Opinion
66249-0-I
04-16-2012
STATE OF WASHINGTON, Respondent, v. MASSIMO MURA, Appellant.
UNPUBLISHED OPINION
Ellington, J.
Massimo Mura challenges the use of the words "utters" and "uttering" in the court's instructions to the jury on the crime of unlawful issuance of bank checks. Because this challenge is raised for the first time on appeal and Mura fails to establish a manifest error affecting a constitutional right, we affirm his convictions. Mura also contends that the trial court exceeded its authority and violated his right to equal protection by imposing certain financial obligations at sentencing. Because he fails to demonstrate error, we affirm the sentence.
BACKGROUND
On July 30, 2010, after negotiations with sales representatives at Rairdon Dodge in Bellingham, Mura agreed to purchase a 2003 silver convertible Ford Mustang for $14,889.97. Despite a manager's instructions to accept only cash or a cashier's check, a sales representative accepted a personal check as payment. Shortly thereafter, the manager learned that the check had been returned for insufficient funds. The manager and sales representative called Mura repeatedly and eventually found Mura at his house. Mura explained that he had used the wrong account and offered another personal check. The manager called the credit union and learned Mura's account had been closed. The manager insisted on cash, a cashier's check, or the return of the car. On a pretext of leading them to the bank, Mura drove away in the Mustang, eluding them. When the car was eventually recovered, it had been painted red and had license plates from a Honda registered to Mura.
On July 31, 2010, Mura negotiated with a sales representative at DeWaard and Bode for the purchase of a large flat-screen television and accessories for $3,200. When his application for financing was declined, Mura said he would write a personal check. The sales representative accepted the check and allowed Mura to take the television and accessories. The credit union later returned the check for insufficient funds.
The State charge Mura with two counts of unlawful issuance of bank checks in violation of RCW 9A.56.060. At trial, a credit union employee testified that the checks presented by Rairdon Dodge and DeWaard and Bode were drawn on an account that had been opened in April 2009, closed in September 2009, and never held a balance greater than $400. Mura testified and admitted that at the time he wrote the checks to Rairdon Dodge and DeWaard and Bode, he knew the account did not have sufficient funds to cover the checks. He testified that he intended to pay the amounts with cash or a wire transfer from overseas accounts, but he did not have sufficient cash in his possession at the time he wrote the checks. Mura also testified that he earns approximately $10,000 per month as a professional songwriter with his own label, and as a professional gambler.
RCW 9A.56.060(1) provides in pertinent part: "Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft, on a bank or other depository for the payment of money, knowing at the time of such drawing, or delivery, that he or she has not sufficient funds in, or credit with the bank or other depository, to meet the check or draft, in full upon its presentation, is guilty of unlawful issuance of [a] bank check." RCW 9A.56.060(4) provides: "Unlawful issuance of a bank check in an amount greater than seven hundred fifty dollars is a class C felony."
The jury found Mura guilty as charged. The court imposed a standard range sentence, ordered a total of $12,573 in agreed restitution, and imposed $2,250 in costs and fees. The judgment and sentence states:
The court has considered the total amount owing, the defendant's past, present and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihood that the defendant's status will change. The court finds that the defendant has the ability or likely future ability to pay the legal financial obligations imposed herein.Mura appeals.
Clerk's Papers at 14.
DISCUSSION
Here, the court instructed the jury as follows:
A person commits the crime of unlawful issuance of a bank check when, with intent to defraud, he or she makes, draws, utters or delivers to another person any check or draft in an amount greater than $750 on a bank or other depository for the payment of money, and the person knows at the time of such making, drawing, uttering or delivery that he or she does not have sufficient funds in, or credit with, the bank or other depository, to meet the check or draft, in full, upon its presentation.
Clerk's Papers at 28.
The to-convict instructions required proof beyond a reasonable doubt that Mura, "acting with intent to defraud, made, drew or delivered" the checks and that "at the time of such making, drawing, uttering or delivery," Mura knew that he did not have sufficient funds in the account to meet the check in full upon its presentation. Mura did not object to the court's instruction at trial and did not propose an instruction defining "utters" or "uttering."
Clerk's Papers at 29-30.
For the first time on appeal, Mura contends that the use of the words "utters" and "uttering," without any further definition, was so confusing to the jury as to misstate the State's burden of proof, mislead the jury, and prevent him from being acquitted under the defense theory that he had no "intent to defraud."
An alleged instructional error may be raised for the first time on appeal only if it is "manifest error affecting a constitutional right." An error is manifest if it resulted in actual prejudice. To demonstrate actual prejudice, there must be a "'plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case.'"
RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686–87, 757 P .2d 492 (1988).
State v. O'Hara, 167 Wn.2d 91, 98–99, 217 P.3d 756 (2009).
Id. (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)) (alteration in original).
"To satisfy the constitutional demands of a fair trial, the jury instructions, when read as a whole, must correctly tell the jury of the applicable law, not be misleading, and permit the defendant to present his theory of the case." But our Supreme Court has found "nothing in the constitution, as interpreted in the cases of this or indeed any other court, requiring that the meanings of particular terms used in an instruction be specifically defined." Mura relies on the comment to Washington pattern jury instructions 73.01 and 73.02 which states: "It is preferable not to select the legalistic word 'utter.' See discussion in the Note on Use and Comment to WPIC 130.01, Forgery--Definition. If it is used, it should be defined."
O'Hara, 167 Wn.2d at 105.
Scott, 110 Wn.2d at 691.
11A Washington Practice: Washington Pattern Jury Instructions: Criminal 73.01, at 113 & 116 (3rd ed. 2008).
But Mura offers no reasonable explanation to support his claim of prejudice. Although the average juror may not have immediately recognized the term "utter" or "uttering" in reference to writing a check, the surrounding terms in the instructions, "makes," "draws," "delivers," "making," "drawing," and "delivery" provide sufficient clarity such that the instructions, when read as a whole, correctly inform the jury of the applicable law. And nothing in the record suggests that the use of "utters" or "uttering" could have affected the jury's understanding of the State's burden of proof or prevented Mura from arguing his theory of the case. Mura admitted at trial that he wrote the checks knowing he did not have sufficient funds to cover them. The only element Mura contested at trial was whether he intended to defraud the car dealer and the appliance store. Defense counsel presented that argument in closing.
Mura does not explain how this or any other defense theory was prevented by the words "utters" or "uttering" in the jury instructions. Mura fails to identify a manifest error affecting a constitutional right, and we will not review his claim.
RAP 2.5(a).
Mura also contends that the trial court exceeded its statutory authority and violated his right to equal protection by assessing nonmandatory court costs of $450 and attorney fees of $1,200. He claims the trial court's finding on the judgment and sentence that he had the ability to pay is clearly erroneous in light of the evidence that he was indigent, that is, that his trial attorney was court-appointed, that the trial court later granted an order of indigency for his appeal, and that there was no money in the accounts at issue at trial. Mura also claims that the sentencing court failed to exercise its discretion to consider waiving the nonmandatory costs and fees.
Under RCW 10.01.160(3), a court may order the defendant to pay costs incurred by the State in its prosecution if the defendant "is or will be able to pay them." But the sentencing court is not required to enter formal, specific findings regarding a defendant's ability to pay. Inquiry into the offender's ability to pay comes not at sentencing, but at "the point of collection and when sanctions are sought for nonpayment." Mura's arguments regarding his ability to pay are therefore premature. Moreover, Mura did not ask the sentencing court to consider waiving the nonmandatory fees and costs. And the record supports the court's finding that Mura has the "ability or likely future ability to pay" the $1,650. Mura testified at trial that he made approximately $10,000 per month as a professional songwriter and gambler and indicated that he and his family have access to sufficient funds overseas to cover the two checks at issue in the charged crimes. Despite his claim on appeal that his felony convictions for financial crimes "will stigmatize him in the job market and quash any ability he may have had to remedy his present indigency," nothing in the record precludes a determination that Mura may obtain employment or earn money from his stated professions upon his release. In sum, Mura fails to establish grounds to reverse the imposition of his nonmandatory financial obligations. Affirmed.
State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992).
State v. Blank, 131 Wn.2d 230, 242, 930 P.2d 1213 (1997); State v. Smits, 152 Wn.App. 514, 523-24, 216 P.3d 1097 (2009) (determination of whether defendant has or will have ability to pay is "clearly somewhat 'speculative'").
See State v. Valencia, 169 Wn.2d 782, 789, 239 P.3d 1059 (2010); see also State v. Phillips, 65 Wn.App. 239, 243-44, 828 P.2d 42 (1992) (constitutional challenge to imposition of costs was not ripe for review; it is at point of enforcement of financial obligations that indigent may assert constitutional objection to payment).
Clerk's Papers at 14.
Brief of Appellant at 12.