Protecting the Church’s Pocketbook

The consequences of check forgery are serious for both the victims and the forgers.

Mullins v. State, 1999 WL 1261509 (Ind. App. 2000)

Background. A church layman ("David") removed several checks from the pastor's checkbook while visiting the church parsonage. He made one of the stolen checks payable to himself in the amount of $300, forged the pastor's signature, and then endorsed the check on the back. The bank teller required two forms of identification from David before cashing the check. He provided his identification card and social security card, and the teller recorded the corresponding numbers on the face of the check.

The pastor eventually noticed that his bank statement listed checks which he did not recognize. He went to the bank and obtained copies of the questionable checks. Upon examining them, he noticed that the checks were not in his handwriting and his name was even misspelled on one of the checks.

The pastor later asked David, who was someone he knew well, to come to the parsonage. While the two were in the kitchen, the pastor confronted David about the checks and asked him "why he did it." David apologized and told the pastor that he would try to pay him back. After several deadlines, David had failed to pay back any of the money.

The pastor turned the matter over to the police, and David was charged with forgery and theft. He was convicted on both counts. David appealed, claiming that the prosecutor failed to present sufficient evidence to support the forgery conviction. Specifically, he argued that his apology to the pastor was simply for taking the checks and not an admission that he forged a stolen check. Further, he challenged the bank teller's testimony, noting that she was unable to identify him as the individual who negotiated the forged $300 check.

The court rejected David's defenses and affirmed his conviction. It noted that a defendant commits forgery when, with intent to defraud, he or she executes a written instrument "in such a manner that it purports to have been made by another person." The court concluded,

Here, the stolen check was made payable to David, with his name endorsed on the back. Moreover, because David did not have an account with [the bank], the bank teller required two pieces of identification before she would cash the check. An identification card and a social security card were subsequently provided to the teller, and she recorded the numbers on the face of the check. Finally, most notably, when [the pastor] confronted David, he apologized and agreed to repay him. Thus, the state presented sufficient evidence from which the jury could infer that David forged the stolen check. We decline David's invitation to reweigh the evidence.

David also argued on appeal that the pastor should not have been allowed to testify concerning the conversation that took place in the parsonage because it was protected by the clergy-penitent privilege. He noted that the Catholic faith recognizes the sanctity of confession, and so his "confession" was a privileged communication to a clergyman pursuant to the state clergy-penitent privilege, which provides:

Except as otherwise provided by statute, the following persons shall not be required to testify regarding the following communications … clergymen, as to the following confessions, admissions, or confidential communications: (A) Confessions or admissions made to a clergyman in the course of discipline enjoined by the clergyman's church. (B) A confidential communication made to a clergyman in the clergyman's professional character as a spiritual adviser or counselor.

The court agreed that the Catholic sacrament of confession "clearly falls within the strictures of the statute as confessions made to a clergyman in the course of discipline enjoined by the clergyman's church." However, it insisted that "one need not be well versed in the Catechism to recognize that David's apology did not fall within the sanctity of confession. Here, only when confronted by the victim, who just happened to be a priest, David apologized and promised to repay. Further, this confrontation occurred in [the pastor's] kitchen after he had specifically requested David's presence." The court also noted that nothing in the conversation indicated that David "expected any confidentiality or that he was seeking advice or counseling from [the pastor] in his priestly capacity."

What this means for churches

There are several lessons to be learned from this case.

1. Church checkbooks should be protected from unauthorized access. The same is true of personal checkbooks that are brought on church property.

2. Church checks should require signatures of two designated officers.

3. Church treasurers should carefully review monthly bank statements to be sure that they can account for every check.

4. Forgery is a serious crime. David was convicted on two felony counts (forgery and theft) for forging a check in the amount of $300. Not only can such offenses lead to imprisonment, but they also can make it very difficult to find employment upon release from prison. What employer wants to hire a thief and forger?

5. This case illustrates that not every "confession" to a pastor will be protected by the clergy-penitent privilege from disclosure in court.

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