State Of Washington v. Sandra Lee Allen ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 73046-1-
Respondent,
DIVISION ONE
v.
SANDRA LEE ALLEN, UNPUBLISHED OPINION
Appellant. FILED: July 25, 2016
Verellen, C.J. — Sandra Allen appeals her conviction for first degree theft. She
argues the State failed to present sufficient evidence that she exerted unauthorized
control over the property of another in violation of a partnership agreement because the
term "partnership agreement" is limited to a legal partnership established to engage in
business for profit. She also contends the State failed to present sufficient evidence
that she committed theft by deception. We conclude that "partnership agreement" does
not refer to the technical definition of "partnership," but rather to the plain, ordinary
meaning of a joint activity undertaken whether or notfor profit. Because a rational trier
of fact could have found that Allen violated a partnership agreement and that, but for
Allen's deception, the victim would not have given Allen her life savings, we affirm.
No. 73046-1-1/2
FACTS
In 2012, Elizabeth Hughes lived in Federal Way, Washington, with her husband,
three children, and seven pets. Hughes is a devout Christian. Although she did not
belong to a specific church, she attended several churches.1 She watched Christian
television, and volunteered for Christian organizations.
Around June 2012, Hughes saw Sandra Allen at a local Wal-Mart. They had met
once before. After Hughes discovered Allen was living in her car, Hughes invited Allen
to stay the night at her house in Federal Way. Allen told Hughes that she was a prophet
and a pastor. Hughes believed her:
I mean, she was able to talk like a Christian, knew her Bible very
well, knew her scriptures, was very well-presented in her demeanor, you
know, had stories about walking with the Lord, and being a pastor. And
there was no reason for me to doubt her, who she said she was at the
time.'2]
Allen told Hughes that she and her friends "were not walking right with the Lord."3
When Allen retired to bed, she stayed in Hughes's home office. Hughes kept all
significant personal records in that room, including bank records and tax records.
Hughes stayed up until 2:00 or 3:00 a.m., and she noticed the light in the home office
remained on. When Hughes knocked on the door to the office the next morning, Allen
told her to leave her alone, claiming "she needed some time to be alone with God, and
she was praying, and not to interrupt her."4 Allen remained in the office for another two
1 Report of Proceedings (RP) (Jan. 5, 2015) at 20.
2RP(Jan. 5, 2015) at 37.
3RP(Jan. 5, 2015) at 37.
4RP(Jan. 5, 2015) at 40.
No. 73046-1-1/3
hours and then abruptly left "in a real big hurry" because "God was telling her she had to
leave."5
Soon after, Allen called Hughes and asked her to pay for a hotel room. On June
15, Hughes paid $276.24 for Allen's hotel room. Hughes also bought Allen food,
vitamins, and a fan. She also paid rent for Allen's personal storage unit. Hughes
"trusted [Allen] quite well."6 Eventually, Allen told Hughes that Hughes owed God
money:
Well, [Allen] told me that she was a prophet and that God told her
that I wasn't paying my tithes properly, because you're supposed to pay
10 percent of your income. And so I did pay donations, but she said that
God told her that they weren't enough, and that I wasn't trusting him
properly, and that I needed to go back and review every single amount of
money that I owed the Lord for the past 10 years.
And so she said, go home and write out, figure out exactly how
much you owe God, 10 percent of your income, over a 10-year period,
and then to report it to her, and tell her exactly how much that I owe the
Lord, like write it out for Sandra [Allen] and give it to her. And then she
was going to pray and see if I was telling the truth. And so then she
prayed and she said that there was more money that I owed and that God
told her it was such-and-such amount of money that I owed him in back
tithingJ7)
Hughes described how Allen alternated between using love and fear to manipulate
Hughes into paying her:
Well, she would be very loving and kind on the one end and then
very fearful and use scriptures that, if I don't do this, I'm disobeying the
prophet of God. And she would send me text messages saying, "God is
expecting you to be obedient," and then she would have periods of silence
when she wouldn't talk to me until I did the next thing she told me I was
supposed to do.
And she told me things like, there was an earthquake coming and
bad things would happen to my children if I didn't fulfill my obligations to
5RP(Jan. 5, 2015) at 40.
6 RP (Jan. 5, 2015) at 55.
7RP(Jan. 5, 2015) at 50.
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No. 73046-1-1/4
God on tithing ... And every time I brought up questions, she would bring
up a crisis going on with her and kind of silence me. She'd tell me to be
quiet, that I talked too much. She was very controlling.w
Allen used biblical passages and parables to convince Hughes that God needed her to
"obey the prophet of God"—Allen, specifically.9 For example, Hughes testified that
Allen referenced a passage in Malachi "that talks about robbing God with your tithes
and offerings. And if you don't give God your tithes, you're robbing God."10
On June 20, 2012, Hughes withdrew $11,335.84 from her family's savings
account and cashed out her entire retirement account worth $44,194.87. She gave all
the money to Allen in two cashier's checks. The same day, Allen opened an account at
Chase bank and deposited $55,330.71. Allen also wrote out a "receipt" to memorialize
the money that Hughes had given her.11 The note states that the "donation" was
intended for ministry work:
Receipt of checks donated for outreach work, ministry building,
church ministries, music publication, and helps.
This is to confirm that I, Pastor Sandra Allen, received a donation of
funds from Elizabeth Hughes for the outreach work and for needy and
Federal Way Outreach Ministries to help the indigent and any needy
people. Elizabeth Hughes donated these funds freely and to the ministry
to help the poor and the homeless. Funds were received on June 20th,
2012, 1:30 p.m. Elizabeth willingly donated these proceeds to help
support this work and to help feed the needy, total amount, $55,330.71,
Pastor Sandra Allen, Elizabeth Hughes, June 20th, 2012J12!
8RP(Jan. 5, 2015) at 56-57.
9RP(Jan. 5, 2015) at 57.
10 Malachi 3:8-9: "Will a man rob God? Yet you are robbing Me! But you say,
'How have we robbed You?' In tithes and offerings. You are cursed with a curse, for
you are robbing Me, the whole nation of you!" RP (Jan. 5, 2015) at 59.
11 Exhibit (Ex.) 27
12 Ex. 27; RP (Jan. 5, 2015) at 51-52.
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No. 73046-1-1/5
Hughes believed this money was specifically for the ministry Allen wanted to found.
Hughes testified she would not have given Allen that amount of money had she
believed Allen would spend it on herself:
Q. Would you have given her that $55,000 if she had told you that she
just needed some help?
A. No, not that amount of money, no, sir.
Q. And why is that?
A. Because we didn't have that much amount of money give-able
easily.
Q. Okay. And you were willing to give this to start a ministry?
A. Yes, sirJ13)
On June 21, the day after Hughes paid Allen, Allen withdrew $20,000 in cash from the
Chase bank account. On June 22, Allen paid $7,500 in cash for a 2002 Jaguar sedan.
Hughes did not know about the car purchase until a detective told her about it.
The next week, Allen told Hughes that "she made a mistake" and that "God said
[Hughes] actually needed to pay her 12 years of tithing,"14
[Allen] would change her mind [about the amount]. And so when I
tried to say, "Well, how come God is not pleased with every time I try to
obey him? Then he changes the bar and seems to, like, you know, keep
changing his plan," then she would just snap at me and say, "Obey the
prophet," and get mad at me.
But first, the purpose of giving her the money was that she said I
owed the Lord 10 years of tithing and then she said, no, it was 12 years of
tithing. And then she said I owed now on the net, on whatever the more
is, the gross or the net, whichever is the one before taxes. She said I owe
the money before taxes, not after. So after I gave her all this money, she
said, "That's not enough because you didn't do it on the net," whichever
the one is where you take the money out or there's no money taken out.[15]
Hughes could get cash advances on her credit cards, but she was worried she and her
husband—who did not know about these "donations"—would be unable to pay the
13RP(Jan. 5, 2015) at 79-80.
14RP(Jan. 5, 2015) at 63
15RP(Jan. 5, 2015) at 63.
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No. 73046-1-1/6
minimal monthly payments.16 Allen reassured Hughes by telling her an upcoming
record deal would provide funds to pay her back:
She told me that she was a recording artist and that she had a
record deal coming up. I believe it was with Capitol Records. And she
was going to get about $300,000 and she would give me $100,000 back
as soon as that deal came through and that would cover—I was very
concerned about the credit card monthly payments that would begin to
come in, that we wouldn't be able to afford. And so she said, "Don't worry
about it. My advance is coming really soon and I'll give you that money
and, before your husband even knows the credit cards have been used,
that money will be repaid to you."[17]
On June 28, Hughes took out cash advances on four credit cards and gave Allen
$21,500, which Allen deposited in her Chase checking account the next day.
Allen did give Hughes some of the money. She told Hughes she would be her
"ministry assistant" and paid her $500.18 She promised to give Hughes $1000 per
month and, in exchange, Hughes would have to complete "assignments" as the ministry
assistant.19 For example, the two women once went to a local IHOP and met a woman
with a sick infant. Allen instructed Hughes to buy an outfit and a prayer blanket for the
child. Allen planned to pray over the blanket so it would cure the child's illness. Allen
did not give Hughes any more money.
Instead, Allen made various purchases using a debit card tied to the Chase
account from July 9 through July 18. She spent nearly $4,000 on July 9 alone. The
various purchases included an insurance bill and storage unit rent, but also retail
purchases from Coach, Ross, Nordstrom, and Best Buy. She made two separate
16RP(Jan. 5, 2015) at 99.
17RP(Jan. 5, 2015) at 80.
18RP(Jan. 5, 2015) at 60.
19RP(Jan. 5, 2015) at 60.
No. 73046-1-1/7
withdrawals of $10,000 each on July 16 and 18. On July 18, she opened another
account at Wells Fargo and deposited around $9,000.
On July 9, Allen met Hughes at IHOP again and informed her that, unfortunately,
God was disappointed and required more money:
[0]n the last night that I met her at the IHOP, [Allen] told me, "I hate
to tell you this, but God just told me that you need to give more money,
like, $12,000 approximately to atone for the sin of one of your ancestors
who murdered somebody." Otherwise, my son would be killed.
. . . [Throughout the whole process, she kept telling me, if I do this,
then God will be pleased and then it'll be like, "I just prayed some more
and, now, he told me you didn't tell the whole truth. And now you have to
do this. And now he just told me something else and now you have to do
this." And towards the end of that particular period of time, I began getting
anxious, and suspicious, and frustrated.
And it's like, all I wanted to do was obey God. And I couldn't
understand why, every time I'd try to obey him, he'd change his mind,
according to the prophet... And so then, when she said, "Now you have
to come up with more money," I said, "I don't have any more money." And
she said, "God told me you're clever. You'll be able to figure out how to
get some more money."[20]
Hughes told Allen she could pay her another $14,000, but never did. That night,
Hughes decided to do some research to see if Allen "actually was who she said she
was."21 Hughes's research led her to question some of Allen's claims.
The next day, July 10, Hughes called the police. After speaking with Hughes,
police suspected Allen of extortion and theft. On July 11, police arrested Allen at the
motel she was staying in. Allen gave a lengthy interview. She claimed to be a music
writer with a "lucrative salary" as well as a minister.22 Allen admitted to taking Hughes's
money but told police it was for founding an outreach center. She told police the money
20 RP (Jan. 5, 2015) at 72-73.
21 RP(Jan. 5, 2015) at 77.
22 Ex. 1.
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No. 73046-1-1/8
would not be spent on anything other than securing a building and starting the outreach
center. She claimed that none of the money had been spent, "not one penny."23 She
specifically denied buying the Jaguar with Hughes's money. She later admitted to
buying the Jaguar with money from the Chase bank account she set up shortly after
receiving money from Hughes.
Allen portrayed her alleged "outreach" venture as a cooperative effort between
her and Hughes. Allen said that Hughes wanted to get involved with ministry work, so
Allen invited Hughes to help her start a church:
[Hughes] said she wanted to make a donation to the church. She
said that. I have, I have a, you know what because I do work with
business. I said are you sure you want to give any money to the church?
I told her because I'm trying to find a center and I'm going to do it.[24]
Allen said that Hughes "wantfed] to help the vision" that she had "for a help center" "to
do outreach."25 Allen clarified: "except we're non profit."26 She described the outreach
center as something they planned to do together: "that's what we talked about, what are
we going to [do], whether I'm going to buy a place or...," and "we need a church
building ... and we want to be more supportive of outreach here in our own city."27
Allen later submitted a written statement that also suggested Hughes "had the same
desires and wanted to help too."28 Allen claimed that "Elizabeth [Hughes] said she was
tired of being un-involved."29 Hughes "wanted to do outreach to help people with me."30
23 Pretrial Ex. 3 at 52, 54.
24 Pretrial Ex. 3 at 13.
25 Pretrial Ex. 3 at 15.
26 Pretrial Ex. 3 at 15 (emphasis added).
27 Ex. 1.
28 Ex. 22.
29 Ex. 22.
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No. 73046-1-1/9
Over the next few weeks, Allen continued to make large withdrawals from the
various bank accounts. She also continued to contact police and sent them written
statements. In one statement she claimed to be organizing an outreach center and that
she knew many important church leaders. She denied threatening Hughes or stealing
money from her. She insisted Hughes "was sincerely devoted to this vision."31 She left
a lengthy voicemail claiming Hughes had "changed her mind," and that "we're just trying
to get something started."32 In another meeting with police, she described her bank
account as "the money that we had, me and Elizabeth [Hughes]."33 By August 16, the
original Chase bank account Allen set up was down to $360.93. Police never recovered
any of Hughes's money.
The State charged Allen on one count of first degree theft in excess of $5,000
and one count of second degree perjury. At trial, Allen denied discussing tithing with
Hughes. She denied telling Hughes that she wanted to set up a ministry. She claimed
setting up the ministry was Hughes's idea. Allen claimed Hughes came to her one day,
handed her a check, and said, "surprise."34 She testified that Hughes "took it upon
herself to make a blueprint"; she made the plan like "a personal representative would do
for any person or a leader."35
The jury acquitted on the perjury charge, but concluded Allen was guilty of first
degree theft with an aggravating factor of a major economic offense. The court
30 Ex. 22.
31 Ex. 5.
32 Ex. 17.
33 Ex. 16.
34RP(Jan. 7, 2015) at 28.
35 RP (Jan. 7, 2015) at 143-44.
No. 73046-1-1/10
imposed a sentence of 90 days confinement with 30 days converted to community
service and the remainder for eligible work release. It also ordered Allen to pay
$77,030.41 in restitution.
Allen appeals.
ANALYSIS
I. Standard of Review
In a criminal prosecution, the State must prove each element of the charged
crime beyond a reasonable doubt.36 "The test for determining the sufficiency of the
evidence is whether, after viewing the evidence in the light most favorable to the State,
any rational trier of fact could have found guilt beyond a reasonable doubt. When the
sufficiency of the evidence is challenged in a criminal case, all reasonable inferences
from the evidence must be drawn in favor of the State and interpreted most strongly
against the defendant. Aclaim of insufficiency admits the truth of the State's evidence
and all inferences that reasonably can be drawn therefrom."37 Credibility determinations
are for the trier of fact and are not subject to review.38 We defer to the trier of fact on
issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the
evidence.39
36 In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L Ed. 2d. 368 (1970).
37 State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992) (internal citations
omitted).
38 State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990).
39 State v. Walton. 64 Wash. App. 410, 415-16, 824 P.2d 533 (1992).
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No. 73046-1-1/11
II. Sufficiency of the Evidence for Alternative Means
Criminal defendants have a constitutional right to a unanimous jury verdict.40
This right includes the right to unanimity on the means by which the defendant is found
to have committed the crime.41 When a crime may be committed by alternative means,
a particularized expression of unanimity as to the means by which the defendant
committed the crime is unnecessary if evidence is sufficient to support each of the
alternative means submitted to the jury.42
Here, the State charged Allen with first degree theft under RCW 9A.56.030(1)(a),
which prohibits a person from committing "theft" of "[property or services which
exceed(s) five thousand dollars in value ... ."43 A separate statute provides two
relevant definitions for "theft"
(1) Theft" means:
(a) To 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) By 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 .. . .[44]
A statute defines "exerts unauthorized control" to mean "[h]aving any property or
services in one's possession, custody, or control as partner, to secrete, withhold, or
appropriate the same to his or her use or to the use of any person other than the true
owner or person entitled thereto, where the use is unauthorized by the partnership
40 Const, art. I § 21.
41 State v. Orteaa-Martinez. 124 Wash. 2d 702, 707, 881 P.2d 231 (1994).
42 Orteaa-Martinez, 124 Wash. 2d at 707-08.
43RCW9A.56.030(1)(a).
44 RCW 9A.56.020(1)(a), (1)(b).
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No. 73046-1-1/12
agreement" RCW 9A.56.010(22)(c) (emphasis added). It also provides that "'by color
or aid of deception' means that the deception operated to bring about the obtaining of
the property or services; it is not necessary that deception be the sole means of
obtaining the property or services." RCW 9A.56.010(4).
The State submitted an instruction permitting the jury to convict Allen under
either of these definitions, thereby establishing alternative means to find guilt beyond a
reasonable doubt:
To convict the defendant of the crime of theft in the first degree, as
charged in count 1, each of the following four elements of the crime must be
proved beyond a reasonable doubt:
(1) That during a time between June 3, 2012, and August 16, 2012,
the defendant
(a) exerted unauthorized control over property of another; or
(b) by color or aid of deception, obtained control over
property of another;
and
(2) That the property exceeded $5000 in value;
(3) That the defendant intended to deprive the other person of the
property; and
(4) That this act occurred in the State of Washington.!451
The State provided additional instructions defining each alternative means consistent
with RCW 9A.56.010(4) and (22)(c). Because the jury provided no particularized
expression as to the means by which Allen committed the crime, we may affirm her
conviction only if sufficient evidence supports both alternative means submitted to the
jury.46
45 Clerk's Papers (CP) at 33 (emphasis added).
46 The State can avoid unanimity problems in alternative means cases by using a
Petrich instruction or other means to clarify the jury's unanimity as to each alternative
means it relies upon. See State v. Petrich. 101 Wash. 2d 566, 572, 683 P.2d 173 (1984)
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No. 73046-1-1/13
1. Unauthorized control based on a partnership agreement
Allen argues the evidence was insufficient to prove that she exerted unauthorized
control over the property of another because the State failed to prove she violated a
partnership agreement.47 Whether sufficient evidence supports Allen's conviction for
exerting unauthorized control based on a partnership agreement depends on whether
the term "partnership agreement" refers to a technical definition meaning an agreement
to establish a for-profit business or a common usage definition meaning an agreement
to jointly pursue common action.
Allen contends the term "partnership agreement" refers only to an agreement to
engage in a for-profit business. She therefore concludes that her conviction is
unsupported by sufficient evidence because the State failed to show that Allen and
Hughes sought to create such a business. But nothing in the statute's plain language or
legislative history suggests that the legislature intended to strictly limit the term
"partnership agreement" to the technical definition Allen proposes.
When determining the meaning of a statute, "[t]he court's fundamental objective
is to ascertain and carry out the legislature's intent."48 The legislature is presumed to
intend the plain meaning of its language.49 "In determining the plain meaning of a
provision, we look to the text of the statutory provision in question, as well as 'the
context of the statute in which that provision is found, related provisions, and the
overruled in part on other grounds bv State v. Kitchen, 110 Wash. 2d 403, 756 P.2d 105
(1988). The State failed to do so here.
47 See CP at 36; RCW 9A.56.010(22)(c).
48 In re Pet, of Danforth, 173 Wash. 2d 59, 67, 264 P.3d 783 (2011).
49 State v. Gibson. 16 Wash. App. 119, 127, 553 P.2d 131 (1976).
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No. 73046-1-1/14
statutory scheme as a whole.'"50 "In criminal cases, fairness dictates that statutes
should be literally and strictly construed and that courts should refrain from using
possible strained interpretations."51
When a term is not defined by a statute, judicial opinion, or pattern jury
instruction, courts employ the common understanding of the term rather than its
technical definition.52 To determine the ordinary meaning of a term, courts look to
standard English language dictionaries.53 Courts typically do not rely on a legal
dictionary unless there is some indication the term should be given its technical
meaning.54 When "[t]here is no indication that the legislature intended to use the legal
definition of the term ... [r]eliance on a legal dictionary definition is ... improper."55
The plain language of the term "partnership agreement' is not restricted to only
for-profit businesses. The term includes mutual arrangements to pursue a common
purpose. The dictionary defines "partnership" as "the fact or state of being a partner."56
It defines "partner" as "one that shares in the possession or enjoyment of something
with another," or, alternatively, "one that is associated in any action with another:
Associate, Colleague."57 Therefore, the plain, ordinary meaning of "partnership
agreement' does not require that the arrangement be specifically for profit. The term
simply refers to an agreement to associate for specific action.
50 State v. Ervin. 169 Wash. 2d 815, 820, 239 P.3d 354 (2010) (quoting State v.
Jacobs. 154 Wash. 2d 596, 600, 115 P.3d 281 (2005)).
51 State v. Garcia. 179 Wash. 2d 828, 837, 318 P.3d 266 (2014).
52 State v. Brown. 132 Wash. 2d 529, 611, 940 P.2d 546 (1997).
53 State v. Gonzales. 168 Wash. 2d 256, 263, 226 P.3d 131 (2010).
54 Prostov v. Dep't of Licensing. 186 Wash. App. 795, 806, 349 P.3d 874 (2015).
55 Prostov. 186 Wash. App. at 806.
56 Webster's Third New International Dictionary 1648 (2002).
57 Webster's Third New International Dictionary 1648 (2002).
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No. 73046-1-1/15
In support of her technical legal definition argument, Allen relies on Black's Law
Dictionary, which defines "partnership" as a "voluntary association of two or more
persons who jointly own and carry on a business for profit."58 But the plain language of
the statute does not reveal the legislature intended the term "partnership agreement' be
given its technical meaning. Consistent with the broad dictionary plain meaning,
"partnership agreement" includes joint activities undertaken whether or not for profit.
The State presented sufficient evidence to prove Allen and Hughes formed a
"partnership agreement" within the term's common meaning—an agreement to
associate for a common purpose. Allen convinced Hughes to give her money to build
an outreach ministry. Though Hughes provided the money, she and Allen intended that
they would jointly participate in its formation. Hughes testified that the money was for
the ministry. Allen gave Hughes the position of "ministry assistant."59 The "receipt'
Allen and Hughes signed reflects the money was part of an agreement between the two
women to form a ministry and engage in certain charitable pursuits.60
Allen indicated during her interview with police that the ministry was a joint
venture she formed with Hughes. Allen said that Hughes "want[ed] to help the vision"
that she had "for a help center" "to do outreach."61 She described the outreach center
as something they planned to do together: "that's what we talked about, what are we
going to [do], whether I'm going to buy a place or.. .," and "we need a church building .
58 Black's Law Dictionary 1295 (10th ed. 2014).
59RP(Jan. 5, 2015) at 60.
60 Ex. 27; RP (Jan. 5, 2015) at 51-52.
61 Pretrial Ex. 3 at 15.
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No. 73046-1-1/16
.. and we want to be more supportive of outreach here in our own city."62 Allen later
submitted a written statement that also suggested Hughes "had the same desires and
wanted to help too."63 Allen claimed that "Elizabeth [Hughes] said she was tired of
being un-involved."64 Hughes "wanted to do outreach to help people with me."65
Viewed in the light most favorable to the State, a rational trier of fact could have
concluded that Allen and Hughes agreed to jointly form a ministry and engage in
charitable activities.66 Such a joint enterprise is a partnership agreement.
Allen contends that the legislature added the "partnership agreement' subsection
to the criminal code to address theft only in for-profit business partnerships. In State v.
Birch.67 the court recognized that "a partner cannot be prosecuted for use of partnership
property because the theft statute requires the theft to be property of another."68
Because each partner has an undivided interest in all partnership property, it is not the
"property of another."69 The legislature amended the theft statute two years after Birch
to include the "partnership" section at issue here. In Coria. our Supreme Court casually
observed that the amendment was a response to Birch.70 Nothing in the statute's
language or legislative history indicates the amendment was limited to a "partnership
agreement" of a for-profit business or to the holding in Birch. The legislature could have
62 Ex. 1.
63 Ex. 22.
64 Ex. 22.
65 Ex. 22.
66 Salinas. 119 Wash. 2d 192, 201.
* State v. Birch. 36 Wash. App. 405, 675 P.2d 246 (1984).
68 Birch. 36 Wash. App. at 408.
69 Birch. 36 Wash. App. at 408.
70 See State v. Coria 146 Wash. 2d 631, 638, 48 P.3d 980 (2002) ("In response [to
Birch] the legislature made it a crime for a partner to steal partnership property."); Laws
OF 1986, REG. SESS., ch. 257 § 2.
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No. 73046-1-1/17
included a definition of "partnership agreement" limiting the term to its technical legal
meaning, but it did not do so. Moreover, even if the amendment was primarily a
response to Birch and the traditional exclusion of partnership property as "property of
another,"71 that does not mean the legislature did not also intend to extend this
alternative means to theft of property being used in a joint non-profit activity. Allen
offers no tenable policy reason to extend theft to embezzlement by for-profit business
partners but not non-profit joint ventures.
Allen's reliance on definitions from the Uniform Partnership Act is also
unpersuasive. The Act defines "partnership" as "an association of two or more persons
to carry on as co-owners as a business for profit formed under RCW 25.05.055,
predecessor law, or comparable law of another jurisdiction."72 It also defines
"partnership agreement' as "the agreement, whether written, oral, or implied, among the
partners concerning the partnership, including amendments to the partnership
agreement."73 And the definitions section of the Act expressly declares that "[t]he
definitions in this section apply throughout this chapter unless the context clearly
requires otherwise."74 Therefore, the legislature specifically intended that for purposes
of the Act, "partnership" refers only to a legally formed partnership. But Allen provides
71 See State v. Eberhart. 106 Wash. 222, 179 P. 853 (1919); Annot. Embezzlement,
larceny, false pretenses, or allied criminal fraud committed by a partner. 82 ALR3d 822.
72 RCW 25.05.005(6).
73 RCW 25.05.005(7).
74 RCW 25.05.005 (emphasis added).
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no authority that the definitions under the Act applicable to that chapter also extend to
the criminal code.75
Allen argues that even if "partnership agreement" includes the arrangement
between her and Hughes, the receipt they signed did not specifically prevent Allen from
spending the money on herself. She relies on State v. Jov.76 In Joy, the defendant was
a contractor who had entered into several contracts to remodel various homes.77 The
defendant received advance payments on the projects and failed to complete them.78
The State charged the defendant with six counts of theft under an embezzlement
theory, and the jury convicted the defendant on five counts.79 The court reversed two of
the convictions because "there was no testimony about what the parties agreed the
money was to be used for, and the written contract does not restrict the use of the
advance payments."80 Allen contends that, like Joy, the receipt here does not restrict
the use of the funds Hughes provided.
This argument fails. The receipt here djd provide restrictions within the meaning
of Joy. Hughes and Allen signed a "receipt' stating that Allen would use the funds "for
outreach work, ministry building, church ministries, music publication, and helps."81
75 See, e^, State v. Veliz. 176 Wash. 2d 849, 854 n.3, 298 P.3d 75 (2013)
("Though the term's 'permanent parenting plan' and 'temporary parenting plan' are
defined in RCW 26.09.004(3) and (4), this statute states that the definitions 'apply
throughout this chapter' signifying that the terms are not meant to define terms
appearing in the criminal code.").
76 State v. Jov. 121 Wash. 2d 333, 851 P.2d 654 (1993).
77 Joy, 121 Wash. 2d at 335-38.
78 Jov. 121 Wash. 2d at 335-38.
79 Jov. 121 Wn.2dat335.
80 Jov. 121 Wn.2dat342.
81 Ex. 27.
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Allen then spent the money on a Jaguar and shopping trips to Ross, Coach, Nordstrom,
and Best Buy.
The receipt here is more like the contracts involved in the counts the Joy court
affirmed. When the defendant agreed to use an advance payment "to buy equipment
and materials," or "to purchase windows," and then did something else with the money,
the court held a jury could conclude the defendant violated the agreement. The receipt
here indicated the funds would be used "for outreach work, ministry building, church
ministries, music publication, and helps."82 Like Joy, a jury could conclude that Allen's
purchases violated this agreement.
Further, Allen incorrectly suggests that the agreement between Hughes and
Allen is limited to the written receipt. In Joy, the court looked not only to written
contracts but also testimony about what the parties understood regarding the purpose
for the advance payments.83 Here, the jury may properly consider the parties' testimony
about the surrounding circumstances in addition to the written receipt to determine the
scope of the agreement between Hughes and Allen. As discussed, the evidence
supports the inference that both Allen and Hughes understood the money would be
used for building the ministry. Hughes specifically testified she would not have given
Allen that amount of money had she believed she would spend it on herself.
For the same reason, Allen's argument that her purchases did not violate the
agreement also fail. She argues that she was "needy," and because the agreement
permitted spending money to support the needy, her purchases did not violate the
82 Ex. 27.
83 Jov. 121 Wash. 2d 335-38.
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agreement. This argument ignores the standard of review for a sufficiency claim. We
consider the evidence in the light most favorable to the State, not the light most
favorable to Allen. We need only consider whether any rational jury could have found
that Allen misused the funds under the agreement she had with Hughes. Viewed in a
light most favorable to the State, there is sufficient evidence allowing a jury to conclude
beyond a reasonable doubt that Allen's purchases violated their agreement.
2. By color or aid of deception
Allen argues the state failed to present sufficient evidence to demonstrate she
committed theft "by color or aid of deception."84 "By color or aid of deception" means
"that the deception operated to bring about the obtaining of the property or services; it is
not necessary that deception be the sole means of obtaining the property or services."85
"'Deception' includes a broad range of conduct, including 'not only
representations about past or existing facts, but also representations about future facts,
inducement achieved by means other than conduct or words, and inducement achieved
by creating a false impression even though particular statements or acts might not be
false.'"86 If the victim would not have parted with the property even if the true facts were
known, there is no theft.87
The State presented ample evidence of deception here. Hughes testified that
Allen presented herself as a well-known pastor and prophet. Allen claimed to
communicate with God, and she told Hughes that God commanded she pay money to
84 CP at 33.
85 RCW 9A.56.010(4); see ajso CP 37 (Jury instruction 9).
86 State v. Mehrabian. 175 Wash. App. 678, 700, 308 P.3d 660 (2013) (quoting
State v. Casev. 81 Wash. App. 524, 528, 915 P.2d 587 (1996)).
87 State v. Renhard. 71 Wash. 2d 670, 672-74, 430 P.2d 557 (1967).
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Allen. Allen consistently reminded Hughes that if she did not obey God or "the prophet,"
bad things would happen, including earthquakes and even harm to her children.88 Allen
also claimed to be a recording artist, and she promised to pay Hughes $100,000 after
she received payment from an upcoming record deal.
When asked if she would have paid Allen $55,000 because she just "needed
some help," Hughes responded "No, not that amount of money, no, sir."89 Although this
testimony suggests that Hughes would have given Allen some money, there is a
reasonable inference she would not have given Allen her life savings. The jury only
needed to find that Hughes would not have given Allen at least $5,001 had Hughes
known the truth. Viewing the facts in the light most favorable to the State, sufficient
evidence supports such a determination.
Allen's reliance on Renhard is mistaken. In Renhard. the defendant was the
president of a corporation who asked the assistant secretary for two checks from the
corporation.90 The defendant claimed the checks were to pay for equipment, but he
used them to pay for property he was purchasing for his own use.91 The court held the
State failed to prove deception because the secretary could not refuse to sign the
checks and because the defendant could have obtained the checks even if he claimed
he needed them for personal use.92 Hughes specifically testified that she would not
have given Allen such a large amount of money had she known the truth. Unlike
Renhard. she was not required to give Allen money due to an employer-employee
88RP(Jan. 4, 2015) at 56-57.
89 RP (Jan. 5, 2015) at 79-80.
90 Renhard. 71 Wash. 2d at 671.
91 Renhard. 71 Wash. 2d at 671.
92 Renhard. 71 Wash. 2d at 671-72.
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relationship, nor could the funds be construed as a "salary."93 Sufficient evidence
supports Allen's conviction for theft by deception.
CONCLUSION
We conclude that "partnership agreement' under RCW 9A.56.010(22)(c) refers to
the plain, ordinary meaning of a joint activity undertaken whether or not for profit. Here,
the State presented sufficient evidence to show that Allen violated a partnership
agreement and that, but for Allen's deception, Hughes would not have given Allen her
life savings. Because sufficient evidence supports both alternative means, we affirm the
judgment and sentence.
WE CONCUR:
«£«//
93
Renhard, 71 Wash. 2d at 671-72.
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