Opinion
No. 27366-1-III.
September 10, 2009.
Appeal from the Superior Court, Spo-kane County, No. 05-1-00982-0, Robert D. Austin, J., entered August 28, 2008.
Affirmed by unpublished opinion per Kulik, A.C.J., concurred in by Sweeney and Brown, JJ.
Unpublished Opinion
Samuel Mahaffy appeals his convictions for money laundering and first degree theft by deception. Mr. Mahaffy challenges the sufficiency of the evidence and asserts that the State failed to establish the corpus delicti of theft. We affirm the convictions.
FACTS
The State charged Mr. Mahaffy with money laundering and first degree theft by deception. Mr. Mahaffy's motion asked for a bill of particulars. In the State's response, it specified that Mr. Mahaffy obtained $26,000 from the Center for Justice (CFJ) by color or aid of deception, as follows:
The State's theory is that the defendant, an employee in a position of trust with CFJ, was given a $26,000 check to be used for the NAPIL [National Association of Public Interest Lawyers] Grant. That by failing to use the money for that purpose or any other authorized purpose (instead using it for personal bills) he committed Theft in the First Degree.
Clerk's Papers (CP) at 9. At trial, the State also set forth facts supporting the allegations against Mr. Mahaffy.
Detective Dennis Ty Snider of the Spokane Police Department testified that he interviewed Dave Sanders and Gloria Porter, and reviewed a packet of documents supplied by CFJ. Detective Snider stated that a fellowship required a $26,000 contribution to NAPIL, of the Equal Justice Works in Washington, D.C., and then NAPIL would match the contribution. Detective Snider determined that Samuel Mahaffy had been given a check for $26,000 by CFJ to forward to NAPIL. Detective Snider testified that the $26,000 did not reach the intended location.
Detective Snider testified that on June 5, 2002, Mr. Mahaffy deposited $26,000 in the account of Northwest Regional Resources (NWRR), Samuel Mahaffy, and his wife, at the Bank of Whitman. The same day Mr. Mahaffy deposited the funds, he withdrew $18,851.15. On June 10, he withdrew $10,000 for a cashier's check payable to Charles Schwabb. Detective Snider testified that NWRR's bank statements from April 1, 2002, through June 30, 2002, did not show any lump sum withdrawal of $26,000. According to Detective Snider, NWRR did not have a business license until the day Mr. Mahaffy deposited the $26,000 check. Additionally, NWRR was not incorporated until four months later.
Stormy Mauer, a Washington Trust Bank employee, testified that a CFJ check for $26,000 was negotiated into a Washington Trust Bank cashier's check for the same amount on June 4, 2002. Catherine Hanlon, an employee at the Bank of Whitman, testified that a cashier's check for $26,000 was deposited into the account of NWRR and then $18,851.15 was withdrawn the same day. Mr. Mahaffy obtained a cashier's check made out to Green Point Mortgage Funding, Inc. for $18,851.15. On June 10, the amount of $10,000 was withdrawn from the Bank of Whitman account.
Dave Sanders testified that he began working part-time at CFJ in May 2002. When he started at CFJ, Mr. Sanders' job title was "community coordinator." Report of Proceedings (RP) at 11. He had no written job description. Over time, Mr. Sanders assumed the roles of "business manager, operations manager, personnel manager, buck-stops-here person with all the rights and privileges herein." RP at 57. Jim Sheehan, the founder and executive director of CFJ, never instructed Mr. Sanders to assume these roles, but Mr. Sanders assumed responsibility for them. Mr. Sanders was familiar with Mr. Mahaffy who worked for CFJ as a grant writer.
Mr. Sanders explained that NAPIL paid one-half of the salary of the employment position sponsored by the grant if a local agency paid the other one-half of the salary. NAPIL required the sponsoring agency had to submit the $26,000 before the beginning of the contract period. Mr. Sanders processed the money and the payroll for CFJ.
Mr. Sanders testified that he received a memorandum from Mr. Mahaffy. This memorandum stated that Mr. Mahaffy had spoken with Mr. Sheehan, who told Mr. Mahaffy that Mr. Sanders would issue a check of $26,000 to Mr. Mahaffy's company, NWRR, from the CFJ account. The memorandum stated that the issuance of the check to NWRR "will meet their obligation to pay the same to NAPIL for Andrea's Fellowship." Ex. S-2. Mr. Sanders testified that after receiving this memorandum, he prepared a check previously signed by Mr. Sheehan. Mr. Sanders made the check payable to NWRR for the amount of $26,000, and gave it to Mr. Mahaffy.
Mr. Sanders confirmed his understanding that NWRR would use the $26,000 to sponsor the grant that had been awarded to CFJ by NAPIL. Mr. Sanders expected Mr. Mahaffy to forward the $26,000 to NAPIL to sponsor the grant. Through Mr. Sanders, the State introduced a copy of a letter dated November 26, 2001, from Mr. Mahaffy to Imoni Washington at NAPIL. Mr. Mahaffy objected to the admission of this letter at trial, but does not include the admission of this letter in his assignment of errors on appeal.
The letter from Mr. Mahaffy to Ms. Washington stated that NWRR would pay $26,000 to NAPIL no later than July 15, 2002, and would pay another $26,000 to NAPIL no later than July 15, 2003. Mr. Sanders testified that he understood that receipt of the sponsorship funds was a requirement for grant funds to be received by CFJ. He testified that CFJ did receive NAPIL grant funds.
Mr. Sanders also testified that he prepared an IRS Form 1099-MISC (IRS Form 1099) stating that in tax year 2002, CFJ paid NWRR and Mr. Mahaffy $26,000 as "nonemployee compensation." Ex. S-14. According to Mr. Sanders, the $26,000 designated on the IRS Form 1099 was the same $26,000 that Mr. Mahaffy allegedly took from CFJ.
Mr. Mahaffy provided the testimony of Todd Carlson, an accountant, who testified that IRS Form 1099 is used to report payments to third parties to ensure that they report the payment for income tax purposes. Mr. Carlson explained that an IRS Form 1099 showing a payment of "nonemployee compensation" was a representation by the issuer that the payment was for compensation. According to Mr. Carlson, the issuance of an IRS Form 1099 here would be inconsistent with either an intent that the $26,000 was to be used as a charitable donation or that the payment represented a loss due to theft.
A jury found Mr. Mahaffy guilty of both counts.
ANALYSIS
Mr. Mahaffy challenges several evidentiary rulings. He contends that without the inadmissible evidence, there was insufficient evidence to convict him. A trial court's decision on the admissibility of evidence is reviewed for an abuse of discretion. State v. Nelson, 131 Wn. App. 108, 115, 125 P.3d 1008 (2006).
Defense counsel's failure to make a proper and timely objection may be raised for the first time on appeal if counsel's failure is a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001). The defendant must identify a constitutional error and show how the alleged error actually affected the defendant's rights at trial. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). "'Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case.'" State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999) (quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)).
In his statement of additional grounds for review, Mr. Mahaffy asserts that the court erred by admitting the following evidence: Mr. Sheehan's check, IRS Form 1099, the November letter to NAPIL, and Detective Snider's testimony about the check. We consider each item separately.
Mr. Sheehan's Check and IRS Form 1099. In his statement of additional grounds, Mr. Mahaffy contends the check signed by Mr. Sheehan and the IRS Form 1099 constituted hearsay because Mr. Sheehan did not testify at trial. Defense counsel made no objection to the admission of these documents.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). Hearsay is inadmissible unless it falls under one of the exceptions to the hearsay rule. ER 802; see State v. Hines, 87 Wn. App. 98, 101, 941 P.2d 9 (1997).
The business records exception is codified in RCW 5.45.020:
A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
RCW 5.45.020 does not require the examination of the person who actually made the record. State v. Iverson, 126 Wn. App. 329, 339-40, 108 P.3d 799 (2005). Hearsay satisfying the business records exception is inherently reliable because of the process used to prepare the records. Hines, 87 Wn. App. at 101. Consequently, hearsay satisfying the business records exception is admissible. Id.
In Iverson, the court allowed officers to testify about the identity of jail booking records where the officers did not actually enter the booking information into the jail's computer system, but they were familiar with the system, used it in their regular course of business, and "routinely relied on the information prepared by fellow officers in their ordinary course of business to identify persons who previously had been booked into jail." Iverson, 126 Wn. App. at 339. And in Hines, the court held that a jail booking record containing information about an inmate was admissible under RCW 5.44.040. Hines, 87 Wn. App. at 101.
Here, Mr. Sanders, the operations manager and business manager, was qualified to identify the records in question and would testify about their mode of preparation. Unlike the situation in Iverson, Mr. Sanders testified that he personally filled out the $26,000 check, except for the signature line. Mr. Sanders stated that he was familiar with Mr. Sheehan's signature and that he recognized the signature on the check. Mr. Sanders satisfied the requirements of a "qualified witness." He testified as to his duties at CFJ. His testimony satisfied the reliability requirement of the business records exception to the hearsay rule.
Mr. Mahaffy asserts that Mr. Sheehan, who signed the check, had to testify at trial to authenticate the check. But this is not required under RCW 5.45.020. The trial court correctly admitted the check.
Mr. Mahaffy also argues that the IRS Form 1099 was improperly admitted. His argument is unpersuasive. IRS Form 1099 was prepared in the usual course of business and met the requirements of a business record. The trial court did not abuse its discretion by admitting the check signed by Mr. Sheehan or IRS Form 1099 and there was no constitutional error.
Mr. Mahaffy asks this court to apply judicial estoppel because the State argues both that the IRS Form 1099 is authentic and that the same funds were obtained by Mr. Mahaffy through theft. Judicial estoppel precludes a party from asserting one position in a court proceeding and then later, in a different court, seeking an advantage by taking a clearly inconsistent position. Cunningham v. Reliable Concrete Pumping, Inc., 126 Wn. App. 222, 224-25, 108 P.3d 147 (2005). Judicial estoppel is inapplicable. The State does not argue a contradictory position in a different court proceeding, even though it may have argued technically inconsistent positions during Mr. Mahaffy's criminal trial.
Mr. Mahaffy's Letter to NAPIL. Mr. Mahaffy contends that the trial court abused its discretion by admitting a letter that he wrote to NAPIL. Mr. Sanders, who found the letter in CFJ files, introduced the letter. The letter was written by Mr. Mahaffy to Imoni Washington, a program associate at NAPIL. Mr. Mahaffy wrote the letter when he was an employee of CFJ. Written on NWRR letterhead, the letter concerned the 2002 NAPIL grant fellowship. Defense counsel made no objection to the admission of this letter.
In the letter, Mr. Mahaffy stated that: "I am pleased to inform you that Northwest Regional Resources is committed to sponsoring a 2002 NAPIL Fellow who will work at the Center for Justice." Ex. S-15. The letter stated that NWRR would send NAPIL two grant payments of $26,000, one no later than July 15, 2002, and the other no later than July 15, 2003. Mr. Sanders handled the letter as part of his duties as community coordinator and office manager.
The letter described the procedure for financing the fellowship and met the criteria for a business record. The court did not abuse its discretion by admitting the letter. There was no evidentiary or constitutional error.
Detective Snider's Testimony. Mr. Mahaffy asserts that the trial court abused its discretion by allowing Detective Snider to testify that his investigation found that the funds did not go to the "proper location." RP at 145.
The exchange went as follows:
[The Prosecutor:] Did your investigation reveal whether Mr. Mahaffy had forwarded those funds to the proper location?
[Detective Snider:] Yes, they did reveal that the funds did not go to the proper location.
[Defense Counsel]: Objection, Your Honor.
THE COURT: Overruled.
RP at 145.
Detective Snider investigated this case by interviewing Mr. Sanders and Gloria Porter at CFJ and by examining documents supplied by CFJ. It is unclear exactly what information he used to reach the conclusion that the $26,000 was not forwarded to NAPIL. Ms. Porter did not testify. Mr. Mahaffy suggests that Detective Snider's statement is hearsay and is inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Detective Snider spoke with Jim Sheehan after charges were filed. Mr. Sheehan did not testify at trial.
The Sixth Amendment to the United States Constitution bars the admission of "testimonial" hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. Id. at 53-54. The United States Supreme Court has declined to offer a comprehensive definition of "testimonial," but in Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the Court refined the definition by concluding that a 911 caller's statements were not testimonial because they were made primarily to assist the police in responding to an ongoing emergency:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
The record is limited. However, if we assume that Detective Snider's testimony was based on hearsay, his statement is testimonial because it was made as part of an interrogation to establish past events for the purpose of a possible criminal investigation. The State must then show that this constitutional error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). We apply the "overwhelming untainted evidence" test. State v. Ng, 110 Wn.2d 32, 38, 750 P.2d 632 (1988). The testimony in question is not needed to prove an element of theft by deception. Any error here was harmless.
Sufficiency of the Evidence. Evidence is sufficient to support a verdict of guilty if, when viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). A claim challenging the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences that can be drawn from the evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
A person is guilty of first degree theft if he or she commits theft of property or services exceeding $1,500 in value other than a firearm. Former RCW 9A.56.030(1)(a) (1995). To convict a person of theft by means of deception, the State must prove that the defendant "[b]y color or aid of deception" obtained control over the property of another with the intent to deprive the person of the property. RCW 9A.56.020(1)(b). "By color or aid of deception" means that the deception operated to cause the defendant to obtain the property or services. RCW 9A.56.010(4). "Deception" occurs when a person promises performance which the person does not intend to perform or knows will not be performed. RCW 9A.56.010(5)(e). "[I]t is not necessary that deception be the sole means of obtaining the property or services." RCW 9A.56.010(4).
The amount in former RCW 9A.56.030 was recently raised to $5,000. Laws of 2009, ch. 431, § 7 (effective July 26, 2009).
To establish that a defendant obtained the property through the use of deception, the State must also prove beyond a reasonable doubt that the victim of the theft acted in reliance on the alleged deception. State v. Casey, 81 Wn. App. 524, 529, 915 P.2d 587 (1996). "Reliance is established where the deception in some measure operated as inducement." Id.
Taking the evidence in the light most favorable to the State, sufficient evidence supports Mr. Mahaffy's conviction for first degree theft by deception. Mr. Sanders described NAPIL as a grant supplying group that paid one-half the salary of a proposed grant employment position if a local agency paid the other one-half of the salary. The sponsoring agency had to submit $26,000 prior to the beginning of the contract period. Mr. Mahaffy outlined in a letter the process NWRR would undertake with a $26,000 check. Mr. Mahaffy received a $26,000 check made out to NWRR. Mr. Mahaffy was to forward the $26,000 by July 15, 2002. The $26,000 check was negotiated into a cashier's check that was deposited in NWRR's account in June 2002. Then, $18,851.15 was removed the same day for a cashier's check made out to Green Point Mortgage Funding, Inc. Six days later, Mr. Mahaffy withdrew $10,000 for a cashier's check payable to Charles Schwabb.
We conclude that sufficient evidence supported Mr. Mahaffy's convictions.
Corpus Delicti. Under the corpus delicti rule, a trial court may not admit a defendant's extrajudicial confession unless there is independent prima facie proof that someone has committed the crime charged. State v. Cobelli, 56 Wn. App. 921, 924, 788 P.2d 1081 (1989). A prima facie showing requires evidence of sufficient circumstances supporting a logical and reasonable inference that the charged crime occurred. City of Bremerton v. Corbett, 106 Wn.2d 569, 578-79, 723 P.2d 1135 (1986). In determining whether there is sufficient corpus delicti evidence, we assume the truth of the State's evidence and all reasonable inferences from it in a light most favorable to the State. State v. Aten, 130 Wn.2d 640, 658, 927 P.2d 210 (1996).
The corpus delicti rule generally does not require independent proof of criminal intent. State v. C.M.C., 110 Wn. App. 285, 288, 40 P.3d 690 (2002). Instead, the rule refers only to the objective proof that a crime was committed. Id. Proof of who committed a crime is also not part of the corpus delicti rule. Id. at 289.
Mr. Mahaffy contends that the State failed to establish the corpus delicti. Mr. Mahaffy contends that two of the statements used by the State to show that he obtained money from CFJ — the memorandum to Mr. Sanders dated June 3, 2002, and the letter to Imoni Washington — constitute statements by him that must be corroborated by other evidence.
However, the State need not establish the corpus delicti because these statements are not confessions. "By definition, a confession is an expression of guilt as to a past act." State v. Dyson, 91 Wn. App. 761, 763, 959 P.2d 1138 (1998). The memorandum to Mr. Sanders and the letter to Ms. Washington do not meet this definition.
Even assuming the documents are confessions, and viewing the evidence in the light most favorable to the State, there is enough evidence to corroborate that Mr. Mahaffy was given a check for $26,000 which he negotiated into a cashier's check and then deposited into the account for NWRR. On the same day, Mr. Mahaffy withdrew $18,851.15 and paid a mortgage company. He later withdrew $10,000 payable to Charles Schwabb.
We affirm the convictions for money laundering and first degree theft by deception.
A majority of the panel has determined 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.
SWEENEY, J. and BROWN, J., concur.