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Court of Appeals of Kentucky.

Denver Ray WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2008-CA-000567-MR.

Decided: May 22, 2009

Before COMBS, Chief Judge; ACREE, Judge; BUCKINGHAM,1 Senior Judge. Linda Roberts Horsman, Assistant Public Advocate, Frankfort, KY, for appellant. Jack Conway, Attorney General of Kentucky, Christian K.R. Miller, Assistant Attorney General, Frankfort, KY, for appellee.


Denver Williams was convicted of one count of possession of a forged instrument and of being a persistent felony offender in the second degree. He was sentenced to eighteen-years' incarceration and now appeals. After our review, we reverse his conviction.

In June 2005, a man paid for gasoline at Gate Gas with a twenty-dollar bill that the clerk suspected was counterfeit. The clerk wrote down the number of the license plate on the car that the man was driving and reported it to the local police department. The police determined that the car belonged to Williams's ex-wife; they considered Williams to be a suspect because the two had maintained a relationship. However, the police did not arrest Williams or search his house until early August 2005 after Williams's roommate told police that he had seen Williams print counterfeit money in his home. At that time, they obtained a search warrant for Williams's arrest.

During the search, the police found evidence that a stand-alone printer/scanner2 had been in the house; they also found a ripped up copy of a twenty-dollar bill in a waste basket. It had been printed on plain white printer paper and had not been cut out from the full sheet of paper. Only the front bore any resemblance to money. Rather than referencing or replicating actual similarity to the reverse of an actual twenty-dollar bill, the back of the alleged “bill” instead displayed the photograph of a child surrounded by much white space.

Upon finding the bill, the police arrested Williams and charged him with two counts of criminal possession of a forged instrument and one count of criminal possession of a forgery device. A charge of bail jumping was later added after Williams failed to appear at his preliminary hearing. At trial, the jury acquitted Williams of the count of criminal possession of a forged instrument that related to the Gate Gas incident and failed to reach a verdict on the bail jumping and possession of a forgery device charges. However, it found him guilty of possession of a forged instrument based on the ripped up twenty-dollar bill. The jury also found that Williams was a persistent felony offender in the second degree; thus, his sentence was enhanced to eighteen years of incarceration.

Following the Commonwealth's case, Williams filed a motion for a directed verdict, which the trial court denied. The court also denied his renewed motion after the defense's case. After the verdict, Williams filed a motion requesting judgment of acquittal notwithstanding the verdict and a judgment of acquittal as to the counts upon which the jury failed to reach a verdict. The trial court rejected those motions as well. Williams now appeals, claiming that the evidence was insufficient to maintain convictions. We agree that the evidence was wholly insufficient with respect to the charge of possession of a forged instrument. His arguments concerning the other two charges are moot.

The Due Process Clause of the Fourteenth Amendment of the federal Constitution prevents a state from convicting a defendant of a crime unless the government proves every fact necessary to constitute the charged crime. Fiore v. White, 531 U.S. 225, 229, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Kentucky Rule of Criminal Procedure (RCr) 10.24 safeguards this right by authorizing a convicted defendant to move for a verdict of acquittal. If a defendant has argued that the evidence presented was insufficient to sustain a conviction, he may move for a judgment of conviction to be set aside. Id. An appellate court's review determines whether there was enough evidence of substance for a reasonable juror to believe beyond a reasonable doubt that the defendant was guilty. If not, a directed verdict should have been granted. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).

Although circumstantial evidence is acceptable, “if the evidence be as consistent with the defendant's innocence as with his guilt, it is insufficient to support a conviction.” Dority v. Commonwealth, 269 Ky. 201, 106 S.W.2d 645, 647 (1937) (quoting Marcum v. Commonwealth, 212 Ky. 212, 278 S.W. 611, 614 (1925) (internal citations omitted)). More recently, our Supreme Court has stated that:

[One's] mere presence on the property where [evidence of a crime] was found is insufficient to support his convictions․ Likewise, mere knowledge that a crime is occurring is insufficient to support a conviction of that crime, as is mere association with the persons involved at the time of its commission. Even mere ownership of the property on which contraband is found is insufficient to sustain a conviction. A true criminal must be distinguished from a mere ordinary “bystander.” ․ The evidence must constitute more than mere suspicion.

Hayes v. Commonwealth, 175 S.W.3d 574, 590-91 (Ky.2005).

Williams was convicted of criminal possession of a forged instrument in the first degree-a Class C felony. Kentucky Revised Statutes (KRS) 516.050(2). Its elements are set forth as follows:

A person is guilty of criminal possession of a forged instrument in the first degree when, with knowledge that it is forged and with intent to defraud, deceive, or injure another, he utters or possesses any forged instrument of a kind specified in KRS 516.020.

KRS 516.050(1). A forged instrument must be “a written instrument which is or purports to be or which is calculated to become or represent when completed ․ part of an issue of money[.]” KRS 516.020. A written instrument must be capable of being used to the advantage or disadvantage of some person. KRS 516.010(11).

The Commonwealth must prove both intent and capability of deception in order to reach a guilty verdict of criminal possession of a forged instrument. Williams contends that it achieved neither. We agree.

The instrument to which the charge pertained had been torn and discarded. To recapitulate, it was one-sided, printed on ordinary, white printer paper; it had not even been cut out of the sheet of paper. The reverse side of the paper bore a photograph of a child's face. Although it was found in Williams's home, he had a roommate. This roommate (as seen on surveillance video) had accompanied Williams for the purchase of the printer/scanner. The child depicted on the paper was the roommate's son. Furthermore, Williams presented witnesses who had seen his roommate with counterfeit money. The roommate also testified that his confession (that had served as the basis for the search warrant for Williams's home) was bogus.

The evidence against Williams was all circumstantial and could have proven his innocence as well as his guilt; it all could have applied equally to his roommate. In fact, after the close of the defense's case, in a refreshingly candid admission, the Commonwealth expressed that in all good faith, it did not believe that the evidence supported the charge. The conduct of the Commonwealth conjures up the observation of former Chief Justice John Palmore:

One of the finest offices the public can give to a member of the legal profession in this state is that of Commonwealth's Attorney. Its very status becomes a mantle of power and respect to the wearer․ No one except for the judge himself is under a stricter obligation to see that every defendant receives a fair trial[.]

Niemeyer v. Commonwealth, 533 S.W.2d 218, 222 (Ky.1976).

In this case, the Commonwealth's Attorney heeded that charge by recognizing and acknowledging that the evidence did not prove the elements of the crime beyond a reasonable doubt. We agree, and thus we hold that the trial court erred in denying Williams's motion for a judgment of acquittal.

Williams further argues that the trial court should have granted his motion for judgment of acquittal upon the two charges on which the jury failed to reach a verdict. This contention is moot. Our court addressed this very scenario in Whisman v. Commonwealth, 667 S.W.2d 394, 399 (Ky.App.1984), holding that “failure of the trial jury to reach a verdict by leaving the form blank constituted an acquittal.” In the case before us-as in Whisman, the trial court accepted the blank form without declaring a mistrial. Therefore, as a matter of law, Williams was effectively acquitted of the remaining charges. A re-trial on these charges would constitute a violation of the double jeopardy clause of the federal and state Constitutions. Id.

Because the evidence was wholly insufficient to sustain the conviction of possession of a forged instrument, we reverse the order of the trial court denying Williams's motion for a judgment of acquittal. We decline to disturb the jury's blank forms as to the charges of possession of a forgery device and bail jumping because they amounted to an acquittal on each charge. Since no felony convictions resulted from this prosecution, we also reverse the conviction for persistent felony offender.

I concur in the portion of the opinion reversing the convictions for possession of a forged instrument and persistent felony offender in the second degree. I agree with the majority's analysis. I respectfully dissent from the portion of the opinion that states that the blanks on the jury verdict form for the charges of possession of a forgery device and bail jumping amounted to an acquittal.

First, Williams did not request relief from either the trial court or from this court on that ground. In fact, he acknowledged on page 4 of his brief that the reason for the blanks on the form was that the jury was unable to reach a verdict on those charges.

Second, I believe the majority has misapplied Whisman, supra. In Whisman, the court denied the Commonwealth's motion to set the charges for a new trial and granted an order of acquittal after the jury had left blanks on two charges on their verdict form. Here, there has been neither a motion for a mistrial, a motion for a new trial by the Commonwealth, nor an order of acquittal.

While a disposition had been made of the charges in Whisman, I believe the charges here are in “limbo” until either Williams moves for their dismissal or the Commonwealth moves for a mistrial and for a new trial. The mere fact that the forms were left blank means only that the jury did not reach a verdict or that it reached a verdict and failed to execute it. When a jury fails to reach a verdict and is therefore “hung,” it must leave the verdict form blank. Williams himself has acknowledged that that occurred here, and I disagree that this court should determine that to be an acquittal of the charges until the trial court has had an opportunity to rule on the matter.

Finally, I believe that the possession of forgery device may be reversed pursuant to Williams's argument that the evidence was insufficient. As I have noted, I would not reverse it for the reason that the blank verdict form amounted to an acquittal. The effect would be to leave only the bail jumping charge to be tried.

COMBS, Chief Judge.

ACREE, Judge, Concurs. BUCKINGHAM, Senior Judge, Concurs in Part and Dissents in Part.