Opinion
No. 42117-8-II
02-20-2013
STATE OF WASHINGTON, Respondent, v. TERESA JEANNINE CROSS, Appellant.
UNPUBLISHED OPINION
Hunt, P.J. — Teresa Jeannine Cross appeals her jury trial convictions for forgery and second degree identity theft. She argues that there is insufficient evidence to sustain either conviction because the State did not prove beyond a reasonable doubt that she had the requisite knowledge that the check was false. Looking at the evidence in the light most favorable to the State, as we must post conviction, we hold that the evidence was sufficient to support the jury's verdicts; deferring to the jury's judgment about witness credibility, we affirm.
FACTS
I. Forgery; Theft
According to Teresa Cross, she began an online romantic relationship with John Lauren in late 2009. Lauren claimed to be a civil engineer from the United Kingdom, living in Florida. He contacted her by email in January 2010, claiming he had been robbed, and asked to borrow money from her for his son's school. Cross responded that she was unemployed and had no money.
According to Cross, on January 26, Lauren asked if she had received a check; she responded that she had not. Lauren stated that he had borrowed money from a friend, that he had the check sent to Cross, and that she should deposit the check into her account and send the money on to his son once the check cleared. The next morning, Cross picked up an envelope, which contained a computer-generated check for $2,850.75 payable to her from the Wells Fargo account of Robert and Elizabeth Rugamas of Layton, Utah. The envelope had a San Jose, California return address; the check was printed with three or four different fonts of different sizes, with a memo line note that said, "No. 118." Verbatim Report of Proceedings (VRP) (Dec. 8, 2010) at 139. The check bore the names of Robert and Elizabeth Rugamas as the makers of the check.
According to Cross, the next morning, January 27, she sent Lauren a message asking why he had sent the check to her and not directly to his son. Before receiving a response from Lauren, however, Cross copied onto a slip of paper the following information from the check: the names of the account holders (Robert and Elizabeth Rugamas), their account number, a phone number, and their address. She went to a Wells Fargo Bank branch, where she claimed she intended to determine whether the check was legitimate. She left the slip of paper in her car, entered the bank, and, instead, attempted to cash the check, without first making any inquiry about the check's legitimacy.
Cross testified that she decided to cash the check, instead of depositing it into her account to wait for it to clear, as Lauren had instructed, because she shared her account with her mother and she feared the check would bounce.
Because Cross was not a Wells Fargo account holder and the check was for a large amount, the bank required her to provide two forms of identification and had her put her thumbprint, name, and address on the check. The teller became suspicious because the physical size of the check was larger than a normal personal check, and it was written for almost the full amount of funds available in the account. The teller took the check to her supervisor.
The experienced supervisor, Jocelyn Jones, had been trained in recognizing check fraud. She noted the check's unusual physical size; the inconsistent fonts and font sizes; the odd memo line notation "No. 118"; that the amount was for under $3000.00; and that the check was drawn from a bank in one state, the account holders resided in another, and Cross was presenting the check for payment in a third state, indicia of what the banking industry calls the "Bermuda Triangle," which alerts banks that a check may be fraudulent. VRP (Dec. 8, 2010) at 132, 139. Like the teller, Jones suspected that the check Cross had presented was not valid.
Jones asked Cross whether she knew the people who had given her the check. Cross initially replied that she did and that she had received the check in the mail. The supervisor told Cross she was going to call the account holders, the Rugamuses. Cross said that she would call them, too. Jones watched Cross scroll through the stored numbers in her cell phone before Cross placed her call and allegedly spoke to someone she (Cross) thought was Mr. Rugamas.
Cross, however, claimed she had leaned over the counter, read the account holders' phone number from the check, and dialed that number.
Simultaneously dialing the telephone number listed in the bank's computer system, rather than the telephone number on the check, Jones called the Rugamases; Ms. Rugamas answered and provided Mr. Rugamas's cell phone number. When Jones reached Mr. Rugamas, he stated that he had never heard of Cross and had not authorized the check made payable to her. Jones called the police.
To keep Cross in the bank until the police arrived, the teller told Cross to wait in the lobby while they verified the check and helped other customers. Minutes later, Puyallup Police Department Officer Don Bourbon approached Cross and introduced himself as a police officer. Hanging her head, Cross responded simply, "Oh, no." VRP (Dec. 9, 2010) at 242. After Bourbon read Cross the Miranda warnings, Cross explained her internet romance with Lauren, how she had received the check, and that she had gone to the bank to see if the check was legitimate. Bourbon also spoke to the bank employees, who explained the incident as described above. Bourbon arrested Cross.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Cross told Bourbon that the envelope in which the check had arrived was on the front seat of her car. Bourbon retrieved the envelope and the slip of paper containing the Rugamases' information. Bourbon called the telephone number on the check, which took him to the voice mail for a Vancouver, British Columbia landline; Bourbon also called the Rugamases, who confirmed that they did not authorize the check payable to Cross. Cross denied that she was at fault; at the police station, she gave a written statement claiming that she was the victim of a scam.
II. Procedure
The State charged Cross with one count of identity theft in the second degree and one count of forgery. Following a pretrial hearing, the trial court ruled inadmissible 15 exhibits that Cross had planned to offer into evidence. The trial court also held a CrR 3.5 hearing, after which it determined that Cross's statements to Bourbon were admissible.
At trial, the witnesses testified as set forth above. In addition, Cross testified that she was the victim of an internet scam: After her arrest, she had performed some research and discovered that Lauren was a "scammer." VRP (Dec. 9, 2010) at 221. When she began the online romantic relationship with Lauren, she had been single for the first time in many years and was "pretty vulnerable." VRP (Dec. 9, 2010) at 225. And she had attempted to cash the check, rather than depositing it, because she feared it would bounce and she did not want to put it into the account she shares with her mother.
Cross's and Jones' accounts of their interaction differed. Cross testified that when Jones said she was going to call the Rugamases to verify the check, (1) the check was still in front of her (Cross); (2) she told Jones that the phone number was on the check and Jones responded that she had her "own way of getting the number"; and (3) she (Cross) had "leaned over and . . . looked at the number [on the check] and . . . dialed it." VRP (Dec. 9, 2010) at 237. In contrast, Jones testified that (1) it was "highly unlikely" that Cross had dialed the number from the check because she (Jones) had the check in her hand, out of Cross's view, when Cross placed her call on her cell phone; (2) Cross appeared to make the call from a number already stored in her phone after "scrolling through her flip phone, . . . scrolling through her arrow keys"; and (3) Cross's "hand was not moving in multiple directions as it takes to dial a phone. It was moving on the arrow key . . . straight down. Just one in the same spot over and over again." VRP (Dec. 8, 2010) at 155-56.
VRP (Dec. 8, 2010) at 158.
VRP (Dec. 8, 2010) at 154.
Jones further testified that Cross had "chang[ed] her story" about how she had acquired the check. VRP (Dec. 8, 2010) at 150. Cross initially told Jones she knew the person who had given her the check; but when pressed for more specifics, Cross said she did not know the person. According to Jones, "At the time, it sounded to me like she was changing her story." VRP (Dec. 8, 2010) at 150. In contrast, Cross testified that she had told Jones that she had been referring to Lauren when she said she knew who had given her the check and that she had told Jones she did not know the Rugamases.
The jury found Cross guilty of both counts. She appeals.
ANALYSIS
Cross's sole argument on appeal is that the State presented insufficient evidence to prove second degree identity theft and forgery in that the State failed to prove that she had the requisite knowledge that the check was false. More specifically, Cross argues that (1) the State presented no evidence to support an inference that she had the intent to commit, to aid, or to abet any crime; and (2) any inference by the jury that Cross possessed the Rugamases' information with intent to commit a crime "would be rank and baseless speculation and conjecture." Br. of Appellant at 17. This argument fails.
Cross does not challenge on appeal the trial court's exclusion of her exculpatory evidence.
I. Standard of Review
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it allows a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. We need not be convinced of the defendant's guilt beyond a reasonable doubt. A claim of insufficiency admits the truth of the State's evidence and all inferences that can reasonably be drawn from it; circumstantial evidence is considered as reliable as direct evidence. We do not review the jury's credibility determinations on appeal; rather, we defer to the trier of fact on issues of conflicting testimony, credibility of the witnesses, and persuasiveness of the evidence.
State v. Montgomery, 163 Wn.2d 577, 586, 183 P.3d 267 (2008).
State v. Fiser, 99 Wn. App. 714, 718-19, 995 P.2d 107 (citing State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303, review denied, 119 Wn.2d 1003 (1992), abrogated on other grounds by State v. Trujillo, 75 Wn. App. 913, 833 P.2d 329 (1994)), review denied, 141 Wn.2d (2000).
State v. Turner, 103 Wn. App. 515, 520, 13 P.3d 234 (2000).
State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
II. Sufficiency of the Evidence
We reiterate that the only element of both crimes that Cross argues lack sufficient supporting evidence is the mental element-knowledge of the check's falsity and intent to commit a crime by attempting to cash a fraudulent check. We address the elements of each crime and the evidence supporting the knowledge and intent elements in turn.
A. Knowledge
A person acts "knowingly" when
(i) . . . she is aware of a fact, facts, or circumstances or result described by a statute defining an offense; orRCW 9A.08.010(1)(b). The trial court further instructed the jury that, in order to convict Cross of either charged crime, the State had to prove beyond a reasonable doubt that she intended to commit the crime.
(ii) . . . she has information which would lead a reasonable person in the same
situation to believe that facts exist which facts are described by a statute defining an offense.
The trial court also instructed the jury that (1) "[i]f a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact," CP at 132 (Jury Instruction 7); and (2) "[a] person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime," CP at 133 (Jury Instruction 8). Moreover, intent to commit a crime "may be inferred from surrounding facts and circumstances if they 'plainly indicate such an intent as a matter of logical probability.'" State v. Esquivel, 71 Wn. App. 868, 871, 863 P.2d 113 (1993) (quoting State v. Woods, 63 Wn. App. 588, 591, 821 P.2d 1235 (1991)).
B. Forgery
A person is guilty of forgery if, with the intent to injure or defraud, she (1) "falsely makes, completes, or alters a written instrument"; or (2) "possesses, utters, offers, disposes of, or puts off as true a written instrument[] which . . . she knows to be forged." RCW 9A.60.020(1)(a), (b) (emphasis added). The trial court instructed the jury that in order to convict Cross of forgery, it had to find beyond a reasonable doubt that she knew the instrument was forged.
A "written instrument" is "(a) [a]ny paper, document, or other instrument containing written or printed matter or its equivalent; or (b) any access device, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification." RCW 9A.60.010(1).
The legislature amended RCW 9A.60.020 in 2011. Laws of 2011, ch. 336, § 382. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute.
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The check Cross attempted to cash had a return address from California, belonged to account holders in Utah whom she did not know, and allegedly came from a man she had not met who claimed to live in Florida and who asked her to deposit the check and to send the money on to his son, whom she also had not met. The check was apparently computer-generated and oversized, used multiple fonts and font sizes, and contained the unusual memo line note "No. 118." VRP (Dec. 8, 2010) at 139. Cross claimed to have only spoken with Lauren through an online voice-messaging service about three brief times. She had no address for him, and he claimed not to have a telephone.
Furthermore, despite Cross's stated intent to take the check to the bank to determine whether it was good, she simply presented it for cashing. The jury could find that either Cross or a reasonable person in her position would have known the check was fraudulent when she presented it to the bank for cashing.
Cross's claim that she had been the victim of a scam was plausible, in theory at least. Nevertheless, as the sole judges of witness credibility, the jury was in the best position to determine whether she was lying in a futile attempt to cover up her knowledge of the check's falsity. Viewing the evidence in the light most favorable to the State, we hold that the evidence was sufficient to support the jury's finding Cross guilty of forgery.
C. Second Degree Identity Theft
A person is guilty of second degree identity theft if he or sheRCW 9.35.020(1) (emphasis added). The trial court instructed the jury that to convict Cross of second degree identity theft, it had to find that she acted knowingly with the intent to commit or to aid or abet any crime.
knowingly obtain[s], possess[es], us[es], or transfer[s] a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.
From Cross's actions, described in detail above, the jury could reasonably infer that she knowingly possessed the financial information of another, the Rugamases, with the intent to commit, to aid, or to abet a crime, namely theft of bank funds of another person. Despite asserting that she had sent Lauren a message just before she attempted to cash the check, asking why he had not had the money sent directly to his son, Cross had not waited for a response before leaving for the bank. Despite her claim that Lauren had told her to deposit the check into her account and to wait for it to clear before withdrawing the money to send to his son, Cross presented the check for cashing, not for depositing. Despite her not knowing the Rugamases, named as the account owners, her suspicions that the check might bounce, and her alleged intent to ask the bank about its legitimacy, Cross never made any such inquiries before presenting the check for cashing.
When Jones told Cross she was calling the Rugamases, Cross stated she was calling them, too. Jones testified with certainty that Cross did not get the Rugamases' phone number from the check while Jones was holding it. The jury could have reasonably inferred that Cross had pretended to make the phone call in order to prevent the manager from calling the Rugamases. The jury also could have reasonably inferred that Cross was lying when she testified that she had seen the Rugamases' phone number on the check while Jones was holding it, that she (Cross) had not scrolled through her stored cell phone numbers while purporting to place the call, and that she placed a call on her cell phone to the phone number on the check while Jones was speaking to Mr. Rugamas on the bank's phone.
Furthermore, if Cross had actually wanted to find out whether the check was legitimate, she could have called the phone number on the check before she even entered the bank to present it, rather than waiting until Jones called the Rugamases to verify the check. And later, when Officer Bourbon arrived at the bank and introduced himself as a police officer, Cross spontaneously hung her head and said, "Oh, no." VRP (Dec. 9, 2010) at 242. The jury could infer from this action that Cross knew she had done something wrong. She also told Bourbon that her purpose in presenting the check to the bank that morning had been to see if the check was legitimate. Although Cross later testified that she meant she wanted to see if the check was backed by sufficient funds, the teller was clear in her testimony that Cross simply presented the check for cashing, without asking about its legitimacy or whether there were adequate funds in the account to cover it. The jury could reasonably infer from Cross's testimony that she was lying in an attempt to conceal her criminal intent to cash the check that she knew was not hers. Again, viewing the evidence in the light most favorable to the State, the evidence was sufficient to support the jury's finding Cross acted with the requisite knowledge and intent and committed second degree identity theft.
Although Cross presented a theoretically plausible explanation that she had been the unwitting victim of a scam, the jury did not believe her and rejected her exculpatory explanation. We cannot and will not substitute our judgment for the jury's determinations of the credibility of the witnesses, including Cross's, and the persuasiveness of the evidence. Accordingly, we affirm.
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.
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Hunt, P.J.
We concur: _____________
Quinn-Brintnall, J.
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Van Deren, J.