Opinion
No. 25530-1-III.
February 28, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 06-1-00481-1, Vic L. VanderSchoor, J., entered September 14, 2006.
Affirmed by unpublished opinion per Schultheis, A.C.J., concurred in by Kulik, J., and Stephens, J. Pro Tem.
Cheryl Lynn Rehak was convicted of first degree theft for depleting her stepmother's funds. For the first time on appeal, she claims constitutional instructional error. In a pro se statement of additional grounds, she alleges ineffective assistance of counsel based on trial counsel's failure to introduce certain financial documents and counsel's recommendation that she not take the stand. We affirm.
FACTS
Frances Selby is Ms. Rehak's stepmother. In 2003, Ms. Selby, who was then in her eighties and widowed, was no longer able to live alone. In January 2004, Ms. Selby moved into Ms. Rehak's home where Ms. Rehak cared for her. In March 2004, the pair opened a joint bank account.
In April 2004, Ms. Selby's house in California sold for approximately $422,000. The net proceeds were placed into the joint account. Part of the money was used to jointly purchase a house in Richland for $260,000, leaving a balance of approximately $170,000 in the account at the end of April 2004. During this time, Ms. Rehak cleaned houses for income. Because Ms. Selby needed continuous care, Ms. Rehak often took her to job sites. Apparently, Ms. Selby expressed concern about how hard Ms. Rehak worked. There is disputed evidence that Ms. Selby agreed to fund a small health food business so that Ms. Rehak could leave housecleaning. At trial, Ms. Selby denied agreeing to this plan. However, it is undisputed that Ms. Rehak spent thousands of dollars from the joint account on a health food business, which eventually failed.
Unfortunately, in January 2005, Ms. Rehak had a stroke and was advised by her doctor to stop caring for her stepmother. Ms. Selby was placed in an assisted care facility. By February 2005, the funds in the joint account had dwindled forcing Ms. Rehak to put the Richland house up for sale. There were no immediate offers. By May 2005, the parties' account was down to approximately $6,000.
In June 2005, Ms. Rehak used her power of attorney to obtain a quitclaim deed transferring title in the Richland house to her alone. She then mortgaged the property and secured a $133,000 loan. She used $16,000 of the proceeds from the loan to pay off a vehicle. The balance of the loan was not deposited into the joint account. By the end of the charging period in December 2005, the account had $1,499 in savings and $3,435 in checking.
In 1998, Ms. Selby gave Ms. Rehak power of attorney.
In August 2005, Adult Protective Services investigated Ms. Rehak for financial exploitation of Ms. Selby. The investigator discovered that between March and July 2005, unknown to Ms. Selby, Ms. Rehak had been putting thousands of dollars from the joint account into the health food store. The investigator eventually referred the case to the State. On July 20, 2006, the State charged Ms. Rehak with first degree theft for wrongfully obtaining Ms. Selby's bank funds between February 2, 2005 and December 31, 2005. The information included special allegations that the crime constituted a major economic offense and that Ms. Rehak used a position of trust to facilitate the crime.
At trial, a representative from the bank that held the joint account, testified to the depletion of the account from over $170,000 after the purchase of the Richland house to a remaining balance of just over $2,000 in June 2006. Ms. Selby testified that she would not have permitted Ms. Rehak to spend money from their account to start a business.
At the close of the State's case, Ms. Rehak moved to dismiss, arguing that as a joint owner of the account, she was entitled to spend the money deposited in it. The State countered that Ms. Rehak violated her fiduciary duty to handle the money on behalf of her stepmother. The court denied Ms. Rehak's motion.
The defense presented the testimony of an attorney who claimed that Ms. Selby told him that she had agreed Ms. Rehak could use the proceeds from the sale of the Richland house to start a business. Several other witnesses corroborated this testimony. Ms. Rehak moved again to dismiss, arguing that the State failed to establish intent to steal within the charging period of February 2005 to December 2005. Citing the Financial Institution Individual Account Deposit Act, chapter 30.22 RCW, which provides that funds in a joint account are owned in proportion to the amount respectively deposited by each party unless there is evidence of a contrary intent, Ms. Rehak argued that she established Ms. Selby's intent to use the funds for Ms. Rehak's business. The court denied the motion. Without objection from defense counsel, the court instructed the jury that:
Funds on deposit in a joint account belong to the depositors in proportion to the net funds owned by each depositor on deposit in the account, unless the contract of deposit provides otherwise or there is clear and convincing evidence of a contrary intent at the time the account was created.
Clerk's Papers at 377. The jury convicted Ms. Rehak of first degree theft with a special finding that she abused her position of trust to facilitate the crime.
ANALYSIS
Ms. Rehak assigns error to the giving of instruction 16, which provides that funds in a joint account are owned by the depositors in proportion to the amount deposited by each. For the first time on appeal, she contends that this instruction unconstitutionally shifts the burden of proof from the State to her, requiring her to disprove that she wrongfully obtained or exerted unauthorized control over Ms. Selby's bank funds. The State responds that this court need not address the merits of her claim because she failed to object to the instruction below.
A defendant must make clear and timely objections to jury instructions to enable the trial court to correct any error. State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988). Failure to take exception at the trial level bars raising the issue on appeal, unless the error is a "'manifest error affecting a constitutional right.'" State v. Bailey, 114 Wn.2d 340, 347, 787 P.2d 1378 (1990) (quoting RAP 2.5(a)). We determine whether an error is a manifest constitutional error in four steps. First, we determine whether the alleged error is in fact a constitutional issue. Next, we determine whether the error is manifest, that is, whether it had "practical and identifiable consequences" at trial. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). We then address the merits of the constitutional issue. Last, we address whether the error was harmless. Id.
We need not address Ms. Rehak's claim. Even assuming the instruction at issue involves an unconstitutional shifting of the burden of proof, thereby implicating a constitutional issue, Ms. Rehak fails to establish that the alleged error is manifest. The instruction at issue is based on chapter 30.22 RCW, which provides in part that, "Funds on deposit in a joint account . . . belong to the depositors in proportion to the net funds owned by each depositor on deposit in the account, unless the contract of deposit provides otherwise or there is clear and convincing evidence of a contrary intent at the time the account was created." RCW 30.22.090(2).
Here, the respective ownership of the funds in the account was of minor significance to the State's case. The charging period was limited to events between February 2005 and December 2005. Prior to this time frame, Ms. Rehak had already depleted thousands of dollars from the joint account. But the State did not focus on this loss. Rather, the crux of its case was that Ms. Rehak violated her fiduciary duty to Ms. Selby by transferring title of the Richland house to her name in June 2005, mortgaging this property, and then squandering the proceeds from the loan for her business.
To convict Ms. Rehak, the jury had to find beyond reasonable doubt that she wrongfully obtained or exerted unauthorized control of property belonging to Ms. Selby in excess of one thousand five hundred dollars. RCW 9A.56.020(1)(a); RCW 9A.56.030(1)(a). Evidence independent of the depletion of the funds in the joint account established that Ms. Selby gave Ms. Rehak power of attorney, that she used this power of attorney to transfer title in the Richland house to herself and obtain a $133,000 loan by mortgaging this property. Instead of acting as a fiduciary and using the proceeds of the loan for Ms. Selby's benefit, Ms. Rehak depleted them on a failed health food business. Thus, the jury could find that the State proved the elements of theft without considering the instruction at issue here. Under these circumstances, Ms. Rehak has not made a plausible showing that the instruction had any consequence at trial. Accordingly, we will not consider her argument for the first time on appeal.
Finally, in her pro se statement of additional grounds for review, Ms. Rehak contends that counsel was ineffective for failing to introduce certain evidence and not allowing her to take the stand to explain how she spent the money.
An ineffective assistance of counsel analysis begins with the strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The claimant bears the burden of demonstrating ineffective assistance. McFarland, 127 Wn.2d at 337. To prove ineffective assistance, a defendant must show counsel's deficient performance resulted in trial prejudice. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Differences of opinion regarding trial strategy or tactics will not support a claim of ineffective assistance. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991).
On direct appeal, we will not consider matters outside the record; if matters outside the record are challenged, they must be raised in a personal restraint petition. McFarland, 127 Wn.2d at 335. Here, there is nothing in the record by which to evaluate Ms. Rehak's allegations. Moreover, defense counsel's advice not to testify was legitimate trial strategy and therefore is not a basis for a claim of ineffective assistance.
We affirm.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, J., Stephens, J. Pro Tem, concur.