Opinion
No. 30271-3-II.
Filed: February 10, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 02-1-00333-8. Judgment or order under review. Date filed: 04/17/2003.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Carol L. Case, Mason Co Pros Office, PO Box 639, Shelton, WA 98584-0639.
William D. Sewell appeals his conviction of first degree theft, arguing instructional error and ineffective assistance of counsel. The State charged Sewell with first degree theft based on the aggregate amount of a series of 32 smaller thefts from his employer. But the trial court did not instruct the jury that it had to determine whether the individual thefts were part of a common plan or scheme in order to aggregate the values of the individual thefts. Sewell argues that he was entitled to this instruction or that, should we conclude that his counsel waived this issue by failing to object or offer the instruction below, he received ineffective assistance of counsel. Although we agree that Sewell was entitled to such an instruction, we conclude that the error was harmless and affirm the conviction.
See Exhibits 1-18, 20-21, 22-34.
Facts
The State charged Sewell by amended information with one count of first degree theft in violation of RCW 9A.56.020(1)(a) and RCW 9A.56.030(1)(a). The case went to a jury trial. At trial, Scott Griffin, Sewell's former employer at a NAPA Auto Parts store, testified for the State.
Griffin testified that during a store inventory, the store discovered a large inventory discrepancy that prompted further investigation. This investigation revealed a series of more than 30 questionable voided invoices or invoices purporting to be quotes; most of these voids appeared to have been authorized by Sewell. See Report of Proceedings (RP) at 28; Exhibits 1-15, 17, 20-21, 24-33. The earliest invoice was dated May 7, 2001, Exh. 34, the last was dated September 23, 2001, Exh. 1.
Griffin described the quote process. To generate a quote, the employee would `create an invoice and then go back and void it out and give the customer the brown copy [of the invoice] as a quote.' Report of Proceedings at 23.
Sewell was known at the store as Doug. On all but four of the questionable invoices, the void was initialed by `DS.' See Exhs. 1-15, 17, 20-21, 24-33. Of the remaining questionable invoices, one contained the initials `SM' rather than `DS,' Exh. 34, and three were not initialed. Exhs. 16, 18, 23.
Although merchandise listed on a voided invoice would normally remain in the store's inventory, Griffin testified that these invoices came to his attention because the merchandise listed on them was missing from the store's physical inventory. In addition to listing the merchandise, many of the questionable invoices also listed `core deposits.' As the invoices appeared to have been voided, the store would not normally have received these cores from the customers. But Griffin testified that the store's records established that the store had in fact received these cores. The presence of the cores and the absence of the merchandise suggested that the invoices were for actual cash sales and that someone later altered the invoices to show the transaction had been voided and taken the cash.
On certain items, the store charges the customer a `core deposit.' RP at 28, 89. The store refunds the deposit when the customer returns the old part. RP at 28, 89-90. The store then sends the core to be rebuilt and later resells it. RP at 28.
Three of the invoices were for more than $250, Exhs. 23, 31, 33; the remainder were for less than $250. The largest individual invoice was for $654.56. Exh. 31. Griffin testified that the altered invoices totaled $4,491.28. RP at 70.
Griffin also testified that Sewell was one of the few employees authorized to close out at the end of the day and that his duties included processing voided invoices. Only a few of the employees knew the password required to void transactions. Despite Sewell being responsible for processing voids, Griffin testified that Sewell never brought any of the questionable invoices to his attention or raised any concern about someone forging his initials.
Griffin later provided a set of `legitimate' or verified voids done by Sewell. Exh. 35. The writing on these invoices was similar to that on the questionable invoices. Additionally, although Griffin testified that it was not unusual for the store to have some inventory discrepancies, he asserted that these discrepancies usually resolved themselves, often because the item had been misshelved, and that the store was usually able to trace most other inventory discrepancies.
In two cases, the store was able to trace the questionable transactions to the customer. Griffin contacted one of these customers, Jack Davidson, who told him that he had purchased the merchandise listed on invoice 848733 (Exh. 7) even though this invoice had been voided as a quote only invoice. Griffin also testified that this merchandise was not in the store's inventory.
Sewell did not object to this testimony.
The other identified customer, Chris Coleman, testified for the State. Coleman testified about invoices 845103 (Exh. 20) and 845154 (Exh. 22). Although Exhibit 20, the store's copy of invoice 845103, was voided as a quote only invoice and initialed by `DS,' Coleman testified that he paid for and kept the merchandise. Coleman also provided a copy of his receipt; this copy did not show that the invoice was voided nor was it initialed by `DS.' Exh. 19.
Coleman also testified that he returned two cores for the deposits listed on Exhibit 20; this transaction was reflected in Exhibit 22. Griffin was apparently able to trace this transaction to Coleman because he signed the core return and wrote down his telephone number; the core return matched up with the sales invoice. Griffin also testified that this transaction resulted in a double loss because not only was the sale voided and the money taken, but the core deposits collected in the original transaction were refunded to Coleman when he returned the cores.
Leslie Mullen also testified. Mullen had worked with Sewell at the store in 2001. Mullen's duties were similar to Sewell's, but as a part time employee did not have the authority or computer password that would allow him to process voids, and he was not responsible for closing out the store. Mullen testified about invoice 850221 (Exh. 1), which appeared to have been generated under his employee number 45. He noted that his signature indicating that this was a paid cash transaction had been obliterated and that someone else had written in the words `quote' only. RP at 46; see also Exh. 1. He also testified that the initials at the bottom of the invoice indicating who had voided the transaction were not his.
On one of the questionable invoices, invoice 816489 (Exh. 34), the void was initialed by someone using the initials `SM.' Steven Mack, another former employee, testified that although was also authorized to void transactions, he did not void this particular transaction and someone else had used his initials. Mack testified that he recalled this transaction because the parts had come from another warehouse and that the customer paid cash for the merchandise and left the store with it. Griffin testified that the merchandise listed on the invoice was missing from the store's inventory. Griffin later supplied copies of `legitimate' voids by Mack. Exh. 36. The initials on Mack's `legitimate' voids were very different than the initials on the questionable void.
Sewell presented one witness, Joshua Underberg. Underberg, a former employee who had worked with Sewell, testified that it was not unusual for employees to use another employee's identification number when processing a transaction. Additionally, he testified that it was not unusual for the computerized inventory system to show that an item was in stock when it was not. But he also testified that despite being able to generate invoices under another employee's employee number, he never had the authority to void transactions and was not familiar with that process.
The employee numbers on the questionable invoices, which indicated which employee had made the sale but did not relate to who had voided the sale, were often different than Sewell's employee number.
After both parties rested, the court provided the jury with the following instructions:
A person commits the crime of theft in the first degree when he or she commits theft of property exceeding $1500 in value.
Clerk's Papers (CP) at 27 (instruction 6).
To convict the defendant of the crime of theft in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That from May 2001 through September 2001 the defendant wrongfully obtained control over property of another or the value thereof;
(2) That the property exceeded $1500 in value;
(3) That the defendant intended to deprive the other person of the property; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, than [sic] it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. CP at 30 (instruction 9).
The record does not show that either party objected to these instructions. Although neither instruction required the jury to find that the individual thefts were part of a common scheme or plan, it appears that neither party offered such an instruction or suggested that it would be appropriate.
The jury found Sewell guilty as charged. He appeals. Analysis
Sewell argues that (1) the jury instructions were inadequate because they did not require the jury to find the individual transactions part of a common plan or scheme; and (2) if his counsel failed to preserve this issue for appeal, he received ineffective assistance of counsel. The State argues that Sewell was not entitled to such an instruction because the offenses were aggregated under the common law and not under the statutory aggregation provision, former RCW 9A.56.010(18)(c) (1999). Regardless of whether Sewell's counsel preserved this error for appeal, we conclude that Sewell was clearly entitled to this instruction.
The legislature amended this provision in 2002. See Laws of 2002, ch. 97, sec. 1.
`The common law allows aggregation of a series of thefts, so long as the thefts are from the same owner and the same place and result from a single criminal impulse pursuant to a general larcenous scheme.' State v. Atterton, 81 Wn. App. 470, 472, 915 P.2d 535 (1996) (citing State v. Vining, 2 Wn. App. 802, 808, 472 P.2d 564 (1970)). `Whether a series of takings from the same owner is one crime or a series of independent crimes is a question for the trier of fact.' State v. Eppens, 30 Wn. App. 119, 125, 633 P.2d 92 (1981) (citing Vining, 2 Wn. App. at 809); see also State v. Garman, 100 Wn. App. 307, 315, 984 P.2d 453 (1999), review denied, 141 Wn.2d 1030 (2000); State v. Meyer, 26 Wn. App. 119, 124, 613 P.2d 132 (1980) (citing Vining with approval); State v. Perkerewicz, 4 Wn. App. 937, 942 n. 2, 486 P.2d 97, review denied, 79 Wn.2d 1006 (1971). And as the seminal case stating this rule, Vining, involved common law aggregation, the State's assertion that such an instruction is not required when the defendant is charged under common law aggregation is not well taken.
The Perkerewicz court stated:
In [Vining], we explained that a series of acts may be combined into a single crime, where the successive takings are the result of a single, continuing criminal impulse or intent and are pursuant to the execution of a general larcenous scheme or plan; but this casts upon the state the obligation of proving as a fact that such a general scheme or plan exists, and that further, an appropriate instruction should be presented to the jury advising them that this is a necessary element of the crime charged. 4 Wn. App. at 942 n. 2 (emphasis added).
But our inquiry does not end here. Regardless of whether we address this issue directly or in the context of Sewell's ineffective assistance of counsel claim, both arguments fail because the absence of this instruction was harmless.
To demonstrate ineffective assistance of counsel, Sewell must prove deficient performance and prejudice. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Because the jury convicted Sewell, it necessarily found that he was responsible for individual thefts amounting to at least $1,500 in value. Although both parties appear to focus their harmless error analyses on whether the evidence was sufficient to prove that Sewell committed the individual thefts, the issue here is not whether the evidence was sufficient to establish that Sewell committed each offense but whether the evidence convinces us beyond a reasonable doubt that any reasonable jury would have reached the same result if it had been given the proper instruction. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).
And to the extent Sewell is actually arguing that the evidence was insufficient to convict him of the individual thefts, that argument also fails.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn from them. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). And we defer to the trier of fact on issues involving conflicting testimony, the credibility of witnesses, and the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997).
Sewell contends there was no evidence that he was on duty on the days any of the questionable voids occurred. But Griffin testified that it was one of Sewell's duties to close out the voids for the day and that the initials on the questionable invoices matched Sewell's initials.
Additionally, Griffin supplied copies of `legitimate' voids processed by Sewell, and the jury was free to compare writing on those invoices to the questionable invoices.
Sewell next contends that the evidence was insufficient because Griffin admitted that the store inventory was often inaccurate. But this issue goes to the weight and persuasiveness of the evidence, and we defer to the trier of fact on such issues.
Sewell also appears to contend that the evidence is insufficient because it was possible someone else could have used his employee code. Underberg's testimony established that employee codes were related to initiating the transaction and did not necessarily imply that the employee would also have the ability to void transactions. As the issue here was who voided the transaction, not who initiated the transaction, the fact someone else may have initiated the transaction is irrelevant.
For the sake of argument, we presume that the omission of this instruction was constitutional error and apply the more stringent constitutional standards. Under those standards, we presume that instructional error is prejudicial unless it affirmatively appears to be harmless. State v. Stein, 144 Wn.2d 236, 246, 27 P.3d 184 (2001); State v. Jennings, 111 Wn. App. 54, 63-64, 44 P.3d 1 (2002) (adopting Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)), review denied, 148 Wn.2d 1001 (2003). A constitutional error is harmless if we are `convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error.' State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).
Although the thefts occurred over a period of several months, each was committed using the same or similar method against the same victim. This is clear evidence of a continuing impulse or intent and clear evidence of a larcenous scheme or plan to steal money from his employer by falsifying documents related to various cash sales. Accordingly, we conclude beyond a reasonable doubt that any reasonable jury would have reached the same result had it been instructed that it had to find that these individual transactions were part of a common plan or scheme. Thus, defense counsel's failure to object to the jury instructions or offer the appropriate instruction and the trial court's failure to provide the appropriate instruction was harmless.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J. and HUNT, C.J., concur.