Opinion
No. 37855-8-II.
Filed: September 9, 2009.
Appeal from the Superior Court, Clallam County, No. 07-1-00480-6, S. Brooke Taylor, J., entered May 13, 2008.
Affirmed by unpublished opinion per QuinnBrintnall, J., concurred in by Penoyar, A.C.J., and Hunt, J.
Unpublished Opinion
On February 26, 2008, a Clallam County jury found Sara Lathrop guilty of second degree possession of stolen property. She appeals the verdict, alleging prosecutorial misconduct and asking that this court reverse and remand for a new trial. We find that the prosecutor's erroneous argument did not affect the verdict and affirm.
A commissioner of this court initially considered this matter pursuant to RAP 18.14 and referred it to a panel of judges.
FACTS
In July 2007, Theresa Livengood placed a $750 Wal-Mart money order made out to her landlord, Irene Smith, on the top of her refrigerator. Someone, allegedly her brother, Josh Reed, took it without her permission. Reed was a former boyfriend of Lathrop's and they had two children together. At the time of this incident, he was living at his parents' house. Lathrop, who was a longtime friend of the family, was also staying there.
Lathrop testified that Reed asked her to cash the money order for him, explaining that his sister Theresa had given it to him as a loan so that he could gamble at the 7 Cedars Casino. He was supposed to cash it and give Theresa some of the money because her boyfriend would not give her any cash. According to Lathrop, Reed said that he could not cash it himself because his wallet and identification had recently been stolen. Lathrop said that she was not concerned about cashing the money order because Reed had borrowed money from his sister many times before. She said that Reed told her that he would be receiving money within two or three days and would then pay his sister back. She did try to call Livengood to confirm Reed's explanation, she said, but no one answered the phone.
Lathrop took the money order to Wal-Mart. She signed her name on the "purchaser" line next to that of Livengood's boyfriend, signed her name on the back, and wrote "[n]ot for the intended purpose." Report of Proceedings (RP) (Feb. 26, 2008) at 13. She bought a $15 phone card and gave Reed the rest of the $750. He gave her $50 to use at the casino. Lathrop, her husband, Reed, and his stepfather, Darren Toso, all went to the casino that evening. While they were there, Livengood called Toso to tell him that her rent check had been stolen. Lathrop testified that she heard that conversation and knew that Reed had lied to her but did not tell anyone because Reed again assured her that he would pay his sister back in a couple of days. She said that three weeks later, when she learned that the money order had cleared the bank and Livengood had not been repaid, she told Livengood about her part in the matter. She also provided a written statement to the police.
In closing argument, the deputy prosecutor told the jury:
What it boils down to here in this case is whether [Lathrop] knew that check was stolen. In order to make that determination what you folks are going to do, and what you've probably already come to the realization of what you're going to do is you're going to assess credibility.
Lathrop's married name is Hudson. This name was used at trial, but she is identified as Lathrop in this opinion.
RP (Feb. 26, 2008) at 67-68. He then explained that the jury should consider any inconsistencies in the testimony and should consider whether Lathrop's story sounded believable. He discussed various aspects of the testimony in this light and finished with a reminder that the jury could convict on the basis of circumstantial evidence:
You're going to consider the circumstantial evidence against the direct evidence of [Lathrop], you're going to compare it, and when you do that you're going to reach the conclusion that what she told you is not credible. She did know the check was stolen.
RP (Feb. 26, 2008) at 75. Counsel for the defense told the jury:
The State has to show subjective knowledge. That is not that she might have known, not that she should have known, not that she could have known, but that she did know that this money order was stolen at the time she had it and she cashed it.
RP (Feb. 26, 2008) at 76. He said that the State was asking them to make assumptions and they should not do so. He reminded them repeatedly that the State had to prove what was going on in Lathrop's mind.
In rebuttal, the deputy prosecutor stated:
There were several times here where it was argued that the State has to show subjective knowledge; that the State has to show what was going on in her mind at the time she had this check and cashed it, but that's not the law.
RP (Feb. 26, 2008) at 90. Defense counsel objected, but the court overruled the objection. The deputy prosecutor then reminded the jury about instruction no. 7, which permitted an inference of knowledge based on a reasonable person standard. He discussed that standard in light of the facts and then told the jury:
The prosecutor said:
The law is set out in Instruction No. 7, you'll have that back in the jury room, and it gives you the reasonable person standard and that's the issue in this case. Would a reasonable person believe the story that [Reed] supposedly gave her about giving her her friend's check to gamble away, essentially her friend's rent check? Would a reasonable person go down to Wal-Mart and make these alterations to her friend's rent.
RP (Feb. 26, 2008) at 90-91. At this point, defense counsel objected again, and the court again overruled, stating, "It's appropriate argument I think." RP (Feb. 26, 2008) at 91. It was appropriate argument in the context of a permissive inference and credibility.
But look at the circumstantial evidence in this case. Look at Plaintiff's Exhibit 1 [a copy of the money order]. You can think about this story, think about the reasonable person standard that you have there in terms of the law, and there's only one conclusion after you do those things, she knew the check was stolen.
RP (Feb. 26, 2008) at 92. The jury found Lathrop guilty as charged. Lathrop moved for a new trial, asserting that the deputy prosecutor had misstated the law. The trial court denied that motion, and this appeal followed.
ANALYSIS
Lathrop contends that the prosecutor essentially told the jury that they could convict her if they believed a reasonable person would have known that the money order was stolen, even if they believed that she actually did not know that. To establish prosecutorial misconduct, Lathrop must establish that the prosecutor's conduct was both improper and prejudicial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). We review the prosecutor's remarks in the context of the total argument, the issues in the case, the evidence, and the instructions provided by the trial court. Dhaliwal, 150 Wn.2d at 578; State v. Barajas, 143 Wn. App. 24, 177 P.3d 106 (2007), review denied, 164 Wn.2d 1022 (2008).
The only disputed issue in this case was Lathrop's knowledge. It is well established that a jury must find subjective rather than objective knowledge in order to find a defendant guilty of crimes that contain a knowledge element. State v. Shipp, 93 Wn.2d 510, 516-17, 610 P.2d 1322 (1980). It is the defendant's subjective, i.e., personal belief, that determines culpability not the objective state of facts. See State v. Johnson, 119 Wn.2d 167, 174, 829 P.2d 1082 (1992). A jury is permitted to infer the defendant's personal knowledge if an ordinary person would have had knowledge under the circumstances but such an inference is not mandatory. Shipp, 93 Wn.2d at 517. The jury here was so instructed.
Instruction no. 7 stated:
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, facts or circumstances or result described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.
Clerk's Papers at 30.
Here, to the extent the deputy prosecutor's argument can be read to tell the jury that the law does not require the State to prove subjective knowledge, it was an incorrect statement of the law. But viewing the argument in its entirety, it was not prejudicial. It is not clear from the argument what the prosecutor thought "subjective" meant. He, like defense counsel, discussed the reasonable person standard in the context of both the permissive inference and credibility. More importantly, he spoke in terms of what the jury should determine Lathrop knew, not what she should have known. He used the term "subjective knowledge" only once and almost immediately thereafter referred the jury to instruction no. 7 which provides a clear and accurate statement of the law and told the jurors that they would be applying that instruction during deliberation. The court also instructed the jury that the law was contained in its instructions and that they must disregard any remark, statement, or argument that was not supported by the law in those instructions. The jury was clearly instructed that they could infer the defendant's knowledge by applying a reasonable person standard but they were not required to do so. We presume that they followed the court's instructions. State v. Davenport, 100 Wn.2d 757, 763-64, 675 P.2d 1213 (1984).
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.
HUNT, J. and PENOYAR, A.C.J., concur.