No. 21891-1-III.The Court of Appeals of Washington, Division Three. Panel Three.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-02935-4. Judgment or order under review. Date filed: 03/13/2003. Judge signing: Hon. Maryann C Moreno.
Counsel for Appellant(s), Donald G. Miller, Attorney at Law, 422 W Riverside Ave Ste 518, Spokane, WA 99201-0302.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
SWEENEY, A.C.J.
We will uphold a jury verdict if the record contains substantial evidence from which a reasonable jury could find the elements of the crime beyond a reasonable doubt. This record includes ample evidence of Brian Schmidt’s forgery and we therefore affirm his conviction.
FACTS
On March 16, 2001, Mr. Schmidt entered the Money Tree, a check cashing establishment on Third Street in Spokane. He tried to cash a forged check. The maker of the check was purportedly Adam Groth, with Mr. Schmidt as the designated payee. The signature on the check was not Mr. Groth’s. The check was a courtesy check of the kind frequently enclosed in credit card account statements. Mr. Groth never received his March 2001 Visa statement.
Mr. Schmidt left the state in April 2001. In November 2002, he was charged with one count of forgery. His jury trial took place in March 2003. The testimony elicited the following facts.
Money Tree teller Christina Hill handled the transaction. Mr. Schmidt presented the $570 check for payment but could not prove his identity. Ms. Hill `had a funny feeling about the check,’ so she called the credit card company. Report of Proceedings (Mar. 11, 2003) (RP) at 18. She was told to contact the maker of the check before cashing it. Ms. Hill could not reach Mr. Groth so she rejected the check, filled out a turn-down slip, and called the police.
Two weeks later, Marvin Johnson, a senior police department volunteer, showed Ms. Hill a photomontage including a picture of Mr. Schmidt. Both Mr. Johnson and Ms. Hill identified Ms. Hill’s initials and her written notation on the montage, affirming that she identified one of the photographs as that of the forger.
Mr. Schmidt challenged Ms. Hill’s identification. He was a regular Money Tree customer and had visited the Third Street location 10 to 20 times. He suggested this was the reason Ms. Hill recognized him. He denied having been there on the day in question. The defense showed that Ms. Hill’s memory of the events had faded in the intervening two years. But both she and Mr. Johnson identified Mr. Schmidt as the person whose picture she selected back in 2001. He claimed to have a Washington State identification card dated a week before the incident. He argued that he obviously would have produced the identification card if he had been the person trying to cash the check.
The jury found Mr. Schmidt guilty.
DISCUSSION
Mr. Schmidt’s primary challenge to the sufficiency of the evidence goes to Ms. Hill’s in-court identification testimony. He points to the unrebutted evidence that he was a regular customer of the Money Tree store; that the photomontage took place two weeks after the crime; and that Ms. Hill saw many customers and turned down many checks so that during those two weeks she may have seen thousands of customers. Also, Ms. Hill was unable to give a description of the forger during pretrial interviews with the defense (two years after the events). Mr. Schmidt contends, therefore, that the person identified in court was not the man who attempted to pass a forged check, but merely the person sitting next to defense counsel whose picture Ms. Hill had just seen.
Mr. Schmidt also contends that he had identification, which proves he was not the forger, because he would surely have shown this identification.
We view evidence in the light most favorable to the prosecution when reviewing a challenge to the sufficiency of the evidence to support a criminal conviction. State v. Scoby, 117 Wn.2d 55, 61, 810 P.2d 1358, 815 P.2d 1362 (1991). “[T]he relevant inquiry is `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of [the crime] beyond a reasonable doubt’.” Id. (emphasis omitted) (quoting State v. Baeza, 100 Wn.2d 487, 490, 670 P.2d 646 (1983) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979))).
The strongest evidentiary support for Mr. Schmidt’s challenge to Ms. Hill’s identification of him is found in the following exchange between defense counsel and Ms. Hill:
Q. Isn’t it possible that you recognize him from being in the Money Tree before on other occasions?
A. Yes. That’s, he could have been a previous customer, yes.
Q. Isn’t it possible that you could have recognized his photograph from being a previous customer?
A. Yes.
Q. Isn’t it possible that he is not the one that attempted to pass that check?
A. Yes.
RP at 32.
But the jury also heard Ms. Hill testify at length that she recognized Mr. Schmidt as the person who brought in the forged check. Also, her identification of Mr. Schmidt in the photomontage was corroborated by her contemporaneous notations and witnessed by the police volunteer. The fact that Ms. Hill could not spontaneously describe the man she saw two years before does not mean she was not able to identify a photograph of him at the time or to recognize him in person when she saw him in court.
Mr. Schmidt did not put his alleged identification into evidence. He removed it from his pocket at the request of his lawyer and told the jury its issue date was a week before the Money Tree incident.
Forgery is possessing or offering a written instrument with the knowledge it is forged. RCW 9A.60.020(1)(b). And proof of possession of a forged instrument `together with slight corroborating evidence’ may be sufficient to prove knowledge. Scoby, 117 Wn.2d at 61-62.
Mr. Schmidt contends the State failed to prove beyond a reasonable doubt that the person offering this check knew it was forged. Even if the person offering the check was Brian Schmidt, he contends, the State did not prove that the check had not been stolen and forged by a third party who made it over to Mr. Schmidt in payment of a debt.
But the State need not disprove every innocent hypothesis that is consistent with the evidence. State v. Gosby, 85 Wn.2d 758, 765-66, 539 P.2d 680 (1975). It need only convince a reasonable jury of guilt beyond a reasonable doubt. Id. at 767-68; State v. Zunker, 112 Wn. App. 130, 135, 48 P.3d 344 (2002), review denied, 148 Wn.2d 1012
(2003). The fact that Mr. Schmidt tried to pass a forged check he had no reason to believe belonged to him is sufficient corroborating evidence that he acted with knowledge.
The jury accepted Ms. Hill’s identification of Mr. Schmidt. There was, then, sufficient evidence from which to find beyond a reasonable doubt that he knew the check was forged. Mr. Schmidt suggests no reason to believe that Adam Groth would have made out a check to him for $570. Again, the State need not prove the non-existence of every possible hypotheses consistent with innocence. Gosby, 85 Wn.2d at 767-68. The evidence was sufficient to support a reasonable jury in finding Mr. Schmidt guilty beyond a reasonable doubt.
The verdict of the jury is affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS and BROWN, JJ., concur.