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Ruth Beerup is an experienced St. Charles criminal defense lawyer with over 25 years of defending clients against property crime charges in many St. Louis area jurisdictions. Give her a call at 636-940-1111 to see if she can help you with your case.
Forgery Definition Per Missouri Law
Missouri forgery law covers a multitude of offenses that are committed with the intent to defraud. The statute, RSMo 570.090, describes four categories. They are, in brief:
- Making or altering a writing.
- Erasing or destroying a writing.
- Making or altering something other than a writing.
- Using or possessing anything that the defendant knows has been made or altered.
Note again that these actions must be done with an intent to defraud. It is a class D felony, punishable by up to 7 years in prison. Missouri law has several other statutes dealing with offenses that are similar to forgery but have lesser severity and can be charged in the alternative. These include passing bad checks, fraudulent use of credit or debit devices and cards, check kiting, and identity theft.
Definition of a “Writing” in Missouri Law
The term “writing” is statutorily defined at RSMo 570.010 (25). It “includes printing, any other method of recording information, money, coins, negotiable instruments, tokens, stamps, seals, credit cards, badges, trademarks and any other symbols of value, right, privilege or identification.”
The definition is meant to be taken as widely as possible. The legislature modeled the statute after the Model Penal Code, an attempt to provide uniform standards among the different states' criminal codes. The Missouri Court of Appeals, Western District, in State v Johnson 855 S.W. 2d 470 said that the Model Code intended the phrase to be defined and interpreted comprehensively, and so should Missouri's statute. That means many different things can be called “writing”, and it is very difficult to base a defense on the argument that what was forged is not a writing.
Missouri courts have held that a signature, whether your own or an attempt to mimic someone else's, can be a writing if used to defraud. Checks also fit the bill, as do signed receipts, official documents, wills, and medical paperwork including prescriptions. As noted above, many of these categories are also covered by separate statutes with lesser penalties. It is often the prosecutor's discretion as to which law they will use.
Making or Altering a Writing
A person commits the offense of forgery if, with the purpose to defraud, they make, complete, alter, or authenticate any writing so that it purports to have been made by another or at another time or place or in a number sequence other than was in fact the case or with different terms or by authority of one who did not give such authority.
That is the exact wording of the statute and is perhaps less than clear to the average person. Put more simply, it is usually signing or changing a document to commit fraud. Most cases arise when a person signs a false name to a check, law enforcement identity card, or sales receipt. Occasionally, a charge will involve alterations to an official document like a bank statement or insurance record.
Missouri case law has held that forging or transferring the forged writing is evidence of an intent to defraud (see State v. Hogshooter 640 S.W. 2d 202). So, it appears that the phrase “with the intent to defraud” in the statute is redundant as mere possession or use of a forged instrument is sufficient to substantiate a charge. Of course, a reasonable explanation of how one came to use or possess such an instrument without having knowledge of it being forged can prove innocence, but absent that, it appears that the presumption is that the user of a forged instrument is guilty.
State v. Johnson 855 S.W. 2d is an essential case for forgery law. The defendant in that case signed a fingerprint card with a false name. He argued that because the forgery statute was in the same section as stealing and robbery statutes, it was intended to protect business interests and did not apply to fingerprint cards. The courts disagreed and held that there does not need to be an intent to defraud a particular person or an intent to defraud someone of a property interest.
It follows that forgery by making or altering does not require any proof that the defendant defrauded a particular person of a specific amount of money. There doesn't have to be any evidence the forgery fooled anyone. Nor does there have to be any evidence that the forged item was actually delivered.
Erasing, Obliterating, or Destroying Any Writing
This charge, not very common, occurs when someone destroys a writing, almost always an official document, with a purpose to defraud. One can imagine cases where the destruction of a deed, will, or official notice can be done with an intent to defraud. There have also been rare cases when this subsection has been used to prosecute someone who has destroyed a price tag to get a lower price.
Making or Altering Anything Other Than a Writing
The full language of this subsection reads, “(m)akes or alters anything other than a writing, including receipts and universal product codes, so that it purports to have a genuineness, antiquity, rarity, ownership, or authorship which it does not possess.” Examples of this would be anything done to make art or collectors' items appear genuine when they are not.
These cases are rare, so there is not a large body of casework, but one would presume that they are more difficult to prosecute than cases for making a writing. For instance, if you are caught with a stolen check made out to you in your handwriting, it is easy to infer your guilt. If you claim to have found a piece of artwork in your attic that turns out to be a forgery, however, it would presumably be much more challenging to prove that you knew it was fake and were trying to defraud someone.
Using, Possessing, or Transferring
A person can be charged with forgery if they use or possess something they know to be forged to defraud by claiming it is genuine. The state does not have to prove that the person using, possessing, or transferring the item did the forgery themselves. Missouri courts have held that the person must offer the forged instrument to another for the charge to be valid. This does lead one to wonder what exactly is meant by the phrase “possesses for the purpose of using.”
Prosecutors often use this subsection because it is difficult to prove who did the actual making or altering of a writing absent a qualified witness. For example, if someone presents an altered receipt to defraud a store or a fake vaccination card, it would be difficult to prove that they were the person who altered it. It may also be difficult for the state to prove that they knew it was altered, but circumstantial evidence can often suffice.
Defenses Against Forgery Charges
As you can see, Missouri statutes and case law seem to have all the bases covered, making it difficult to defend against a forgery charge. The most important thing a defense attorney can do is make the state show that all the elements of the crime are present, particularly the defendant's knowledge that the item was forged. The state can and will use circumstantial evidence to do this, but every assumption they take as fact must be challenged.
The state must also be forced to prove that the forgery was actually committed, not just attempted. State v. Trotter 5 S.W. 3d 188 is instructive. The defendant started to write a check for some purchases at Q.T., but stopped when he noticed that the clerk and assistant manager were paying him too much attention (the name on the checks was the same as several that had bounced at the same store). He left the store, but the police caught him and charged him with forgery. He was sentenced to 7 years, but an appeals court held that the elements of forgery were not present and ordered that he be re-sentenced for attempted forgery.
Forgery must be committed with the purpose to defraud. Of course, case law has held that possession of a forged instrument and an attempt to use it is proof of an intent to defraud, but the state must prove that the defendant did not have a right to sign or use the instrument. In State v. Cockrell 858 S.W. 2d 825 the defendant had a conviction overturned because it was held that, due to some inconsistent testimony from the alleged victim, it was not entirely clear that the defendant did not have permission to write the checks that were purported to be forged. In State v. Riley S.W. 2d 479 the defendant was charged with forgery after signing a check for her minor son, but an appeals court held that there was no intent to defraud as a parent can legally sign for their minor children.
Forgery is a serious charge, a felony punishable by up to 7 years in prison. The best way to defend yourself is to hire an experienced defense attorney who is not afraid to make the state prove their case. Ruth Beerup has been practicing criminal defense for over 25 years. Give her a call at 636-940-1111 to see if she can help you.