Opinion
No. 51380-0-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 01-1-01880-3. Judgment or order under review. Date filed: 10/11/2002. Judge signing: Hon. Ellen J. Fair.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Rebecca Jane Quirk, Attorney at Law, Pr Aty of Miss Bldg Ms504, 3000 Rockefeller Ave, Everett, WA 98201-4046.
Damon McVea was convicted by jury verdict of two counts of forgery. In this appeal, McVea contends the trial court committed reversible error by instructing the jury on an alternative means of committing the offense that was not charged in the information. While we agree with McVea that the jury was instructed incorrectly, we find the instructional error to be harmless beyond a reasonable doubt. Accordingly, we affirm.
FACTS
A Fred Meyer employee was fired after she failed to follow company policy and cashed a few counterfeit payroll checks. After discovering that the former employee had cashed ten additional counterfeit checks, a loss prevention manager for Fred Meyer contacted the police. During the subsequent police investigation, the employee implicated McVea and others in a counterfeit check-cashing scheme.
At trial, Christina Campbell testified that McVea recruited her to cash counterfeit payroll checks and that she was terminated from her position as a cashier at a Fred Meyer store after she cashed a number of those checks. According to Ms. Campbell, McVea explained how he had access to blank checks and could use them to make counterfeit payroll checks with his computer. Ms. Campbell testified that she was offered money in exchange for cashing the checks. When the checks were presented to Ms. Campbell, she and others would sign the back of them. Ms. Campbell admitted having pled guilty to three counts of forgery based on her participation in the scheme. A jury found McVea guilty. This appeal followed.
DECISION
McVea contends that the trial court erred in giving instruction 10 because it instructed the jury on an uncharged means of committing forgery. Because the court erroneously instructed the jury, McVea argues his forgery convictions should be reversed and the case remanded for a new trial. Where the charging document alleges one statutory alternative means of committing an offense, it is error for the trial court to instruct the jury on an uncharged alternative. State v. Doogan, 82 Wn. App. 185, 189, 917 P.2d 155 (1996).
"A person commits the crime of forgery when, with intent to injure or defraud, he or a person to whom he is an accomplice falsely makes, completes or alters a written instrument or possesses, offers, disposes of or puts off as true, a written instrument which he or she knows to be forged."
Forgery is a crime that may be committed by two alternative means; a person either "falsely makes, completes, or alters a written instrument," or "possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged." RCW 9A.60.020(1)(a) and (b). The State charged McVea only under RCW 9A.60.020(1)(a).
McVea maintains that this court's decision in State v. Bray, 52 Wn. App. 30, 756 P.2d 1332 (1988), compels reversal. We disagree. While there are striking similarities between the two cases, Bray is distinguishable.
In Bray, this court held that it was error to permit the jury to consider two alternative means of committing forgery when only one was charged in the information. We held that the presence of an accomplice instruction, coupled with the prosecutor's reference to the uncharged means during closing argument, rendered the instructional error prejudicial even though the "to convict" instruction mentioned only the charged means of committing forgery. We based our decision, in part, on the fact that `[t]he manner of committing a crime is an element and the defendant must be informed of this element in the information in order to prepare a proper defense." Bray, 52 Wn. App. at 34.
Here, as in Bray, an instruction was erroneously submitted to the jury on the uncharged means of committing forgery. Moreover, the jury was instructed on the law of accomplice liability. Even though the juries in both cases were not instructed correctly, it is difficult to perceive how the faulty instruction in this case prejudiced McVea. An error in instructing on an uncharged means of committing a crime may be harmless. State v. Nicholas, 55 Wn. App. 261, 273, 776 P.2d 1385 (1989). "Because the instructional error favored the prevailing party, it is presumed prejudicial unless it affirmatively appears the error was harmless." State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 (2003).
Unlike the situation in Bray, no exception was taken to instruction 10. Nor did the prosecutor specifically refer to the uncharged alternative in closing argument. Perhaps more importantly, that a forgery was committed was not in dispute. The only disputed issue was whether McVea assisted or aided Ms. Campbell in the commission of the forgeries. As defense counsel remarked in closing argument,
We do not generally review alleged instructional error raised for the first time on appeal. State v. Nicholas, 55 Wn. App. at 273. "Where an instructional error may be construed as relieving the State of the burden of proving an element of its case, the error is manifest and of constitutional magnitude and may therefore be raised for the first time on appeal." State v. King, 113 Wn. App. 243, 265 n. 2, 54 P.3d 1218 (2002), review denied, 149 Wn.2d 1015 (2003); Chino, 117 Wn. App. at 538-39.
Has the State proven a forgery took place? Yes. That's really not in doubt. Christina Campbell has admitted taking part in forgery, but that's not the issue in this case.
Defense counsel went on to point out to the jurors that the decision to find McVea guilty as an accomplice turned on whether or not they believed Ms. Campbell. Given the defense theory of the case, the error in the formulation of instruction 10 could not have unfairly contributed to McVea's forgery convictions and was, therefore, harmless beyond a reasonable doubt.
Affirmed.
APPELWICK and BECKER, JJ., concur.