Appeal from the District Court of Campbell County The Honorable John R. Perry, Judge
The opinion of the court was delivered by: Hill, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
HILL, J., delivers the opinion of the Court; VOIGT, J., files a specially concurring opinion.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Appellant, Myra Jean Ford (Ford), was convicted of seven counts of forgery. In this appeal Ford contends that the district court abused its discretion when it denied her motion for judgment of acquittal at the close of the State's presentation of evidence. Ford maintains that the evidence the State produced was not sufficient to prove any of the fundamental elements of the crime of forgery. We will reverse and remand with directions that the information be dismissed with prejudice.
[¶2] Ford raises this issue:
Did the trial court abuse its discretion by denying Myra Ford's motion for acquittal after the prosecution failed to produce evidence sufficient to prove the elements of forgery required by W.S. § 6-3-602(a)(ii)(b)?
The State rephrases that issue somewhat, but in essence mirrors Ford's articulation of it.
[¶3] Before the trial began, the parties agreed to these facts having been proved. The stipulation was read to the jury as an instruction at the end of the trial, but before closing arguments:
Ladies and Gentlemen, the parties have stipulated that all of the people named in all of the charges actually received counseling services from [Ford].
Further, the parties have stipulated that the Campbell County Memorial Hospital did not suffer monetary loss as a result of [Ford's] actions. As you were instructed in Jury Instruction No. 3, you must accept these stipulated facts as proved.
[¶4] Ford worked as a substance abuse therapist at Campbell County Memorial Hospital (CCMH). Count 1 of the charges against Ford alleged that under the date of December 17, 2007, she sent a letter written on CCMH letterhead stationery to the Wyoming Department of Family Services advising that her patient, AB, did not require substance abuse treatment. Ford did not treat AB at CCMH, but rather did so on her own time and at her home, without charging AB a fee of any sort. This is true with respect to all of the counts which follow hereafter. Count 2 alleged that Ford corresponded to the Wyoming Department of Corrections on CCMH stationery on January 23, 2009, informing that agency that she had provided counseling services to RB. Count 3 alleged that Ford corresponded on CCMH stationery to the Campbell County Circuit Court on March 11, 2008, recommending that GB receive treatment for substance abuse. Count 4 alleged that on January 26, 2009, Ford corresponded to the Wyoming Department of Corrections, Division of Field Services, on CCMH stationery asserting that she had provided counseling services to BB. Count 5 alleged that on October 2, 2008, Ford corresponded on CCMH stationery with Crook County Circuit Court asserting that she had provided treatment to MP. Count 6 alleged that on April 20, 2007, Ford corresponded on CCMH stationery with the Wyoming Department of Corrections, Division of Field Services, describing services she provided to LM. Finally, Count 7 alleged that on March 17, 2008, Ford corresponded on CCMH stationery with the Natrona County Circuit Court reporting that she had provided counseling services to JP. Ford did not present any evidence in her defense.
[¶5] Ford was interviewed by police officers, and she admitted to providing the counseling at issue to friends who could not afford CCMH's fees for that service, that she knew CCMH personnel policies did not permit her to do such a thing without the express permission of CCMH administrators, and that she knew it was unethical and wrong. Ford was discharged from her employment because of the conduct described above. At the time the presentence investigation report was prepared, Ford's license(s) to practice as a counselor were under review but no final action had been taken. That report also indicates that Ford was working as a receptionist at a salon, rather than as a counselor, at the time the report was prepared.
[¶6] In Taylor v. State, 2011 WY 18, ¶ 10, 246 P.3d 596, 598-99 (Wyo. 2011) we held:
We have described the standard applicable to a review of a denial of a motion for a judgment of acquittal as follows:
Our responsibility in considering the propriety of a ruling on a motion for judgment of acquittal is the same as that of the trial court. Cloman v. State, Wyo., 574 P.2d 410 (1978). The question raised is the sufficiency of the evidence to sustain the charge, which is a matter to be determined within the sound discretion of the trial court. Chavez v. State, Wyo., 601 P.2d 166 (1979); Montez v. State, Wyo., 527 P.2d 1330 (1974). In making that determination the district court must assume the truth of the evidence of the State and give to the State the benefit of all legitimate inferences to be drawn from that evidence. If a prima facie case is demonstrated when the evidence is so examined, the motion for judgment of acquittal properly is denied. Russell v. State, Wyo., 583
P.2d 690 (1978). It is proper to grant a motion for judgment of acquittal only if there is no substantial evidence to sustain the material allegations relating to the offense that is charged. Heberling v. State, Wyo., 507 P.2d 1 (1973), cert. denied 414 U.S. 1022, 94 S.Ct. 444, 38 L.Ed.2d 313 (1973); Fresquez v. State, Wyo., 492 P.2d 197 (1971). Such a result is indicated if the evidence requires the jury to speculate or conjecture as to the defendant's guilt or if a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime when the evidence is viewed in the light most favorable to the State. Chavez v. State, supra; Russell v. State, supra.
Martinez v. State, 2009 WY 6, ¶ 11, 199 P.3d 526, 530 (Wyo.2009) (quoting Aragon v. State, 627 P.2d 599, 602 (Wyo.1981)).
[¶7] Wyo. Stat. Ann. § 6-3-602 (LexisNexis ...