What is possession of a forged instrument in Kentucky?

Maybe your brother-in-law is a frustrated artist who can whip up pages of dead presidents that are good enough to fool the clerk at your local mini-mart. Or, perhaps you use a fake I.D. to buy beer because you are under age. In Kentucky, you are edging into criminal territory. Possessing forged documents is a crime in that state.

This article is about possession of forged instruments in Kentucky. For information about forgery in general, see Forgery Laws in Kentucky.

What is Possession of a Forged Instrument in Kentucky?

Kentucky law makes it a felony crime for any person to knowingly possess a forged instrument with the intent to defraud, deceive, or injure another. (Ky. Rev. Stat. Ann. § § 516.050, 516.060.) Under certain circumstances, the crime is charged as a misdemeanor. (Ky. Rev. Stat. Ann. § 516.070.)

Forgery (that is, creation of a false instrument) itself is a separate crime and, in fact, a person may not be convicted of both forgery and criminal possession of a forged instrument with respect to the same forged item under Kentucky law. (Ky. Rev. Stat. Ann. § 516.080.)

There are three degrees of the crime of possession of a forged instrument in Kentucky:

• First degree: possession of forged money, stamps, other government-issued securities, corporate stocks, bonds, or other corporate instruments

• Second degree: possession of forged deeds, wills, contracts, commercial instruments, credit cards, public records or documents required to be filed with a public agency, or official government documents, and

• Third degree: possession of any other forged written instrument.

(Ky. Rev. Stat. Ann. § § 516.020, 516.030, 516.040.)

With knowledge

A Kentucky prosecutor must prove that the defendant possessed a forged instrument with knowledge that it was forged. A person who unwittingly accepts forged currency or checks has not violated the law.

Forged instrument

A forged instrument is defined by Kentucky law as any written instrument that has been falsely made, completed, or altered. Kentucky law defines a written instrument as anything in writing or print:

• whose purpose is to recite, record, or convey information

• which constitutes a symbol or evidence of value, right, privilege, or identification, and

• which is capable of being used to the advantage or disadvantage of some person.

(Ky. Rev. Stat. Ann. § 516.010 (11).)

This definition is quite broad and covers documents like deeds, passports, currency, checks, securities, stocks, bonds, wills, and other documents that could be used to someone's advantage or disadvantage.

Intent to defraud, deceive, or injure another

Simply having a fake dollar bill in your possession is not a crime in Kentucky. Let's go back to the creative brother-in-law—if he gave you a convincing $1,000 bill in a frame for Christmas as a gag gift, you are not at risk of prosecution unless you try to pass it off as real currency to buy something or otherwise benefit by it. Kentucky law prohibits possession of a forged instrument onlywhen the possessor intends to use to defraud, deceive, or injure someone else.

Arguably, the crime is complete when a person has the forged instrument in his wallet among his other, valid cash. A police officer who stops someone for speeding and spies a fake bill when the driver takes her license out of her wallet could arrest the driver on suspicion of possession of a forged instrument. The placement of the false bill among the others would strongly suggest an intent to use the false instrument. And, passing it off to an unsuspecting merchant would show intent to deceive or defraud. Of course, the prosecutor would have to prove that the driver knew she carried a forged instrument.

Common Defenses to Possession of a Forged Instrument in Kentucky

Here are some common defenses to the crime of possession of a forged instrument in Kentucky.

Lack of knowledge

If a defendant can show that she did not know that the instrument she possessed was forged, she will be acquitted. So, the driver in the earlier example who had a forged bill in her wallet among her real cash will likely be able to avoid conviction if she can show that she recently received the bill among change handed to her by the clerk at the gas station.

Lack of intent to deceive, defraud, or injure

Where a person possesses a forged instrument without the required intent, she should be able to beat a charge of possession of a forged instrument in Kentucky. For example, suppose one of a group of roommates is out of town when rent comes due. Another roommate finds her checkbook and writes out her portion of the monthly rent, signs the check, and hands it over to you to give to the landlord with the other checks. You know what has been done, but figure it is a harmless action because the absent roommate has paid her share by check on the same account for several months and simply forgot to leave a rent check in her rush to get ready for her trip. Are you at risk of prosecution for possessing and handing off a forged instrument? Probably not, because you did not intend to deceive, defraud, or injure anyone. To the contrary, you were trying to keep the roommate out of trouble and get the landlord the full rent payment on time. While you and your roommates did not choose the best method to handle the situation, you did not have required the criminal intent.

How is Possession of a Forged Instrument Punished in Kentucky?

The penalty for criminal possession of a forged instrument in Kentucky depends on the degree of the crime charged. A person convicted of possession of a forged instrument:

• in the first degree is guilty of a Class C felony and faces possible imprisonment for at least five but not more than ten years

• in the second degree is guilty of a Class D felony and faces possible imprisonment for at least one but not more than five years, and

• in the third degree is guilty of a Class A misdemeanor and faces possible imprisonment for at least 90 days but not more than 12 months.

(Ky. Rev. Stat. Ann. § 532.020.) In addition, a person convicted of felony (first or second degree) possession faces a fine of at least $1,000 and not more than $10,000, or double the gain the person obtained from the crime, whichever is greater. (Ky. Rev. Stat. Ann. § 534.030.) The fine for a conviction of misdemeanor (third degree) possession is up to but not more than $500. (Ky. Rev. Stat. Ann. § 534.040.)

Consult With an Attorney

Defending against a charge of possession of a forged instrument in Kentucky is complicated and the law is nuanced. As with all serious legal problems, be sure to consult a lawyer experienced in criminal law if you have questions about this crime or are charged with any crime.