Georgia Forgery Laws

Georgia Forgery Laws 

Forgery laws are enacted to discourage those who want to gain instant and undue financial and economic advantage over others through trickery and deception.  The basic idea in forgery is the making, possessing, or using of writings, checks, and other instruments that purport to be anything that they are not in order to obtain goods, services, and money.

Forgery laws in Georgia were amended in 2012. Forgeries affecting checks were given separate provisions. Before 2012, Georgia considered checks as writings. Check forgeries were further categorized into two crimes with different penalties. Another major revision is the increased penalty for forgery in the first degree. The penalty for forgery of the first degree was increased from 1 to 10 years imprisonment to 1 to 15 years. At present, Georgia forgery laws are classified into four degrees, each degree has different elements and penalties. Forgery laws in Georgia are governed by O.C.G.A. §16-9-1.

Elements of Forgery

As stated, forgery laws in Georgia are classified into four. Forgeries in the first and second degree relate to writings other than checks. Writing includes printing or any other methods of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege, or identification. O.C.G.A. §16-9-1(3). Examples of writing commonly forged are contracts, wills, identification cards, driver’s licenses, works of art, school transcripts, entertainment tickets and passes, promissory notes, and money orders.

Forgeries in the third and fourth degree refer only to checks. Check refers to any instrument for the payment or transmission of money payable on demand and drawn on a bank. O.C.G.A. §16-9-1(2).

1. Forgery affecting writings (first and second degrees).

A person commits forgery in the first degree when he:

• makes any writing in another person’s name or in a fictitious name, or alters or possesses any writing made in the name of another or made in a fictitious name, making it appear that it was made by another person, at another time, with different provisions, or with authority of one who did not in fact give such authority, and
• with knowledge that the writing is forged, and
• with intent to defraud another person, and
• utters or delivers such writing to another person. C.G.A. §16-9-1(b).

A person commits forgery in the second degree in the same way as first degree except that the person does not utter or deliver the writing to another. In other words, forgery in the first degree requires proof that the defendant uttered or delivered the forged writing, whereas forgery in the second degree does not.

Uttering means offering to pass a writing to another person as a genuine instrument. It is the delivery of writing with statement or conduct misrepresenting it to be genuine or duly executed with authority. Acceptance by the other party is not necessary as long as there is a representation of genuineness of the writing. Johnson v. State, 438 S.E.2d 657, 211 Ga. App. 151 (Ct. App. 1993).

Forgery in the second degree is necessarily a lesser included offense of forgery in the first degree. This can mean that a defendant can be convicted of forgery in the second degree even if he is originally charged with forgery in the first degree as long as the charge is supported by evidence and the indictment sufficiently places the defendant on notice of the crime which he must defend. Smith v. State, 745 S.E.2d 683, 322 Ga. App. 433 (Ct. App. 2013).

1. Forgery affecting checks (third and fourth degrees).

A person commits forgery in the third degree when he makes, alters, possesses, utters, or delivers any check written in the amount of $1,500.00 or more, or possesses ten or more checks without a specified amount in a fictitious name or in such manner that the checks as made or altered purport to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority. O.C.G.A. §16-9-1(d).

Forgery in the third degree can be committed in one of two ways. First, by drawing a check in the amount of $1,500.00 or more making it appear that it was drawn by another who in fact did not give any authority, that it was made at another time, that it has different provisions, or that it was drawn by a fictitious person. It does not make any difference whether defendant successfully delivers, deposits, or cashes the check. His possession of the forged checks with intent to defraud is enough to secure conviction. Second, by knowingly possessing ten or more checks without specified amount with the intention of defrauding someone else with the checks.

Forgery in the fourth degree is committed in the same way as the third degree except that the amount of check is less than $1,500.00, or the number of checks involved is less than ten.

Just like any other crimes, the burden of proof is upon the State through the prosecutor to prove each of the elements beyond reasonable doubt. This means that no other logical explanation can be derived from the factual evidence presented in the court other than the fact that the defendant committed every acts constituting the elements of the crime and thus overcoming the presumption of his innocence.

Penalties

The penalties for the crimes of forgery depend on the nature offense, the number of convictions, and the amount involved. If checks are involved, the penalties are generally lighter compared with forgery involving other writings or instruments. Forgery can be considered either a felony or a misdemeanor. Forgeries in the first, second, and third degrees are felonies. Forgery in the fourth degree is misdemeanor.

Forgery in the first degree is the most serious and bears the severest possible penalty of up to 15 years imprisonment. Forgeries in the second and third degrees are punishable by 1 to 5 years imprisonment. Although forgery in the fourth degree is generally considered misdemeanor, the defendant shall be guilty of a felony punishable with 1 to 5 years imprisonment upon the third and subsequent convictions for such offense. O.C.G.A. §16-9-2.

Defenses

Lack of intent to defraud and lack of knowledge are the main defenses in forgery. Intent to defraud and knowledge as elements of the crime of forgery can be proven by direct and/or circumstantial evidence. Getting caught red-handed scribbling somebody else’s signature in a contract without proper authorization is an example of direct evidence. Obviously, if one signs another person’s name with the latter’s authority and permission, there is no forgery. Another example of direct evidence of forgery is getting caught red-handed cashing or endorsing a forged check in a store or in a bank in exchange for merchandise or money. Cashing a forged check typically involves an intent to defraud the payee to whom the check is paid or the payor (financial institutions) in whose name the check is drawn or both.

The court may find fraudulent intention after considering the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the defendant is prosecuted. Intent to defraud is oftentimes proven by showing delivery or use of the forged writing or check. Intent can also be proven by other factors such as contemporaneous attempts to present other related documents. For example, someone may present a forged identification card such as driver’s license in order to cash a forged check. In one case, attempt to flee was considered a factor in determining intent to defraud. Browning v. State, 331 S.E.2d 625, 174 Ga. App. 759 (Ct. App. 1985).

In forgery in the second degree, non-involvement in the production of the forged writing is not a defense because mere possession of a forged document with knowledge of the fact of forgery and intention to defraud others is enough.

A person charged with forgery can present evidence that negates the presence of intent to defraud and knowledge of forgery. For example, someone who knowingly makes or alters a writing (such as winning lottery ticket or a warrant of arrest) as a prank or a practical joke and for entertainment purposes only cannot be guilty of forgery because he has no intent to defraud.

Notable Forgery-Related Georgia Cases

1. Velasquez v. State, 623 S.E.2d 721, 276 Ga. App. 527 (Ct. App. 2005).

Sheriffs stopped the car driven by Velasquez because of a broken windshield. The sheriffs asked for Velasquez’ driver’s license to which he offered “licensia de conducer” issued by a Mexican state in the name of a certain Chirinos Ismael. Velasquez was placed under arrest for driving without a valid license. The sheriffs also found in Velasquez’s wallet a North Carolina (NC) DMV identification card in the name of a certain Jonas Olvero. Strangely enough, both pieces of identification included Velasquez’s photographs. The trial court convicted Velasquez of the crime of forgery in the second degree for possessing the NC DMV identification card. Velasquez appealed.

The issue is whether mere possession of the NC DMV identification card is enough to prove intent to defraud.

The Georgia Court of Appeals reversed the conviction of Velasquez stating that no evidence of intent to defraud was presented by the prosecution. The Court noted that Velasquez did not present the NC identification card when he was stopped, it was only found in a search of his person after his arrest. The state did not show that Velasquez had ever presented the identification card to anyone at any time and all that was shown was mere possession. The Court also noted that the prosecution introduced no evidence regarding the method by which Velasquez may have obtained the NC identification card. No evidence was presented that Velasquez himself obtained the card or made any representation to NC authorities. The Court stated that for purposes of forgery in the second degree by possessing fraudulent identification card, the intent to defraud must be shown by some evidence beyond mere possession of the card.

2. Nelson v. State, 691 S.E.2d 363, 302 Ga. App. 583 (Ct. App. 2010).

Nelson was arrested by the police for molesting his 10-year-old neighbor. Before booking him into the jail, police officers conducted inventory of his personal effects. A counterfeit $100 bill was found. Nelson made a joke that he could not be charged if he only possess one counterfeit bill. Nelson was charged and convicted of child molestation and forgery in the second degree. Nelson appealed.

One of the issues is whether mere possession of the counterfeit $100 bill is enough to prove intent to defraud.

The Georgia Court of Appeals reversed the forgery conviction. The Court stated that Nelson did not present the $100 bill to the officers. The bill was found when officers were conducting inventory of Nelson’s personal effects before booking him into jail. The prosecution did not present evidence that Nelson ever presented or attempted to negotiate the bill to anyone at any time. The prosecution argued that Nelson’s implicit acknowledgment (through joke) that he could not be charge criminally for possessing the bill is evidence of guilty knowledge. The Court did not agree and stated that Nelson’s comment proves either knowledge that he possessed the bill in his wallet or knowledge of Georgia’s forgery law. His remark does not prove intent to defraud as required by the statute.

These two cases suggest that intent to defraud requires more evidence than mere possession of the forged writing or check. In the absence of other factors (such as flight, previous history of forgery, and attempted use), intent to defraud cannot be inferred from mere possession. This makes a lot of sense since possession and intent to defraud are separate elements of the crimes of forgery. The prosecution also needs to present evidence that the forged writing or check was presented or negotiated to anyone (including the law enforcement officers) at any time in order to prove intent to defraud.

Forgery laws contain specific terms and phrases that have technical meanings. Oftentimes, guilt and innocence are determined by proper interpretation of such terms. If charged with forgery, it is often not wise to handle the case without a lawyer.  If you or someone you know is charged with forgery, don’t hesitate to call Bixon Law at 404-551-5684. Michael Bixon is a dedicated and knowledgeable trial lawyer who cares for his client.