State Of Washington v. Chris Marion Mcnicholas ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
May 30, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49363-2-II
Respondent,
v.
CHRIS MARION MCNICHOLAS, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Chris Marion McNicholas appeals his convictions for theft in the first
degree, identity theft in the first degree, and nine counts of forgery. We conclude that sufficient
evidence supports McNicholas’s convictions, that the trial court did not err when it admitted the
evidence of a common scheme or plan, and that any deficiency of his trial counsel did not prejudice
him.
In a statement of additional grounds (SAG), McNicholas asserts numerous additional
errors. We affirm.
FACTS
I. CRIMES
Between April and September 2014, McNicholas cashed or deposited nineteen checks from
Caryl Audine Hitt totaling $52,495. McNicholas claimed that he had a contract with Hitt for
$70,330 to work on her roof and install new windows in her home. He testified that these checks
were advance payments pursuant to the contract, which required a down payment of $35,000.
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At the time of trial, Hitt was ninety years old. She testified only as to her name and address
and that she lived in Vancouver. She lived at that same address during the time period of the
checks to McNicholas. Starting in 2011, Hitt’s daughter, Kim Hitt,1 had financial power of
attorney over Hitt. Starting in late 2013, Hitt began to have problems with her memory.
Jennifer Melton, an employee at Hitt’s bank, became alarmed about the checks written to
McNicholas because they were inconsistent with Hitt’s spending habits. Additionally, the
signatures on many of the checks did not resemble Hitt’s signature. Melton alerted Hitt and Kim
about the issues with the checks and put a freeze on Hitt’s account. She also contacted law
enforcement and adult protective services. Several weeks later, McNicholas called Melton and
asked “what F-ing right” she had to report his checks as fraudulent. 4 Report of Proceedings (RP)
at 663. Melton said he displayed an angry and threatening tone.
Andyi Veruca, an investigator for adult protective services, investigated allegations of
financial exploitation against Hitt and visited her in October 2014. She testified that Hitt “was
confused or presented with confusion” and “didn’t seem to be able to really follow conversation.”
6 RP at 1035. She had to reintroduce herself at least twice during the interview and repeat the
allegations concerning why she was there. She returned to Hitt’s home the following day and Hitt
did not remember Veruca or the purpose of her visit, despite having asked her to return.
Kim obtained a civil protection order prohibiting McNicholas from having contact with
Hitt.
II. CRIMINAL PROCEEDINGS
The State charged McNicholas with one count each of theft in the first degree, identity theft
in the first degree, and contracting without a license, and nine counts of forgery. It also charged
1
To avoid confusion, we refer to Kim Hitt by her first name. We intend no disrespect.
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aggravating factors that the victim was particularly vulnerable or incapable of resistance and that
the crime was a major economic offense or series of offenses on each count except contracting
without a license. McNicholas pled guilty to contracting without a license and went to jury trial
on the other eleven counts.
A. HANDWRITING EVIDENCE
Andrew Szymanski, a forensic scientist who specialized in handwriting analysis, reviewed
twenty-eight checks known to have been signed by Hitt and thirteen “questioned checks” that had
been written to McNicholas. He also reviewed known samples of McNicholas’s handwriting.
Szymanski opined that it was highly probable that Hitt had not written the payee
information or the signature on the checks associated with the nine forgery counts. He also opined
that it was probable that McNicholas wrote the endorsement signature on seven of those nine
checks and on four others from Hitt that were not the subject of forgery charges. He also testified
that McNicholas could not be identified or excluded as the writer of the payee information or Hitt’s
signatures on any of the checks.
Melton and Kim both had familiarity with Hitt’s signature. Melton testified that the
signature on each check charged as a forgery did not look like Hitt’s and she would have
questioned it. She also testified that she had never seen Hitt print her signature, as it was printed
on at least several of the checks. Kim testified that none of the signatures on the checks charged
as forgery counts looked like her mother’s.
McNicholas offered testimony from Jacqueline Joseph, another handwriting expert. She
critiqued Szymanski’s report and decried the small number of samples of Hitt’s signature and
handwriting. She deemed the source of all the signatures to be inconclusive or indeterminable.
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B. ER 404(b) EVIDENCE
1. Pretrial Motion
The trial court held a pretrial motion hearing on the admissibility of evidence regarding
other incidents where McNicholas had manipulated elderly people to get money from them.
At the hearing on the motion, the State announced its intention to admit evidence of acts
between McNicholas and three victims, Margaretta Yaddof, eighty years old, Shinae Lane, eighty-
seven years old, and Helen McGinnis, eighty-nine years old. The State claimed this evidence
showed both a common scheme or plan and McNicholas’s intent.
McNicholas argued this case differed from the others because he had recorded his
interactions with Hitt, he had executed a valid contract with Hitt, and that the incident with Hitt
had not involved a warranty. He also argued that the age of the victims would make them
particularly sympathetic to the jury, increasing the prejudicial effect of the evidence.
The court ruled based on a four part test. First, the court ruled that the misconduct had
been proven by a preponderance of the evidence. Second, it ruled that the State sought to introduce
the evidence to show a common scheme or plan and to establish intent. The court considered the
similarities and differences between the cases and ruled that whether the contract between
McNicholas and the particular victim was written or not did not affect its decision. Third, it ruled
the evidence had relevance to an element of the crime by showing McNicholas intended to steal
from Hitt. The evidence was also relevant as evidence of a common scheme or plan. Finally, the
court weighed the evidence and ruled that its prejudicial effect did not outweigh its probative value,
especially with a limiting instruction to the jury. The court ruled that the ER 404(b) testimony
would be admissible.
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2. Trial testimony
Yaddof testified that she was eighty years old and had lived alone for ten years.
McNicholas sold her a new roof and installed it for her in 2011.
In November 2014, McNicholas came to her home in the evening when she was not
expecting him. He told her he had inspected her roof and she needed to pay him $100. She asked
him to leave but he remained for about thirty minutes. She refused to pay him and he went and sat
in his truck in Yaddof’s driveway.
Yaddof’s son, Randy Yaddof,2 lived next door. He came out and spoke to McNicholas.
Randy told McNicholas that he would review the contract and see if the inspection was actually
required and, if it was, they could do it another time. McNicholas told him he couldn’t leave
because he needed the $100 for gas money and wanted to do the inspection that night. Randy gave
McNicholas his phone number and told him not to call his mother. McNicholas eventually left.
Disregarding this direction, the following night, McNicholas called Yaddof and told her he still
wanted his $100.
Lane testified that she was eighty-seven years old and had lived by herself in Vancouver
for twenty-four years. The roof on her home had been rebuilt ten or fifteen years earlier.
In November 2014, Lane received a call about her roof and the man who called then arrived
at her home. She wrote a check to the man. In an offer of proof outside the presence of the jury,
Lane could not remember the name of the person who came to her home. When asked if anyone
in the courtroom looked familiar, she said she didn’t see the man. Neither party pursued any
further questioning of Lane.
2
To avoid confusion, we refer to Randy Yaddof by his first name. We intend no disrespect.
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McGinnis testified that she was eighty-nine years old and had lived alone for eighteen
years. In 2008 and 2009, McNicholas contracted with McGinnis to work on the windows of her
home. After McNicholas completed the work, McGinnis paid him in full per the contracts, both
of which came with a warranty.
In 2014, McGinnis thought there was an issue with her windows and she contacted
McNicholas. He told McGinnis that she would owe him $300 to “install” or “instate” the insurance
on the windows. 7 RP at 1348. When he arrived at her home, he said it should actually be $400.
She eventually gave him $150 because she felt that she had to give him money to get him to leave.
McNicholas never returned to work on the windows and never returned her money. It later turned
out that there had not been anything wrong with the windows.
Before each of the above witnesses testified, the court read a limiting instruction to the jury
that stated, “you may consider the evidence only for the purpose of determining whether or not it
tends to show a common scheme or plan and/or intent to [ ] commit the crime of theft in the first
degree in this case. You must not consider the evidence for any other purpose.” 6 RP at 1142,
1171, 7RP at 1214, 1339-40.
C. SEARCH OF VEHICLE
Cowlitz County Deputy Brady Spaulding applied for and obtained a search warrant for
McNicholas’s truck. In searching the vehicle, he found hundreds of documents, including bank
records, letters, and manila folders associated with McNicholas’s clients. He found folders
associated with Betsy Miller, McGinnis, Lane, and Hitt.
Spaulding transferred these folders to Detective Fred Neiman of the Clark County Sheriff’s
Office who reviewed them. The folders associated with Miller, McGinnis, and Lane contained
contracts between McNicholas’s company, Pacific Coast Vinyl, and each customer. All of these
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contracts were on triplicate paper with a white, canary, and pink form. The contracts stated:
“original – office, canary – buyer, pink – file.” 8 RP at 1461, 1469, 1475. At least one of the three
copies was missing from each of the contracts. These folders also each contained various other
documents, including specification sheets, schematics, receipts, invoices, customer notices, and
letters.
Neiman also reviewed the folder pertaining to Hitt. It contained only a contract signed by
Hitt and McNicholas and a protection order protecting Hitt from McNicholas. There were no other
documents in the folder. All three copies of the contract were attached and still in the folder.
D. EVIDENCE OF CONTRACT
McNicholas testified that all the money he received from Hitt constituted payment for a
contract into which they had entered in April. Under the contract, McNicholas was to clean and
resecure the roof of her home, replace the windows, and potentially rebuild the carport. Signatures
ascribed to both McNicholas and Hitt were dated April 27, 2014. The total price of the contract
was $70,330 with a $35,000 down payment. McNicholas denied writing any of the checks he
claimed to have received from Hitt.
McNicholas testified that he also kept a number of documents associated with his work on
Hitt’s home at his home office. No invoices, commission sheets, or warranties existed for this job.
McNicholas stated that Hitt would not have been able to reside in her home while he
performed the work so he tried to contact her daughter. He had no concerns about Hitt’s ability
to enter into a contract. He wanted to contact her daughter to make sure he would get paid at the
conclusion of the project. McNicholas explained that on other jobs, he had problems getting paid
on contracts with elderly people when their families became involved.
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McNicholas recorded three conversations with Hitt which the jury heard. In the recordings,
McNicholas tried to obtain a number for Kim, asked whether anyone had power of attorney over
Hitt or if she made her own decisions, and mentioned that he had been helping her run errands,
make doctors’ appointments, and fix her roof leaks. In one of the recordings, Hitt said she was
happy with everything McNicholas did for her and she had no complaints.
McNicholas testified that the reasons for the delay in the project occurred because he did
not have all the money from Hitt for several months and he was still deciding what products to put
in her home. Other delays happened because he wanted to make sure to talk to Kim to ensure he
would be paid after the project was done. Once served with the protection order, McNicholas was
“told that all contractual work was to cease and desist.” 10 RP at 1864.
McNicholas further testified that he had contractors do “soffit and fascia” work on Hitt’s
home, which was the roof repair he had discussed in the recording. 10 RP at 1839, 1886. He
testified that he sent Brandon Reed, a contractor, to Hitt’s home to get the scope of work and then
take care of the work. He stated that, in total, Reed billed soffit and fascia work for labor and
materials, “removing and reinstalling and, and fixing some leaks in [Hitt’s] home,” as well as
“some plumbing issues.” 10 RP at 1888. He testified that, in September 2014, he became aware
that Reed hadn’t done some of the work he had billed and let him go.
The State offered testimony from Mike Puranen, general manager of Ecobest Exteriors
(“Ecobest”), a company that rebuilt Hitt’s carport and deck in 2011. The trial court admitted the
contract between Hitt and Ecobest into evidence. The total fee for rebuilding her carport and deck
was $7,800. Later that same year, Ecobest also removed and replaced Hitt’s roof for $16,795.
Ecobest provided a 10-year warranty on its work. In 2016, Hitt’s roof and carport were the same
as when Ecobest replaced them.
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The State argued that the evidence indicated there had been no contract between Hitt and
McNicholas because, if there had been, he would have done work in the nine months between the
contract date and the protection order. The State compared the folders for other clients, which
contained contracts and documentation, to the folder for Hitt, which contained only a contract with
all three copies still attached and a copy of the protection order.
E. VERDICT
The jury found McNicholas guilty on all counts. It also found that the aggravating factors
that the victim was particularly vulnerable or incapable of resistance and the crime was a major
economic offense or series of offenses applied to each count. With regard to the theft count, the
jury filled out a special verdict form, answering that McNicholas both “obtain[ed] or exert[ed]
unauthorized control over property or services of another” and that he obtained control over the
property or services of another “by color or aid of deception.” Clerk’s Papers (CP) at 535.
III. SENTENCE
At his sentencing hearing, McNicholas moved to be evaluated for a drug offender
sentencing alternative (DOSA) sentence. In support of this request, McNicholas brought up
ongoing cases he had in Cowlitz County involving methamphetamine and letters submitted by his
family members referring to his drug problems. The State argued that a DOSA was inappropriate
because Cowlitz County had rejected McNicholas for drug court and the issue of a potential DOSA
had not come up during the lengthy period the case was pending.
The court asked McNicholas about the practicability of dealing with DOSA in the context
of numerous remaining charges pending against McNicholas in both Clark and Cowlitz counties.
McNicholas argued that if the court found he had an addiction and qualified for DOSA, it should
isolate this case from those others and let the other cases run their course.
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The court ruled that it did not see a reason to move forward with a DOSA evaluation
because a DOSA sentence would neither be practical nor consistent with the jury’s findings.
McNicholas also argued that his crimes constituted the same criminal conduct and that his
offender score should be three. He contended that the total should end up at one count each of
theft, identity theft, and forgery.
The court ruled that the forgery and identity theft did not constitute the same criminal
conduct because they had different victims. Hitt was the only victim of the identity theft count,
but the bank was also a victim of the forgeries. The court also ruled that the identity theft and theft
counts had different criminal intent and were not the same criminal conduct. The court further
ruled that each forgery count was associated with a different check on a different day, such that
they did not occur at the same time and place and were not the same criminal conduct.
The court sentenced McNicholas to 43 months on the theft, 63 months on the identity theft,
and 22 months on each forgery count. The theft and identity theft sentences ran consecutively and
the forgery sentences ran concurrently with the first two counts and one another, for a total
sentence of 106 months.
ANALYSIS
I. SUFFICIENCY OF EVIDENCE
McNicholas claims that the trial court violated his due process rights by entering judgment
against him when substantial evidence does not support the charges. 3 He contends that the State
failed to prove beyond a reasonable doubt that Hitt did not author the disputed checks herself.
3
McNicholas argues that “substantial evidence” does not support his convictions and therefore he
was denied due process of law. We review this as a challenge to the sufficiency of the evidence
supporting his convictions.
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McNicholas contends that the lack of evidence on this issue invalidates all of his theft, identity
theft, and forgery convictions.
To determine whether sufficient evidence supports a conviction, we view the evidence in
the light most favorable to the State and determine whether any rational fact finder could have
found the elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576,
210 P.3d 1007 (2009). In claiming insufficient evidence, “the defendant necessarily admits the
truth of the State’s evidence and all reasonable inferences that can be drawn from it.” State v.
Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010). Any inferences “‘must be drawn in favor of the
State and interpreted most strongly against the defendant.’” State v. Homan, 181 Wn.2d 102, 106,
330 P.3d 182 (2014) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).
A person is guilty of theft in the first degree if he or she commits “theft of property or
services exceeding $5,000 in value.” CP at 503 (Instr. 9); RCW 9A.56.030(1). “Theft,” as charged
in this case, means either “[t]o wrongfully obtain or exert unauthorized control over the property
or services of another or the value thereof, with intent to deprive him or her of such property or
services,” or “[b]y color or aid of deception to obtain control over the property or services of
another or the value thereof, with intent to deprive him or her of such property or services.” RCW
9A.56.020(1)(a), (b).
A person is guilty of identity theft in the first degree when, “with intent to commit any
crime, he or she knowingly obtains, possesses, uses, or transfers a means of identification or
financial information of another person, and obtains money, goods, services, or anything else in
excess of $1500 in value.” CP at 508 (Instr. 14); RCW 9.35.020(2).
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A person is guilty of forgery when, “with intent to injure or defraud, he or she falsely
makes, completes, or alters a written instrument or possesses, utters, offers, disposes of, or puts
off as true, a written instrument which he or she knows to be forged.” CP at 512 (Instr. 18); RCW
9A.60.020(1).
The State’s handwriting expert in this case testified that it was “highly probable Audine D.
Hitt did not write payee information and signature” on any of the nine checks the State charged as
forgeries. 5 RP at 897. He then explained in detail his reasons for concluding that Hitt did not
author each of those checks. Melton and Kim, both familiar with Hitt’s signature, also testified
that the signatures on these checks did not look like Hitt’s. McNicholas’s handwriting expert
testified that the origins of the signatures were inconclusive or indeterminable. She also went into
detail about her analysis and criticized the State’s expert’s findings. All nine of the checks were
written from Hitt to McNicholas and he testified that he endorsed and cashed or deposited all of
them.
Taking the evidence in the light most favorable to the State, a reasonable jury could have
found that McNicholas forged the checks beyond a reasonable doubt. Because these forgeries
were the basis for the theft and identity theft charges, sufficient evidence supports McNicholas’s
convictions on all counts.
II. ER 404(b) EVIDENCE
McNicholas contends that the trial court erred by admitting evidence under ER 404(b) that
was more unfairly prejudicial than probative. He claims that the incidents with Yaddof and
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McGinnis4 were distinguishable from any of the charges relating to Hitt. He contends that these
incidents were admitted only to prove that McNicholas was a “dishonest scammer” and should
have been excluded under ER 403. Br. of Appellant at 22. We disagree.
A. LEGAL PRINCIPLES
ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
“If the evidence is admissible for one of these purposes, a trial judge must determine whether the
danger of undue prejudice from its admission outweighs the probative value of the evidence.”
State v. Jackson, 102 Wn.2d 689, 693, 689 P.2d 76 (1984).
The trial court has considerable discretion to consider what evidence is relevant and to
balance its possible prejudicial impact against its probative value. State v. Barry, 184 Wn. App.
790, 801, 339 P.3d 200 (2014). Accordingly, we review a trial court’s decision to admit evidence
when a party objects based on relevance and prejudicial effect for a manifest abuse of discretion.
Barry, 184 Wn. App. at 801-02. A trial court abuses its discretion when its decision is manifestly
unreasonable, exercised on untenable grounds, or for untenable reasons. Barry, 184 Wn. App. at
802.
4
McNicholas assigns error to “evidence from four witnesses involving three prior events in which
the defendant was involved.” Br. of Appellant at 20. He states that “[a]ccording to Ms[.] Lane,
about 10 years ago the defendant put a new roof on her home” and that he “came to her home
uninvited and said that he would not leave until she paid him $300.00 for a roof inspection.” Br.
of Appellant at 10-11. McNicholas himself testified that he had done work for Lane, then later
returned to her home to sell her an extended warranty. Because Lane never testified to any
interactions with McNicholas, we address his arguments as to McGinnis’s and the Yaddofs’
testimony only.
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We review a “trial court’s decision to admit or deny evidence of a defendant’s past crimes
or bad acts under ER 404(b) for an abuse of discretion.” State v. Fuller, 169 Wn. App. 797, 828,
282 P.3d 126 (2012). “A trial court abuses its discretion by not following the requirements of ER
404(b) in admitting evidence of a defendant’s prior convictions or past acts.” Fuller, 169 Wn.
App. at 828. When a trial court admits evidence under ER 404(b), it must “‘(1) find by a
preponderance of the evidence the misconduct actually occurred, (2) identify the purpose of
admitting the evidence, (3) determine the relevance of the evidence to prove an element of the
crime, and (4) weigh the probative value against the prejudicial effect of the evidence.’” Fuller,
169 Wn. App. at 828-29 (quoting State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009)).
McNicholas limits his challenges to the purpose of admitting the evidence and whether the
probative value outweighed the prejudicial effect, the second and fourth parts of this test.
B. COMMON SCHEME OR PLAN
McNicholas contends that the “only relationship between the alleged other bad acts and the
current charges was that they all generally related to the defendant’s business.” Br. of Appellant
at 21. He attempts to distinguish the incidents with McGinnis and Yaddof on the bases he had
contracts with McGinnis and Yaddof, whereas the State alleges he never had a contract with Hitt,
and that the amount of money the State alleged he stole from Hitt was much larger.
A court may properly admit evidence of prior misconduct to show the existence of a
common scheme or plan. State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012). This
evidence is admissible “(1) ‘where several crimes constitute constituent parts of a plan in which
each crime is but a piece of the larger plan’ and (2) where ‘an individual devises a plan and uses it
repeatedly to perpetrate separate but very similar crimes.’” Gresham, 173 Wn.2d at 422 (quoting
State v. Lough, 125 Wn.2d 847, 854-55, 889 P.2d 487 (1995)). Evidence of the second type “is
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admissible because it is not an effort to prove the character of the defendant. Instead, it is offered
to show that the defendant has developed a plan and has again put that particular plan into action.”
Gresham, 173 Wn.2d at 422. To introduce evidence of this type, “the prior misconduct and the
charged crime must demonstrate ‘such occurrence of common features that the various acts are
naturally to be explained as caused by a general plan of which’ the two are simply ‘individual
manifestations.’” Gresham, 173 Wn.2d at 422 (quoting Lough, 125 Wn.2d at 860). The prior act
and the charged crime “must be markedly and substantially similar,” but “the commonality need
not be ‘a unique method of committing the crime.’” Gresham, 173 Wn.2d at 422 (quoting State
v. DeVincentis, 150 Wn.2d 11, 19-21, 74 P.3d 119 (2003)).
In Gresham, the state charged the defendant with molestation of a young girl. 173 Wn.2d
at 414. The court upheld the admission of four prior acts of molestation against four other victims.
173 Wn.2d at 423. The prior acts were similar to the charged crime because the defendant “took
a trip with young girls and at night, while the other adults were asleep, approached those girls and
fondled their genitals.” Gresham, 173 Wn.2d at 422. The court recognized that differences existed
between the incidents, such as the presence of oral sex, however these differences were “not so
great as to dissuade a reasonable mind from finding that the instances are naturally to be explained
as ‘individual manifestations’ of the same plan.” Gresham, 173 Wn.2d at 423 (quoting Lough,
125 Wn.2d at 860).
Similar to the acts charged in this case, the incidents with Yaddof and McGinnis both
involved McNicholas targeting elderly women who lived alone. In each instance, the trial court
observed that McNicholas demanded payment for construction service that was not completed. In
each, McNicholas had done some work for his targets, but he also tried to get more money than he
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had earned. In the cases of McGinnis and Hitt, McNicholas specifically asked each whether her
children helped with her finances.
Like Gresham, the prior conduct admitted as evidence of a common scheme or plan in this
case was not identical to the charged conduct. The trial court considered the facts of each incident
and analyzed the similarities and differences on the record. It applied the correct legal standard.
We cannot say that the court abused its discretion by concluding that the incidents were similar
enough to constitute part of the same scheme or plan of scamming elderly people under the guise
of contracting services.
C. PROBATIVE VS PREJUDICIAL
McNicholas contends that the introduction of this evidence exposed him to unfair prejudice
because it “showed [him] to be a petty thief, a liar and a person who would bully older women.”
Br. of Appellant at 23. He emphasizes that the issues for trial were whether he had a valid contract
with Hitt and whether he forged the nine checks at issue, and that his prior bad acts had no tendency
to prove or disprove these facts. Therefore, he argues the prejudicial effect of the evidence
outweighed its probative value. We disagree.
“Trial courts have considerable discretion to consider the relevancy of evidence and to
balance ‘the probative value of the evidence against its possible prejudicial impact.’” Barry, 184
Wn. App. at 801 (quoting State v. Rice, 48 Wn. App. 7, 11, 737 P.2d 726 (1987)).
The trial court acknowledged that the testimony the State sought to introduce was
prejudicial. It ruled that the age of the victims was “a component,” but that it did not tip the balance
in favor of making the evidence overly prejudicial. 2 RP at 302. It then ruled that the prejudice
of the testimony did not outweigh its probative value, especially given that the jury could be
provided a limiting instruction to only consider the evidence for the purposes for which it was
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offered. The trial court did not abuse its discretion by concluding that the prejudicial effect of the
Yaddofs’ and McGinnis’s testimony did not outweigh their probative value.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel failed to propose a good faith claim of title defense jury instruction. He claims that the
essence of his defense at trial was that he had obtained each check from Hitt pursuant to a valid
contract to perform services for her. He also claims that this instruction would have created a
reasonable likelihood the jury would have found him not guilty. We disagree.
A. LEGAL PRINCIPLES
The Sixth Amendment to the United States Constitution and Article I, section 22 of the
Washington Constitution guarantee the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171
Wn.2d 17, 32, 246 P.3d 1260 (2011).
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel,
the defendant must show both (1) that defense counsel’s representation was deficient, and (2) that
the deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-33. Representation
is deficient if, after considering all the circumstances, the performance falls “‘below an objective
standard of reasonableness.’” Grier, 171 Wn.2d at 33 (quoting Strickland, 466 U.S. at 688).
Prejudice exists if there is a reasonable probability that, except for counsel’s errors, the results of
the proceedings would have differed. Grier, 171 Wn.2d at 34. If either prong is not satisfied, the
defendant’s claim fails. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
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A defendant faces a strong presumption that counsel’s representation was effective. Grier,
171 Wn.2d at 33. Legitimate trial strategy or tactics cannot serve as the basis for a claim of
ineffective assistance of counsel. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).
B. GOOD FAITH CLAIM OF TITLE DEFENSE
“Theft” is defined, as charged in this case, to mean “[t]o wrongfully obtain or exert
unauthorized control over the property or services of another or the value thereof, with intent to
deprive him or her of such property or services,” or “[b]y color or aid of deception to obtain control
over the property or services or another or the value thereof, with intent to deprive him or her of
such property or services.” RCW 9A.56.020(1)(a), (b). It is a defense to theft that “[t]he property
or service was appropriated openly and avowedly under a claim of title made in good faith, even
though the claim be untenable.” RCW 9A.56.020(2)(a).
The pattern instruction for the good faith claim of title defense to theft states: “It is a
defense to a charge of theft that the property or service was appropriated openly and avowedly
under a good faith claim of title, even if the claim is untenable.” 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 19.08, at 319 (3rd ed. 2008). This defense
has “at least two elements: (1) an open and avowed taking of property and (2) a good faith claim
of title to the property.” State v. Ager, 128 Wn.2d 85, 95, 904 P.2d 715 (1995).
“Where evidence supports the giving of an instruction on the defense of good faith claim
of title, failure to give such an instruction is reversible error.” State v. Pestrin, 43 Wn. App. 705,
710, 719 P.2d 137 (1986). The trial court is not required to give a good faith claim of title
instruction on a theft by deception charge. State v. Stanton, 68 Wn. App. 855, 868, 845 P.2d 1365(1993).
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In State v. Casey, the defendant was charged with theft by deception for scamming elderly
persons by overcharging them for substandard paving services. 81 Wn. App. 524, 525-26, 915
P.2d 587 (1996). The defendant argued he should be entitled to a good faith claim of title defense,
but the court clearly stated that “the defense is not available in a trial for theft by deception.”
Casey, 81 Wn. App. at 526. Casey noted that the instruction is inappropriate in theft by deception
cases because “a good faith claim of title would negate a specific element of the crime, namely
deprivation ‘[b]y color or aid of deception.’” 81 Wn. App. at 527 (quoting RCW 9A.56.020(1)(b)).
The information in this case charged McNicholas with theft by deception and theft by
wrongfully obtaining or exerting unauthorized control over Hitt’s property. The jury instructions
provided that if the jury found that either alternative had been proven beyond a reasonable doubt,
then it should return a verdict of guilty. The jury returned a special verdict and found the State
had proven both alternatives.5 Because the jury found both alternatives, McNicholas has failed to
prove prejudice. We reject his ineffective assistance of counsel claim.
SAG
I. INEFFECTIVE ASSISTANCE OF COUNSEL
McNicholas contends that he received ineffective assistance of counsel for a multitude of
reasons.
A. LANE’S TESTIMONY
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel failed to move to strike Lane’s testimony.
5
At oral argument, McNicholas conceded that, given a special verdict in which the jury found
both alternative grounds for the theft, he would be unable to show prejudice.
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In order to show ineffective assistance of counsel, McNicholas must show that his trial
counsel’s decision to not move to strike Lane’s testimony was not legitimate trial strategy or
tactics. Kyllo, 166 Wn.2d at 863. However, in her own examination of McNicholas, defense
counsel asked him about his interactions with Lane and elicited testimony that Lane had invited
him to come to her home, let him in, and given him flowers. This evidence did not prejudice
McNicholas and potentially helped his defense. Her decision could have been tactical and there is
no prejudice.
B. FAILURE TO MOVE FOR SPEEDY SENTENCE
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel “fail[ed] to ask for a motion for speedy sentence.” SAG at 1. He claims, if she had, he
could have been transported to Cowlitz County to resolve pending cases there and then received a
DOSA.
The Sentencing Reform Act of 1981 (SRA) requires sentencing hearings to “be held within
forty court days following conviction” absent a motion and showing of good cause for extension
by either party. RCW 9.94A.500(1).
The court sentenced McNicholas on August 17, 2016, approximately 30 days after the
guilty verdicts. He received a speedy sentence.
C. FAILURE TO MOVE TO SUPPRESS EVIDENCE
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel failed to move to suppress evidence found in his truck in Cowlitz County. He fails to
provide any substantive argument for why such a motion was warranted or would have been
granted. Though McNicholas need not cite to the record or authority, he must still “‘inform the
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court of the nature and occurrence of alleged errors.’” State v. Thompson, 169 Wn. App. 436, 493,
290 P.3d 996 (2012) (quoting RAP 10.10(c)). We do not consider this argument.
D. FAILURE TO OBJECT TO BANK RECORDS
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel did not object to subpoenas for his bank records. He claims that he had a Fourth
Amendment privacy interest in the records and they were only made available to the bank for a
“limited purpose.” SAG at 16.
United States v. Miller held that individuals have “no protectable Fourth Amendment
interest” in subpoenaed bank records. 425 U.S. 435, 437, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976).
When depositing at a bank, “[t]he depositor takes the risk, in revealing his affairs to another, that
the information will be conveyed by that person to the Government.” Miller, 425 U.S. at 443.
McNicholas’s counsel was not deficient.
E. FAILURE TO CALL ADDITIONAL WITNESSES
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel failed to call additional witnesses, in particular two individuals he names in his SAG.
To prevail on an ineffective assistance of counsel claim, McNicholas must show prejudice.
Grier, 171 Wn.2d at 33. Because he has not identified what any of his proposed witnesses would
have testified to, he cannot show how their testimony would have been reasonably likely to change
the outcome of the trial. Without any indication how these witnesses would have testified,
McNicholas also cannot show that his attorney’s conduct fell below an objective standard of
reasonableness. The content of McNicholas’s proposed witnesses’ testimony is outside the record
and we do not consider it. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
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McNicholas may raise matters outside the record in a personal restraint petition. McFarland, 127
Wn.2d at 335.
F. FAILURE TO CALL FOR AN ER 404(b) HEARING
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel failed to “have a hearing for a[n] offer of proof that a prior bad act probably occurred” and
failed to argue the ER 404(b) evidence was inadmissible. SAG at 16
Contrary to McNicholas’s claims, his attorney did move to exclude all ER 404(b) evidence
and the court heard lengthy arguments at a pretrial hearing on this issue. We deny this claim.
G. FAILURE TO MOVE FOR A “LASTING HEARING”
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel failed to move for a “lasting hearing” or “perpetuation depositions” for Hitt and the 404(b)
witnesses, presumably given their age and Hitt’s declining mental state. SAG at 16.
McNicholas has not provided any indication of what Hitt would have testified to in a
deposition to preserve her testimony. Because the content of Hitt’s testimony in a perpetuation
deposition is not in the record, we do not consider it. McFarland, 127 Wn.2d at 335.
H. FAILURE TO FILE A CRAWFORD MOTION
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel failed to file a motion under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004). He makes some arguments and statements about the legal status of “business
records” as testimonial but does not indicate in what way a Crawford violation occurred in his
case. We deny relief on this issue.
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I. FAILURE TO RAISE A FOURTH AMENDMENT ARGUMENT
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel failed to raise a Fourth Amendment argument. He does not indicate what this argument
would have been or how his Fourth Amendment rights were violated. He has not shown how his
trial counsel was deficient.
J. FAILURE TO MOVE FOR DAUBERT HEARING
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel failed to move for a Daubert hearing to determine the admissibility of the handwriting
expert analysis. SAG at 17; Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993).
State v. Copeland declined to import the federal Daubert standard for admissibility of novel
scientific evidence in criminal cases. 130 Wn.2d 244, 251, 922 P.2d 1304 (1996). It maintained
the Frye6 standard. Copeland, 130 Wn.2d at 251.
McNicholas has not alleged that handwriting evidence is the type of “novel scientific
evidence” requiring analysis under Frye. Washington courts have allowed handwriting evidence
for decades. See, e.g., State v. Haislip, 77 Wn.2d 838, 841, 467 P.2d 284 (1970). McNicholas has
not shown any deficiency or prejudice.
K. FAILURE TO OBJECT TO ILLEGALLY SEIZED PROPERTY
McNicholas contends that he received ineffective assistance of counsel because his trial
counsel failed to “object to ‘a manifest error’ . . . affecting a constitutional right,” namely his
illegally seized property. SAG at 17. This claim appears to be duplicitous of his claim that his
attorney failed to move to suppress evidence and we do not address it further.
6
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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II. LAY WITNESS OPINION7
McNicholas contends that the trial court erred by admitting lay witness opinion testimony
by Kim about her mother’s signature.
“The general rule is that appellate courts will not consider issues raised for the first time
on appeal. However, a claim of error may be raised for the first time on appeal if it is a manifest
error affecting a constitutional right.” State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007)
(statute omitted) (case citation omitted). The defendant “must identify a constitutional error and
show how the alleged error actually affected the defendant’s rights at trial. It is this showing of
actual prejudice that makes the error ‘manifest,’ allowing appellate review.” Kirkman, 159 Wn.2d
at 926-27.
Because McNicholas has not shown how the admission of Kim’s testimony about her
mother’s signature constituted manifest constitutional error and he did not object to her testimony
below, we do not consider this argument.
III. PREACCUSATION DELAY
McNicholas contends that his due process rights were violated by the State’s preaccusation
delay in charging him. He contends that the State’s negligent delay in charging him nine months
after the no-contact order issued prejudiced him because Hitt’s mental state deteriorated, causing
her to look more vulnerable to a jury and making her unable to corroborate his story.
Because the right to a speedy trial does not accrue before prosecution, claims of
preaccusation delay are tested under the due process clause. State v. Bernson, 40 Wn. App. 729,
7
Prior to this claim for relief, McNicholas notes “the courts stipulation suspected forged checks”
and cites to a section of the record where the Court reads a stipulation as to the chain of custody
for the suspected forged checks to the jury. SAG at 1. This assertion does not appear to be a claim
for relief and we do not address it.
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733-34, 700 P.2d 758 (1985). “Under this test, the accused must specifically demonstrate the delay
caused actual prejudice to his defense.” Bernson, 40 Wn. App. at 734.
McNicholas’s claim that Hitt’s memory caused her to no longer be in a position to
corroborate his story is unsupported by the record. On October 14, 2014, Hitt completed an
affidavit that she had issued two checks to McNicholas for minor repairs and that fifteen other
checks were neither authorized nor signed by her. Because McNicholas has not provided any
indication that Hitt’s testimony would have corroborated his story, he has not shown any prejudice
caused by preaccusation delay.
IV. PROSECUTORIAL MISCONDUCT
McNicholas contends that the prosecutor committed misconduct by (1) submitting less than
one third of their comparable handwriting samples to Szymanski for analysis, (2) trying to shift
the burden in closing argument, and (3) referring to checks as being forged.
“Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair
trial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). An
appellant claiming prosecutorial misconduct must demonstrate that the prosecutor’s conduct was
both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 759-61, 278 P.3d 653 (2012).
Where the defendant objected at trial, the appellant must show that the improper comments had a
substantial likelihood of affecting the verdict. Emery, 174 Wn.2d at 760. If the defendant did not
object at trial, he must show that the prosecutor’s misconduct was “so flagrant and ill intentioned
that an instruction could not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61.
“‘Allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard.’”
State v. Thorgerson, 172 Wn.2d 438, 460, 258 P.3d 43 (2011) (quoting State v. Brett, 126 Wn.2d
136, 174-75, 892 P.2d 29 (1995)).
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A. HANDWRITING SAMPLES
McNicholas contends that the State sent less than a third of its more than 270 known
handwriting samples to its handwriting expert. He alleges this prejudiced him because the expert
could not come to a definitive conclusion given that he did not have enough comparable samples.
The record indicated that Spaulding found “hundreds of documents” in McNicholas’s
truck. 6 RP at 1196. However, Spaulding did not state whether all or some of those documents
had examples of McNicholas’s signature or handwriting, or how many documents there were. The
specific number of documents the State had available to submit to its handwriting expert is not
specified anywhere in the record. Because the record does not show that the State had 270 writing
samples, McNicholas’s argument is more appropriate for a personal restraint petition. McFarland,
127 Wn.2d at 335.
McNicholas also alleges that the State failed to submit one check for handwriting analysis,
despite charging him with forgery for that particular check number. McNicholas has not identified
the check number he is referring to, however Szymanski’s report and testimony both make clear
that Szymanski reviewed each check charged as a forgery count and concluded that it was “highly
probable” that Hitt had not written them. 5 RP at 897. Thus, we reject this claim.
B. BURDEN SHIFTING
McNicholas alleges that the prosecutor committed misconduct by shifting the burden to
him in closing arguments by questioning his failure to call Reed as a witness.
During closing, the prosecutor argued that McNicholas had said “[n]o, I haven’t done any
work for her. Didn’t do any work, didn’t order any materials. Brandon, mythical Brandon, he’s
the one, he probably did some work for her, he probably did some work on the roof.” 11 RP at
2089-90. McNicholas objected, alleging that this argument improperly placed the burden on him
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to produce witnesses. The court heard arguments from both sides outside the presence of the jury.
The court allowed argument about the fact that there wasn’t testimony from Reed, but ruled that
arguments implying that Brandon was “mythical” or not a real person were improper. 11 RP at
2093-94.
The court gave the jury a corrective instruction to not consider the attorneys’ arguments as
evidence. It also instructed: “I’ve concluded that any reference to [Brandon] with the term of
mythical or otherwise would be inappropriate. To the extent that that’s been utilized in closing,
you should disregard that and not have considered that in any way.” 11 RP at 2107-08.
The prosecutor then argued:
Now, I want to make this very clear, ladies and gentlemen, as the State I have the
burden of proving every element of every crime to you beyond a reasonable doubt,
the defense has no burden whatsoever. But I want to submit to you, if the Defendant
testifies that if there’s a person out there and there are documents out there that
completely exonerate him, that prove his innocence, you get to ask, “Why are we
not hearing from that person and why are we not seeing those documents?”
11 RP at 2109. McNicholas did not object to this argument.
As to the first comment, the trial court sustained McNicholas’s objection and gave a
limiting instruction to the jury. The jury “is presumed to follow the instruction that counsel’s
arguments are not evidence.” State v. Warren, 165 Wn.2d 17, 29, 195 P.3d 940 (2008). As to the
second comment the prosecutor made, “[t]he State is entitled to comment upon the quality and
quantity of evidence the defense presents.” State v. Andersen, 153 Wn. App. 417, 428, 220 P.3d
1273 (2009). Given the prosecutor’s warning that the defense has no burden whatsoever, her
comments on the defense evidence were not improper.
C. REFERENCE TO “FORGED CHECKS”
McNicholas refers to the State referring to checks as being forged in the section of his SAG
listing instances of prosecutorial misconduct. However, the page he cites includes the trial court
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reading a stipulation to the jury, that included that “suspected forged checks from Audine Hitt”
were submitted to the handwriting expert. 5 RP at 865. He has not indicated how the trial court’s
reference to “suspected forged checks” constitutes error nor how statements of the trial court are
related to prosecutorial misconduct. We reject this claim.
V. SPAULDING TESTIMONY
McNicholas contends that Spaulding “[e]fficaciously presented to lead the jury to believe
or let it be known that [he] had similar charges pending in another county.” SAG at 5. He also
contends that Spaulding failed to confirm he had obtained a search warrant; only that he applied
for one.
McNicholas cites to a portion of Spaulding’s testimony referring to the fact that Spaulding
searched McNicholas’s truck while the truck was in Cowlitz County. McNicholas does not
indicate how this testimony “lead the jury to believe or let it be known” that he had similar charges
in Cowlitz County. SAG at 5. Throughout Spaulding’s testimony, he never alluded to any charges
against McNicholas in any other case.
As to the search warrant for McNicholas’s truck, Spaulding testified that he applied for and
obtained a warrant to search the vehicle and then executed the search.
McNicholas also contends that Spaulding gave “highly prejudicial” testimony about
evidence in his truck relating to charges in another county, referring to the file for Betsy Miller.
SAG at 5. Spaulding did not testify as to the contents of the Miller file in McNicholas’s truck, nor
did he suggest that any criminal charges related to it. Rather, he stated that he found it among
numerous other documents in the vehicle.
McNicholas also questions whether it is “considered direct evidence when a police officer
testifies about a letter found in defendants truck; (Helen McGinnis), that was considered 404(b)
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evidence.” SAG at 18. This does not appear to be an argument or assignment of error. To the
extent he argues Spaulding’s testimony about finding the McGinnis letter should have been
inadmissible, McNicholas does not suggest any reason the court erred by admitting it. We deny
relief on this issue.
VI. FILES FROM TRUCK
McNicholas argues that the court erred by admitting into evidence the client files found in
his truck. He contends they were not sufficiently authenticated and did not constitute habit
evidence. Insofar as McNicholas argues the files were not proper habit evidence, we do not
consider his arguments because the trial court ruled that they were not offered to show habit.
“Authentication is a threshold requirement designed to assure that evidence is what it
purports to be.” State v. Payne, 117 Wn. App. 99, 106, 69 P.3d 889 (2003). “The requirement of
authentication or identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims.” ER 901(a).
The proponent of a piece of evidence “must make only a prima facie showing of authenticity for
purposes of establishing admissibility” and can meet this burden by showing “‘enough proof for a
reasonable fact finder to find in favor of authenticity.’” In re Det. of H.N., 188 Wn. App. 744,
751, 355 P.3d 294 (2015) (quoting Payne, 117 Wn. App. at 108). A trial court’s admission of
evidence is reviewed for abuse of discretion. H.N, 188 Wn. App. at 753.
In this case, the trial court noted that the State intended to authenticate the client files by
showing they were found in a vehicle that McNicholas stipulated belonged to him, they contained
information belonging to him, and they used a business name that belonged to him. When asked
about the authentication issue, McNicholas acknowledged he thought the State could meet the
foundational requirements. When the State moved to admit the evidence, McNicholas objected to
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relevance and hearsay, but did not object to authenticity. Because a “party may assign evidentiary
error on appeal only on a specific ground made at trial,” McNicholas has waived any argument as
to the client files’ authenticity. Kirkman, 159 Wn.2d at 926.
VII. CUMULATIVE ERROR
McNicholas lists a number of events he claims caused cumulative error.
A. ADMISSIBILITY OF CHARGING DOCUMENT
McNicholas assigns error to the charging document being kept out of evidence. He does
not indicate anywhere in the record that he requested the charging document be admitted into
evidence, nor does he suggest how its absence prejudiced his case in any way. We reject this
argument.
B. HITT AFFIDAVIT
McNicholas assigns error to Hitt’s affidavit, stating she wrote some checks to McNicholas
but did not write fifteen others. This affidavit was never admitted into evidence and McNicholas
does not argue how its existence created any kind of error or prejudiced his case. We reject
McNicholas’s claim.
VIII. DISCOVERY DEADLINE VIOLATIONS
McNicholas contends that the State violated discovery deadlines with photographs that it
first showed the defense on the morning of trial. We reject this claim because he has not argued
how these photographs prejudiced his case.
McNicholas makes several other comments in this section about “[a]lternate definition
forgery” and “redacted/removed affidavit.” SAG at 6. We do not interpret these comments as
claims for any specific relief or allegations of prejudice.
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IX. PROCEDURAL ERROR
McNicholas cites several examples of what he calls “[p]rocedural [e]rror” in his case. SAG
at 6-7
A. TRACKING CASES
McNicholas contends that allowing three pending cases to “trac/providing motive for
404(b) evidence testimony raised the prejudicial level up considerably.” SAG at 6. Insofar as this
is a claim that it was error for the court to track his other pending cases, he has not shown how this
prejudiced him, as the judge denied the State’s motion to join the cases and the jury never received
any information about the other pending cases. We reject this claim.
B. FINDINGS AND CONCLUSIONS
McNicholas contends that he was prejudiced by the trial court’s “failing several times to
provide” its facts and conclusions from the joinder motion hearing to the defense. SAG at 6. In
support of his argument, he cites to where the court told the defense that the findings “wouldn’t be
entered today because I haven’t finished them completely yet.” 1 RP at 186. McNicholas’s trial
counsel told the court that she intended to use these findings and conclusions in her arguments on
the 404(b) evidence, since she “wanted to be able to use the Court’s rationale and my own
arguments combined for why the witnesses for this separate case that was no[t] joined is also not
appropriate to have them testify at this trial.” 1 RP at 187-88. The court ultimately did not enter
its findings of fact and conclusions of law until after trial.
McNicholas does not show how the delayed entry of findings of fact and conclusions of
law prejudiced his case, so we reject his claim.
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C. RELIANCE ON LABOR & INDUSTRIES EVIDENCE
McNicholas contends that the trial court erred in denying his 404(b) motion on the basis of
reliance on inaccurate information about his companies from the Department of Labor and
Industries.
In denying the 404(b) motion, the court noted that:
The misconduct that we’re talking about involves allegedly with Ms. McGinnis,
Ms. Lane, Ms. Yaddof, and then in relation to Labor & Industry and it goes to Green
Tech’s issues with being licensed, bonded and insured, and then extending that to
Pacific Coast Vinyl and Remodeling to the extent the license there had been
suspended due to the summons and complaint, the bond having been cancelled with
a judgment being outstanding, and potential testimony, then, that that would
prevent relicensing to take place with that outstanding judgment that’s involved.
2 RP at 296-97. There is nothing in the record indicating that the trial court erred factually in its
decision with regard to the status of McNicholas’s companies. We reject McNicholas’s claim.
D. SZYMANSKI TESTIMONY
McNicholas contends that the trial court erred by allowing Szymanski to testify. He does
not offer any substantive argument or reasoning for this point. He did not object in the trial court.
We do not consider this argument.
E. PROTECTION ORDER
McNicholas contends that the trial court erred by admitting the protection order protecting
Hitt from him. A trial court’s admission of evidence is reviewed for abuse of discretion. H.N, 188
Wn. App. at 753.
At trial, the State produced evidence that the order existed but did not admit the order itself.
The court ruled that the prejudicial effect of the protection order itself would outweigh its probative
value.
McNicholas has not shown that the trial court abused its discretion so we reject his claim.
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X. FOURTH AMENDMENT VIOLATION
McNicholas contends that his truck was seized without a warrant and that on January 5,
2017, he was granted “a[n] order of dismissal to have the truck and all seized property inside to be
returned.” SAG at 8.
Spaulding testified at trial that he applied for and obtained a search warrant for
McNicholas’s vehicle before executing the search. McNicholas does not cite to anything in the
record indicating that Spaulding did not have a warrant. To the extent McNicholas’s allegations
rely on information outside the record, we do not consider them.
A. SEARCH INVENTORY
McNicholas contends that Spaulding was required to prepare an inventory of all items
seized upon completion of his search of the truck and to give McNicholas a copy of the warrant
and a receipt of the property taken.
CrR 2.3(d) requires an officer taking property under a search warrant to “give to the person
from whom or from whose premises the property is taken a copy of the warrant and a receipt for
the property taken.” The same rule also requires “a written inventory of any property taken” to be
“made in the presence of the person from whose possession or premises the property is taken.”
CrR 2.3(d).
There is no information in the record about whether or not Spaulding prepared an inventory
or a receipt or whether he supplied these documents to McNicholas. To the extent McNicholas’s
allegations rely on information outside the record, we do not consider them.
XI. FIFTH AMENDMENT VIOLATION
McNicholas contends that he “felt compelled to produce the sales contract between himself
and Mrs. Audine Hitt.” SAG at 8. He cites Andresen v. Maryland, which held that “the search of
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an individual’s office for business records, their seizure, and subsequent introduction into evidence
do not offend the Fifth Amendment[].” 427 U.S. 463, 477, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976).
The Fifth Amendment to the United States Constitution states: “nor shall any person . . .
be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. The
fact that McNicholas “felt compelled” to produce the sales contract does not make it compelled
testimony under the Fifth Amendment.
XII. ER 404(b) EVIDENCE
McNicholas devotes a section of his SAG to a discussion of case law and rules concerning
ER 404(b) evidence. However, he does not suggest or argue how any of these cases or rules apply
to his case. He does not inform this court of the nature and occurrence of any alleged error. RAP
10.10(c). We are not obligated to search the record in support of claims made in McNicholas’s
SAG. RAP 10.10(c); Thompson, 169 Wn. App. at 493. To the extent he challenges the
admissibility of ER 404(b) evidence in his case, his brief addresses this issue and matters that
“have been thoroughly addressed by counsel” are “not proper matters for [the] statement of
additional grounds under RAP 10.10(a).” Thompson, 169 Wn. App. at 493.
McNicholas contends that the jury instruction on 404(b) evidence was insufficient to
eliminate propensity. However, “[j]urors are presumed to follow the court’s instructions.” State
v. Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015). McNicholas has not suggested any facts
to rebut this presumption.
XIII. SAME CRIMINAL EPISODE
McNicholas devotes a section of his SAG labeled “Same Criminal Episode” to a discussion
of various cases about mandatory joinder. He does not identify or argue any error throughout this
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section of his SAG. Therefore, we do not address the content of this section. Thompson, 169 Wn.
App. at 493.
To the extent that McNicholas’s SAG can be construed to argue that his case should have
been joined with other pending cases, there is no evidence in the record to suggest the details of
any of his other cases except their existence. Further, the State moved to join McNicholas’s cases
and he opposed the motion and won.
XIV. DOUBLE JEOPARDY AND MERGER
A. DOUBLE JEOPARDY
McNicholas contends that his convictions of identity theft and forgery, and his convictions
of theft in the first degree and forgery violate his double jeopardy rights.
A “defendant’s double jeopardy rights are violated if he or she is convicted of offenses that
are identical both in fact and in law.” State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995).
If each offense, as charged “includes elements not included in the other, the offenses are different
and multiple convictions can stand.” Calle, 125 Wn.2d at 777.
A conviction for forgery, as charged in this case, requires either that the defendant “falsely
makes, completes, or alters a written instrument” or “possesses, utters, offers, disposes of, or puts
off as true a written instrument which he or she knows to be forged.” RCW 9A.60.020(1). Theft
requires that he “wrongfully obtain or exert unauthorized control over the property or services of
another or the value thereof” or do so “[b]y color or aid of deception” with “intent to deprive him
or her of such property or services.” RCW 9A.56.020(1). Identity theft requires that the defendant
“knowingly obtain, possess, use, or transfer a means of identification or financial information of
another person, living or dead, with the intent to commit, or to aid or abet, any crime.” RCW
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9.35.020(1). Because each crime requires at least one element the others do not, McNicholas’s
double jeopardy rights were not violated.
B. MERGER
McNicholas cites numerous cases discussing the concept of merger, but he does not
provide any substantive argument that this doctrine applies to his case. Nor does he provide any
guidance to what convictions he believes this doctrine applies. We do not consider this claim.
XV. TITLE FIVE EVIDENCE
McNicholas labels a section of his SAG “Title Five Evidence / Corporations” and discusses
a corporation’s personhood and various rules and cases discussing corporations and contract law.
SAG at 15. He does not indicate or argue how any of these issues are relevant to his case or
prejudiced him in any way. We do not consider this section.
XVI. JURY INSTRUCTIONS
McNicholas raises a number of arguments about the jury instructions. We review alleged
errors of law in the jury instructions de novo. State v. Stacy, 181 Wn. App. 553, 568, 326 P.3d
136 (2014). If an instruction correctly states the law and the trial court refuses to give a jury
instruction, we review for abuse of discretion. Stacy, 181 Wn. App. at 569.
A. CONTRACT DEFINITION ARGUMENT
McNicholas assigns error to the trial court’s ruling that he could not use the Webster’s
Dictionary definition of “contract.”
Because McNicholas’s defense was based on having a contract with Hitt, he requested a
jury instruction with the dictionary definition of “contract.” The court rejected this request, stating
“I think with the notion of a contract, if it was a more challenging concept for the jury to grasp or
what a contract is or isn’t, I don’t think that there’s a need to do a separate instruction on a portion
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of the Webster’s Dictionary as far as the contract itself is concerned.” 9 RP at 1778-79. It was
not an abuse of discretion for the trial court to deny McNicholas’s request to instruct the jury about
the dictionary definition of “contract.”
B. DATES
McNicholas contends that the trial court erred by instructing the jury that the crime must
be proved between the dates of April 1, 2014 and September 30, 2014. He argues that this inferred
that the theft and identity theft counts occurred “way before and long after the 9 counts of forgery.
(50 days difference).” SAG at 18.
McNicholas did not object to this instruction at trial and, therefore, waives this claim of
error on appeal. State v. Smith, 174 Wn. App. 359, 364, 298 P.3d 785 (2013); RAP 2.5(a).
C. OTHER ISSUES
McNicholas lists numerous other issues he takes with the jury instructions.8 He does not
identify any issues with these instructions, nor provide any indication how these instructions
prejudiced him. He did not object to any of the specific instructions he notes, so he has waived
any error in these instructions. Smith, 174 Wn. App. at 364; RAP 2.5(a).
8
These issues include: “[i]dentification or financial information”; “[t]he victims vulnerability also
must be a substantial factor”; “[a]lternate instruction to 34(1) over long period of time”; “[a]nd
any other factors that affect your evaluation or belief of a witness”; “[t]he term common scheme
or plan infers the defendant committed more than one count of theft”; “[i]dentity theft-1 major
economic offense infers more than $1500 and infers multiple counts – 9 counts forgery yet only
one count ID-theft why?”; “‘[l]engthy’ vague”; and “[i]nstruction #37 & 38 number of counts
being told to the jury back to back implies 21 counts total, prejudicial.” SAG at 18-19. To the
extent these comments can be construed as challenges to specific jury instructions, McNicholas
did not object to any of the instructions at trial.
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XVII. SENTENCE
A. DOSA
McNicholas contends that the trial court abused its discretion by refusing to consider him
for a DOSA.
The DOSA program authorizes trial judges to give eligible nonviolent drug offenders a
reduced sentence, treatment, and increased supervision in an attempt to help them recover from
their addictions. State v. Grayson, 154 Wn.2d 333, 337, 111 P.3d 1183 (2005). “As a general
rule, the trial judge’s decision whether to grant a DOSA is not reviewable.” Grayson, 154 Wn.2d
at 338. However, “an offender may always challenge the procedure by which a sentence was
imposed.” Grayson, 154 Wn.2d at 338. Grayson reversed the trial court’s refusal to consider the
defendant for a DOSA sentence because “[a] trial court abuses discretion when ‘it refuses
categorically to impose an exceptional sentence below the standard range under any
circumstances.’” 154 Wn.2d at 342 (quoting State v. Garcia-Martinez, 88 Wn. App. 322, 330,
944 P.2d 1104 (1997)).
In this case, the trial court did not refuse to impose a DOSA without consideration. The
trial court considered the record and the parties’ arguments, as well as letters submitted by
McNicholas during sentencing about his drug problems. It reasoned that, looking at this case in
isolation, the only evidence favoring a DOSA evaluation was the letters of support from family
and there was no other evidence of drugs being involved in the case at all. Looking at
McNicholas’s other pending cases in both Clark and Cowlitz counties, the judge ruled that a DOSA
would be impracticable given the complications of trying to sort out how all the charges would
interact. The trial court considered many factors submitted by both parties and declined to give
McNicholas a DOSA evaluation. It did not abuse its discretion.
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B. SPEEDY SENTENCE
McNicholas contends that his trial counsel “failed to ask for speedy sentence waiver” so
he could resolve his pending Cowlitz County cases. SAG at 19. McNicholas was sentenced on
August 17, 2016 after the trial concluded on July 18, 2016.
RCW 9.94A.500(1) requires a sentencing hearing within forty court days of conviction.
“[I]f a sentencing delay is ‘purposeful or oppressive,’ it violates speedy sentencing rights.” State
v. Modest, 106 Wn. App. 660, 663, 24 P.3d 1116 (2001) (quoting Pollard v. United States, 352
U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957)).
McNicholas has not shown that his speedy sentencing rights were implicated nor that a
waiver would have been required for a sentencing hearing scheduled a month after his conviction,
within the forty court days required by RCW 9.94A.500(1).
C. EXCEPTIONAL SENTENCE
McNicholas contends that the court violated Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004), by failing to submit to a jury facts upon which it sought
increased punishment. However, the court did submit to a jury a questionnaire on each count as
to whether it found aggravating factors for a particularly vulnerable victim and whether the crime
was a major economic offense or series of offenses. The jury found that both aggravators applied
to each count. The trial court did not violate Blakely.
McNicholas makes several other comments about his exceptional sentence, such as “[a]
jury finding of an aggravating circumstance does not in itself, increase the standard range,” and
“‘substantial & compelling reasons’ is not defined in the SRA.” SAG at 20. These comments do
not appear to indicate any error or prejudice to McNicholas and we do not consider them.
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D. SAME CRIMINAL CONDUCT
McNicholas contends that his crimes constituted the same criminal conduct for sentencing.
He is not clear which counts he contends are the same criminal conduct. Because he argues that
forgery counts may constitute same criminal conduct when committed on different days, we
address his claim as an argument that his forgery convictions constituted the same criminal
conduct.
For sentencing purposes, “[m]ultiple offenses encompass the same criminal conduct if the
crimes involve the same (1) objective criminal intent, (2) time and place, and (3) victim.” State v.
Walker, 143 Wn. App. 880, 890, 181 P.3d 31 (2008). If any of the three elements is missing, “a
trial court must count multiple offenses separately when calculating a defendant’s offender score.”
Walker, 143 Wn. App. at 890. We review determinations of same criminal conduct “for abuse of
discretion or misapplication of law.” State v. Graciano, 176 Wn.2d 531, 535, 295 P.3d 219 (2013).
Under this standard, “when the record supports only one conclusion on whether crimes constitute
the ‘same criminal conduct,’ a sentencing court abuses its discretion in arriving at a contrary
result.” Graciano, 176 Wn.2d at 537-38. Where the record “adequately supports either
conclusion, the matter lies in the court’s discretion.” Graciano, 176 Wn.2d at 538. The burden is
on the defendant to “establish the crimes constitute the same criminal conduct.” Graciano, 176
Wn.2d at 539.
All of McNicholas’s forgeries involved the same victims: Audine Hitt and her financial
institution. Each forgery count in this case was charged for a different date. Therefore, the forgery
counts did not occur at the same time, failing the second requirement for same criminal conduct.
Each of McNicholas’s forgery counts constituted independent criminal conduct to be punished
separately.
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McNicholas cites State v. Johnson, 180 Wn. App. 92, 320 P.3d 197 (2014), for the
proposition that forgery counts may constitute the same criminal conduct even when they occur
on different days. Johnson dealt with the issue of whether a trial court is bound by a prior
sentencing court’s conclusions with regard to whether multiple crimes constitute the same criminal
conduct from a prior case. 180 Wn. App. at 104-05. Nothing from that case erodes the requirement
that the two crimes involve the same time and place. RCW 9.94A.589(1)(a).
XVIII. ADDITIONAL ISSUES
A. TIME FOR TRIAL RULE
McNicholas contends that the trial court violated the “time for trial rule” by setting a “‘no
exceptions’” trial date in June 2016 and then allowing another month continuance to accommodate
a witness. SAG at 17.
This case was set to go to trial in April 2016 until McNicholas sought new defense counsel
the week before trial. He then moved for a continuance and the court confirmed with him that he
wanted a trial date set past the expiration of his current speedy trial date. The court then set the
trial date as June 13, 2016. On the record, McNicholas specifically stated that by giving up his
speedy trial right, the trial could be held any day within 60 days of June 1, 2016. The trial date
was then delayed until July 11, 2016, which was within 60 days of June 1, 2016. McNicholas
expressly waived any violation of his time for trial rights.
B. REDACTIONS
McNicholas “objects to the redactions w/o authority made by the State” to exhibits 23 and
24. SAG at 17.
Exhibits 23 and 24 were McNicholas’s bank records. The parties stipulated to the
admissibility of these exhibit; however, the State redacted the portions it submitted into evidence
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without giving prior notice of the redactions to the defense. The State had no issue with adding
the redacted portions back into the exhibits as the jury would receive them and stated it had
removed the bank statements that were outside the charging period, believing they may be
prejudicial to McNicholas. The parties agreed to reproduce new versions of the exhibits per the
stipulation with the full versions of the bank records, redacted to remove any indications of
McNicholas’s inmate status.
After the issue was resolved, McNicholas objected that it was “an improper action on the
part of the Prosecutor” to have modified the exhibits without authority. 10 RP at 1994. When
asked if the defense sought any particular remedy, defense counsel stated that it would be
sanctionable in a civil case but she was not asking for sanctions. She stated: “I’m not asking for
sanctions, but I’m asking for it to be part of the official record, that should not have happened”
because “it’s just improper.” 10 RP at 1996.
Given the resolution of this issue by the trial court, McNicholas is unable to show any
prejudice to his case or reason for any action by this court.
C. CHAIN OF CUSTODY
McNicholas challenges chain of custody and authenticity of exhibits that he stipulated to,
claiming that he “really had no idea what he was stipulating to or why.” SAG at 18. However, on
the record at trial, the court confirmed with McNicholas that he had discussed the stipulation with
his attorney, he understood what was contained in it, and he did not need additional time to talk to
his attorney. The court then explained the terms of the stipulation and repeatedly asked
McNicholas whether he understood. McNicholas repeated that he understood and that the
stipulation was what he wanted. McNicholas’s argument has no basis in the record.
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D. QUESTIONS
McNicholas lists the following “questions” in his SAG:
Question: If the theft-one count is indicative to the forgery counts how could 404(b)
evidence be allowed to prove theft only. Should the tape recordings been
authenticated to help bolster the weight given to the testimony? Prosecutorial
misconduct. (Delay)
Question: Does the charge “working as a[n] unlicensed contractor impermissibly
broadened the original charges? Or would the relation back doctrin[e] apply?
Question: Counsels failure to challenge improper aggregation of charges
Question: Going over the questioning & examining voir [dire] of jurors?
SAG at 18. These questions do not provide any argument or inform this court of the nature or
occurrence of any particular error. We do not consider these questions.
E. FIRST TIME OFFENDER WAIVER
McNicholas labels a section of his SAG “first time offender waiver 9.94A.650,” however,
he does not include any argument or reference to his case throughout the section. SAG at 20. We
do not consider this section of the SAG.
We affirm McNicholas’s convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for the public record in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Maxa, C.J.
Lee, J.
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