Wash. Court of Appeals published opinion — D2 51946-1-II Published Opinion.pdf

Citation: Wash. Court of Appeals published opinion — D2 51946-1-II Published Opinion.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/D2%2051946-1-II%20Published%20Opinion.pdf ↗

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The court acknowledged that legal efficacy is not an explicit or implied element of

forgery. Id. at 13-14. But the court stated,

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No. 51946-1-II

[T]he element at issue is that Hill possessed or put off as true a written instrument.
To be an instrument, a writing must be found to have legal efficacy. Thus, while
legal efficacy is not a separate element of the offense of forgery, it is a definitional
aspect of “instrument,” which must be proved to the jury beyond a reasonable
doubt.

Id. at 14.

The court concluded that Miller was inapplicable to the legal efficacy determination. Id.

at 14-15. The court stated,

The legal efficacy of an alleged written instrument is distinguishable from the
validity of a domestic violence no-contact order. Prior authority establishes that
the question of whether the “money order” was legally efficacious was for the trier
of fact to determine because it was part and parcel of the trier of fact’s inquiry into
whether an instrument was proved to exist. This conclusion necessarily follows
from State v. Smith, 72 Wn. App. 237, 864 P.2d 406 (1993).

Id. (emphasis added).

However, the court did not identify the prior authority that establishes that legal efficacy

must be decided by the trier of fact. We have located no such authority. In Smith, the court

simply held that a written instrument must have legal efficacy to support a forgery conviction

and reversed a jury verdict because the instrument at issue had no legal efficacy. 72 Wn. App. at

243. The court in Smith did not address whether the legal efficacy question was one for the trial

court or for the jury.3

5. Analysis