Opinion
No. 26872-1-III.
September 22, 2009.
Appeal from the Superior Court, Kittitas County, No. 06-1-00206-6, Michael E. Cooper, J., entered January 28, 2008.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Schultheis, C.J., concurred in by Brown and Korsmo, JJ.
Richard Grow was in charge of pull tabs at a restaurant/casino. The State charged that over the course of six days Mr. Grow took pull tabs without paying for them and redeemed four tickets for a total of $1,510. He was charged with and convicted of one count of first degree theft, considering the aggregated total amount of loss, and one count of second degree cheating.
On appeal, he contends that, because first degree theft and cheating are concurrent statutes, he should have been charged only under the specific (cheating) statute and not under the general (theft) statute. He also contends that the value of the theft was improperly aggregated and the jury was improperly instructed on aggregation and unanimity. Finally, he contends that his constitutional rights were violated when the jury was instructed on an uncharged alternative means of theft. We conclude that the jury in this case was, in fact, instructed on an uncharged alternative means of theft. We therefore reverse the theft charge and remand. We affirm the cheating conviction.
FACTS
Mr. Grow was hired as the executive chef at the Wild Goose Casino in Ellensburg, Washington, in late December 2004. The casino had a full-service restaurant and lounge, table games, poker, and pull tabs. He was promoted to food and beverage director at the beginning of May 2005 after he exposed his predecessor for theft. Mr. Grow's new position put him in charge of the pull tab games, servers, cooks, and bartenders.
The general manager of the casino was terminated at the end of May 2005 and Oscar Trusley was hired in her place. Mr. Trusley had 14 to 15 years' experience in larger casinos and was hired to improve sagging venue, correct gaming irregularities, and provide better oversight of the staffing and appearance of the facility. Employees immediately noticed that Mr. Trusley "ran a tighter ship" than that seen under prior management. I Report of Proceedings at 77.
Mr. Trusley was concerned that the pull tab operation was not profitable, which was highly unusual. In early June 2005, Mr. Trusley brought in a pull tab vendor to train those employees, including Mr. Grow, who distributed the pull tab tickets to the customers. Mr. Trusley reviewed with Mr. Grow the state-mandated gaming rules and Mr. Grow was provided a copy of the state gaming administrative procedures.
Oversight of the pull tab operation intensified when Mr. Trusley found out that the revenue for the pull tabs was insufficient to make payouts for winnings. This caused the casino to issue checks on July 9 and July 11 to cover the winnings. On July 13, Mr. Trusley began an audit of the pull tab games, which implicated Mr. Grow as the administrative overseer of the games. Numerous irregularities were found.
Mr. Trusley contacted Brian Lane at the Washington State Gambling Commission on Friday, July 15, 2005. They agreed to confront Mr. Grow together the following Monday at the casino.
On Monday, July 18, Mr. Grow gave Mr. Trusley a $100 winning ticket, which Mr. Grow said he had found in the till but did not have the proper paperwork completed or redemption procedures followed. Mr. Grow said he wanted to discuss the matter with his bartenders in the context of training.
When Mr. Lane later arrived at the casino, he met with Mr. Trusley and Mr. Grow. Mr. Grow was terminated by Mr. Trusley. Mr. Lane informed Mr. Grow of his constitutional rights, which he waived, and they discussed the pull tab irregularities. Mr. Grow was ultimately charged with one count of first degree theft and one count of second degree cheating.
At trial, Mr. Trusley and Mr. Lane provided evidence of four incidents of pull tab irregularities over the course of six days. In the first instance, on July 5, 2005, Mr. Grow was paid $505 as a winner of the Jimmie Crack Corn pull tab game, bearing a serial number of 3001487 (Jimmie Crack Corn I). Receipts show that the payout was made to Mr. Grow at about 10:30 a.m. A videotape showed Mr. Grow removing pull tabs without paying for them. In fact, records show that no pull tabs were purchased from this game at all on that date. The last tickets were purchased at 2:40 p.m. the previous day.
This Jimmy Crack Corn I game was closed at 11:02 a.m. on July 5. Yet, as will be discussed, three winning tickets from this game were redeemed as winners of a different Jimmie Crack Corn game, bearing serial number 3001488 (Jimmie Crack Corn II). Additionally, when the Jimmie Crack Corn I game was closed on July 5, Mr. Grow's closing reports showed that 336 tickets were sold. The weigh-out by the gambling commission showed that 1,915 of the 7,200 tickets were absent. In other words, 1,579 tickets were not accounted for by receipts.
In the second incident, on July 9, 2005, a payout of $300 was made in the name of Rob Linden from the Jimmie Crack Corn II game for winning pull tabs of $100 and $200 with Jimmie Crack Corn I tickets. Payout slips and receipts show that the payout was made at approximately 10:40 a.m. The security tapes show Mr. Grow making a transaction at this time.
In the third incident, on July 9 at 11:35 p.m., winnings of $605 were paid by a casino check in the name of Jennifer Goodwin on the Jimmie Crack Corn II game to cover two Jimmie Crack Corn I winning tickets, one for $505 and one for $100. Surveillance tapes show Mr. Grow making a transaction at that time. No customers were present at that time. The check was drawn from the casino's vendor account, pre-signed in blank by Mr. Trusley, and left in the drop safe for payment of vendor deliveries.
In the fourth incident, on July 11, surveillance shows that Mr. Grow made a transaction at a pull tab machine at about 11 a.m. Mr. Grow was the only person in the bar, other than the janitor. The payout records show that $100 was paid out for a Jimmie Crack Corn I ticket on the Jimmie Crack Corn II game. The appropriate paperwork was not completed to identify the winner and the winning ticket could not be found.
The Jimmie Crack Corn II game was pulled on July 18 in the course of Mr. Lane's investigation. Mr. Lane counted receipts for 374 tickets, but the weigh-out showed that 3,433 tickets were absent, for a difference of 3,059 unaccounted-for tickets.
Mr. Grow testified that he was an active pull tab player, and he often played on duty, as did other employees. Mr. Trusley had testified that employees were not permitted to play while working or on breaks. Mr. Grow denied knowing of such a rule.
Mr. Grow indicated that he would often not pay for his pull tabs until he was done playing. But he claimed that he always paid. He stated that he would also sometimes buy pull tabs with bartending tips, accumulate them in a cup in his office, and then bring them home for his wife to play. Mr. Lane testified that tickets cannot be redeemed after the game is closed. Although it is not a gambling commission rule, it is an industry standard that players cannot leave the establishment with a ticket. Mr. Grow claims that he was not aware that pull tabs had to be played and redeemed immediately and could not leave the building.
As to the specific allegations, Mr. Grow admitted to being paid $505 as a winner on July 5 in the first incident, from pull tabs he had paid for and accumulated but opened at a later time. He stated that, in the second incident, he endorsed a $100 ticket in the name of Rob Linden, a name that he made up, but denied taking money for the ticket. He explained that he was covering for one of his employees who evidently paid out the ticket without identifying the winner and obtaining the required information from the winner.
As to the third incident, Mr. Grow admitted that the $605 check was negotiated by his wife, whom he had recently married. Mr. Grow's wife's maiden name is Jennifer Goodwin. He claimed that his wife pulled the winning tickets from those that he had brought home for her. According to Mr. Trusley, the use of the vendor account was not the appropriate procedure for payouts not covered by pull tab revenue. Mr. Grow testified that Mr. Trusley instructed him to write the check when told that the pull tab revenue would not cover the winnings.
For the fourth incident, Mr. Grow explained that sometime around July 11, he found a $100 ticket without the appropriate paperwork in the till. He had by that time read the administrative rules regarding the requirements for ticket redemption and held on to the ticket with plans to use it as a teaching tool in a meeting with his bartenders. This is the ticket he gave to Mr. Trusley on the day of his termination. He testified that he told Mr. Trusley that he realized that there were a number of problems with pull tab ticket procedures and suggested that they have a meeting with the bartenders to identify major pull tab violations and train the employees properly.
Mr. Grow was found guilty of both counts. This timely appeal follows.
DISCUSSION a. Concurrent statutes
Mr. Grow contends that the cheating statute is a special statute that, when charged, precludes a second charge under the general statute, first degree theft, for the same conduct. This implicates a rule of statutory construction, which is reviewed de novo. State v. Heffner, 126 Wn. App. 803, 807, 110 P.3d 219 (2005) (citing State v. Danforth, 97 Wn.2d 255, 257-59, 643 P.2d 882 (1982); State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004)).
"When a special statute is concurrent with a general statute, the accused must be charged solely under the special statute." Id. at 808 (citing State v. Shriner, 101 Wn.2d 576, 581, 681 P.2d 237 (1984)). "In order for statutes to be concurrent, each violation of the special statute must result in a violation of the general statute." Id. (citing Shriner, 101 Wn.2d at 580). A statute is not concurrent when a person can violate the special statute without necessarily violating the general statute. Id.
First degree theft, as Mr. Grow was charged here, requires proof that he wrongfully obtained or exerted control over money in excess of $1,500 with the intent to deprive the owner of the money. RCW 9A.56.020(1)(a); former RCW 9A.56.030(1)(a) (2007). Second degree cheating, as Mr. Grow was charged here, requires proof that he "did employ or attempt to employ an artifice to defraud any other participant or operator, or did engage in an act, practice, or course of operation as would operate as fraud or deceit upon any other participant or operator." Clerk's Papers (CP) at 1; see RCW 9.46.196(1), (2); RCW 9.46.1962. Cheating can be accomplished without involving a sum of more than $1,500 as required in the first degree theft statute. This alone is proof that the statutes are not concurrent. Heffner, 126 Wn. App. at 808-09.
b. Aggregation of value
Mr. Grow argues that "the State should not be able to avoid a specific statute by aggregating value to charge a greater offense under a general statute and thereby avoid the concurrent nature of the statutes." Appellant's Br. at 10-11.
The aggregation statute relevantly provides:
[W]henever any series of transactions which constitute theft, would, when considered separately, constitute theft in the third degree because of value, and said series of transactions are a part of a criminal episode or a common scheme or plan, then the transactions may be aggregated in one count and the sum of the value of all said transactions shall be the value considered in determining the degree of theft involved.
For purposes of this subsection, "criminal episode" means a series of thefts committed by the same person from one or more mercantile establishments on three or more occasions within a five-day period.
Mr. Grow essentially asks the court to interpret this statute, which is done de novo. State v. J.P., 149 Wn.2d 444, 449, 69 P.3d 318 (2003).
"Under this statute, the state has the discretion to charge a defendant who commits several misdemeanor thefts as part of a common plan or scheme with either multiple counts of third degree theft or a single count of felony theft." State v. Carosa, 83 Wn. App. 380, 384 n. 1, 921 P.2d 593 (1996) (citing State v. Hoyt, 79 Wn. App. 494, 497, 904 P.2d 779 (1995)). In general, the State has "considerable latitude to either aggregate charges or to bring multiple charges." State v. Kinneman, 120 Wn. App. 327, 337, 84 P.3d 882 (2003). Mr. Grow provides no authority to support the notion that the State lacked such discretion in this case.
c. Common scheme or plan instructions
Mr. Grow next argues that the court failed to instruct the jury that the thefts involved a "criminal episode" as defined in RCW 9A.56.010(18)(c). Alleged legal errors in jury instructions are reviewed de novo. State v. Becklin, 163 Wn.2d 519, 525, 182 P.3d 944 (2008).
"Jury instructions are 'sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law.'" State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012 (2005) (quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996)). "Read as a whole, the jury instructions must make the relevant legal standard manifestly apparent to the average juror." State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997).
The State did not rely on the criminal episode definition for aggregation. Instead, the jury was instructed:
Whenever any series of transactions which constitutes theft is part of a common scheme or plan, then the sum of the value of all transactions shall be the value considered in determining the degree of theft involved or the amount of value.
CP at 56.
The jury was given a sufficient and proper instruction on aggregation. See RCW 9A.56.010(18)(c). No criminal episode definition was required.
d. Unanimity
Mr. Grow argues that the to-convict instruction was deficient to assure unanimity of the verdict. He relies on State v. Garman, 100 Wn. App. 307, 984 P.2d 453 (1999). In Garman, Division One of this court held that a unanimity instruction is not required when
(1) a defendant is charged with a single count of theft based on a common scheme or plan, (2) the evidence indicates multiple incidents of theft from the same victim, (3) the multiple transactions are aggregated for charging purposes, (4) the jury is instructed on the law of aggregation, and (5) the to-convict instruction for the theft charge requires the jury to find that the multiple incidents are part of "a common scheme or plan, a continuing course of conduct, and a continuing criminal impulse."
Garman holds that a unanimity instruction was not required even though the State presented evidence of multiple acts, any one of which could be the basis of the charge, when the theft is charged as a common scheme or plan to aggregate the value and the jury was so advised. Id. at 313.
Contrary to the State's argument, the phrase "a common scheme or plan, a continuing course of conduct, and a continuing criminal impulse" is not required to appear in the to-convict instruction. This court has held that, because a "common scheme or plan" is not an element of first degree theft, the phrase need not be defined for the jury. State v. Reid, 74 Wn. App. 281, 292, 872 P.2d 1135 (1994); see State v. Cross, 156 Wn.2d 580, 617, 132 P.3d 80 (2006) (holding that, because the term "common scheme or plan" are words of general understanding, the trial court did not abuse its discretion in providing a definitional instruction).
The jury in this case was first instructed to unanimously deliver a verdict for first degree theft, and it was provided the law of aggregation based on a common scheme or plan. Lesser included offense instructions for second and third degree theft could be considered and a verdict rendered only if the jury did not find first degree theft. It found for first degree theft.
The jury must have unanimously agreed that the first degree theft was a common scheme or plan in order to arrive at a value in excess of $1,500. The July 5 incident involved $505, the July 9 incidents totaled $905, and the July 11 incident involved $100. These incidents added up to $1,510. Each incident was required to aggregate the amount to over $1,500. As in Garman, "due to the manner in which the defendants were charged and by which the case was prosecuted, the jury was specifically required to find the existence of a common scheme or plan in order to convict." Id. at 315. Because the jury was instructed on finding a common scheme or plan, an instruction regarding unanimity on individual incidents was not required. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989); State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984), overruled on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988). We, therefore, find no error.
e. Uncharged alternative means
Under article I, section 22 of the Washington Constitution, a criminal defendant must be informed of all crimes he must face at trial, and cannot be tried for an uncharged offense. State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988). The court may not, therefore, instruct the jury on an uncharged alternative means of committing a crime. State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988). To so instruct the jury is presumed prejudicial error unless it affirmatively appears that the error was harmless. Id. at 34-35. Jury instructions in this context are reviewed de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
The State argues that Mr. Grow's counsel did not raise this issue below. This issue is considered on appeal because it is a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Davis, 141 Wn.2d 798, 866, 10 P.3d 977 (2000).
The information charged that Mr. Grow "did wrongfully obtain or exert unauthorized control over property . . . or services of another, to wit: Money from pull tabs, of a value exceeding $1500.00, with intent to deprive such other of such property or services." CP at 1. The jury was instructed that it could convict Mr. Grow if it found that he "wrongfully obtained or exerted unauthorized control over or by color or aid of deception, obtained control over property or services of another" that exceeded $1,500 in value. CP at 52 (emphasis added).
The jury in this case was instructed on the uncharged alternate means of theft by color or aid of deception. This is error.
The State essentially argues that because Mr. Grow was charged with wrongfully obtaining property, the instruction permitting the jury to find that he wrongfully obtained by aid of deception is harmless.
The State relies on State v. Linehan, 147 Wn.2d 638, 647-48, 56 P.3d 542 (2002). There, the court held that "[d]efinition statutes do not create additional alternative means of committing an offense." Id. at 646. The definitional statute the court specifically referred to in that case was RCW 9A.56.010, which "defines mere terms" of the crime. Id. at 648. But RCW 9A.56.020(1) "defines the crime of theft in terms of alternative means." Id.
RCW 9A.56.020(1)(a)-(c) sets forth three means by which theft is committed: (1) by taking or exerting wrongful control; (2) by color or aid of deception, obtaining control; and (3) by appropriating lost or misdelivered property or services. Therefore, in Linehan, theft by taking and exerting wrongful control (embezzlement) were not alternate means of committing the crime. 147 Wn.2d at 644-45.
But here, theft by color or aid of deception is an alternate means under RCW 9A.56.020(1). According to Linehan, this is the statute that sets forth the alternate means of committing a crime. 147 Wn.2d at 647-48. This alternate means requires, on its face, that the theft be accomplished through the use of deception. Mr. Grow was not made aware of the allegation.
The State argues that Mr. Grow's defense was that he did not take money at all for two of the winning pull tabs that he placed in the till and he paid for the other winning pull tabs, so he did not take money wrongfully. This argument only supports reversal. Mr. Grow did not defend an accusation that he obtained the money by deception. RCW 9A.56.010(5). Nonetheless, the State argued deception to the jury. And the jury was permitted to find deception.
CONCLUSION
We conclude that it was reversible error to instruct the jury on an uncharged means of theft. We therefore reverse the theft conviction and remand for proceedings consistent with this opinion. We affirm the cheating conviction.
Affirmed in part, reversed in part, and remanded.
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.
BROWN and KORSMO, JJ., concur.