State v. LinehanState v. Linehan
- Reporters:
- ,
- Before:
- Ireland, Alexander, Smith, Johnson, Sanders, Bridge, Chambers, Owens, Madsen (en banc)
IRELAND, J.
Petitioner Timothy Linehan seeks review of the Court of Appeals decision affirming his jury conviction on one count of first degree theft. We hold that any error in defining one alternative means of committing first degree theft was harmless, as there was sufficient evidence for the jury to convict using other definitions for the alternative means set forth in
FACTS
In March 1998, Timothy Linehan and his business partner received $130,061.51 after completing a real estate transaction. Because the check was made out to Linehan personally, instead of to the partnership, on March 30, 1998 Linehan deposited the check in his personal account at Washington Mutual. He then wrote a check in the same amount from his Washington Mutual account and had his partner deposit it in the partnership account at Seafirst Bank on April 2, 1998. However, only $13,061.95 was deducted from Linehan‘s personal account at Washington Mutual due to an encoding error when processing the check. Seafirst corrected this error on April 7, 1998 by withdrawing the $116,999 balance from Linehan‘s Washington Mutual account. Washington Mutual did not detect the error at that time. Hence, the improper $116,999 balance was left showing on Linehan‘s account.
The error prompted Linehan to ask his attorney what his options were concerning the extra sum. Linehan was advised that he could not keep the money and that the bank
Washington Mutual learned of the encoding error in June 1998 and fraud investigators contacted Linehan in July asking that the money be returned. The investigators explained that Washington Mutual would accept a promissory note for the outstanding sum if Linehan would secure it with collateral, which Linehan refused to do. After two unsuccessful attempts to recoup the money from Linehan, Washington Mutual contacted the police.
Linehan was charged by amended information with one count of first degree theft on September 13, 1999. The information charged that Linehan intentionally deprived Washington Mutual of property valued in excess of $1,500, and that he wrongfully obtained the money, exerted unauthorized control over the money, and that he obtained the money by color and aid of deception. The jury returned a guilty verdict on September 16, 1999.
Linehan appealed, contending in part that the trial court‘s instructions were erroneous because there was insufficient evidence to support a conviction under two of the three alternative means instructed upon and that it was impossible to determine on which means the jury based the verdict. Linehan also contended that the trial court gave an incorrect definition of “exerts unauthorized control,” one of the alternative means charged. In its unpublished opinion, the Court of Appeals did not address Linehan‘s definitional concern, but affirmed the conviction, holding there was substantial evidence to support the verdict under each of the alternative means charged. State v. Linehan, Noted at 107 Wash.App. 1016, 2001 WL 828640 at *4.
ANALYSIS
Standard of Review
Whether a jury instruction correctly states the applicable law is a question of law that we review de novo. See State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995). Before addressing whether an instruction fairly allowed the parties to argue the case, the court must first determine whether the instruction accurately stated the law without misleading the jury. State v. Acosta, 101 Wash.2d 612, 619-20, 683 P.2d 1069 (1984). Jury instructions must be relevant to the evidence presented. State v. Hughes, 106 Wash.2d 176, 191, 721 P.2d 902 (1986). Instructing a jury so as to relieve the State of its burden to prove all of the elements of the case is reversible error. State v. Scott, 110 Wash.2d 682, 690, 757 P.2d 492 (1988). A constitutional error is harmless only if we are convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error. State v. Easter, 130 Wash.2d 228, 242, 922 P.2d 1285 (1996).
Issues
Whether, in an alternative means case, an instructional error that omits a required portion of a definition and is unsupported by the evidence can be harmless.
Whether the alternative means “exerts unauthorized control” is defined by
Applicable Law
The theft statute reads in relevant part:
9A.56.030 Theft in the first degree—Other than a firearm. (1) A person is guilty of theft in the first degree if he or she commits theft of:
(a) Property or services which exceed(s) one thousand five hundred dollars in value other than a firearm as defined in RCW 9.41.010; or
(b) Property of any value other than a firearm as defined in RCW 9.41.010 taken from the person of another.
9A.56.020 Theft—Definition, defense.
(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 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 of such property or services;...
. . . .
The terms “wrongfully obtain” and “exert unauthorized control” in
The phrases “wrongfully obtain” and “exerts unauthorized control” are defined together in
(7) “Wrongfully obtains” or “exerts unauthorized control” means:
(a) To take the property or services of another;
(b) Having any property or services in one‘s possession, custody or control as bailee, factor, lessee, pledgee, renter, servant, attorney, agent, employee, trustee, executor, administrator, guardian, or officer of any person, estate, association, or corporation, or as a public officer, or person authorized by agreement or competent authority to take or hold such possession, custody, or control, to secrete, withhold, or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto; or
(c) Having 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 agreement[.]
Former RCW 9A.56.010(7)(a) -(c) .1 Subsection (b) is commonly referred to as theft by embezzlement. See State v. Ager, 128 Wash.2d 85, 91, 904 P.2d 715 (1995) (citing State v. Vargas, 37 Wash.App. 780, 781-82, 683 P.2d 234 (1984)).
I. Alternative Means Analysis
A. Jury Unanimity
Linehan contends that, besides the alternative means provided in
In alternative means cases, jury unanimity as to the means used to commit the crime is not required if there is substantial evidence to support each of the alternative means charged. State v. Arndt, 87 Wash.2d 374, 377, 553 P.2d 1328 (1976). Linehan was charged with first degree theft under the language of
TIMOTHY LINEHAN ... with intent to deprive another of property ... having a value in excess of $1,500 ... did obtain control over such property belonging to Washington Mutual Bank, by color and aid of deception, and, did exert unauthorized control over such property; and wrongfully obtain such property;
Contrary to RCW 9A.56.030(1)(a) and (b), and 9A.56.020(1)(a) and (b)....
Clerk‘s Papers at 37 (emphasis added). “Wrongfully obtain” and “exert unauthorized control” are defined together in subsection (7) of the general definitions section of the Theft and Robbery chapter of the revised code.
Definition statutes do not create additional alternative means of committing an offense. State v. Laico, 97 Wash.App. 759, 763, 987 P.2d 638 (1999) (citing State v. Strohm, 75 Wash.App. 301, 309, 879 P.2d 962 (1994), review denied, 126 Wash.2d 1002, 891 P.2d 37 (1995)). See also State v. Marko, 107 Wash.App. 215, 220, 27 P.3d 228 (2001) (the definitions of “threat” do not create alternative elements to the crime of intimidating a witness); State v. Garvin, 28 Wash.App. 82, 86, 621 P.2d 215 (1980) (the definitions of “threat,” for purposes of the extortion statute, do not create alternative elements to the crime but merely define an element of the crime), review denied, 95 Wash.2d 1017 (1981). But see State v. Stephenson, 89 Wash.App. 217, 222 n. 1, 948 P.2d 1321 (1997) (describing
In State v. Laico, the defendant argued that the three definitions of “great bodily harm” create three alternative means for committing the offense. Division One of the Court of Appeals disagreed and held that “the definition of `great bodily harm’ contained in RCW 9A.04.110(4)(c) is merely definitional and does not create alternative means of committing the crime of assault in the first degree.” 97 Wash.App. at 760, 987 P.2d 638. The court therefore concluded that jury unanimity with respect to the existence of great bodily harm did not require unanimity as to the type of great bodily harm. Id. In the broader context of aggravating circumstances to a first degree murder charge, this court has held that the jury need not be unanimous as to alternative ways to satisfy each of the alternative aggravating circumstances. In re Pers. Restraint of Jeffries, 110 Wash.2d 326, 339, 752 P.2d 1338 (1988). In that case, this court noted that the defendant‘s “`means within means’ argument raises the spectre of a myriad of instructions and verdict forms whenever a criminal statute contains several instances of use of the word `or.‘” Id.
The theft statutes are structured differently than other crimes. With assault, for instance, the alternative means of the crime are provided in the statutes delineating the degrees of assault. See
Linehan is correct that theft is an alternative means crime. See State v. Joy, 121 Wash.2d 333, 339, 851 P.2d 654 (1993). However, he is incorrect insofar as he claims that theft by embezzlement, contained in
The Court of Appeals has been inconsistent in its analysis of theft by embezzlement and its discussions of the alternative means of theft. In State v. Stephenson, Division Two wrote that
State v. Vargas, a Division One Court of Appeals case, is often cited for its statement that the theft statutes, when taken together, set out four distinct types of theft: theft by taking, embezzlement, theft by deception, and appropriation of lost or misdelivered property. 37 Wash.App. at 782, 683 P.2d 234, cited in State v. Ager, 128 Wash.2d 85, 91, 904 P.2d 715 (1995). The Vargas opinion clarified that “`wrongfully obtains’ or `exerts unauthorized control’ is defined to include both theft by taking and embezzlement.” Vargas, 37 Wash.App. at 781, 683 P.2d 234 (emphasis added). Both Stephenson and Linehan2 appear to have interpreted Vargas as stating that the four types of theft are synonymous with the alternative means of theft. To the extent Vargas can be read to endorse that view, we disagree.
We hold that the definitions provided in
II. Correctly Defining “Exerts Unauthorized Control”
Linehan claims that “exerts unauthorized control” may be defined only with
Linehan takes an overbroad interpretation of the cases cited above. While each case used subsection (7)(b) to define “exerts unauthorized control,” embezzlement was at issue in each case and subsection (7)(b) was the most appropriate definition of the three definitions in subsection (7) to apply to the facts. However, as the Court of Appeals correctly noted, none of the cases went so far as to say that “exerts unauthorized control” is defined exclusively by subsection (7)(b) in all factual circumstances. See Ager, 128 Wash.2d at 91-92, 904 P.2d 715 (using former RCW 9A.56.010(7)(b) to define “wrongfully obtains” and “exerts unauthorized control” in embezzlement case); Joy, 121 Wash.2d at 339, 851 P.2d 654 (identifying former RCW 9A.56.010(7)(b) as defining “exerts unauthorized control” in relevant part since theft was by embezzlement); Gillespie, 41 Wash.App. at 643, 705 P.2d 808 (explaining that “wrongfully obtains” and “exerts unauthorized control” are both defined in former RCW 9A.56.010(7)(a) and (b) in embezzlement case). Linehan therefore has cited no authority that has held “exerts unauthorized control” can be defined only by subsection (7)(b).
What we find persuasive are the cases that have defined the alternative means of “wrongfully obtains” and “exerts unauthorized control” as a unit, using any of the definitions in
The statutory structure of
It is permissible to refer to “exerts unauthorized control” as theft by embezzlement where the defendant was charged with alternative means of theft by exerting unauthorized control, and there is evidence of embezzlement in the form of a violation of a special trust relationship as outlined in subsection (7)(b) or a partnership funds are implicated as outlined in subsection (7)(c). A reading of the cases cited by Linehan, supra, suggests this is precisely what courts have done in that situation. Equating the common usage term “embezzlement” with the legal definition of “exerts unauthorized control” in that limited situation, is permissible, but given the confusion it apparently creates we admonish courts to use caution in so doing.
III. Did the Jury Instructions Relieve the State of its Burden?
Linehan contends that his conviction must be reversed because the trial court
[Wrongfully obtains means to take wrongfully the property or services of another.]
[To exert unauthorized control means, having any property or services in one‘s possession, custody or control, as a ______, to secrete, withhold or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto.]
. . . .
11A Washington Pattern Jury Instructions: Criminal 79.02, at 110 (2d ed. 1994) (WPIC). The Note on Use states, “use bracketed material as applicable.” Id., note on use at 110. The blank in the second paragraph is to be filled in with “the nature of the custodian of the property” from the list set forth in
Wrongfully obtains means to take wrongfully the property or services of another.
To exert unauthorized control means, having any property or services in one‘s possession, custody or control, and to secrete, withhold or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto.
Clerk‘s Papers at 78. The trial court failed to include a relationship as required by the statute.
“Jury instructions, taken in their entirety, must inform the jury that the State bears the burden of proving every essential element of a criminal offense beyond a reasonable doubt.” State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995). Here, the trial court chose to use
[Prosecutor]: ... In this particular case we‘re talking about basically a theft and not embezzlement, as indicated, because in the embezzlement portion of it, it indicates a lot of different duties required by the employee-employer or however this case is—
The Court: I see, you took the last bracketed language.
[Prosecutor]: And that‘s why that was not included.
....
4 Trial Proceedings at 26-27; see also id. at 28. The prosecutor presented no evidence of a special relationship or agreement between Linehan and Washington Mutual.
Before the jury can be instructed on and allowed to consider the various ways of committing a crime, there must be sufficient evidence to support the instructions. State v. Golladay, 78 Wash.2d 121, 137, 470 P.2d 191 (1970). Since the trial court did use the embezzlement definition, it should have required the state to allege and prove the appropriate relationship or agreement between Linehan and Washington Mutual and instructed the jury accordingly. To do otherwise was to relieve the state of its burden to prove every element of the offense. Reversal is required unless the error was harmless.
IV. Harmless Error Analysis
It is constitutionally required that the jury be instructed on all essential elements of the crime charged. Scott, 110 Wash.2d at 690, 757 P.2d 492. Jury instructions that omit essential elements of the crime charged relieve the State of this burden, for they permit the jury to convict without proof of the omitted elements. Therefore, such instructions violate due process. Id. We find constitutional error harmless only if convinced beyond a reasonable doubt any reasonable jury would reach the same result absent the error. Easter, 130 Wash.2d at 242, 922 P.2d 1285. Having established that there is no unanimity requirement for definitions, nor is there an exclusive definitional relationship between “exerts unauthorized
CONCLUSION
ALEXANDER, C.J., SMITH, JOHNSON, SANDERS, BRIDGE, CHAMBERS and OWENS, JJ., concur.
MADSEN, J., concurs in result only.