State v. Fiske

607 S.E.2d 471, 216 W. Va. 365, 2004 W. Va. LEXIS 171
CourtWest Virginia Supreme Court
DecidedDecember 1, 2004
DocketNo. 31714
StatusPublished
Cited by2 cases

This text of 607 S.E.2d 471 (State v. Fiske) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fiske, 607 S.E.2d 471, 216 W. Va. 365, 2004 W. Va. LEXIS 171 (W. Va. 2004).

Opinion

PER CURIAM:

This is an appeal by Michael Wayne Fiske from an order of the Circuit Court of Morgan County sentencing him to two concurrent 2 to 10 year sentences in the State Penitentiary for forgery and uttering. On appeal, the appellant claims, among other things, that the evidence adduced by the State failed to prove the allegations of the indictment and [366]*366that in light of this, the circuit court should have directed a verdict of acquittal for him.

I.

PACTS

On June 21, 2002, the appellant, who is the grandson, and adopted son, of Carl G. Fiske, II, entered a 7-eleven store in Morgan County, West Virginia, and presented a check for $33.92 on an account registered in the name of his grandfather, Carl G. Fiske, II. It appears that he had signed the check “Carl G. Fiske, II.” Later the same day, the appellant returned to the store and asked the clerk in the store if she could hold the check. He indicated that he wanted to give cash and get the check back. The clerk had already deposited the check in the safe and told the appellant that he would have to speak to the store manager, Rhoda Kyne, who was not present at the time.

The clerk left a note for Ms. Kyne and explained what had occurred. Ms. Kyne, upon reading the note, had a “hunch” that something was amiss and contacted the bank on which the check was drawn. She learned that the branch of the bank identified on the check had been closed, and she thereupon called the Berkeley Springs Police Department to report the incident.

After the Berkeley Springs Police Department investigated the situation, the appellant was indicted for uttering and forgery. Count I of the indictment stated that Michael Wayne Fiske:

[D]id knowingly and feloniously utter and attempt to employ as true, to the prejudice of the rights of Carl G. Fiske, II, a forged writing, to wit: check # 2846, written and purported to be drawn on the account of Carl Fiske, II, at Citizens Bank of Maryland, Laurel, Maryland, made payable to 7-11, in the amount of $33.92 (thirty three dollars and ninety two cents), in the following form: (see attached document A), by presenting the same for payment, when the said MICHAEL WAYNE FISKE knew that the signature of Carl G. Fiske, II was forged thereon, thereby committing the crime of uttering, in violation of Chapter 61, Article 4, Section 5 of the West Virginia Code, as amended, and against the peace and dignity of the State.

Count II of the indictment charges that the appellant:

[D]id falsely, intentionally, willfully, knowingly and feloniously forge, make and sign a writing, with the intent to defraud and to the legal prejudice of the rights of Carl G. Fiske, II, to-wit: a personal check ... thereby committing the crime of forgery, a violation of Chapter 61, Article 4, Section 5, of the West Virginia Code, as amended, and against the peace and dignity of the State.

The appellant was subsequently tried on the indictment before a jury, and during his trial, the State introduced the testimony of the clerk who had initially received the check from the appellant. The clerk testified that the appellant had delivered the check to her. She also testified about the appellant’s return to the store later in the day and his request that the cheek be returned.

Additionally, the State adduced the testimony of the store manager, Rhoda Kyne as to the information which she had received by way of the note from the clerk and as to her subsequent actions in investigating the check and reporting the incident to the Berkeley Springs police.

A third witness called by the State was Carl G. Fiske, II, the appellant’s grandfather, and adoptive father, and the individual on whose account the check was drawn. When asked whether he had signed the check, he indicated that he had not, and when shown the check and asked whether the signature was his, he stated that it was not. He was then asked if he had authorized anybody to sign the check for him, he replied: “I am not sure. I have sugar diabetes and I have been sick in bed for about two weeks before he come up and I don’t know if I told him [the appellant] to sign it or not.”

On cross-examination, Mr. Fiske was asked whether he wanted to press charges against his son, the appellant. Mr. Fiske responded that he did not want to press charges and that he had so indicated to a police officer who had investigated the check. He also stated that he had told the prosecut[367]*367ing attorney that he did not wish to press charges. Finally, Mr. Fiske was asked whether he felt that his son was trying to prejudice his rights or hurt him in some way by signing the check. He stated that he did not.

On re-cross examination, Mr. Fiske reiterated key portions of his prior testimony. The testimony proceeded as follows:

Your testimony is that Michael [the appellant] did not intend to prejudice you in any way, is that correct?
A. No, he didn’t.
Q. Have you, in fact, been prejudiced in any way by this except for having to be here today?
A. Just inconvenienced, that is all.
Q. The inconvenience of having to show up on a day like today?
A. Yes, I would have — I would have paid the thing off back when and forgotten the whole thing.

At the conclusion of the State’s evidence, counsel for the appellant moved that the trial court direct a verdict of not guilty. He argued that the counts of the indictment charged the appellant with prejudicing the rights of Carl G. Fiske, II, and the evidence adduced by the State plainly showed that he had not prejudiced those rights. The court denied that motion.

As has previously been stated, the appellant in the present appeal claims, among other things, that the trial court erred in not directing a verdict for him at the conclusion of the State’s evidence.

II.

STANDARD OF REVIEW

In Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), this Court stated:

In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state’s evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.

See also, Syllabus Point 1, State v. Phalen, 192 W.Va. 267, 452 S.E.2d 70 (1994).

III.

DISCUSSION

In Syllabus Point 2 of State v. Kelly, 183 W.Va. 509, 396 S.E.2d 471 (1990), the Court indicated that in the forgery context: “It is not necessary to show actual prejudice to the rights of another to sustain a forgery conviction. It is sufficient if there is intent to defraud and potential prejudice to the rights of another.”

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Cite This Page — Counsel Stack

Bluebook (online)
607 S.E.2d 471, 216 W. Va. 365, 2004 W. Va. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fiske-wva-2004.