Opinion
No. 59522-9-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-13626-6, Helen Halpert, J., entered February 6, 2007.
Affirmed by unpublished per curiam opinion.
Yvonne Burke appeals two convictions for first degree theft based on her forgery of two signatures on a quitclaim deed and subsequent assertions that she was the sole owner of a house. Burke claims that the statute of limitations precluded one of the charges; that the trial court erred in failing to give certain instructions, failing to hold a full evidentiary hearing on witness competency, and in awarding restitution; that her trial counsel was ineffective; and that the evidence was insufficient to support her convictions. Because none of her claims is well founded, we affirm her convictions.
FACTS
In 1993, Yvonne Burke and Luther Mathis Hill became engaged to be married. Because Burke could not qualify on her own for a home loan and Hill had credit problems, Hill's parents, Luther and Bertha Hill, gave the couple the down payment on a home. Luther and Bertha Hill and Burke purchased the home and obtained a mortgage together, and the statutory warranty deed, deed of trust and loan settlement statement dated March 17, 1993, listed all their names as purchasers and borrowers. The settlement statement lists the total amount of cash from the borrowers as $4,982.91. Luther and Bertha Hill provided this entire amount. They never received any repayment. Burke and Hill lived in the house, and Burke paid the mortgage payments, taxes, and maintenance.
Burke and Hill divorced in 1999. On August 24, 2001, Burke sent a letter to Luther and Bertha Hill asking them to sign a quitclaim deed ceding their interest in the property to her. In the letter, Burke acknowledged that by using the property as collateral in business transactions, she would be placing Luther and Bertha Hill, the other property owners, at risk. Burke did not offer to repay the Hills' loan. Rather, she included a check for $850, or "$100.00 for each year that we have, in essence used your credit." In addition, Burke stated that if the Hills did not sign a quitclaim deed, she would go to court to determine the ownership interests in the property. At trial, Luther Hill testified that the letter was ridiculous and that $850 was nothing compared to the money he had put into the house. He said that he did not sign a quitclaim deed because he had an interest in the house. On December 10, 2002, Burke signed a legal declaration stating that she purchased the property, neglecting to mention that Luther and Bertha Hill were co-owners.
In 2003, Luther and Bertha Hill learned that there was a quitclaim deed recorded on September 11, 2001, giving their interest in the property to Burke. Based on this deed, and representing herself to be the sole owner, Burke refinanced the property in 2001 and in 2005. Burke wrote a letter to the Hills' attorney on November 4, 2005, claiming that none of the Hills "have or has" any interest in the property and threatening legal action if they continued to assert an interest. On December 20, 2005, the State of Washington charged Burke with two counts of first degree theft based on her theft of Luther and Bertha Hill's ownership interest and obtaining the 2005 loan by deception. A jury found Burke guilty on both counts. The trial court imposed a standard range sentence and ordered restitution in an amount equal to the amount Luther and Bertha Hill provided for the original purchase of the home plus interest. Burke appeals.
DECISION
Burke first asserts that the taking of Luther and Bertha Hill's ownership interest was complete when she filed the quitclaim deed on September 11, 2001, because she obtained exclusive control of the property and became the sole owner as of that date. Therefore, the three year statute of limitations precluded the State from charging her for this crime in 2005, more than three years after she filed the quitclaim deed and thereby appropriated sole ownership of the property.
But the evidence supported a determination that the criminal impulse continued at least until 2005, when Burke obtained the second refinance on the basis of her assertion that she was the sole owner of the property. "If the impulse continues, the crime is not complete until the continuing impulse has been terminated." Nor can Burke claim that she has been improperly convicting for failing to pay a civil debt; the record shows that she was aware that Luther and Bertha Hill had an ownership interest in the property, and when she forged their names on the quitclaim deed, obtained notarization of the document without their presence, and filed the deed, she evidenced her criminal intent to appropriate that interest to her own use. Further, Burke waived any argument that the trial court failed to properly instruct the jury on the statute of limitations when she failed to raise it at trial. The statute of limitations did not preclude the charges in this case.
Id. at 745.
State v. Kroll, 87 Wn.2d 829, 843, 558 P.2d 173 (1976).
Burke contends that the evidence is insufficient to prove that Luther and Bertha Hill had an ownership interest in the property rather than a lien. She argues that although the documents listed Luther and Bertha Hill as co-owners, there was never any intention to vest them with an ownership interest. The usual sufficiency standard applies.
State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).
The record shows that Luther and Bertha Hill provided the down payment and co-signed on the original mortgage. They expected to be repaid at some future time, and they were aware that they held an ownership interest in the home. Although there is no evidence that they expected Burke to fail to pay the mortgage, their interest in the home served to protect them should such an eventuality ever occur. The deed of trust, statutory warranty deed, and loan documents listed all three parties as owners. And Burke acknowledged the Hills' interest when she admitted that using the property as collateral would put them at risk. The evidence supported a finding that Luther and Bertha Hill had an ownership interest in the property.
Burke also contends that the evidence was insufficient to prove that she intended to permanently deprive the lender of the money she obtained in her 2005 refinance. But the statutory definition of "deprive" rejects an intent to permanently deprive. The information charged Burke with intending to deprive the lender of a loan of approximately $283,500 and obtaining that loan through deception. The record shows that Burke obtained the loan by purporting to be the sole owner of the property, and that the lender would not have given her the loan had it known she was not the sole owner and that she forged the quitclaim deed in order to further this deception.
RCW 9A.56.010(6) states that "`Deprive' in addition to its common meaning means to make unauthorized use or an unauthorized copy of records, information, data, trade secrets, or computer programs." The common meaning of "deprive" is "to take something away from" or "to keep from the possession, enjoyment, or use of something." Webster's Third New International Dictionary 606 (1993).
Burke next contends that the trial court erred in failing to instruct the jury on good faith claim of title and the statute of limitations. But Burke did not request such instructions and therefore waived the issue. And Burke's argument that her trial counsel was ineffective in failing to request such instructions is not well taken. The instructions set forth the applicable law, did not mislead the jury, and allowed the parties to argue their theories of the case. And given the entire record, Burke fails to show that trial counsel's representation was deficient or that the deficiency prejudiced her.
Kroll, 87 Wn.2d at 843.
Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265 (2000), 22 P.3d 791 (2001).
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Townsend, 142 Wn.2d 838, 843, 15 P.3d 145 (2001).
Burke asserts that the trial court erred in failing to hold a full competency hearing regarding Bertha Hill's competency as a witness. Burke argues that because Bertha Hill did not appear for the hearing, the trial court could not adequately determine her competency. But Burke did not attempt to have Bertha Hill testify either at the hearing or at trial. And the trial court did hold a hearing. Both Luther Hill and Bertha Hill's doctor testified that she is gravely mentally disabled, cannot answer relatively simple questions, and has little if any memory of 2001. The trial court did not abuse its discretion in finding that Bertha Hill was not competent because she was not capable of understanding the oath or giving a reliable account of her experiences.
State v. Stange, 53 Wn. App. 638, 642, 769 P.2d 873, review denied, 113 Wn.2d 1007 (1989).
State v. Mines, 35 Wn. App. 932, 936, 671 P.2d 273 (1983), review denied, 101 Wn.2d 1010 (1984).
Finally, Burke argues that the restitution order did not accurately reflect the amount of damages. The trial court awarded restitution equal to the amount of the loan made to purchase the property, $4,982, plus statutory interest amounting to $24,352. The evidence provided a reasonable basis to conclude that the award accurately reflects the amount Burke owed plus interest. The trial court did not abuse its discretion in making the award.
State v. Enstone, 137 Wn.2d 675, 682, 974 P.2d 828 (1999).
Affirmed.