Opinion
A-13106
03-02-2022
ROSALINDA M. AINZA, Appellant, v. STATE OF ALASKA, Appellee.
Emily L. Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District Trial Court No. 1JU-15-01056 CR, Juneau, Louis J. Menendez, Judge.
Emily L. Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
TERRELL JUDGE
Rosalinda M. Ainza worked as a real estate agent and property manager for Coldwell Banker Race Realty (Coldwell Race) in Juneau. After she misused funds from Coldwell Race's property management trust account and rent money paid by tenants of properties she was managing, Ainza was convicted of first-degree theft for failing to make required disposition of funds totaling $25,000 or more. She asked the trial court to suspend entry of judgment, but the trial court declined to do so - instead imposing a conviction of record and suspending imposition of sentence, placing Ainza on probation for 5 years and imposing 90 days to serve as a condition of her probation.
AS 11.46.120. She was acquitted of a second-degree forgery charge which alleged that she inserted her name into the payee line on a rent check.
Ainza appeals, raising three claims.
First, Ainza claims that the trial court erred in failing to give a factual unanimity instruction informing the jurors that they needed to agree on which acts of theft she committed. We agree that the failure to give a unanimity instruction was error, but we conclude that the error was harmless beyond a reasonable doubt.
Second, Ainza claims that the trial court abused its discretion in denying her request to introduce evidence of an incident where (according to Ainza) Coldwell Race's owner withdrew funds from a sales trust account and used the funds to facilitate a real estate sale. We conclude that the trial court did not abuse its discretion in declining to admit this evidence.
Third, Ainza claims that the statute authorizing trial judges to suspend entry of judgment, AS 12.55.078, violates (1) the doctrine of separation of powers because it requires prosecutorial consent and (2) due process because the prosecutor's discretion to consent is not constrained by any substantive standards and is not subject to judicial review. We decline to address these claims because there is no reasonable possibility that the sentencing judge would have granted Ainza a suspended entry of judgment, even if the prosecutor's consent was not required.
Accordingly, we affirm Ainza's conviction and sentence.
Relevant factual and procedural history
In late 2014, Ainza, who had been working with Coldwell Race as a home sales agent, successfully asked to expand her work to include residential property management. This gave her access to the property management trust account.
In January 2015, Coldwell Race's independently-contracted bookkeeper noticed that the property management trust account books did not balance. The bookkeeper's ongoing audit of the accounts over the succeeding months continued to show discrepancies.
On June 6, 2015, one of Coldwell Race's other property managers identified a $ 16, 000 deficit in the property management trust account. When she asked Ainza about this deficit, Ainza told her that she had forgotten to make a deposit and asked her not to say anything until she (Ainza) could replace the money. The property manager nonetheless had Ainza meet with Coldwell Race's bookkeeper that day.
At the meeting, Ainza and the bookkeeper went over the entries in Coldwell Race's QuickBooks accounting program related to the properties Ainza was managing. Ainza gave the bookkeeper documents showing (1) the amount of money she had removed from the property management trust account by writing improper checks, and (2) the amount of tenants' rent money that she had failed to turn over to Coldwell Race. Ainza told the bookkeeper that she could "take care of it [the deficit]." She submitted her resignation that same day.
The bookkeeper then audited the property management accounts, resulting in a spreadsheet that showed (1) checks that Ainza wrote from the property management trust account that were unrelated to the management of rental properties and appeared to be for Ainza's benefit (which included payment of expenses related to home sales), and (2) rent money that Ainza had not turned over to Coldwell Race for deposit into the property management trust account. The bookkeeper calculated that adding these two categories together showed that Ainza had stolen a total of $31,254.89 from the property management trust account, beginning in December 2014.
Sergeant Sterling Salisbury of the Juneau Police Department interviewed Ainza, and the recorded interview was played for the jury at trial. During that interview, Ainza admitted that she had misused the property management trust account and had improperly kept rent checks, but she also claimed that several of the questioned checks she wrote were for legitimate rental property management expenses. Ainza said that she "was using the property management operating account as a personal expense account with the intention of reconciling it before anybody noticed."
Salisbury later obtained Ainza's bank records, which showed that Ainza had deposited some of the missing rent checks into her own bank account.
Ainza also admitted her wrongdoing in a recorded interview with Coldwell Race's managing broker, Errol Champion. In this interview, which was played for the jury at trial, Ainza admitted that her lifestyle was a little bit above her means. She conceded that the information that she provided to Coldwell Race during and after her June 2015 meeting with the bookkeeper was "incriminating." She additionally told Champion that her conduct was "absolutely a felony," and stated that she "wouldn't backpedal and say that I didn't know what I was doing[.]"
The grand jury indicted Ainza on a single count of first-degree theft for "failing to make required disposition of funds received or held," i. e., checks written from the property management trust account that were unrelated to the management of rental properties, and rent money given to Ainza that she did not turn over to Coldwell Race.
See AS 11.46.100(6); AS 11.46.210 (defining theft by failure to make required disposition of funds received or held). The grand jury also indicted Ainza on one count of second-degree forgery but, as noted above, the petit jury found her not guilty of this offense.
Ainza's case proceeded to a jury trial. In her opening statement, the prosecutor asserted that Ainza had misused the funds in order to increase her ability to profit from real estate sales (by using other people's money to fund home sales expenses that she was responsible for) and to support her personal lifestyle. The prosecutor stated that Coldwell Race's bookkeeper had calculated that Ainza misused a total amount of $31,254.89 of Coldwell Race's funds.
The jury heard testimony that Ainza had engaged in sophisticated efforts to conceal her misuse of funds. A Coldwell Race property manager testified that Ainza deleted old check entries from the individual property management accounts in QuickBooks for the properties she managed, thus artificially inflating the apparent amount of funds in the account. She also testified that Ainza would sometimes handwrite checks from Coldwell Race's property management trust account, instead of using a QuickBooks feature, and then fail to input the check into QuickBooks. This also had the effect of artificially inflating the account value in QuickBooks for the rental property at issue.
The property manager and Ainza both testified that Ainza continued to pay the owners of the rental properties their standard draw (i.e., the tenant's rent payment minus Coldwell Race's management fee) from the property management trust account, so that the owners would be unaware that she was diverting rent money and would not alert Coldwell Race. (The jury also heard the recording of Ainza explaining this to Coldwell Race's managing broker.)
Ainza's defense was two-fold. Her primary defense was that the State had not established that she acted with the necessary criminal intent because she planned to repay the money she had taken and thus had no intent to permanently deprive Coldwell Race of its funds. This defense focused largely on checks that Ainza had signed, transferring funds from Coldwell Race's property management trust account to use for the sales side of Coldwell Race's business. According to Ainza, she was hired by Coldwell Race to shore up their weak real estate business and was under external pressure from Coldwell Race to do whatever was necessary to sell houses. She argued that she kept meticulous records of everything she had done, and that she did so because it was always her intent to pay all the money back to Coldwell Race.
Ainza's secondary defense was that she had not stolen a sufficient amount to meet the $25,000 threshold for first-degree theft. Ainza claimed that some of the checks she wrote from the property management trust account were for property management expenses or for home sales expenses that she believed were legitimate uses of that account. She also noted that the total amount of rent payments she was alleged to have diverted was larger than the amount of rent money that she deposited into her personal bank account.
The State in its closing argument adhered to the loss figure reflected in the calculations of Coldwell Race's independent bookkeeper, with one exception. The State agreed with Ainza that four checks that she wrote out of the property management account totaling $1,075.19 were for legitimate expenses, thus reducing the total theft figure from $31,254.89 to $30,179.70.
The jury found Ainza guilty of first-degree theft. The court granted Ainza a suspended imposition of sentence, placing her on probation for 5 years with conditions that required Ainza to spend 90 days in jail and to pay restitution to Coldwell Race.
This appeal followed.
Why we conclude that the failure to give a unanimity instruction was harmless beyond a reasonable doubt
As we have explained, Ainza was charged with first-degree theft under AS 11.46.120, which requires the value of the stolen property or services to equal to $25,000 or more. To establish that the value was over $25,000, the State relied on AS 11.46.980(c), which allows "amounts involved in criminal acts committed under one course of conduct" to be aggregated to determine the degree of a crime.
Relying on AS 11.46.980(c) raises the possibility that individual jurors could find a defendant guilty based on different acts, and thus implicates the requirement of jury unanimity, i.e., that all jurors must agree on which specific criminal act or acts the defendant committed (often referred to as "factual unanimity"). This Court held in Ramsey v. State that when the State relies on the aggregation provision in AS 11.46.980(c) to raise the degree of a theft offense, the defendant's constitutional right to a unanimous jury verdict requires the jury to agree on which specific acts of theft were committed. Accordingly, the jury must be given an instruction advising them of this requirement.
See Khan v. State, 278 P.3d 893, 897-99 (Alaska 2012).
Ramsey v. State, 355 P.3d 601, 602 (Alaska App. 2015).
Id.
In the present case, Ainza's proposed jury instructions correctly included an instruction that the jury had to be unanimous as to each of the specific thefts that were relied on to create an aggregate valuation of $25,000 or more in stolen funds. But the prosecutor erroneously asserted that a factual unanimity instruction was not required, and the trial court declined to give such an instruction. The court ruled that the requirement for unanimity was satisfied if the jury was unanimous that the amount of the thefts equaled or exceeded $25,000, even if individual jurors did not agree on which acts of theft were committed. This was error.
Because the requirement of jury unanimity is a constitutional right, failure to give such an instruction in cases where thefts are aggregated under AS 11.46.980(c) requires reversal unless the error was harmless beyond a reasonable doubt. In evaluating the impact of the error, "the question is whether there is a reasonable possibility that the absence of a factual unanimity instruction affected the jury's verdicts."
Id. (citing Moreno v. State, 341 P.3d 1134, 1138 (Alaska 2015)).
Bedwellv. State, 2018 WL 2277363, at *4 (Alaska App. May 16, 2018) (unpublished) (citing Anderson v. State, 337 P.3d 534, 540 (Alaska App. 2014)).
We agree with the State that because of the way this case was litigated, the error in not giving a unanimity instruction was harmless beyond a reasonable doubt.
With regard to the checks written from the property management trust account for expenses unrelated to property management, the prosecutor specifically identified the checks that Ainza wrote and on which it relied. These checks were written on specific dates, for specific amounts, to specific individuals, and the checks were introduced into evidence. In fact, Ainza admitted writing each of the checks. As a result, there was no risk of jury confusion or conflating of acts.
Similarly, with regard to the tenants' rent money that Ainza diverted, the bookkeeper's calculation of the total of $ 17, 021.25 in diverted rent payments came from information that Ainza provided to her at their June 6, 2015 meeting, and Ainza testified that she kept track of the money that she misappropriated.
Additionally, contrary to Ainza's assertions, there is little basis to conclude that jurors might have had doubt as to whether she had the necessary culpable mental state for some individual acts of theft. The jury was instructed (as required by AS 11.46.980(c)) that it could aggregate the value of the stolen property only if "the prosecution has proved beyond a reasonable doubt that the defendant committed [the thefts] as part of a calculated series of criminal acts that are part of an overarching scheme or plan." As a result, the jury must have found that Ainza committed her acts as part of an overarching scheme or plan.
Indeed, the sophisticated methods that Ainza used to cover her tracks, e.g., deleting old checks from QuickBooks to artificially inflate the value of a particular property owner's account and continuing to pay draws out of Coldwell Race's general trust account funds to the property owner even while depleting their account, gave strong evidence of such a plan. Ainza's statements to Coldwell Race's managing broker-that her conduct was "absolutely a felony" and that she "wouldn't backpedal and say that I didn't know what I was doing" - and her statement to Sergeant Salisbury that she "was using the property management operating account as a personal expense account with the intention of reconciling it before anybody noticed," further evidenced her intent to engage in a single overarching scheme or plan.
We accordingly conclude that there is no reasonable possibility that the absence of a factual unanimity instruction affected the jury's decision to convict Ainza of first-degree theft, and that the error in not giving such an instruction was harmless beyond a reasonable doubt.
Why we conclude that the trial court did not abuse its discretion in excluding evidence regarding the conduct of Coldwell Race's owner
During his cross-examination of Coldwell Race's owner, Ainza's attorney sought to question the owner about a photocopy of several $50 and $100 bills. The prosecutor objected that this questioning was not relevant. Outside the presence of the jury, Ainza's attorney explained that he believed the evidence would show that the owner used the photocopy to convince a buyer's agent that Coldwell Race's client had received earnest money toward the sale of the client's home. According to the proffer, Ainza would testify that she saw the photocopying take place. Additionally, Ainza's attorney asserted that the funds were withdrawn from a "sales trust account."
Ainza's attorney argued that the incident was relevant to show that Ainza's use of the property management trust account was consistent with what the owner taught her. In response, the prosecutor pointed out that the property at issue was not listed for sale until several months after Ainza's thefts began. The prosecutor argued that the owner's actions could not have been the model for Ainza's alleged acts of theft.
The trial court sustained the State's objection and excluded the evidence. We have reviewed the record, and we conclude that the trial court did not abuse its discretion in declining to admit evidence about the earnest-money incident. The probative value of the evidence was weakened by the fact that it took place several months after Ainza began stealing from Coldwell Race. Moreover, the trial court applied Evidence Rule 403 and reasonably found that the marginal probative value was outweighed by the risk of confusing and misleading the jury.
See Brown v. State, 779 P.2d 801, 805 (Alaska App. 1989) (explaining that "[b]ecause the evidence was so marginally probative, exclusion based on confusion and delay was justified").
Why we decline to reach Ainza's claim that the suspended entry of judgment statute is unconstitutional
Alaska Statute 12.55.078 permits the court to suspend entry of judgment and place the defendant on probation, if the prosecutor consents. If the defendant successfully completes probation, the charge is dismissed.
In the present case, Ainza asked the court to suspend entry of judgment. But the State would not consent to this. Ultimately, the trial court declined to enter a suspended entry of judgment and instead suspended imposition of Ainza's sentence under AS 12.55.085, placing her on probation for 5 years.
On appeal, Ainza asserts that AS 12.55.078 is unconstitutional because it violates the doctrine of separation of powers and her due process rights by requiring prosecutorial consent.
However, we do not reach the merits of this claim because we conclude that, even if the trial court had sole discretion to suspend entry of judgment, there is no reasonable possibility that the trial court would have granted a suspended entry of judgment in this case. The State proposed a sentence of 24 months in jail with 18 months suspended (6 months to serve). The trial court disagreed and instead imposed a suspended imposition of sentence, expressing hope that it would give Ainza a greater opportunity to make restitution than she would have if she were incarcerated. But the court noted that it was imposing the more lenient sanction "with great hesitation," and it still required Ainza to spend 90 days in jail as a condition of her probation. The court also expressed skepticism that Ainza was remorseful or that she fully understood the implications of her actions.
A suspended entry of judgment-the most lenient potential disposition- would have given Ainza the opportunity to have the conviction removed from her record. Given the tenor of the trial court's sentencing remarks, there is no reasonable possibility that the trial court would have suspended entry of judgment in this case.
Conclusion
The judgment of the superior court is AFFIRMED.