118 Wash. App. 178 | Wash. Ct. App. | 2003
Bryant O’Keith Williams appeals five convictions of forgery. We affirm.
On May 31, 2000, Williams was involved in a minor auto accident while driving a car belonging to a friend, Kevin Perry. Williams identified himself as Daryl Taylor, using a California drivers license that Taylor had left in Petty’s car. The other driver was at fault.
On June 8, 2000, Williams went to see a chiropractor. He filled out an intake form in Taylor’s name. He was treated several times by the chiropractor and a licensed massage therapist.
On September 7, 2000, Williams went to see a dentist. He filled out a “Patient Case History’ in Taylor’s name. He was treated on just one occasion.
Meanwhile, the attorney presented a claim to the other driver’s insurance company. Believing that Williams was Taylor, the attorney made the claim in Taylor’s name.
On July 11, 2000, the insurance company issued a property-damage check for $1,866.20. The check was payable to both the attorney and Taylor. The attorney endorsed the check and gave it to Williams. Williams endorsed the check, using Taylor’s name, and cashed it at the Money Tree in Bremerton.
On January 22, 2001, the insurance company issued a check for $15,000 in “full and final settlement of all claims.”
The $15,000 check was payable to the attorney and Taylor. Williams endorsed Taylor’s name and left the check with the attorney. The attorney endorsed his own name, deposited the check in his trust account, and, after paying the health care providers and himself, issued a check to Taylor for the remainder.
In February 2001, the real Daryl Taylor discovered that Williams had used his identity. In March 2001, the police interviewed Williams, who was in custody on another
The State ultimately charged Williams with six counts of forgery.
A jury trial began on September 24, 2001. The next day, September 25, the State presented its case, and the defense briefly presented a private investigator. Taylor testified, among other things, that he was a customer at the Money Tree. A witness named Tanya Johnson testified that in July 2000, while she was working at the Money Tree, she had cashed a check for Williams. The check was payable to Taylor, she did not see Williams endorse it, and she had neglected to check Williams’ identification. Defense counsel cross-examined her and, when she finished, did not request that she remain in attendance.
The next day, September 26, court convened at 9 a.m.
On October 30, 2001, Williams moved to dismiss four of the five counts on which he had been convicted. Citing the constitutional proscription against double jeopardy, he claimed that because he had engaged in only one scheme to defraud, he could only be “convicted of one count.”*
Williams raises three questions on appeal: (1) Does the double jeopardy clause bar the State from convicting him on five counts of forgery that arise from one scheme to defraud? (2) Did the trial court err by denying his motion to recall Johnson? (3) Did defense counsel render ineffective assistance by not fully examining Johnson the first time she was on the stand?
I
Williams argues that all of his forgeries “arose out of a single intent to defraud, and thus [that] there was only one unit of prosecution.”
The statute in issue here is RCW 9A.60.020. It provides:
(1) A person is guilty of forgery if, with intent to injure or defraud:
(a) He falsely makes, completes, or alters a written instrument or;
(b) He possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged.
This statute plainly and unambiguously defines the unit of prosecution as the written instrument that is falsely made or put off as true. Here, each of the five counts was based on a different written instrument. Thus, each involved a different unit of prosecution, and none abridged Williams’ right against double jeopardy.
II
Williams argues that the trial court erred by denying his motion to recall Johnson. Such a motion is addressed to the trial court’s discretion,
For several reasons, we do not perceive abuse here. First, Williams had ample opportunity to examine Johnson the day before. Second, he could have asked then that she
Ill
Williams argues that his counsel rendered ineffective assistance by failing to fully examine Johnson the first time she was on the stand. To establish ineffective assistance of counsel, the defendant must show (1) deficient performance and (2) resulting prejudice.
Affirmed.
Hunt, C.J., and Seinfeld, J., concur.
Ex. 2.
This check to Taylor was for $6,025.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Ex. 1.
The State initially charged Williams with two counts of first degree theft. Clerk’s Papers (CP) at 1-2.
See CrR 6.12(b).
Report of Proceedings (RP) at 171.
RP at 166.
RP at 166. Daryl Taylor had previously testified that he had been in the Money Tree as a customer.
RP at 171.
RP (Nov. 2, 2001) at 6.
Br. of Appellant at 9.
Br. of Resp’t at 14.
State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998).
Adel, 136 Wn.2d at 634.
State v. Martinez, 53 Wn. App. 709, 717, 770 P.2d 646, review denied, 112 Wn.2d 1026 (1989); State v. McGinley, 18 Wn. App. 862, 573 P.2d 30 (1977) (prerule case); ER 611(a).
See CrR 6.12(b) (subpoenaed witness is excused at end of his or her testimony “unless either party makes requests in open court that the witness remain in attendance”).
We do not overlook, but we do reject, Williams’ assertion that the trial court’s denial was not just a violation of the rules of court, but also an infringement of his constitutional right to present a defense. In light of the circumstances just described, the denial did not rise to that level.
Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Strickland, 466 U.S. at 688.
McFarland, 127 Wn.2d at 337.