State Of Washington v. Mahamud Mohamed Haro ( 2014 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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No. 70812-1-1 *•£!—
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MAHAMUD M. HARO, UNPUBLISHED OPINION UD
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Appellant. FILED: November 10. 2014 ~
Spearman, C.J. — Mahamud Haro was convicted of one count of forgery
for knowingly depositing a falsified check. On appeal he claims that the trial court
erred by admitting evidence of his bank statements and allowing the State to
argue that his poverty was evidence of his guilt. We conclude that the trial court
acted within its discretion when admitting the statements, and correctly instructed
the jury to disregard the prosecutor's comments. Finding no error, we affirm.
FACTS
Mahamud Haro deposited a check into his Bank of America checking
account on August 29, 2011, using an automated teller machine (ATM) located at
the Westwood Village branch. The check was made payable to Haro for
$4,768.25 and drawn from an account belonging to Thuy Nguyen. A photograph
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of the transaction was captured on the ATM's camera. Haro immediately
withdrew $200 from his account after the check had been deposited.
Nguyen formerly lived at 11635 First Avenue South in 2011, in the same
building that Haro listed as his address on the bank account. The residence, part
of the Arbor Heights Apartments in Seattle, is less than a ten-minute drive from
the Westwood Village ATM. Nguyen had previously ordered new checks from
Bank of America in 2011, but she never received them. Nguyen testified that she
did not know Haro, did not recognize him in court, nor did she ever write a check
for $4,768.25 to Haro or anyone else. Nguyen also testified that neither the
handwriting nor the signature on the check were hers.
Detective Laura Alspach of the King County Sheriffs Office investigated
the matter and received a copy of the check from Bank of America. On October
11, 2011, Detective Alspach went to 11635 First Avenue South, Unit D 106, to
contact Haro. After knocking on the door and receiving no answer, she left a
business card with a handwritten note stating: "Mahamud Haro, please call."
Verbatim Report of Proceedings (VRP) at 224. After approximately one hour, the
detective received a phone call from a person acknowledging that he was
Mahamud Haro and was calling in response to the business card left at the
residence.
At trial during preliminary motions, Haro objected to the admission of
State's Ex. 1, bank statements from Haro's checking account with Bank of
America. The bank statements showed that Haro had a very low to negative
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balance around the time the forged check was deposited into his checking
account. The trial court heard argument from both parties about the probative
value and potential prejudice of the exhibit. The court found the exhibit relevant
to and admissible for the purposes of establishing "knowledge," but excluded all
references to "overdraft" fees or fines as more prejudicial than probative. Jd. at
94-95. The court indicated to Haro that it would consider giving a limiting
instruction regarding the exhibit, if one were proposed.
At trial, Bank of America investigator Tim Whitesitt testified that Ex. 1
reflected account records for Haro, and that the check-deposit in question
occurred at the Westwood banking center. Whitesitt also testified that the records
contained in Ex. 1 enabled him to determine at which ATM and on which date
and time the check was deposited.
In closing argument, the State made two comments regarding Haro's bank
account. The State argued that Haro "came across this check" and decided,
because he didn't "have a lot of money in [his] bank account," to "write it out to
himself, forge the account holder's signature, purport that check to be his own,
and then deposit it into his own bank account." VRP (7/10/13) at 301-02. Haro's
counsel objected to this argument as improper, jd. The trial court overruled the
objection, stating that "[t]he jurors are reminded at this time that the statements
and arguments by counsel are not, in and of themselves, evidence." Later, in its
rebuttal remarks, the State asked the jury "[w]hy else would somebody forge a
check for that amount of money when it's shown that in his account there is no
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other transaction that even comes close to that?" Id. at 328-29. Haro's counsel
did not object to this comment during closing argument.
The jury found Haro guilty of the crime of forgery and the court imposed a
standard range sentence. Haro appeals.
DISCUSSION
Admissibility of Bank Statements
We review a trial court's evidentiary rulings for abuse of discretion. State v.
Gulov. 104 Wn.2d 412, 429-30, 705 P.2d 1182 (1985). Discretion is abused
when it is based on untenable grounds or for untenable reasons. Wash. State
Physicians Ins. Exch. Ass'n v. Fisons Corp.. 122 Wn.2d 299, 339, 858 P.2d 1054(1993). "If the trial court's ruling is based on an erroneous view of the law or
involves application of an incorrect legal analysis it necessarily abuses its
discretion." Dix v. ICT Group. Inc.. 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
Haro argues that the trial court erred by admitting his bank statements and
permitting the State to characterize a lack of funds as evidence of his guilt. Haro
argued that the low to negative balance reflected in the bank statements allowed
the jury to infer that because he was poor, he was more likely to commit a crime
to obtain money. He also contends that in its closing remarks the State made that
very argument to the jury. The State argues that the trial court exercised proper
discretion in admitting Haro's account records to show knowledge that the check
was forged. It further argues that it made no improper argumentto the jury and
that to the extent any impropriety occurred, itwas cured by the trial court's
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contemporaneous instruction to the jury. We conclude admission of the bank
statements was not abuse of discretion. We also find, regarding the alleged
improper comments by the State during its closing argument, that the issue is
waived as to the second comment and although the first comment was improper,
in light of the entire record, Haro's right to a fair trial was not prejudiced.
Relevant evidence is evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence. ER 401. "'In determining
relevance, (1) the purpose for which the evidence is offered must be of
consequence to the outcome of the action and (2) the evidence must tend to
make the existence of the identified fact more probable.'" State v. Jones, 93 Wn.
App. 166, 173-74, 968 P.2d 888 (1998) (quoting State v. Suttle. 61 Wn. App.703,
710-11, 812 P.2d 119(1991)). Relevant evidence may be excluded if'"its
probative value is substantially outweighed by the danger of unfair prejudice....'"
Id, (quoting State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987)); ER 403.
Because the trial court has wide discretion in its evaluation of relevance under
ER 401 and its balancing of probative value against its prejudicial effect or
potential to mislead under ER 403, we will reverse only for a manifest abuse of
that discretion. Jones, 93 Wn. App. at 173-74 (citing State v. Luvene. 127 Wn.2d
690, 707, 903 P.2d 960 (1995)).
Under RCW 9A.60.020(1), "[a] person is guilty of forgery if, with intent to
injure or defraud: (a) He or she falsely makes, completes, or alters a written
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instrument or; (b) He or she possesses, utters, disposes of, or puts off as true a
written instrument which he or she knows to be forged." Haro's bank records
showed that the deposit of a check totaling $4,768.25 was inconsistent with his
transaction history. The trial court discussed the fact that "because this amount is
aberrational, surely one would have - that would pique their knowledge of this?"
and noted that because the amount of the check was "unusual," that "one would
not cavalierly deposit this." VRP (7/08/13) at 91-92. In other words, the trial court
concluded that the unusually large amount of the deposit at least arguably should
have put Haro on notice that the check was a forgery. Thus, itfound the evidence
was relevant to and admissible on the issue of whether Haro knew the check was
forged.1
Haro claims that even if the evidence is relevant, its prejudicial effect
outweighed its probative value. He contends that the bank records gave rise to
an impermissible inference that he committed the crime because he was poor.
Moreover, he argues that the State used the evidence to improperly argue to the
jury that his lack of funds proved his guilt.
1 Haro claims on appeal that "[his] knowledge, the reason given for the admission ofthis
evidence by the trial court, was never in dispute," and it was therefore error for the trial court to
admit this evidence. Brief of Appellant at 7. This is not accurate. Haro raised the defense that
there was "[n]o inference that the person in possession either forged it or know that it was not
genuine absent an explanation." CP at 85. In closing argument, Haro disputed the element of
knowledge and argued that the State only had "a hunch that Mr. Mahamud knew the check was
forged, that's not enough." VRP (7/10/13) at324. Haro also proposed an alternate jury instruction
that would separate the two concepts ofknowledge and intent, and the trial court engaged in a
lengthy pre-trial discussion regarding the jury instruction related to knowledge. The element of
knowledge was clearly in dispute.
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"Evidence of poverty is generally not admissible to show motive" or to
"create an inference that a defendant's financial status alone would suggest that
he or she is more likely to commit a financially-motivated offense." State v.
Kennard. 101 Wn. App. 533, 541, 6 P.3d 38 (2000) (citing United States v.
Mitchell. 172 F.3d 1104, 1108 (9th Cir. 1999)); Jones. 93 Wn. App. at 174. Proof
of poverty or desire for money, without more, "is likely to amount to a great deal
of unfair prejudice with little probative value." Mitchell. 172 F.3d at 1109.
Evidence of financial status, however, may be admissible to show that defendant
was living beyond his or her means. State v. Matthews. 75 Wn. App. 278, 287,
877 P.2d 252 (1994) (evidence that defendant's lifestyle seemingly exceeded his
income "established a link between [his] financial condition and a motive to
commit robbery"); Kennard, 101 Wn. App. at 543 (evidence of bankruptcy was
relevant because defendant was delinquent during the time of the robberies and
the first creditor's meeting occurred shortly before the first robbery); cf, Mitchell.
172 F.3d at 1109 (not appropriate to admit evidence that did not show "more than
the mere fact that the defendant is poor"). Additionally, an "unexplained and
abrupt change in that status for the better" might indicate a motive to commit a
crime. U.S. v. Jackson. 882 F.2d 1444, 1450 (9th Cir. 1989) (where witness
testimony that he was surprised when defendant paid $100 because he never
had any money was admitted).
In Jones, the trial court admitted documents from the Department of
Employment Security that showed Jones had no reported income and did not
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apply for unemployment compensation for a two year period during which at least
one of the alleged cocaine sales occurred. 93 Wn. App. at 173. The trial court
found the evidence to be probative with regard to whether or not Jones was
selling drugs. Id. The trial court reasoned that Jones was "'not a person who is
simply unemployed or not working, but a person who is unemployed who has a
large amount of cash in his pocket and is accused of a crime for which profit is
certainly a motive for commission of such an act.'" Id. On appeal, this Court
found that the trial court engaged in proper balancing and concluded that the
evidence was relevant and that its probative value was not substantially
outweighed by the danger of unfair prejudice. Id. at 176. Had Jones been found
"with no money after the alleged offense, or with an insignificant sum, the
admission of evidence of Jones' financial situation would have been error." Id.
Here, the facts are similarto those in Jones and Jackson, where evidence
of the defendant's financial status was properly admitted for a valid non-character
purpose, such as to demonstrate an abrupt change in circumstances. Haro's
bank statements were offered into evidence not to establish his poverty,2 but to
demonstrate that a deposit of a $4,768.25 check was inconsistent with his
2 Haro argues that under Jones, the bank statements should not have been admitted
because they were not essential to the State's theory ofthe case. The trial court in Jones stated
that "financial records to show motive for theft or for the gain of money..., may be admissible if
the state's theory ofthe case supports such a finding by the court." 93 Wn. App. at 173. This does
not limit a trial court's discretion to admitsuch evidence for purposes other than motive without
making a finding with regard to the theory of the case. Furthermore, in his brief Haro states that
"[t]he State's theory of the case was that Haro forged one of Nguyen's checks and deposited it in
his account." Brief ofAppellant at 7. The account records showing the deposit into Haro's account
would undoubtedly be essential to such a theory of the case.
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No. 70812-1-1/9
transaction history. The trial court did not abuse its discretion when it concluded
that the probative value of the evidence exceeded its prejudicial effect.3
Haro also argues he is entitled to a new trial because the State engaged
in improper conduct during its closing argument. He points to the State's
argument that Haro "came across this check. He decided, I don't have a lot of
money in my bank account... to take a check, write it out to himself, forge the
account holder's signature, purport that check to be his own, and then deposit it
into his own bank account." VRP (7/10/13) 301-02. And the State's rebuttal
argument, asking "[w]hy else would somebody forge a check for that amount of
money when it's shown that in his account there is no other transaction that even
comes close to that?" VRP (7/10/13) 328-29. Haro did not object to the second
comment, but objected to the first on the ground that it was an "improper
comment." VRP (7/10/13) at 302. The court overruled his objection but reminded
the jury "that the statements and arguments by counsel are not, in and of
themselves, evidence." jd.
3To further minimize any concerns that a juror would consider Haro's bank statements
for an improper purpose, the trial court invited Haro to propose an oral or written limiting
instructions. The court proposed:
At the time the information comes to the jurors, I would then read the limiting
instruction to the jurors and advise them that they are instructed as follows:
That they should not use this for this purpose; and/or in the written
instructions we give to the jurors at the end of the case, we could have a
written instruction that says that as well. Specifically it would say, with
regard to Exhibit 6, whatever it is, or it turns out to be, you are not to
consider this information for whatever. VRP (7/08/13) at 100.
Haro did not propose any instruction. VRP (7/10/13) at 288.
No. 70812-1-1/10
We review a prosecuting attorney's allegedly improper remarks in the
context of the issues in the case, the evidence addressed in the argument, and
the instructions given to the jury. State v. Anderson. 153 Wn. App. 417, 427, 220
P.3d 1273 (2009). The State is generally afforded wide latitude when making
arguments to the jury and is allowed to draw reasonable inferences from the
evidence. State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006). The
defendant bears the burden of showing that the comments were improper and
prejudicial. State v. Ish. 170 Wn.2d 189, 200, 241 P.3d 389 (2010). If the
statements were improper, and an objection was lodged, we then consider
whether there was a substantial likelihood that the statements affected the jury.
Anderson, 153 Wn. App. at 427. Absent a proper objection and request for a
curative instruction, however, defense waives the issue of misconduct unless the
comment was so flagrant or ill-intentioned that an instruction could not have
cured the prejudice. State v. Charlton, 90 Wn.2d 657, 661, 585 P.2d 142 (1978).
Here, Haro failed to object to the second alleged improper comment and he does
not argue that the comment was flagrant or ill-intentioned. Even assuming the
comment to be improper, we conclude the issue is waived. Regarding the first
comment, because Haro's objection was overruled, we consider whether the
argument was improper and if so, whether the statement likely affected the jury.
The prosecutor argued that Haro's financial circumstances led him to
seize the opportunity presented by the forged check. This argument is improper
because it invites the jury to infer that Haro's financial status alone made him
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No. 70812-1-1/11
more likely to commit the crime. See Kennard at 541 ("Evidence of poverty is
generally not admissible to show motive.") (Citing Mitchell at 1108). In addition, it
exceeds the bounds of the basis for the court's admission of the evidence, which
was limited to showing Haro's knowledge that the check was forged.4 But even
though the comment was improper, Haro has not shown that this single
characterization affected the jury's verdict. The State presented overwhelming
evidence of Haro's guilt. The trial court also immediately reminded the jurors that
"the statements and arguments by counsel are not, in and of themselves,
evidence." VRP (7/10/13) at 302. This instruction appropriately mitigated any
potential prejudice that might have resulted from the State's comment.
We find no abuse of discretion in admitting the evidence in question and
while the State made improper remarks during its closing argument, it is unlikely,
in light of the entire record, that they affected the verdict. We conclude that no
new trial is warranted.
Statement of Additional Grounds
Haro submits a lengthy pro se statement of additional grounds ("SAG")
containing over 150 issues. Adefendant may submit a pro se statement of
additional grounds for review pursuant to RAP 10.10. However, "[an] appellate
court will not consider a defendant/appellant's statement of additional grounds for
review if it does not inform the court of the nature and occurrence of alleged
4The trial court specifically prohibited the State from using the evidence to argue that
poverty makes one more likely to commit a crime. The court stated, "I would not expect those
arguments to be made, that is, one is more likely a criminal dueto [poverty]. The Court would
sustain [an objection to] any such argument in any event." VRP (7/08/13) at 94-95.
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No. 70812-1-1/12
errors." RAP 10.10(c). Furthermore, we only consider arguments that are not
repetitive of briefing. RAP 10.10(a). Finally, issues that involve facts or evidence
not in the record are properly raised through a personal restraint petition, not a
statement of additional grounds. State v. Alvarado. 164 Wn.2d 556, 569, 192
P.3d 345 (2008).
Haro lists 175 additional errors that loosely fall into the following
categories: philosophical musings; issues of fact that have no relevance to the
alleged incident; tort and contract affirmative defenses; and miscellaneous
allegations of error that lack factual support. First, Haro raises factual issues
related to his actual name and title5 Ms. Nguyen's identity, the receipt of checks
by mail, cancellation ofthe check, and the proper opening ofthe bank account in
question. None ofthese factual issues, if proven, would have any relevance to
the charges against Haro, nor would they negate an element of the crime or
excuse any conduct. Additionally, to the extent that these issues involve facts or
evidence not in the record, they should be raised in a personal restraint petition.
Haro also alleges a number of legal theories as affirmative defenses, such
as lack ofjurisdiction, no proof of mailing/mailbox rule, unconscionability,
contributory negligence, fault ofshipper, informed consent, and a slew of other
contract and tort defenses too numerous to list. Haro asserts only defenses that
5 Haro entered a plea of not guilty, which puts every single element of the charge at
issue, including identity. His statement of additional grounds argues that the State must do more
than prove identity of names to establish beyond a reasonable doubt that he was the person who
committed the crime. He does notallege, however, that he was misidentified by name and that it
was error to rely on his name as evidence that he committed the crime. As a result, this issue is
unreviewable under RAP 10.10(c).
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No. 70812-1-1/13
would be relevant to tort or contract liability, not criminal forgery. Accordingly, we
do not consider them.
Haro does raise a few issues in his SAG that could potentially be
reviewable, such as prosecutorial misconduct, malicious prosecution, lack of
competent plea bargaining, and various constitutional and civil rights violations.
He provides no argument or facts to support these alleged errors and little
context to assist the Court's review. While Haro is not required to cite to the
record or authority in his SAG, he must still "inform the court of the nature and
occurrence of [the] alleged errors, and this court is not required to search the
record to find support for the defendant's claims." State v. Meneses, 149 Wn.
App. 707, 715-16, 205 P.3d 916 (2009). None of Haro's grounds are sufficiently
developed to allow review, and we do not reach them. Haro ultimately fails to
present any meritorious arguments in his SAG.
Affirmed.
WE CONCUR:
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