Chapter 8 Forgery and Fraudulent Checks

• Library: SC Crimes: Elements and Defenses (SCBar) (2021 Ed.)

Chapter 8 Forgery and Fraudulent Checks

A. Forgery; S.C. Code Ann. § 16-13-10

(A) It is unlawful for a person to:

(1) falsely make, forge, or counterfeit; cause or procure to be falsely made, forged, or counterfeited; or wilfully act or assist in the false making, forging, or counterfeiting of any writing or instrument of writing;
(2) utter or publish as true any false, forged, or counterfeited writing or instrument of writing;
(3) falsely make, forge, counterfeit, alter, change, deface, or erase; or cause or procure to be falsely made, forged, counterfeited, altered, changed, defaced, or erased any record or plat of land; or
(4) willingly act or assist in any of the premises, with an intention to defraud any person.

(B) A person who violates the provisions of this section is guilty of a:

(1) felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than ten years, or both, if the amount of the forgery is ten thousand dollars or more;
(2) felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years, or both, if the amount of the forgery is less than ten thousand dollars.

(C) If the forgery does not involve a dollar amount, the person is guilty of a misdemeanor under the jurisdiction of the magistrates or municipal court, notwithstanding the provisions of Sections 22-3-540, 22-3-545, 22-3-550, and 14-25-65, and, upon conviction, must be fined in the discretion of the court or imprisoned not more than three years, or both.

1. Elements Defined

"The crime of forgery involves: (1) a false making or material alteration of some written instrument; (2) that is the apparent foundation of some legal liability; and (3) that is uttered or published with the intent to defraud or prejudice another." State v. Lee-Grigg, 649 S.E.2d 41, 48 (S.C. Ct. App. 2007) (citations omitted). "As a general rule, forgery cannot be committed by the genuine making of an instrument for the purpose of defrauding." State v. Wescott, 450 S.E.2d 598, 601 (S.C. Ct. App. 1994).

2. Falsity and Material Alteration

There are two requirements as to the document so falsified: "It must be false in a material aspect and must be the apparent foundation of a legal liability." McAninch, Fairey, and Coggiola, THE CRIMINAL LAW OF SOUTH CAROLINA, 387 (6^th ed. 2013) (hereafter, McAninch, Fairey, and Coggiola (2013)).

"A material alteration of an instrument makes it speak a language different in legal effect from the language it originally spoke, or generates some change in the rights, interests, or obligations of the parties to the writing.... The alteration may be accomplished by additions to or subtractions from the instrument, such as erasures or deletions of words, numbers, or symbols that change the instrument's effect." Lee-Grigg, 649 S.E.2d at 48 (citations omitted).

3. Legal Efficacy of the Instrument

South Carolina appellate courts have taken a "broad approach as to what type of document can constitute the basis of a forgery conviction and the requisite effect the document must have on the alleged forgery victim." State v. Brandt, 713 S.E.2d 591, 600-601 (S.C. 2011) (noting that the state's appellate courts "have not limited a conviction solely to negotiable instruments nor have the courts precluded a conviction where the forged document served as an evidentiary basis in a civil trial;" citing cases).

For example, in Brandt, the court noted that to establish the legal efficacy of a forged document, the State was only required to show that it had the potential to prejudice or damage the intended victim; in instant case, letter had "legal efficacy" as it "had the potential of prejudicing or damaging [the victim] in the civil lawsuit as well as subjecting her to perjury charges and potential ethical violations." Id.

In Lee-Gr...