White v. United States

582 A.2d 774, 1990 D.C. App. LEXIS 285, 1990 WL 183900
CourtDistrict of Columbia Court of Appeals
DecidedNovember 27, 1990
DocketNo. 89-629
StatusPublished
Cited by6 cases

This text of 582 A.2d 774 (White v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. United States, 582 A.2d 774, 1990 D.C. App. LEXIS 285, 1990 WL 183900 (D.C. 1990).

Opinions

PER CURIAM:

Appellant Dorothea White over a one-month period cashed ten different checks on which her employer’s signature had been forged and an eleventh check which had been altered in amount. She was convicted by a jury of one count of first-degree theft, D.C.Code §§ 22-3811, -3812(a) (1989), eleven counts of forgery, and eleven counts of uttering. Id. §§ 22-3841, -3842.1 We reverse and remand for resentencing because of plain error in failing to instruct the jury that to convict appellant of the level of forgery charged, it must find that each check’s value was at least $250. We find without merit appellant’s arguments that the forgery and uttering convictions should merge and that other alleged trial court errors, taken together, constitute grounds for a retrial.

I

The facts are straightforward. In the relevant time frame of May and June 1987, the complaining witness, Joseph de Assere-to, was the owner of the restaurant Canti-na D’ltalia and maintained a business account with Madison National Bank, on which only he was authorized to sign checks. His personal account was with First American Bank. De Assereto rarely visited the bank himself because of a disabling injury, but appellant Dorothea White, who worked at the restaurant as a cashier, was authorized to deposit checks in the restaurant account and also to cash checks signed by de Assereto. When de Assereto needed money for his personal use, he would write a check to himself on the business account. He would then have appellant cash it at Madison and deposit the cash in his personal account. Blank checks were kept in an office to which only four people, including appellant, had keys.

De Assereto came to realize that certain checks had been written on the business account which he had not signed. Ten checks dating from May through early June 1987 were identified as fraudulently signed and endorsed with his signature and the amount of an eleventh check had been altered from $350 to $3050. He had received from appellant a deposit slip showing that she had deposited $350 in his account on the altered check, but had received no further proceeds from that check or from any of the other ten checks.

At trial, bank tellers at Madison, who were familiar with appellant because of her banking activities on behalf of her employer, identified appellant as having cashed the eleven checks in question. The custodian of records at appellant’s own bank authenticated a bank statement showing an unusual pattern of ten significant cash deposits made by appellant during the May-June period that she was cashing the checks on the Madison account and signifi[776]*776cantly correlative in time and amount to those checks. A handwriting expert testified that de Assereto did not sign the checks but could not state whether appellant had done so, since the signor had attempted to copy de Assereto’s genuine signature.

Appellant in her testimony acknowledged that she believed she had cashed the checks in question but had either deposited the money in de Assereto’s personal account or brought the money back to him. As for the deposits to her own account, appellant stated that the money came from her boyfriend, her family, and singing contests at the Apollo Club in New York City. At the close of defense counsel’s redirect examination of appellant, the court asked appellant whether she had any documentation supporting the alleged sources of the funds deposited in her account during May and June, and replied that she did not.

II

The present District of Columbia provisions relating to forgery in effect create a three-level hierarchy of offenses based upon the types of writings involved or the value of those writings. The highest level, providing for a maximum fine of $10,000, 10 years imprisonment or both, applies to, inter alia, forgeries of written instruments having a value of $10,000 or more. D.C. Code § 22-3842(a)(7) (1989). The intermediate level covers written instruments with a value of $250 or more, and provides for a maximum fine of $5,000 or five years imprisonment. Id. § 22-3842(b)(3). Finally, there is a lowest “catchall” level applying to all forgeries, and providing for a fine of $2,500 or three years imprisonment. Id. § 22-3842(c).2

[777]*777The trial court in its instructions failed to make any mention whatever of any need for the jury to make a finding as to the value of the allegedly forged or altered checks.3 Although appellant made no objection to the instructions as given, she now claims that the failure to instruct on the need for such a finding was “plain error,” relying upon Kind v. United States, 529 A.2d 294 (D.C.1987). We agree.

In Kind, appellant was convicted of possession of a prohibited weapon, in violation of D.C.Code § 22-3214(b) (1989). The case proceeded under the theory that the prohibited weapon was, as the section provides,4 a “knife with a blade longer than 3 inches.” However, the trial court simply instructed the jury that it should convict if it found first, “the defendant possessed a knife, and second, at the time he possessed the knife he had the specific intent to use it unlawfully against any other — against another person.” Id. at 295 n. 2. The instructions said nothing about a blade in excess of three inches.

We deemed ourselves bound by existing case law establishing that “the failure to instruct the jury on every essential element of the crime is per se reversible ‘plain error,’ notwithstanding a defendant’s failure to object to the instructions as given.” Id. at 295.5 We noted the “element of centrality” of the requirement of knife length, part of the statutory definition of the crime itself. Accordingly, we reversed the conviction and remanded for a new trial.

The government here acknowledged at oral argument6 that the value of the forged instrument is an element of the forgery offense, where such value is used to fix the forgery at either the highest or intermediate level. Although the government suggested that the failure to give the value instruction could be deemed harmless either because appellant admitted cashing the checks and their value was uncontro-verted or because the verdict form included a dollar amount, we think that the per se rule of Kind bars any such disposition of the issue. Plainly the required minimum dollar value of the instruments is as much a “central” or “core” element of the intermediate level of forgery as the required minimum knife length was in the Kind offense.

However, there is ample evidence to justify appellant’s conviction under the lowest level catchall provision of § 22-3842(c). Under analogous circumstances in Moore v. United States, 388 A.2d 889 (D.C.1978), we [778]*778agreed with appellant that the evidence presented at trial was insufficient to support a grand larceny conviction.

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Bluebook (online)
582 A.2d 774, 1990 D.C. App. LEXIS 285, 1990 WL 183900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-united-states-dc-1990.