Opinion
No. 53318-5-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-00616-1. Judgment or order under review. Date filed: 10/06/2003. Judge signing: Hon. Harry J. McCarthy.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Milton J. Christophe (Appearing Pro Se).
Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Dana Cashman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Milton Christophe rented a car from A Auto Rentals and Sales and prepaid for a week. Although he paid for some additional rental time after that, he kept the car longer than he had paid for and did not return it by the agreed-upon time. He was convicted of theft of rental property over $1,500. Christophe challenges the 'to convict' jury instruction as an incorrect statement of the elements of the crime and thus a constitutional error. He also argues no invitation or waiver of error, and, in the alternative, ineffective assistance of counsel. We affirm.
FACTS
On November 27, 2002, Milton Christophe rented a 1992 Ford Escort from A Auto Rentals and Sales (A Auto). As his customary car was inoperative, Christophe was unsure how long he would need the Escort. Christophe and the owner of A Auto, Arlen Stebbins, agreed that Christophe would rent the Escort for one week. Christophe prepaid for the week and left with the car. The weekly rental fee was $150.
The record indicates that Stebbins' understanding was that the money Christophe paid on November 27 did not cover the deposit and an entire week's rental; Christophe understood that it did cover the whole week's rental. However, Respondent's brief states that the whole week was prepaid.
Christophe returned to A Auto on December 2 and paid Stebbins $85 for continued rental of the Escort. Christophe did not make any further payments on the Escort. The accounts of what happened differ at this point. Stebbins called Christophe on December 8, and, according to Christophe, agreed to let Christophe keep the car through the end of the month, with a balance of about $400. Christophe claimed that when he spoke with Stebbins again on December 23, Stebbins indicated that he needed some money for the car and had sent Christophe a notice demanding the car back. Christophe claimed that he then told Stebbins he should come pick up the Escort. However, after an argument with Christophe, Christophe's girlfriend, Tammy Ball took the Escort to Spokane on December 27. She did so without Christophe's permission. Christophe did not report the car as stolen, or notify Stebbins.
Christophe tried to contact Ball to get her to return the Escort, but was unsuccessful until March 5, when he received a call from his step-daughter informing him the Escort had been dropped off in Kent. Christophe retrieved the Escort the next day and drove it to work. He claimed he intended to return the Escort to A Auto that evening after work. A work friend asked Christophe for a ride home that night; Christophe was pulled over and arrested by the police for driving a stolen vehicle as he was driving his friend home.
Stebbins denied that he ever made arrangements to let Christophe keep the Escort longer than what he had paid for. Stebbins claimed that Christophe made numerous promises to pay for the car throughout December. Stebbins stated that on January 2, 2003, he told Christophe he was going to come get the car, but that Christophe said his attorney told him he did not have to return the Escort. Stebbins said he reported the car as stolen the next day, and did not get it back until March 7, 2003.
Christophe was charged with theft of rental or leased property over $1,500. The trial court's jury instructions included the following two:
No. 5:
A person commits the crime of theft of rental or leased property valued at $1500 or more if, with intent to deprive the owner or owner's agent of property, a person wrongfully obtains, or exerts unauthorized control over personal property that is rented or leased to the person and the value of the property is one thousand five hundred dollars or more.
No. 6:
To convict the defendant of the crime of theft of rental or leased property valued at $1500 or more, as charged in count 1, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That the defendant rented property under an agreement;
(2) That the value of the property was one thousand five hundred dollars or more;
(3) That on March 6, 2003, the defendant, with intent to deprive the owner or the owner's agent, had failed to return the property to the designated place within the time specified and;
(4) That the acts occurred in the State of Washington.
(Emphasis added.) Defense counsel did not object to these instructions at trial. Christophe was convicted as charged and was sentenced to 75 days in jail.
ANALYSIS
Christophe argues that the court must reach his challenge to the jury instruction because his trial attorney did not invite the instructional error, nor did she waive it by failing to object to the instructions. The doctrine of invited error prohibits a defendant from objecting to jury instructions that he proposed at trial. State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990). Since Christophe did not propose the instructions at issue, he did not invite the error. In addition, Christophe did not waive his objection to the instructional error, as an instruction that violates a defendant's constitutional right may be raised for the first time on appeal. RAP 2.5(a)(3); State v. Mills, 116 Wn. App. 106, 110, 64 P.3d 1253 (2003), review granted, 149 Wn.2d 1032 (2003). Thus, we may reach the issue of the jury instructions on the merits. Christophe claims that jury instruction no. 6 failed to set out all of the statutory elements of the crime for which he was convicted. Specifically, Christophe claims that the 'to convict' instruction set forth 'failed to return' as the conduct element of the crime, when the correct element is 'wrongfully obtains, or exerts unauthorized control over,' as correctly stated in jury instruction no. 5. He thus claims that the state was unconstitutionally relieved of its burden of proving each element of the crime beyond a reasonable doubt.
This court reviews a challenge to the adequacy of jury instructions de novo. State v. Shouse, 119 Wn. App. 793, 796, 83 P.3d 453 (2004). An instruction that violates a defendant's constitutional right may be raised for the first time on appeal. RAP 2.5(a)(3). An instruction that relieves the state of its burden to prove every element of the crime beyond a reasonable doubt violates a defendant's constitutional right. State v. Stein, 144 Wn.2d 236, 241, 27 P.3d 184 (2001).
RCW 9A.56.096(1) provides that:
A person who, with intent to deprive the owner or owner's agent, wrongfully obtains, or exerts unauthorized control over, or by color or aid of deception gains control of personal property that is rented or leased to the person, is guilty of theft of rental, leased, or lease-purchased property.
The statute also provides that intent to deprive may be presumed if the finder of fact determines that the defendant failed to return or make arrangements acceptable to the owner of the property or the owner's agent to return the property to the owner or the owner's agent within seventy-two hours after receipt of proper notice following the due date of the rental, lease, or lease-purchase agreement.
(Emphasis added.)
We agree that the 'to convict' instruction was not an accurate statement of the elements of the crime of theft of rental or leased property. 'Failed to return' is relevant to whether the defendant had intent to deprive, the mental element of the crime. RCW 9A.56.096(2). The 'to convict' instruction required the jury to find intent to deprive and failure to return, both statements of the mental element of the crime. On its face, it did not require that the jury find the conduct element of the crime: 'wrongfully obtains, or exerts unauthorized control over, or by color or aid of deception gains control of.'
However, under the facts in this case, a finding of failure to return was also a finding of the conduct element. The state did not allege nor attempt to prove that Christophe wrongfully obtained the vehicle. 'Exerts unauthorized control over' the property was the only alleged means of violating the statute. Further, the state had narrowed the charge to encompass Christophe's actions on March 6, 2003, not the days and months before. By failing to return the car that day, Christophe was exerting unauthorized control over it. Christophe's failure to return the car supplied both the mental element and the conduct element of the crime. Thus, although the instruction was technically incorrect, it did not relieve the state of its burden to prove each element beyond a reasonable doubt. Any error in the jury instructions was harmless. Because Christophe's trial attorney did not invite or waive the instructional error, this court need not address Christophe's claim that his attorney's assistance was ineffective.
Affirmed.
APPELWICK, KENNEDY and AGID, JJ.