BRADFORD, J.
As previously mentioned, Final Instruction 6 provided that “‘Defraud’ means to make a misrepresentation of an existing material fact, knowing it to be false, or making it recklessly without regard to whether it is true or false. . . . Benefield contends on appeal that this definition of “defraud” given to the jury impermissibly lowers the mens rea for forgery, which requires, as charged here, an intent to defraud.
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We conclude that Final Instruction 6 is deficient in two distinct ways. First, it suggests to the jury that the State is required to prove that the instrument in question was false, which is not required by the Indiana Code section 35-43-5-2. Because knowledge of the falsity of the instrument not an essential element of forgery, it follows that actual falsity is not an essential element. Wendling v. State, 465 N.E.2d 169, 170 (Ind. 1984) (“Knowledge of falsity of a written instrument is not a separate essential element of the present crime of forgery.”). In other words, while a defendant’s knowledge of the falsity of the instrument may be relevant to show intent to defraud, it is not an essential element of forgery. To the extent that Final Instruction 6 indicated that the State was required to prove something that the statute itself did not require, it was an incorrect statement of the law.
FRIEDLANDER, J., concurs.
MAY, J., concurring in result with separate opinion:
Although I agree with the majority’s outcome, I respectfully concur only in result with its analysis of the second issue.
The heart of my disagreement is this statement by the majority: “Because knowledge of the falsity of the instrument [is] not an essential element of forgery, it follows that actual falsity is not an essential element.” (Slip op. at 7.) The majority relies on this deduction to hold Final Instruction 6 was an incorrect statement of law because “the State was required to prove something that the statue itself does not require.” (Id.) The “something” that the majority asserts the State erroneously was required to prove was an “actual falsity” in the instrument. (Id.)
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Nor is the majority’s deduction supported by its premise. Wendling noted Indiana law does not require the State to prove a defendant’s knowledge of the falsity of the instrument, 465 N.E.2d at 179, and I agree with this premise. However, it does not follow that actual falsity is not an element of forgery. The State cannot obtain a conviction of forgery without demonstrating some “actual falsity.” Ind. Code § 35-43-5-2 provides: “A person who, with intent to defraud, makes, utters, or possesses a written instrument in such a manner that it purports to have been made: (1) by another person; (2) at another time; (3) with different provisions; or (4) by authority of one who did not give authority; commits forgery . . . .” That language indicates the State cannot obtain a conviction unless the instrument is made in a manner that makes it false as to the maker, the time made, a provision therein, or the authority on which it was made, or unless there is a falsity in the manner in which the instrument is uttered or possessed. With no falsity in the making, possession, or uttering, a forgery cannot occur. Accordingly, I believe the majority’s broad holding mischaracterizes the State’s burden to obtain a conviction of forgery.