State v. Coleman

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No. 105,199

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RODNEY COLEMAN,
Appellant.


SYLLABUS BY THE COURT

1.
Each act within the phrase "making, altering or endorsing" set forth in K.S.A. 21-
3710(a)(1) represents the act of creating a fraudulent written instrument for the purpose
of a first or subsequent negotiation and is intended by the legislature to be one means of
committing forgery.

2.
Each act within the phrase "issuing or delivering" as set forth in K.S.A. 21-
3710(a)(2) represents the act of transferring a fraudulent written instrument and is
intended by the legislature to be one means of committing forgery.

3.
"Issuing or delivering" a written instrument knowing it to have been fraudulently
"made, altered or endorsed" as set forth in K.S.A. 21-3710(a)(2) prohibits the act of
transferring a written instrument knowing it to have been fraudulently created and
constitutes one means of forgery.



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4.
Possession, with intent to "issue or deliver," of a written instrument knowing it to
have been fraudulently "made, altered or endorsed" as set forth in K.S.A. 21-3710(a)(3)
prohibits the act of possessing, with the intent to transfer, a written instrument knowing it
to have been fraudulently created and constitutes one means of committing forgery.

5.
Multiplicity is the charging of a single offense in several counts of a complaint or
information.

6.
Multiplicity creates the potential for multiple punishments for a single offense in
violation of the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and § 10 of the Kansas Constitution Bill of Rights. The analytical
framework for the resolution of multiplicity issues is discussed and applied.

7.
A determination regarding the unit of prosecution is evaluated under the rule of
lenity. The rule will be applied when the legislature fails to provide a unit of prosecution
that clearly and without ambiguity allows two convictions for the same act. In such a case
only one conviction will be allowed.

Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge. Opinion filed May 25, 2012.
Affirmed in part, reversed in part, and remanded with directions.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and
Derek Schmidt, attorney general, for appellee.

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Before STANDRIDGE, P.J., MCANANY and ATCHESON, JJ.

STANDRIDGE, J.: Rodney Coleman appeals from two separate forgery convictions,
one for forgery as defined by K.S.A. 21-3710(a)(2) and the other for forgery as defined
by K.S.A. 21-3710(a)(3). Relevant to both convictions, Coleman argues the State failed
to present sufficient evidence to establish that he issued and delivered—or possessed and
intended to issue and deliver—a fraudulent check, each of which are alternative means of
committing forgery based on the jury instructions at trial. Also relevant to both
convictions, Coleman argues the State failed to present sufficient evidence to establish
that he knew the check at issue had been fraudulently made, altered, and endorsed, each
of which—again—are alternative means of committing forgery based on the jury
instructions at trial. In the event we are not persuaded to overturn his convictions based
on these alternative means arguments, Coleman also argues the two convictions for
forgery are multiplicitous and, as a result, one of the convictions must be vacated.

For the reasons stated below, we are not persuaded that the phrases "issuing or
delivering" and "issue or deliver" as used in the forgery statute and the jury instructions
create two alternative means of committing forgery. Neither are we persuaded that the
phrase "made, altered or endorsed" in the forgery statute and the jury instructions creates
three alternative means of committing forgery. Nevertheless, we are persuaded that
Coleman's convictions for forgery are multiplicitous and that remand is necessary so the
district court can vacate one of the convictions. Because Coleman received concurrent
sentences for his two convictions, however, there is no need for him to be resentenced.

FACTS

On April 9, 2010, Coleman walked into a Dillon's grocery store in Wichita and
attempted to cash a check at the store's customer service counter. The check was drawn
on the account of Estes Enterprises (Estes) and made payable to Coleman for $640.37.
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Due to unusual features on the check, Johnnie Webb, the Dillon's employee working
behind the counter, had concerns about whether the check was legitimate. While talking
with Coleman, Webb signaled to another employee to call 911. Coleman waited at the
counter as Webb stalled the check cashing process. Officer Eric Noack of the Wichita
Police Department eventually arrived and arrested Coleman. Noack then escorted
Coleman to a security office inside the store where Coleman, after being informed of his
Miranda rights, agreed to speak with Noack.

Coleman told Noack that he cleaned buildings for Estes and that the check was
payment for his work. Coleman told Noack that his boss was a woman named Marie
Osby. Noack asked how he could contact Osby, and Coleman said he did not have her
phone number. He told Noack that whenever he wanted to work, he would show up at an
intersection in Wichita at 10:30 p.m. and Osby would pick him up in a white van and take
him to various buildings to clean. Coleman said that he received the check from Osby
that morning after he met her at a Wal-Mart in Wichita. When Noack asked Coleman
how he knew to meet Osby at that particular Wal-Mart, Coleman said that he had just
seen her there and received the check.

Noack searched Coleman and found a check stub, which Coleman claimed was
once attached to the check from Estes. Although the $640.37 in net pay identified on the
check stub matched the amount on the check from Estes, the check stub identified "Lil
Le's Childcare Center" as Coleman's employer and not Estes.

Noack eventually transported Coleman to the city building where Bradley
Tuzicka, a detective with the financial crimes section of the Wichita Police Department,
interviewed him. During the interview, Coleman again explained that the check he
attempted to cash was his paycheck from Estes for cleaning buildings and that his boss at
Estes, Osby, had given him the check. Coleman explained that Osby was the supervisor
of his particular cleaning crew. Coleman said that during the previous evening and into
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the early morning hours, the crew had cleaned a Ryan's Steakhouse and an International
House of Pancakes (IHOP) restaurant located in the area of K-96 and Rock Road in
Wichita. Coleman explained that while at Ryan's, they had vacuumed and mopped the
inside of the restaurant and picked up trash around the outside of the building. At IHOP,
Coleman said that they had power washed the restaurant's hood vents.

Tuzicka pointed out to Coleman that the name of the payor on the check (Estes)
did not match the name of Coleman's employer on the paystub (Lil Le's Childcare
Center). In response, Coleman stated that he had not noticed the discrepancy before
Tuzicka pointed it out.

Tuzicka eventually left the interview room and called David Christman, the
general manager of the Ryan's Steakhouse identified by Coleman as the one they cleaned.
Tuzicka asked Christman whether he had hired any outside contractors to clean the
restaurant the previous evening. Christman said he had not and explained that the
restaurant's employees did most of the cleaning. Christman specifically denied hiring
Estes to perform any cleaning of the restaurant.

Tuzicka returned to the interview room and told Coleman that he did not believe
his story and that based on his previous experience with investigating check forgery
cases, Tuzicka believed Coleman was being exploited by someone who had made a deal
with him to cash the check in exchange for a share of the proceeds. Tuzicka also
suggested that he knew Coleman was not "trying to hurt anybody like a robber would
with a gun." In response, Coleman told Tuzicka that he was right and admitted to
receiving the check from a woman named Marie who Coleman had met on a street in
Wichita. Coleman told Tuzicka that Marie had made the check and told him what to say
if he was caught, but they never reached a final agreement on how they would split the
proceeds if Coleman was able to cash the check.

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A few days later, Tuzicka contacted Mohamad Issa, the general manager of IHOP,
who confirmed that the restaurant's hood vents were not cleaned on or around April 8 by
an outside cleaning crew. Like Christman, Issa specifically denied hiring Estes to perform
any cleaning of the restaurant.

The State charged Coleman with two counts of forgery under K.S.A. 21-
3710(a)(2) and (a)(3) based on his attempt to cash the forged check at Dillon's. Coleman's
case proceeded to a jury trial where, in addition to the facts above, the State presented the
testimony of Jeanette Garretson, an accountant with Estes. Garretson testified that,
although the check looked similar to the ones Estes used, the signature on the check did
not belong to any of the three people authorized to sign checks for Estes. Garreston also
said that the check was missing a memo line and that the six-digit account number that
appeared on the check, while correct, was missing a space between the third and fourth
digits of the account number. Finally, the accountant testified that Coleman was never an
employee or vendor of Estes, Estes had never issued a check to him, and Coleman never
had authority from Estes to cash the check.

Coleman's girlfriend, Lola Ross, testified on Coleman's behalf at trial, stating that
Coleman began working for Osby a few days before he was arrested on April 9, 2010.
Ross stated that she did not know what type of work Coleman performed for Osby, but
she knew that he only worked for Osby during the day and that he received the $640.37
check as a result of his employment with her.

Coleman testified at trial that he began working for Osby in late March and
continued working for her until he was arrested on April 9 when he tried to cash the first
paycheck he received from her. Coleman said that during his employment with Osby, he
worked on a crew that cleaned various buildings and restaurants located in Wichita,
Newton, and Andover. He said that whenever he worked for Osby, she would either pick
him up at home or would let him know that she would be picking him up at a specific
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intersection in Wichita. She would then proceed to take Coleman and the rest of the
cleaning crew members to various work sites to clean.

Coleman said that the night before he was arrested, he spent several hours cleaning
a building in Newton and did not get off work until the next morning. After he got off
work, Coleman went to a Wal-Mart in Wichita where Osby had told him to meet her so
she could give him his paycheck. At 9:30 a.m., Coleman met Osby at the Wal-Mart and
she gave him the $640.37 check. Coleman went to Dillon's to cash the check and
thereafter was arrested.

Coleman denied telling Detective Tuzicka that he had cleaned the IHOP or Ryan's
Steakhouse located in the area of K-96 and Rock Road during the late evening and early
morning hours of April 8 and 9. He also denied admitting to Tuzicka that he knew the
check was forged, claiming instead that he received the check as payment for work he
performed for Osby and that he believed the check was legitimate when he went to
Dillon's to cash it. He specifically denied entering into an agreement to cash a check that
he knew was forged in exchange for a share of the proceeds. Coleman claimed he told
Tuzicka that he could contact Osby by going to the intersection where she picked
Coleman up for work and waiting there for her to arrive. Finally, Coleman acknowledged
his signature on the back of the check but claimed that none of the writing on the front of
the check was his.

The jury ultimately found Coleman guilty of both counts of forgery. The district
court imposed concurrent prison sentences, which resulted in a controlling sentence of 21
months.

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ANALYSIS

I. Alternative Means

Coleman argues his forgery convictions must be overturned because there was
insufficient evidence presented at trial to support the alternative means of issuing and
delivering a check that he knew had been fraudulently made, altered, and endorsed,
which necessarily makes it impossible to determine whether the jury was unanimous in
deciding the means by which he committed both of the crimes charged. Coleman
concedes there was evidence presented at the trial to prove that he delivered the check
knowing that it had been fraudulently made and endorsed, but he asserts there was no
evidence presented to prove that he issued the check or that the check had been altered.

As Coleman notes, the jury in a criminal case is required to arrive at a unanimous
verdict. When the jury is presented with alternative means by which the crime can be
committed, it is possible for some jurors to arrive at one alternative means to support a
conviction and other jurors to settle on the other alternative means. Notably, our Supreme
Court has held that the defendant's right to a unanimous verdict is not undermined when
this happens so long as there was sufficient evidence presented at trial to support each
alternative means for committing the crime. See State v. Wright, 290 Kan. 194, Syl. ¶ 2,
224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).

In order to resolve the sufficiency of the evidence issues presented by Coleman,
we must decide whether the legislature intended K.S.A. 21-3710(a)(2) and K.S.A. 21-
3710(a)(3) to provide alternative means of committing the crime of forgery within each
of these subsections. If the legislature did not so intend, our analysis ends. If we
determine that the legislature did intend to provide alternative means of committing
forgery within these individual subsections of the statute, then we conduct a second
analysis to determine whether there was sufficient evidence presented at trial to support a
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finding by the jury that Coleman issued or possessed and intended to issue the check
knowing that it had been fraudulently altered.

A. Legislative Intent

Interpretation of a statute is a question of law over which an appellate court has
unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). As a general
rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable
doubt as to the meaning of the statute is decided in favor of the accused. This rule of
strict construction, however, is subordinate to the rule that judicial interpretation must be
reasonable and sensible to achieve legislative design and intent. State v. Trautloff, 289
Kan. 793, 796-97, 217 P.3d 15 (2009).

We begin our analysis with K.S.A. 21-3710(a), which defines the crime of forgery
as knowingly and with the intent to defraud:

"(1) Making, altering or endorsing any written instrument in such manner that it
purports to have been made, altered or endorsed by another person, either real or
fictitious, and if a real person without the authority of such person; or altering any written
instrument in such manner that it purports to have been made at another time or with
different provisions without the authority of the maker thereof; or making, altering or
endorsing any written instrument in such manner that it purports to have been made,
altered or endorsed with the authority of one who did not give such authority;
"(2) issuing or delivering such written instrument knowing it to have been thus
made, altered or endorsed; or
"(3) possessing, with intent to issue or deliver, any such written instrument
knowing it to have been thus made, altered or endorsed." (Emphasis added.)

The first count of forgery against Coleman charged him with violating subsection
(a)(3). Accordingly, the jury was instructed that in order to find Coleman guilty on Count
1, it had to find:
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"1. That [Coleman] possessed a check which he knew had been made, altered or
endorsed so that it appeared to have been made at another time, with different
provisions by the authority of the maker; to wit: an illegible signature, who did not
give such authority;
"2. That [Coleman] intended to issue or deliver the check;
"3. That [Coleman] did so with the intent to defraud; and
"4. That this act occurred on or about the 9th day of April, 2010, in Wichita, Sedgwick
County, Kansas." (Emphasis added.)

The second count of forgery charged a violation of subsection (a)(2). Consistent
with this charge, the jury was instructed that in order to find Coleman guilty on Count 2,
it had to find:

"1. That [Coleman] issued or delivered a check which he knew had been made, altered
or endorsed so that it appeared to have been made by the authority of the maker, to
wit: an illegible signature, who did not give such authority;
"2. That [Coleman] did this act with the intent to defraud; and
"3. That this act occurred on or about the 9th day of April, 2010, in Wichita, Sedgwick
County, Kansas." (Emphasis added.)

Based on the language used in both the statute and the jury instructions, Coleman
contends the words made, altered, and endorsed establish three alternative means of
committing forgery and that the words issued and delivered establish two alternative
means of committing forgery. For the reasons stated in State v. Foster, 46 Kan. App. 2d
233, Syl. ¶¶ 1-3, 264 P.3d 116 (2011), rev. granted 293 Kan. ___ (February 17, 2012),
we are not persuaded by Coleman's argument. We find it worth mentioning that two of
the three judges who participated in the Foster decision currently sit on this panel.

The Foster court began its analysis of this issue by noting that the Kansas
Criminal Code did not provide a definition for the words making, altering, or endorsing
or for the words issuing or delivering. Because the conduct prohibited by K.S.A. 21-
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3710(a) relates to negotiable instruments, the Foster court turned to the definitions in the
Kansas Uniform Commercial Code (UCC). With regard to the phrase "making, altering,
or endorsing," the court concluded that the UCC definitions demonstrate that each act
related to "the creation of an instrument for the purpose of negotiating it, whether it is the
first or a subsequent negotiation." 46 Kan. App. 2d at 240. With regard to the phrase
"issuing or delivering," the court concluded that the UCC definitions demonstrate that
each act related "to transferring possession of a negotiable instrument that already has
been created, whether it is the first or a subsequent transfer." 46 Kan. App. 2d at 240-41.
Considering these conclusions in a context consistent with the overall language and
structure of K.S.A. 21-3710(a), the court held only one means of committing forgery
exists within each of the statute's three separate subsections: (1) creating a fraudulent
instrument (subsection [a][1]); (2) transferring a fraudulent instrument (subsection
[a][2]); and (3) possessing a fraudulent instrument (subsection [a][3]). 46 Kan. App. 2d at
241.

The Foster court acknowledged that its construction of K.S.A. 21-3710(a) was at
odds with an earlier decision from this court in State v. Owen, No. 102,814, 2011 WL
2039738 (Kan. App. 2011) (unpublished opinion), rev. granted 293 Kan. ___
(February 17, 2012). The panel in Owens concluded that the terms "made, altered, or
endorsed" represented three alternative means of committing forgery. 2011 WL 2039738,
at *5; see Foster, 46 Kan. App. 2d at 243. In reaching this conclusion, the Owen panel
did not attempt to define the terms "made" and "altered," but instead made its decision
solely on the meaning of the word "endorsed" as set forth in Black's Law Dictionary 843
(9th ed. 2009), which limits the definition to the act of signing the back of a check. See
Owen, 2011 WL 2039738, at *5. Unpersuaded by this analysis, the court in Foster found
that its construction of K.S.A. 21-3710(a)—incorporating the definitions found in the
UCC and construing the statute as a whole—provided the more consistent, harmonious,
and sensible conclusion. 46 Kan. App. 2d at 243.

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Based on the analysis in Foster, we conclude that the legislature intended "issuing
or delivering" a written instrument knowing it to have been fraudulently "made, altered or
endorsed" as set forth in K.S.A. 21-3710(a)(2) to prohibit the act of transferring a written
instrument knowing it to have been fraudulently created and to constitute one means of
forgery. Similarly, we conclude that the legislature intended possessing, with intent to
"issue or deliver," a written instrument knowing it to have been fraudulently "made,
altered or endorsed" as set forth in K.S.A. 21-3710(a)(3) to prohibit the act of possessing,
with the intent to transfer, a written instrument knowing it to have been fraudulently
created and to constitute one means of committing forgery. Given these conclusions, we
now need to decide whether the State presented sufficient evidence to convict Coleman
of both counts of forgery under each subsection.

B. Sufficiency of the Evidence

"'"When the sufficiency of the evidence is challenged in a criminal case, the
standard of review is whether, after review of all the evidence, viewed in the light most
favorable to the prosecution, the appellate court is convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt."' [Citation omitted.]"
State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). In determining whether
there is sufficient evidence to support a conviction, an appellate court cannot reweigh the
evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v.
Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005). Furthermore, circumstantial evidence is
sufficient to support a criminal conviction and to establish the requisite bad intent. State
v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).

As noted above, Coleman's first conviction was grounded in K.S.A. 21-3710(a)(3),
which required the State to provide evidence that Coleman knowingly, and with the intent
to defraud, possessed a fraudulent check with the intent to transfer (i.e., issue or deliver)
possession of the check to another. Coleman's second conviction was grounded in K.S.A.
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21-3710(a)(2), which required the State to provide evidence that Coleman knowingly,
and with the intent to defraud, actually did transfer (i.e., issue or deliver) possession of a
fraudulent check to another. Coleman does not dispute there was evidence presented at
trial that he possessed and subsequently delivered the check to Dillon's with the intent to
cash it. Neither does Coleman dispute that there was evidence at trial that the check at
issue was fraudulently created to appear as if an authorized person from Estes made out a
check dated April 9, 2010, made payable to Coleman for a sum of $640.37.

Coleman does, however, dispute that there was sufficient evidence at trial to
establish that he knew the check was fraudulent. But the record contains sufficient
evidence to support such a finding. Detective Tuzicka testified at trial that Coleman
initially told him during the interview that he worked for Estes cleaning buildings and
that the check he attempted to cash was his paycheck from Estes. But testimony from
Estes' accountant at trial established that Colman had never worked for Estes. Coleman
also told Tuzicka that during the previous night, the cleaning crew he worked on had
cleaned a Ryan's Steakhouse and IHOP located in the area of K-96 and Rock Road in
Wichita. But after Tuzicka spoke with the manager of Ryan's and confirmed that no
outside contractors had cleaned the restaurant the previous night, he suggested to
Coleman that his story was false and that he had made a deal with someone to cash the
check. According to Tuzicka, at this point, Coleman admitted to receiving the check from
a woman named Marie who had told him what to say if he was caught. From this
evidence, the jury could properly infer that Coleman knew that the check was fraudulent
before he attempted to cash it at Dillon's.

Admittedly, Coleman denied at trial telling Tuzicka that he had cleaned the IHOP
or Ryan's Steakhouse located in the area of K-96 and Rock Road the previous evening.
He also denied telling Tuzicka that he knew the check was forged, maintaining at trial
that he received the check as payment for work he performed for Osby and believed the
check was legitimate when he went to Dillon's to cash it. He specifically denied entering
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into an agreement to cash a check that he knew was forged in exchange for a share of the
proceeds. But this court cannot reweigh evidence, pass on the credibility of witnesses, or
resolve conflicts in the evidence. Swanigan, 279 Kan. at 23. Ample evidence supports the
jury's verdicts finding Coleman guilty of both counts of forgery.

II. Multiplicity

Coleman argues his two convictions for forgery are multiplicitous. As noted
above, Coleman was convicted under K.S.A. 21-3710(a)(2) for transferring a fraudulent
check and was convicted under K.S.A. 21-3710(a)(3) for possessing the same check with
the intent to transfer it. Although Coleman did not raise a multiplicity argument before
the district court, appellate courts have addressed such an issue for the first time on
appeal in order to serve the ends of justice and prevent the denial of a fundamental right.
See, e.g., State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234 (2010). Coleman's
multiplicity argument raises a question of law over which this court exercises unlimited
review. See State v. Conway, 284 Kan. 37, 54, 159 P.3d 917 (2007).

Multiplicity is the charging of a single offense in several counts of a complaint or
information. State v. Scott, 286 Kan. 54, Syl. ¶ 4, 183 P.3d 801 (2008). The principal
danger of multiplicity is that it creates the potential for multiple punishments for a single
offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to
the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v.
Fisher, 283 Kan. 272, 312, 154 P.3d 455 (2007).

In State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), our Supreme Court
announced an analytical framework for determining whether multiple convictions subject
a defendant to double jeopardy. The overarching inquiry in this analysis is whether the
convictions are for the same offense. This inquiry is broken into two prongs, both of
which must be satisfied before a double jeopardy violation can be declared. First, do the
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convictions arise from the same conduct, and second, if the convictions do arise from the
same conduct, are there two offenses or only one by statutory definition? 281 Kan. at
496.

A. Do the convictions arise from the same conduct?

Our Supreme Court in Schoonover set forth some factors to consider in
determining whether the conduct is the same or unitary under the first prong of the
double jeopardy analysis: (1) whether the acts occur at or near the same time; (2)
whether the acts occur at the same location; (3) whether there is a causal relationship
between the acts, in particular whether there was an intervening event; and (4) whether
there is a fresh impulse motivating some of the conduct. If the convictions do not arise
from the same conduct, then the analysis ends. 281 Kan. at 496-97.

Applying the Schoonover factors to the facts in this case, we find Coleman's acts
of possessing the forged check—and then transferring the check to a Dillon's employee
so it could be cashed—arose from the same criminal conduct. The acts occurred at the
same time and in the same location. Coleman walked into Dillon's possessing the check
and shortly thereafter handed the check over to the Dillon's employee to be cashed. No
identifiable intervening event occurred between these two acts. Nor is there an
identifiable fresh impulse between the two acts—Coleman walked into Dillon's for the
purpose of cashing the check he possessed. The same impulse that caused Coleman to
possess the check also caused him to attempt to cash the check at Dillon's. Cf. State v.
Wilson, No. 97,451, 2008 WL 2422840, at *1 (Kan. App. 2008) (unpublished opinion)
(holding that defendant's two convictions for forgery—based on making a forged check
and then delivering that same check to a bank to be cashed—were not multiplicitous
because the acts occurred on two different days, at two different locations, and the
decision to take the check to the bank to cash it was motivated by "a fresh criminal
impulse beyond the initial manufacture of the check"), rev. denied 287 Kan. 769 (2009).
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Because the facts presented at trial showed that Coleman's possession of the check
and his later delivery of the check to Dillon's occurred during the same course of conduct,
we proceed to the second prong of the double jeopardy analysis.

B. Are there two offenses or only one by statutory definition?

To determine whether the applicable statutory provisions provide for two offenses
or only one, the test to be applied depends on whether the convictions arise from multiple
statutes or from a single statute. Schoonover, 281 Kan. at 497-98. When, as here, the
convictions arise from the same statute, a court applies the "unit of prosecution" test. 281
Kan. at 471-72. Under this test, the court looks at the language of the statute to determine
whether the legislature intended the unitary conduct at issue to "constitute 'only one
violation of the statute or to satisfy the definition of the statute several times over.'
[Citation omitted.]" State v. Thompson, 287 Kan. 238, 246, 200 P.3d 22 (2009). If the
language fails to clearly and unambiguously show that multiple convictions for unitary
conduct are allowed for under the statute, the rule of lenity is applied and only one
conviction will stand. Schoonover, 281 Kan. at 472.

Upon review of the statute at issue here, we find no language—let alone clear and
unambiguous language—from which to conclude that the legislature intended to permit
multiple forgery convictions based on the exact same criminal conduct. In the absence of
such language, we must apply the rule of lenity and permit only one conviction to stand.
See Schoonover, 281 Kan. at 472.

When convictions are multiplicitous, "a defendant should be sentenced only on the
more severe offense." State v. Gomez, 36 Kan. App. 2d 664, 673, 143 P.3d 92 (2006). In
this case, Coleman's conviction under K.S.A. 21-3710(a)(3) served as the primary crime
for establishing his base sentence of 21 months' imprisonment. Therefore, Coleman's
conviction under K.S.A. 21-3710(a)(2) must be reversed. Because Coleman received
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concurrent sentences for these two convictions, however, there is no need for him to be
resentenced.

Affirmed in part, reversed in part, and remanded with directions.

* * *

McAnany, J., concurring in part and dissenting in part: I agree with the majority's
analysis on the multiplicity issue. Coleman's possessing the fraudulent check and then
transferring it to another were not separate crimes for which he could be convicted and
punished twice. But I disagree with the majority's analysis of the alternative means issue
and the holding in State v. Foster, 46 Kan. App. 2d 233, 264 P.3d 116 (2011), rev.
granted 293 Kan. ___ (February 17, 2012), upon which it relies.

I agree with the Foster analysis with respect to the "issuing or delivering" of a
negotiable instrument. These are not alternative means by which an instrument is
transferred. In fact, K.S.A. 84-3-105(a) defines the issuance of an instrument as the "first
delivery of an instrument." Nevertheless, I disagree with the majority's contention that
"making, altering, or endorsing" are all related to the creation of an instrument.

A negotiable instrument, also referred to in the Uniform Commercial Code as
simply an instrument, is an unconditional promise or order to pay a fixed amount of
money that is payable to bearer or to order when issued and is payable on demand or at a
definite time. K.S.A. 2011 Supp. 84-3-104(a). Creating a document with these features is
how a negotiable instrument is made. The creation of such a document has nothing to do
with its subsequent endorsement.

Under K.S.A. 84-3-105(a), an instrument is issued when there is the initial
delivery of the instrument by its maker or drawer. "Drawer" means a person who signs or
18

is identified in the draft as the person ordering payment. K.S.A. 2011 Supp. 84-3-103(3).
Endorsement is not part of the issuance of an instrument.

Under K.S.A. 84-3-201(a), negotiation of an instrument means a transfer of
possession by a person other than the issuer. Negotiation requires the holder to transfer
possession and endorse the instrument. Thus, it is clear that the maker of an instrument
does not negotiate it, but a later holder does so after the instrument has been created and
issued. As Official UCC Comment 1 to K.S.A. 84-3-201 notes: "'Negotiation' is the term
used in Article 3 to describe this post-issuance event."

Under K.S.A. 84-3-204(a), an endorsement is a signature other than that of a
signer as maker, made on the instrument for the purpose of negotiating it. Thus, an
endorsement is the signature of a later holder of the instrument, not its maker.

If an instrument is transferred for value and there is no endorsement of the
instrument in order to make the transferee a holder, under K.S.A. 84-3-203 the transferee
has the right to require the transferor to endorse the instrument. But in any event, transfer
does not occur until the endorsement is made. Thus, an endorsement is a necessary
element to effect the transfer of an instrument that has already been created. Endorsing an
instrument is not part of creating or issuing an instrument.

Finally, K.S.A. 84-3-405 deals with an employer's responsibility for a fraudulent
endorsement by an employee. Under this provision, when an instrument is payable to an
employer, it is fraudulently endorsed when it contains a forged endorsement purporting to
be that of the employer. When the instrument has been issued by the employer, it is
fraudulently endorsed when it contains a forged endorsement purporting to be that of the
payee of the instrument. Again, endorsement relates to the disposition of an instrument
after it has been made and issued. It does not relate to the making and issuing of the
instrument in the first instance.
19

With respect to the alteration of an instrument, K.S.A. 84-3-407(a) defines
"alteration" as an unauthorized change in an instrument or an unauthorized addition of
words or numbers or other changes to an incomplete instrument. An alteration also
appears to relate to conduct after an instrument has been made and issued.

My examination of the statutory scheme tells me that the legislature has drawn a
clear distinction between the making of an instrument, any subsequent alteration of the
instrument, and its later endorsement when the instrument is transferred after issuance.
This is consistent with what I perceive to be the universal practice in the banking and
business communities. The majority relies on Foster for the proposition that making,
altering, and endorsing an instrument are part of the creation of an instrument. I disagree.
I would hold that to avoid the adverse consequences of the alternative means doctrine, the
State was required to show that there was substantial evidence presented at trial that
Coleman performed each separate act of making, altering, and endorsing the instrument.