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Cross v. State

December 17, 2009

DONALD ALICK CROSS, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Campbell County The Honorable Dan R. Price II, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1]This is an appeal from several related convictions for forgery and uttering a forgery. The appellant contends that the district court erred in denying his motion for a new trial, and that his trial counsel was ineffective for failing to interview a potential witness. Finding no error below, we affirm.

ISSUES

[¶2] 1. Did the district court abuse its discretion by denying the appellant‟s motion for a new trial?

2. Was the appellant‟s trial counsel ineffective for failing to interview a potential witness?

FACTS

[¶3] In 2003, the appellant recorded in the records of the county clerk four instruments assigning certain overriding royalty interests to his daughter‟s corporation. The instruments purported to have been signed and notarized in 2000. Shortly after recording the instruments, the appellant "took bankruptcy," and he did not list the overriding royalty interests as assets of the bankruptcy estate. Trial testimony revealed that, at the appellant‟s direction, the instruments actually were signed and notarized in 2003, but backdated to 2000. Trial testimony also revealed that, had the instruments shown the correct transfer date in 2003, they would have been considered by the bankruptcy court to be prohibited inter-family transfers, and would have been "reversed," with the property rights brought into the bankruptcy estate.

[¶4] Wyo. Stat. Ann. § 6-3-602(a) (LexisNexis 2009), under which the appellant was criminally charged, reads in pertinent part as follows:

(a) A person is guilty of forgery if, with intent to defraud, he:

(ii) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or

(iii) Utters any writing which he knows to be forged in a manner specified in paragraphs (i) or (ii) of this subsection.

[¶5] After judgment was entered, but before sentencing, the appellant filed in the district court a Motion for New Trial Based on Newly Discovered Evidence. In that regard, W.R.Cr.P. 33(a) provides in pertinent part that "[t]he court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." The appellant‟s alleged newly discovered evidence was the testimony of Wayne Agner, a former employee of the appellant, who would testify that in 2000 he drafted and the appellant signed the overriding royalty interest assignments, and that he recreated them for the appellant‟s signature in 2003 when he could not locate the originals. It is the appellant‟s ...


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