State Of Washington v. Kelli Colleen Gonzales ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80019-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
KELLI GONZALES,
Appellant.
SMITH, J. — A jury convicted Kelli Gonzales of 20 counts of identity theft
for writing herself duplicate payroll checks as the office manager and bookkeeper
for Bob Oates Sewer Rooter LLC (BOSR). She appeals her judgment and
sentence, asserting that the trial court erred when it (1) failed to include the
element that she unlawfully used another’s financial information in the to-convict
instruction, (2) admitted Bob Oates’s testimony that he saw the QuickBooks
screen summary of the checks she issued to herself, and (3) excluded testimony
she contends showed evidence of Oates’s dishonesty and bias.
Because the identity theft statute is unambiguous and does not include an
element of unlawful use of another’s information, the to-convict instruction was
proper. Furthermore, because we review a trial court’s decision to exclude or
admit evidence for an abuse of discretion and any error by the trial court in
admitting testimony and limiting cross examination was harmless, we affirm
Gonzales’s convictions.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80019-1-I/2
FACTS
In 2006, Oates, the owner of BOSR, hired Gonzales to manage BOSR’s
office. Gonzales was responsible for, among other tasks, answering the phones,
authorizing payroll, and keeping the company’s books. Gonzales also kept track
of advances that Oates allowed his employees to take from their paychecks. The
employees could receive an advance payment of up to $500 from future
earnings. After the employee took an advance, Oates would have Gonzales
deduct $100 from every paycheck until the balance was repaid.
On November 11, 2013, Oates fired Gonzales. After his new bookkeeper,
Ingrid Florian, reviewed QuickBooks, she showed Oates the QuickBooks reports
documenting the checks that Gonzales had issued to herself. After he requested
and received his bank statements and copies of the at-issue checks, Oates filed
a police report, alleging that Gonzales had stolen over $200,000 via over 250
unauthorized checks.
In January 2014, Detective Keith Salas began investigating Oates’s
allegations. After the investigation began, Oates amended his allegation,
reducing the amount of unauthorized checks to approximately $85,000.
Detective Salas then obtained a warrant for Gonzales’s bank records. Upon
inspection, the records revealed that Gonzales had deposited checks that Oates
alleged he did not authorize.
In December 2016, the State charged Gonzales with one count of first
degree theft and 10 counts of second degree identity theft. However, in July
2018, the State amended the information to add 3 counts of second degree
2
No. 80019-1-I/3
identity theft and 17 counts of first degree identity theft. In March 2019, the court
dismissed the first degree theft charge because the statute of limitations had run.
Thereafter, the State amended the information a second time removing the theft
charge and charging Gonzales with 15 counts of first degree identity theft and 14
counts of second degree identity theft.
Prior to trial, Gonzales moved to admit evidence pursuant to ER 607, the
Sixth Amendment, and ER 404(B). Specifically she sought to impeach Oates
with evidence that (1) Oates “engaged in a tax fraud scheme of under-reporting
business income,” (2) he owed tax liabilities of over $100,000, (3) he “sought to
falsify his own business records so that an employee . . . would be covered by
worker’s compensation,” and (4) Oates received an insurance payment for
alleging that Gonzales stole from him. The trial court denied Gonzales’s motions
to admit the evidence, concluding that the proffered evidence was collateral to
the issues at trial. Gonzales also moved to exclude QuickBooks reports or
records because the physical QuickBooks records had not been preserved.
Determining that no hearsay exception applied to the records, the court granted
this motion.
At trial, Gonzales argued that she was authorized to issue herself the
checks pursuant to Oates’s policy allowing employees to take advances. Oates
testified that he authorized only one check per pay period and that Gonzales
requested an advance “[t]wo or three times.” He also testified, however, that he
did not keep a record of which checks he authorized. The State admitted
evidence that on numerous occasions, Gonzales wrote herself several
3
No. 80019-1-I/4
paychecks for the same pay period as well as checks with no assigned pay
period attached. Specifically, the State’s exhibits at trial included a copy of every
check and a summary of all of the checks that Gonzales issued to herself. The
exhibits showed that Gonzales issued herself sometimes four or more paychecks
per pay period over 30 pay periods.
The jury found Gonzales guilty of 14 counts of first degree identity theft
and 6 counts of second degree identity theft. The jury acquitted her of 1 count of
first degree identity theft and 5 counts of second degree identity theft, while
deadlocking on 3 counts of second degree identity theft. Gonzales appeals.
ANALYSIS
To-Convict Instruction
Gonzales contends that the to-convict instruction was constitutionally
deficient because it omitted an essential element, i.e., that she had unlawfully
used another’s financial information. We disagree.
“‘We review alleged errors of law in jury instructions de novo.’” State v.
Nelson, 191 Wash. 2d 61, 69, 419 P.3d 410 (2018) (quoting State v. Boss, 167
Wash. 2d 710, 716, 223 P.3d 506 (2009)). “A ‘to convict’ instruction must contain all
the elements of the [charged] crime.” Nelson, 191 Wash. 2d at 74 (quoting State v.
Smith, 131 Wash. 2d 258, 263, 930 P.2d 917 (1997)). “The elements of a crime are
those facts ‘that the prosecution must prove to sustain a conviction.’” State v.
Miller, 156 Wash. 2d 23, 27, 123 P.3d 827 (2005) (quoting BLACK’S LAW DICTIONARY
559 (8th ed. 2004)). “It is proper to first look to the statute to determine the
elements of a crime.” Miller, 156 Wash. 2d at 27.
4
No. 80019-1-I/5
In Miller, a jury convicted Clay Jason Miller of violating a no-contact order.
Miller, 156 Wash. 2d at 26-27. At trial, Miller contended that the no-contact order’s
validity was an element of the crime and therefore a determination to be left to
the jury. Miller, 156 Wash. 2d at 24, 26. But the trial court refused to instruct the
jury accordingly. Miller, 156 Wash. 2d at 26. On appeal, our Supreme Court
concluded that because the criminal statute, by its plain language, does not
include the no-contact order’s validity as an element of the crime, it is not a
necessary element and can be determined by the court. Miller, 156 Wash. 2d at 31.
Thus, it found no issue with to-convict instruction. Miller, 156 Wash. 2d at 31.
Similarly, in State v. Wu, a jury convicted Ken Wu of, among other crimes,
felony driving under the influence (DUI), which required the jury to find that Wu
had “within 10 years of his present arrest, four ‘prior offenses.’” 194 Wash. 2d 880,
882, 453 P.3d 975 (2019). The statute defined a prior offense as a conviction,
including reckless driving, resulting from a charge that was originally filed as a
DUI, physical control of a vehicle while under the influence, or an equivalent local
ordinance. Wu, 194 Wash. 2d at 884. Wu argued that the State was required—and
failed—to prove beyond a reasonable doubt that his prior offenses for reckless
driving involved alcohol. Wu, 194 Wash. 2d at 883. Our Supreme Court concluded
that the plain language of the statute required the State to prove only that the
conviction was originally charged as a DUI or the equivalent. Wu, 194 Wash. 2d at
891. The court held that because the statute did not include a requirement that
the prior offenses involved alcohol, it was not a necessary element. Wu, 194
Wash. 2d at 891.
5
No. 80019-1-I/6
Here, under RCW 9.35.020(1), “[n]o person may 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.” Nowhere in the statute does the term “unlawfully” appear; that is, the
statute does not require the State to prove that Gonzales unlawfully obtained,
possessed, used, or transferred another’s financial information. To add an
unlawfulness element, the court would have to “add words or clauses to an
unambiguous statute when the legislature has chosen not to include that
language.” State v. Delgado, 148 Wash. 2d 723, 727, 63 P.3d 792 (2003). We will
not do so. See, e.g., State v. Dailey, 174 Wash. App. 810, 811, 818, 300 P.3d 834
(2013) (declining to find that the statute for vehicular assault by driving under the
influence requires an implied knowledge element where the driver is alleged to
be under the influence of prescription drugs). In short, where the defendant
alleges an element that does not appear in the statute, “‘[it] is not a statutory
element of the crime’”1 and is not required in the to-convict instruction.
Therefore, here, the to-convict instruction was proper.
Gonzales disagrees and relies on State v. Boyer, 91 Wash. 2d 342, 588 P.2d
1151 (1979), for the proposition that an element that is not included in the statute
may nonetheless exist. In Boyer, a jury convicted Dennis Alan Boyer of delivery
of a controlled substance. 91 Wash. 2d at 342. The criminal statute provided, “‘[I]t
is unlawful for any person to manufacture, deliver, or possess with intent to
1 Wu, 194 Wash. 2d at 890 (alteration in original) (quoting Miller, 156 Wash. 2d at
31).
6
No. 80019-1-I/7
manufacture or deliver, a controlled substance.’” Boyer, 91 Wash. 2d at 344
(quoting RCW 69.50.401(a)). Boyer challenged the jury instruction, which
allowed the jury to presume from Boyer’s delivery of the substance itself that
Boyer had the requisite intent to deliver the controlled substance. Boyer, 91
Wash. 2d at 343. The court determined that “guilty knowledge, an understanding of
the identity of the product being delivered, is a part of the crime,” because
“without the mental element of knowledge, even a postal carrier would be guilty
of the crime were he innocently to deliver a package which in fact contained a
forbidden narcotic.” Boyer, 91 Wash. 2d at 344. It concluded that “[s]uch a result is
not intended by the legislature,” and “guilty knowledge is intrinsic to the definition
of the crime itself.” Boyer, 91 Wash. 2d at 344.
Boyer is distinguishable because, there, the mens rea element was absent
from the jury instructions, allowing the jury to infer from the act itself that Boyer
had the requisite mens rea. Here, the jury instructions did not allow the jury to
infer the requisite mens rea from Gonzales’s actions. Rather, the instructions
required the jury to find that Gonzales knowingly obtained, possessed, used, or
transferred the financial information of another with the intent to commit any
crime. And although a court may conclude “that nonstatutory elements are
implied either because they fit within longstanding principles of law or are derived
from our reasoned judgment as to legislative intent,” neither justification to find a
nonstatutory element exists here. Miller, 156 Wash. 2d at 28. Thus, the concern
raised in Boyer does not apply, and we are not persuaded.
7
No. 80019-1-I/8
Oates’s Testimony Regarding QuickBooks
Gonzales contends that Oates testified in violation of the trial court’s
pretrial decision to exclude evidence of BOSR’s QuickBooks reports. To this
end, she contends that Oates’s testimony constituted hearsay. We disagree.
Hearsay is an out-of-court statement offered “to prove the truth of the
matter asserted” and is inadmissible absent an exception. ER 801(c), ER 802.
But “a statement is not hearsay if it is used only to show the effect on the listener,
without regard to the truth of the statement.” State v. Edwards, 131 Wash. App.
611, 614, 128 P.3d 631 (2006). “Whether or not the statement here was hearsay
is a question of law we will review de novo.” Edwards, 131 Wash. App. at 614.
Here, Oates testified that when Florian was hired, she discovered
duplicate checks made to Gonzales and notified Oates. The State then asked
Oates, “[D]id you see checks that had been issued to Ms. Gonzales that you did
not authorize?” And Oates responded, “I [saw] the QuickBooks computer screen
of multiple checks made out to Ms. Gonzales.” The State’s question was not an
attempt to elicit the QuickBooks information from Oates. And Oates’s answer
was admitted, not to prove that duplicate checks existed, but to explain how he
came to report the incident to the police.2 The State did not seek to prove what
was in the QuickBooks reports via this statement. Indeed, it did not need to
because it had copies of the duplicative checks. Thus, the testimony was not
hearsay, and the trial court did not err. See, e.g., State v. Chenoweth, 188 Wn.
Following Oates’s response, the State asked whether Oates received
2
statements and copies of the checks and whether and why he called the police.
8
No. 80019-1-I/9
App. 521, 534, 354 P.3d 13 (2015) (concluding that testimony of the victim’s
allegations was “not offered for the truth of the allegations, but to show what the
witnesses did next,” including filing police reports and beginning an investigation,
and “to provide a basis for their testimony”).
Gonzales disagrees and contends that the admission of the testimony
violated the pretrial order excluding evidence of QuickBooks. However,
Gonzales moved in limine—and the trial court granted the motion—to exclude
extrinsic evidence of the QuickBooks summaries and reports. Thus, Oates’s
testimony evidence of what he saw was not subject to the court’s pretrial ruling.
Impeachment Evidence
Gonzales asserts that the trial court erred when it excluded evidence that
(1) Oates had unpaid taxes, (2) Oates had a reputation for tax evasion, (3) Oates
attempted to aid an employee to submit a fraudulent workers’ compensation
claim, and (4) Oates submitted and received a claim from his business insurer on
the basis that Gonzales had committed theft. We conclude that the trial court
abused its discretion with regard to Oates’s insurance claim.
“[S]pecific instances of a witness’s conduct, introduced for the purpose of
attacking [their] credibility, . . . may ‘in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross examination of the
witness.’” State v. O’Connor, 155 Wash. 2d 335, 349, 119 P.3d 806 (2005) (quoting
ER 608(b)). “[T]he trial court may consider whether the instance of misconduct is
relevant to the witness’s veracity on the stand and whether it is germane or
relevant to the issues presented at trial.” O’Connor, 155 Wash. 2d at 349. We
9
No. 80019-1-I/10
review the trial court’s decision to exclude such evidence for an abuse of
discretion. See Boyd v. Kulczyk, 115 Wash. App. 411, 416, 63 P.3d 156 (2003).
And an “‘[a]buse of discretion’ means ‘no reasonable judge would have ruled as
the trial court did.’” State v. Arredondo, 188 Wash. 2d 244, 256, 394 P.3d 348
(2017) (quoting State v. Mason, 160 Wash. 2d 910, 934, 162 P.3d 396 (2007)).
Admission of credibility evidence “‘is highly discretionary under ER 608(b).’”
State v. Lee, 188 Wash. 2d 473, 488, 396 P.3d 316 (2017) (quoting State v. Kunze,
97 Wash. App. 832, 859, 988 P.2d 977 (1999)).
We first conclude that the trial court did not abuse its discretion in finding
that the evidence of BOSR’s unpaid taxes, of Oates’s reputation for tax evasion,
or of Oates’s alleged fraudulent workers’ compensation claim were not relevant
to Oates’s credibility on the material issues at the trial. Specifically, a reasonable
court could find that such evidence was not probative as to whether or not Oates
authorized Gonzales’s duplicate checks. See, e.g., Lee, 188 Wash. 2d at 489
(Evidence of a witness’s lying “is not always relevant, particularly when that
evidence is unrelated to the issues in the case.”). And witnesses cannot be
impeached on matters collateral to the principal issues being tried. State v.
Oswalt, 62 Wash. 2d 118, 120, 381 P.2d 617 (1963). Therefore, because we
cannot conclude that no reasonable judge would have limited Gonzales’s cross-
examination of Oates and Florian on these matters, the trial court did not abuse
its discretion.
However, the trial court abused its discretion when it prevented Gonzales
from eliciting testimony about Oates’s insurance claim based on Gonzales’s
10
No. 80019-1-I/11
alleged theft. Evidence of bias is always relevant.3 Evidence of Oates’s
insurance claim based on Gonzales’s theft was evidence of his potential
motivation to file a police report against Gonzales. As the victim of the crime,
Oates was a crucial witness for the State, and there was no other impeachment
evidence. Therefore, the trial court abused its discretion when it concluded that
the evidence was collateral to the matters at trial and prevented Gonzales’s
cross-examination on these issues. See State v. Clark, 143 Wash. 2d 731, 766, 24
P.3d 1006 (2001) (“Failing to allow cross-examination of a state's witness under
ER 608(b) is an abuse of discretion if the witness is crucial and the alleged
misconduct constitutes the only available impeachment.”).
Harmless Error
Gonzales contends that the cumulative errors require reversal. To the
contrary, even if the trial court erred in excluding all of the proffered evidence, we
find that the errors were harmless.
“Violations of a defendant’s rights under the confrontation clause are
subject to Chapman[4] harmless error review.” State v. Lile, 188 Wash. 2d 766, 801,
398 P.3d 1052 (2017) (McCloud, J., concurring).5 And “[u]nder Chapman, the
3 See ROBERT H. ARONSON & MAUREEN A. HOWARD, THE LAW OF EVIDENCE
IN W ASHINGTON § 7.06[3], at 7-54 (5th ed. 2020) (“Evidence of bias is admissible
to impeach the credibility of a witness, and is always relevant.”).
4 Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967).
5 Like in United States v. Abel, the court’s limitation on Gonzales’s cross-
examination prevented Gonzales from showing Oates’s bias and thus affected
her constitutional right to confront a witness against her. 469 U.S. 45, 49-50, 105
S. Ct. 465, 83 L. Ed. 2d 450 (1984) (holding that it was within the trial court’s
discretion to admit evidence of a key witness’s bias because “the Confrontation
Clause of the Sixth Amendment requires a defendant to have some opportunity
11
No. 80019-1-I/12
State bears the burden of proving that constitutional error is harmless beyond a
reasonable doubt, which may be met ‘if there is overwhelming evidence of the
defendant’s guilt that is not tainted by the error.’” Lile, 188 Wash. 2d at 801 (citation
omitted) (quoting State v. Barry, 183 Wash. 2d 297, 303, 352 P.3d 161 (2015)).
However, “[w]here, as here, there are few or no errors and the errors, if any,
have little or no effect on the outcome of the trial, reversal is not required.” State
v. Wade, 186 Wash. App. 749, 775, 346 P.3d 838 (2015).
The jury convicted Gonzales only of those charges where the State
proffered documentary evidence of duplicative payroll checks. Specifically, the
jury convicted Gonzales of the charges where the State submitted copies of
paychecks and bank summaries, which showed that Gonzales had endorsed and
deposited into her personal bank account sometimes more than four checks with
identical or nearly identical sums for the same pay period and for over 30 pay
periods. Where the checks were not assigned to a pay period, i.e., where they
appeared to be advances, and thus required credible testimony from Oates that
he did not authorize the checks, the jury acquitted Gonzales or deadlocked. The
State submitted overwhelming evidence to the jury that Gonzales had issued
herself unauthorized duplicate checks, and the physical evidence was untainted
by Oates’s testimony. Furthermore, Gonzales attacked Oates’s credibility when
she questioned him about his inconsistent allegations to the police. Accordingly,
to show bias on the part of a prosecution witness”); see also Lee, 188 Wash. 2d at
489 (“The confrontation clause primarily protects ‘cross-examination directed
toward revealing possible biases, prejudices, or ulterior motives of the witness as
they may relate directly to issues or personalities in the case at hand.’” (quoting
Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974))).
12
No. 80019-1-I/13
the State established that any reasonable jury would have reached the same
result even if the trial court had not excluded the testimony proffered by
Gonzales. Any error was harmless and does not require reversal.
We affirm.
WE CONCUR:
13