. The jury found Ms. Lapp guilty of all three counts and she was sentenced to three concurrent terms of five to ten (5-10) years in the Wyoming Women’s Center.

STANDARD OF REVIEW

[¶ 7] Because Ms. Lapp did not offer an instruction on intent to defraud or object to the instructions given, we review her first two claims for plain error. Under the plain error standard, she must show a clear and unequivocal rule of law was violated, the violation clearly appeared in the record, and the violation resulted in denial of a substantial right to her material prejudice. Simmons v. State, 2003 WY 84, ¶ 25, 72 P.3d 803, ¶ 25 (Wyo.2003). Our standard for reviewing alleged error in jury instructions is:

We afford significant deference to the trial court in instructing the jury:
“The trial judge is afforded latitude to tailor the instructions to the facts of the *865 case, and reversible error will not be found as long as the instructions when viewed as a whole and in the context of the entire trial fairly and adequately cover the issues.”

Wilson v. State, 14 P.3d 912, 915 (Wyo.2000) (citations omitted).

[¶ 8] In reviewing Ms. Lapp’s sufficiency of the evidence claims, we must determine whether a rational jury could find the State proved the essential elements of the crime beyond a reasonable doubt. Vlahos v. State, 2003 WY 103, ¶ 36, 75 P.3d 628, ¶ 36 (Wyo.2003). We do not consider conflicting evidence presented by Ms. Lapp. Id. We afford to the State every favorable inference that may be reasonably and fairly drawn from the evidence it presented. Id. It was the jury’s responsibility to resolve conflicts in the evidence and we will not substitute our judgment for that of the jury. Id. Oui’ only duty is to determine whether a quorum of reasonable and rational individuals could have come to the same result. Id.

DISCUSSION

1. Plain Error in Failing to Instruct on Intent to Deft'aud

[¶ 9] Ms. Lapp asserts that to support the convictions the State had to prove beyond a reasonable doubt that she committed the charged offenses with the specific intent to defraud. She contends plain error occurred because the jury was not instructed on this crucial element. The State responds that the district court properly instructed the jury that intent to defraud was an element of both crimes charged. The State contends the phrase “intent to defraud” does not have a technical legal meaning so different from its ordinary meaning as to require a separate jury instruction defining the phrase. We agree with the State.

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Bluebook (online)
2004 WY 142, 100 P.3d 862, 2004 Wyo. LEXIS 181, 2004 WL 2599938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lapp-v-state-wyo-2004.