State Of Washington v. Denette L. Goe ( 2014 )

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COURT OF APPEALS
O! VISION 11
20 I R. 1I1t Y 13 AI', 9: 15
STATE A" N' 7i;,
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 44054 - -II
7
Respondent,
v.
DENETTE LYNN GOE, UNPUBLISHED OPINION
Appellant.
MAXA, J. — Denette L. Goe appeals her convictions on two counts of forgery and one
count of first degree theft arising from her deposit into her bank account of two forged checks
and a.forged money order. She challenges the sufficiency of the evidence supporting these
convictions, claims the information and the to convict instruction omitted an essential element of
first degree theft, and claims that the accomplice liability statute is unconstitutionally overbroad.
We affirm.
FACTS
In January 2011, Goe responded to an on -line job offer for a stay -at -home job so she
could care for her one -year -old daughter and ease her family' s financial situation. Shortly after
accepting the job offer, Goe received two checks and a money order in the mail with instructions
that she was to cash them, return 90 percent of the money to the sender, and keep 10 percent as a
commission.
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The first check was for $2, 500 and was drawn on Chase Bank. On February 1, 2011,
Goe' s husband, Brook Moorehouse, deposited the check at the Longview branch U. S. Bank
automated teller machine ( ATM), using Goe' s bank card. On February 3, 2011, there were three
withdrawals from Goe' s account — teller transactions of $1, 500 and $ 93 and an ATM
withdrawal of $500. On February 4, 2011, Goe made on -line web payments from her account of
407. 60 and $ 12.
The second item was a United States Postal Service money order for $970. On February
5, 2011, Goe cashed this-money order at the same U.S. Bank. According to the teller, Goe
explained that her husband was in Iraq, he did not have his family allotment established yet, and
he sent her the money order to pay her rent.
The third item was a check drawn on BancFirst for $2, 800. Moorehouse deposited this
check on February 8, 2011, through an ATM. He withdrew $100. The next day, there was a
teller withdrawal of $1, 200 and an ATM withdrawal of $500.
On February 8, 2011, the Postal Service returned the $ 970 money order to U.S. Bank
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unpaid marked " non =
rnicr. " Report of Proceedings (RP) at 76 -77 On February 9, 2011, the
2, 500 check was returned to U. S. Bank unpaid, marked " Refer to maker." RP at 69 -70. And on
February 14, 2011, the $2, 800 check was returned to U.S. Bank unpaid.
After Goe failed to reimburse the bank for the overages these unpaid checks created, the
State charged Goe with three counts of forgery and one count of first degree theft. The matter
proceeded to a jury trial.
Mier is a magnetic ink used to encode account numbers on the bottom of a check or money
order.
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Frank Najar, a criminal investigator for U. S. Bank, testified at trial as to the bank records
and surveillance tapes evidencing Goe' s deposits and withdrawals. He stated that ( 1) the Chase
Bank and BancFirst checks were unpaid because they were worthless; ( 2) the maker and the
bank on the BancFirst check had the same address, which indicated a counterfeiter' s mistake;
and ( 3) both checks looked identical even though they were drawn on different banks. He also
testified that the total amount from these three deposits was $ 6, 270, that the bank was able to
seize the $ 773. 06 balance, and that its unrecovered loss was $ 5, 496. 94.
Kristen Miller, a federal agent with the U. S. Postal Inspection Service, testified about the
money order. She testified that the money order had an invalid serial number, an invalid issuing
address, and was copied from an original, valid money order. She described it as an unauthentic
copy.
Longview Police Detective Kyle Sahim testified that he interviewed Goe as part of his
investigation. When Goe told him that she had cashed all three checks, he told her that the
surveillance tapes showed that Moorehouse had deposited the checks through the ATM. She
then admitted that Moorehouse deposited them but stated that " he had nothing to do with it." RP
at 141. She reiterated to Detective Sahim that Moorehouse had nothing to do with " the
forgeries." RP at 143.
When Detective Sahim asked to see Goe' s e -mail correspondence between her and the
on -
line employer, Goe said that she no longer had that e -mail account. On June 3, 2011,
however, Detective Sahim found a compact disk that had been left at the police station for him. It
contained the text from several e -mails purporting to be correspondence between Goe and a
company called CSB International. He noted that the e -mails Goe received had misspelled
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words, odd wording, and misplaced periods and commas. He also explained that because Goe
had provided only the text of the e -mails and not the actual messages, he could not examine the
e -mail headers to verify their source.
After the State rested, the trial court dismissed the forgery charge involving the Chase
Bank check (count I) because the State had not presented evidence that it was a forgery. Goe
then testified that when hired, she thought she had obtained the on -line job as a secret shopper
and did not know that it was not a real job. She explained that she asked the teller if the money
order was real and assumed it was because the teller cashed it. She denied saying that her
husband was in Iraq. She also explained that she did not ask her husband to deposit the other
two checks or withdraw money from the bank and she did not give him permission to use her
ATM card. She testified that she only found out after the fact when he told her. She said that
she was shocked when the bank manager contacted her and, while she wanted to reimburse the
bank, she did not have the money to pay it back for the losses. She also denied telling Detective
Sahim that she cashed all the checks and denied describing the checks as forgeries.
The jury found Goe guilty of two counts offorgery and One count offirst degree theft.
She appeals.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Goe first challenges the sufficiency of the evidence as to all of her convictions, claiming
that the State failed to prove all necessary elements of the offenses. We disagree.
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1. Standard of Review
Evidence is sufficient to support a conviction if after viewing the evidence and all
reasonable inferences from it in the light most favorable to the State, a rational trier of fact could
find each element of the crime proved beyond a reasonable doubt." State v. Homan, 172 Wn.
App. 488, 490 -91, 290 P.3d 1041 ( 2012), review granted, 177 Wash. 2d 1022 ( 2013). We defer to
the trier of fact on issues of conflicting testimony, witness credibility, and persuasiveness of the
evidence. State v. Thomas, 150 Wash. 2d 821, 874 -75, 83 P.3d 970 ( 2004).
2. First Degree Theft
An element of first degree theft is that the defendant wrongfully obtained property
exceeding $ 5, 000 in value. RCW 9A. 56. 030. The State argues that it can aggregate the amounts
of the two checks and the money order to establish the value of the theft. We agree.
Goe argues that former RCW 9A. 56. 010( 18)( c) ( 2011) allows the aggregation of only
third degree thefts, not thefts of greater value. Former RCW 9A.56. 010( 18)( c) provides:
Except as provided in RCW 9A.56. 340( 4) and 9A.56. 350( 4), whenever any series
of transactions which constitute theft, would, when considered separately,
constitute theft in the third degree because of value, and said series of transactions
are a part of a criminal episode or a common scheme or plan, then the transactions
may be aggregated in one count and the sum of the value of all said transactions
shall be the value considered in determining the degree of theft involved.
Because each of the alleged thefts exceeded the seven hundred fifty dollar maximum for third
degree theft, Goe claims that the State could not aggregate the amounts. RCW 9A.56. 050.
However, the State does not rely on former RCW 9. 56. 010( 18)( c). Instead, a common
law rule allows such aggregation of related thefts. In State v .Barton, 28 Wash. App. 690, 694 -95,
626 P.2d 509 ( 1981), Division One of this court addressed a claim nearly identical to the one that
Goe presents here. Barton argued that the aggregation statute allowed only the aggregation of
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third degree thefts and therefore the State could not aggregate his five bank withdrawals to reach
the required amount for first degree theft. Barton, 28 Wash. App. at 694. The court disagreed,
explaining:
The defendant was not charged under the aggregation statute, RCW
9A. 56. 010( 12) (but under the theft in the first degree statute, RCW 9A. 56. 030.
c),
The State was permitted to charge theft in the first degree for the five transactions
under the well established common law rule that property stolen from the same
owner and from the same place by a series of acts constitutes one crime if each
taking is the result of a single continuing criminal impulse or intent pursuant to a
general larcenous scheme or plan. State v. Vining, 2 Wash. App. 802, 808, 472 P.2d
564, 53 A.L.R. 3d 390 ( 1970); Annot., 53 A.L.R. 3d 398 ( 1973).
Barton, 28 Wash. App. at 694; see also State v. Atterton, 81 Wash. App. 470, 472, 915 P.2d 535
1996) ( " Aggregation of individual transactions to meet the threshold for a particular degree of
theft is allowed by common law and by statute. ").
Here, the aggregation of the three acts of theft into a single count of first degree theft was
proper under the common law. As the evidence demonstrated, such aggregation exceeded the
5, 000 threshold for first degree theft. Accordingly, we affirm Goe' s first degree theft
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conviction.
3. Forgery
In order to prove that Goe committed forgery, the State had to prove that the instruments
were forged and that she knew they were forged. RCW 9A. 60. 020( 1). Goe contends that the
State failed to prove that the BancFirst check ( count III) was forged and failed to prove that she
knew that the money order ( count II) and the BancFirst check were forgeries. We find that there
was sufficient evidence to support these elements.
2 Goe makes no claim that the State failed in its burden of proof as to the remaining elements nor
does she challenge the circumstances allowing common law aggregation. Accordingly, we need
not address these issues.
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As to whether the BancFirst check was a forgery, Goe argues that the State relied on two
inadequate facts: that the maker and bank had the same address and that the check was returned
unpaid. But Najar, the U. S. Bank investigator, testified that the two businesses having the same
address indicated that the counterfeiter had made a mistake. He also testified that the similarity
between the two checks suggested they were forgeries. And he testified that the check was
worthless. The jury also could consider as highly suspect Goe' s explanation for how she
obtained the checks. This was sufficient evidence for a jury to find that the BancFirst check was
a forgery.
The evidence also was sufficient to show that Goe knew that the BancFirst check and the
money order were forgeries. First, Detective Sahim testified that Goe used the word " forgeries"
in describing the instruments. Second, Goe first told the detective that she cashed all the checks
but then changed her story when the detective confronted her with the surveillance tape. Third,
the teller testified that Goe said she received the money order from her husband, who was then in
Iraq. Fourth, Goe admitted keeping all the money and not sending 90 percent of it back to her
employer" even though she was grateful to have a stay -at -home job so she couldcare for her
child. And fifth, the rapid withdrawals of the funds suggested that Goe wanted to withdraw the
funds before the bank discovered that the checks and money order were worthless. There was
sufficient evidence for a jury to find that Goe knew that the check and money order were
forgeries.
B. ADEQUACY OF THE INFORMATION
Goes argues that the charging document failed to provide her with adequate notice that
the State was aggregating the three thefts into one count of first degree theft. Specifically, she
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argues that the information was legally deficient because it failed to charge that she committed
multiple transactions as part of a common scheme or plan. We disagree that the State was
required to reference a common scheme or plan in the information.
An information must include all essential elements of the offense charged. State v.
Brown, 169 Wash. 2d 195, 197, 234 P.3d 212 ( 2010). Essential elements are those the State must
necessarily prove to establish the criminal act charged. State v. Ward, 148 Wash. 2d 803, 811, 64
P.3d 640 ( 2003). " `` It is sufficient to charge in the language of the statute if it defines the offense
with certainty.' " State v. Lindsey, 177 Wn. App. 233, 245, 311 P.3d 61 ( 2013) ( quoting State v.
Elliott, 114 Wash. 2d 6, 13, 785 P.2d 440 ( 1990), petition for review filed, No. 89555 -4 ( Wash.
Nov. 20, 2013)). The primary goal of the " essential elements" rule is to give notice to an
accused of the nature of the crime that he must be prepared to defend against. State v. Kjorsvik,
117 Wash. 2d 93, 101, 812 P.2d 86 ( 1991) ( citing 2 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE
19. 2, at 446 ( 1984); 1 C. WRIGHT, FEDERAL PRACTICE § 125, at 365 ( 2d ed. 1982)). All
essential elements of the crime charged, including nonstatutory elements, must be included in the
charging document so that a defense can be properly prepared. Kjorsvik 117 Wash. 2d at 101 -02
When the adequacy of the information is challenged for the first time after verdict or on
appeal, we ask two questions: ( 1) do the necessary facts appear in any form, or by fair
construction can they be found, in the charging document; and, if so, ( 2) can the defendant show
that he was nonetheless actually prejudiced by the inartful language that caused a lack of notice.
Kjorsvik, 117 Wash. 2d at 105 -06.
RCW 9A.56. 030( 1)( a) and RCW 9A.56. 020( 1)( a) collectively require the State to prove
that the defendant obtained or exerted unauthorized control over someone else' s property,
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exceeding a value of $5, 000, with the intent of depriving that person of such property. The
information charged Goe with first degree theft as follows:
The defendant, in the County of Cowlitz, State of Washington, on, about, or
between February 01, 2011, and February 08, 2011, did wrongfully obtain or
exert unauthorized control over property belonging to another, of a value
exceeding $ 5, 000, to -wit: U.S. currency, with intent to deprive U.S. Bank of such
property, contrary to RCW 9A.56. 030( 1)( a) and RCW 9A.56. 020( 1)( a) and
against the peace and dignity of the State of Washington.
Clerk' s Papers at 2. This statement contains all of the statutory elements.
Goe provides no authority requiring the State to allege that the theft involved multiple
transactions as part of a common scheme or plan. As noted above, at common law the State can
aggregate multiple thefts into one charge, which is what occurred.here. Further, because Goe is
making this claim for the first time on appeal, we apply the post -
verdict, two -part Kjorsvik test.
We are satisfied that the State' s use of a range of dates, which here encompassed the passing of
the checks and money order, was factually adequate to put Goe on notice and allow her to
prepare a defense. Further, and equally important, Goe fails to show any resulting prejudice.
We hold that the information was sufficient.
C. ADEQUACY OF THE To CONVICT INSTRUCTION
Goe argues that the trial court' s to convict instruction for first degree theft was
inadequate because it omitted an essential element of the crime. Specifically, she argues that the
to convict instruction omitted the State' s burden of showing that the theft involved multiple
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transactions as part of a common scheme or plan. We disagree that the instruction was
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inadequate.
As noted in discussing the adequacy of the charging document, the State' s reliance on
aggregation to prove the threshold value does not make it an element of the offense. Here, the to
convict instruction included all elements of the offense as is necessary for the jury to measure the
evidence and determine guilt. State v. Mills, 154 Wash. 2d 1, 6 -7, 109 P.3d 415 ( 2005). No legal
basis supports Goe' s claim. See State v. Reid, 74 Wash. App. 281, 292, 872 P.2d 1135 ( 1994)
common scheme or plan is not an element of first degree theft and need not be defined in the
jury instructions). We hold that the trial court did not err in giving the to convict instruction.
D. ACCOMPLICE LIABILITY STATUTE
The State alleged that Goe and her husband were accomplices in the forgeries and theft,
and the trial court instructed the jury on accomplice liability. Goe argues that Washington' s
accomplice liability statute, RCW 9A.08. 020, is unconstitutionally overbroad because it
criminalizes speech protected
by the First Amendment.4 We disagree.
We presume that statutes are constitutional and - eview challenges to them de novo. State
r
v. Lanciloti, 165 Wash. 2d 661, 667, 201 P.3d 323 ( 2009). Under RCW 9A. 08. 020( 3)( a), a person
is guilty as an accomplice if "[ ith knowledge that it will promote or facilitate the commission
w]
of [a] crime," she "[ s] olicits, commands, encourages, or requests [ another] person to commit [ the
crime]" or "[ a] ids or agrees to aid such other person in planning or committing [ the crime]."
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The State counters that Goe failed to object to the instruction below and therefore cannot raise
this issue for the first time on appeal. It further argues that Goe cannot demonstrate a manifest
constitutional error under RAP 2. 5( a)( 3) and therefore this court should not review the
instruction. We need not address this issue because our analysis above shows there is no error.
4 U.S. CONST.
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Goe argues that Washington' s accomplice liability statute does not meet the standard set forth in
Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed . 2d 430 ( 1969), in which the
United States Supreme Court held that the First Amendment protects speech advocating criminal
activity unless it "is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action." Because " aid" is not defined in the statute, Goe argues that the
statute criminalizes speech other than that " `` directed to inciting or producing imminent lawless
action.' " Br. of Appellant at 27 ( quoting Brandenburg, 395 U.S. at 447).
We rejected this same challenge in State v. Ferguson. 164 Wash. App. 370, 375 -76, 264
P.3d 575 ( 2011) ( citing State v. Coleman, 155 Wn. App. 951, 960 -61, 231 P.3d 212 ( 2010)). In
Coleman, Division One of this court held that:
t] he accomplice liability statute ... requires the criminal mens rea to aid or agree
to aid the commission of a specific crime with knowledge that the aid will further
the crime. Therefore, by the statute' s text, its sweep avoids protected speech
activities that are not performed in aid of a crime and that only consequentially
further the crime.
155 Wn. App. at 960 -61. In Ferguson, we adopted the reasoning in Coleman and addressed the
Brandenburg standard, holding that "[ b] ecause the statute' s language forbids advocacy directed
at and likely to incite or produce imminent lawless action, it does not forbid the mere advocacy
of law violation that is protected under the holding of Brandenburg." 164 Wash. App. at 376.
We adhere to our decision and analysis in Ferguson and hold that Goe' s challenge to the
accomplice liability statute fails.
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We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
LEE, J.
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