Opinion
No. 35343-1-II.
March 11, 2008.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-1-00882-8, Stephen M. Warning, J., entered September 13, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Quinn-Brintnall, J.; Bridgewater, J., concurring separately.
Scott A. Nordquist appeals his convictions for forgery and possession of methamphetamine. He argues that (1) the trial court lacked substantial evidence to support the forgery conviction; (2) the trial court denied him a fair trial in admitting hearsay testimony about a bank memo; and (3) his trial counsel rendered ineffective assistance. We affirm.
FACTS I. Crimes
Scott Nordquist possessed a check drawn on Jodi Hamer's checking account from Fibre Federal Credit Union. On July 11, 2006, he walked into the credit union and presented the check for payment, with two pieces of identification, to credit union employee Kendra Thompson. Thompson took the check from Nordquist, entered the check's information into the credit union's computer, and received an electronic bank memo alert on her computer that "this particular series of check numbers may have been stolen and to use caution when verifying the signature." Report of Proceedings (RP) at 40.
Thompson excused herself from Nordquist to compare the signature on the check with Hamer's signatures on past checks and her account card. Unable to match the signature on Nordquist's check with the signatures on Hamer's account, Thompson contacted her supervisor, who called the Longview Police Department. Meanwhile, Nordquist waited for about 15 minutes, until two police officers arrived.
After verifying Nordquist's identity, the officers took him to a room at the credit union, where they conducted an investigation. Nordquist told the officers that "he received the check from a girl named Amy." RP at 74. But after Officer Jennifer Jolly continued to question Nordquist about how he had obtained the check, he finally responded, "[W]ell, now that you put it that way, it doesn't make any sense." RP at 75.
The officers arrested Nordquist for forgery. While searching him incident to his arrest, they found a "tiny blue baggie" of methamphetamine. RP at 78.
II. Procedure
The State charged Nordquist with possession of methamphetamine and forgery. The trial court conducted a CrR 3.5 hearing on the admissibility of Nordquist's statements.
At trial, Nordquist's counsel objected twice during Thompson's testimony about the electronic bank memo alert. First, defense counsel objected on grounds of hearsay when the State asked, "[W]ere there any notes of significance on that [Hamer's] account?" The trial court allowed the State's question. But the trial court sustained defense counsel's second objection, ostensibly because the State's questioning called for Thompson to draw conclusions from the bank memo: after her account of the memo's warning, the State asked Thompson, "And why is that significant?" RP 40.
There was no discussion on the record at trial about a business record exception to the hearsay rule. Thompson did not testify that she was the custodian of the computer records or that the credit union maintained these computer records, including the alert, in the ordinary course of business.
Thompson testified that the memo stated, Hamer's "particular series of check numbers may have been stolen" and to "use caution when verifying the signature." RP at 40.
Officer Jolly testified that she (1) read Nordquist his Miranda rights; (2) handcuffed him before Officer Monge searched Nordquist incident to his arrest; and (3) saw Officer Monge remove items from Nordquist's pockets, including a "tiny blue baggy." RP at 78. Officer Monge testified that he (1) heard Officer Jolly read Nordquist his Miranda warnings, (2) conducted a search of Nordquist's person at the bank, and (3) explained how he had conducted the search and what he had found. Nordquist's counsel did not object.
Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The jury convicted Nordquist of both crimes. He appeals.
ANALYSIS
I. Forgery: Sufficiency of the Evidence
Nordquist first argues that the evidence is insufficient to support his forgery conviction because the State did not show he knew the check he presented was forged. This argument fails.
Nordquist also argues that the evidence is insufficient to show that he falsely made, completed, or altered the check. We do not address this claim because the trial court did not give the jury a "to convict" instruction for this manner of committing forgery under RCW 9A.60.020(1)(a).
A. Standard of Review
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). When a defendant challenges the sufficiency of evidence in a criminal case, we draw all reasonable inferences from the evidence in favor of the State and interpret all reasonable inferences from the evidence strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Circumstantial evidence is no less reliable than direct evidence. State v. Delmater, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). A claim of insufficiency admits the truth of the State's evidence and all inferences that we reasonably can draw therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385 (1980).
Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Id. at 874-75.
B. Knowledge Element
The trial court instructed the jury on the elements of forgery under RCW 9A.60.020(1)(b) as follows:
Although the State originally charged Nordquist with violating both RCW 9A.60.020(1)(a) and (1)(b), the State submitted, and the trial court gave, a "to convict" instruction for forgery under only (1)(b), the manner of committing forgery that requires knowledge that the instrument is forged.
To convict the defendant of the crime of Forgery as charged in Count II, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 11th day of July, 2006, the defendant possessed, uttered, offered, or put off as true a written instrument that had been falsely made, completed or altered;
(2) That the defendant knew that the instrument had been falsely made, completed or altered;
(3) That the defendant acted with intent to injure or defraud; and
(4) That the acts occurred in the State of Washington.
Clerk's Papers at 23 (emphasis added); RCW 9A.60.020(1)(b).
RCW 9A.08.010(1)(b) defines "knowledge" as follows:
A person knows or acts knowingly or with knowledge when:
(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or
(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.
Under this statute, the jury may find that a defendant had actual knowledge if it finds that an ordinary person would have had knowledge under the circumstances. In re Pers. Rest. of Sarausad, 109 Wn. App. 824, 838 n. 5, 39 P.3d 308 (2001) (citing State v. Shipp, 93 Wn.2d 510, 516, 610 P.2d 1322 (1980)).
In addition, although possession alone is not enough to prove the defendant's guilty knowledge, possession together with slight corroborating evidence of knowledge may be sufficient. State v. Scoby, 117 Wn.2d 55, 61-62, 810 P.2d 1358, 815 P.2d 1362 (1991); see also State v. Ladely, 82 Wn.2d 172, 175, 509 P.2d 658 (1973) (possession of stolen property, combined with slight corroborative evidence of other inculpatory circumstances tending to show guilt, is sufficient to warrant a conviction for grand larceny); State v. Douglas, 71 Wn.2d 303, 306, 428 P.2d 535 (1967) (possession of stolen property, in connection with other evidence tending to show guilt, is sufficient to warrant a conviction for burglary). Such is the case here.
C. Evidence of Knowledge
Credit union account-owner Hamer testified that after she had been admitted to the hospital, Amy Jo Perry "took it upon herself to be in charge of my property," RP at 59, and took all of Hamer's "boxes" to keep her "stuff" safe. RP at 58. Hamer identified as hers the check that Nordquist had attempted to cash at the credit union. She did not, however, recognize the signature on it. She testified that (1) she did not write this check; (2) she did not give anyone else permission to write this check; (3) although she had met Nordquist "once through another friend" on July 2, she did not give this check to Nordquist nor did she give anyone else permission to give this check to Nordquist; and (4) while hospitalized the Friday after the 4th of July, she neither gave Nordquist her checks nor gave anyone permission to write a check on her account.
Perry never visited Hamer while she was in the hospital. Perry used Hamer's cell phone to communicate with Hamer while she was in the hospital, but Perry never returned the cell phone to Hamer. At the time of trial, Hamer had been unable to locate Perry.
According to Officer Jolly, Nordquist claimed that (1) "he received the check from a girl named Amy," RP at 74; (2) "[Amy] gave him the check because she wanted him to give her a ride up to Seattle to go visit Jodi Hamer who was in the hospital," RP at 74; and (3) "[Amy] went up to — that she got the check from [Hamer]." RP at 74. Officer Jolly explained her continued questioning of Nordquist about how he had obtained the check:
Nordquist told Officer Jolly that "he had met [Hamer] a couple weeks prior . . . that she had been sick, been taken to Harborview [Hospital] in Seattle." RP at 74. According to Hamer, Perry also was present when Hamer previously met Nordquist at a friend's house where she had been staying. RP at 58-59.
I confronted him over the fact that he said Amy needed gas money to go visit her friend [Hamer] in Seattle, and I asked him why she would go from Longview all the way to Seattle to get a check from [Hamer] in order to come all the way back to Longview to cash a check in order to give him gas money to go back to Seattle to visit [Hamer].
RP at 75. Nordquist then responded, "[W]ell, now that you put it that way, it doesn't make any sense." RP at 75.
It was uncontroverted that Nordquist was in possession of and presented to the credit union a check forged on Hamer's account. Nordquist's vague and disjointed explanations to Officer Jolly about the circumstances under which he claimed to have received the forged check rendered improbable his lack of knowledge that the check was false. This corroborating evidence of knowledge, though arguably slight, is sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Nordquist knew that the check he presented was falsely made, completed, or altered, in other words, that it was a forged instrument under RCW 9A.60.010(7). See Scoby, 117 Wn.2d at 61-62.
See State v. Hatch, 4 Wn. App. 691, 694, 483 P.2d 864 (1971) ("An explanation that cannot be checked or rebutted is suspect by `reasonable man' standards."). See also Douglas, 71 Wn.2d at 306-08; Scoby, 117 Wn.2d at 61-62.
Nordquist contends that his conduct exhibited a lack of knowledge necessary to support his forgery conviction because (1) he remained at the bank for 15 minutes while bank officials verified his identification, and (2) he neither asked for the return of his identification nor attempted to flee. As we note in the standard of review section of this analysis, on appeal we look at the evidence in the light most favorable to the State to see whether it is sufficient to support the verdict of the jury, whose credibility determinations we do not review. That a defendant makes adverse arguments based on the evidence does not affect this standard.
We hold, therefore, that the evidence was sufficient to prove the element of knowledge to support the jury's finding Nordquist guilty of forgery.
II. Not Hearsay
Nordquist next argues that the trial court abused its discretion when, over his objection, it allowed the following testimony from Thompson: "There was a memo stating that this particular series of check numbers may have been stolen and to use caution when verifying the signature." RP at 40. Nordquist argues that the memo's statement was inadmissible hearsay evidence under ER 801(c). This argument also fails.
A. Standard of Review
We review a trial court's evidentiary rulings for abuse of discretion. City of Spokane v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158 (2004). A trial court abuses its discretion only when its decision is "`manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (quoting State ex rel. Carroll v. Junker, 79 Wn2d 12, 26, 482 P.2d 775 (1971)). The burden to prove an abuse of discretion rests on the appellant. State v. Williams, 137 Wn. App. 736, 743, 154 P.3d 322 (2007); see State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999).
B. Hearsay Rule
ER 801(c) defines "hearsay" as follows: "`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." Thus, out-of-court statements "may be admitted if offered for purposes other than to prove the truth of the matter asserted." State v. James, 138 Wn. App. 628, 640, 158 P.3d 102 (2007), (quoting State v. Davis, 154 Wn.2d 291, 301, 111 P.3d 844 (2005) (not offered to prove the truth of the matter and, therefore, not hearsay when officer investigating a shooting testified that "he interviewed an unidentified female who was with the shooting victims before they left for a walk, and that she heard six or seven shots and went in response to a victim's call for help." James, 138 Wn. App. at 641)).
James focuses, in part, on whether the contested out-of-court statements were also "testimonial" under Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Nevertheless, this case from Division Three of our court is also instructive on whether an out-of-court statement is being offered to prove the truth of the matter asserted and, therefore, is inadmissible, or whether it is being offered for some other admissible purpose.
Similar to the officer's recounting the steps of his investigation in James, supra, Thompson's testimony about the bank's computer alert conveyed her rationale for excusing herself from Nordquist, checking the account holder's signature against the signature on the check that Nordquist had presented, and then calling her manager. Thompson did not testify that the check Nordquist presented and that she examined was stolen. Nor did the State charge Nordquist with possessing stolen checks or stealing the checks. Thus, the bank memo did not serve to prove the truth of a matter asserted in Thompson's testimony.
Thompson testified, "There was a memo stating that this particular series of check numbers may have been stolen and to use caution when verifying the signature." RP at 40.
See State v. Mason, 127 Wn. App. 554, 566 n. 26, 126 P.3d 34, 41 (2005) ("When out-of-court assertions are not introduced to prove the truth of the matter asserted, they are not hearsay and no confrontation clause concerns arise."); Crawford, 541 U.S. at 59 n. 9 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985)).
On the contrary, over defense counsel's hearsay objection, the State offered, and the trial court allowed Thompson's testimony as an explanation for her actions, not as substantive evidence that some checks from this account had been stolen. Thus, her bank memo testimony was not hearsay under ER 801 and, therefore, not excludable under ER 802. Accordingly, we hold that the trial court did not abuse its discretion in admitting Thompson's testimony about the computer alert.
The State argues for the first time on appeal that the business record exception to the hearsay rule is an alternative basis for admitting Thompson's statement. Nordquist challenges the State's argument on foundational grounds. Because we hold that Thompson's statement was not hearsay, we need not address whether the State established an adequate foundation for the business record exception under ER 803(a)(6) and RCW 5.45.020, or whether foundational objections not raised at trial are waived on appeal.
C. Harmless Error
Even assuming, without deciding, that the credit union's computer-generated electronic alert was inadmissible hearsay, we would reach the same decision under a harmless error analysis.
Evidentiary error is grounds for reversal only if it results in prejudice. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)."An error is prejudicial if, `within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.'" State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)). An error is harmless if the evidence is of minor significance in reference to the evidence as a whole. Neal, 144 Wn.2d at 611.
Any error resulting from Thompson's testimony about the electronic alert was harmless. The electronic alert was of minor significance in light of victim Hamer's uncontroverted testimony that: (1) she did not write the check that Nordquist presented; (2) she did not give anyone else permission to write this check; (3) she did not give this check to Nordquist; and (4) she did not give anyone else permission to give this check to Nordquist. In addition, as we summarized in a previous section of this analysis, other evidence showed that Nordquist knew Hamer's check, which he presented to Thompson at the credit union, was forged.
Moreover, although Norquist did not testify at trial, the jury did not credit Norquist's varying explanations to the police about how he had acquired the check.
In the alternative, therefore, we hold that any error in admitting Thompson's testimony about the computer-generated electronic alert was harmless.
III. Effective Assistance of Counsel
Nordquist last argues that that he was denied his constitutional right to effective assistance when his trial counsel failed to object to "irrelevant evidence that two police officers arrested the defendant, handcuffed him, read the Miranda warnings to him, and searched him `incident to arrest.'" Br. of Appellant at 18. We disagree.
A. Standard of Review
To establish ineffective assistance of counsel, Nordquist must show that: (1) his counsel's performance was deficient; and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Nordquist must also overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). To show prejudice, Nordquist must establish "a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335. Nordquist fails to meet this test.
B. No Deficiency
Nordquist argues that the "sole purpose [of the officers' testimony] was to convey to the jury that which both officers were forbidden to voice on the witness stand: that they both believed that the defendant was guilty." Br. of Appellant at 19. But the officers' testimony in this case was neither unfairly prejudicial nor an improper opinion about Nordquist's guilt. On the contrary, the officers' testimony contained no opinion about Nordquist's guilt, whether by direct statement or inference.
Instead, the officers testified solely about the facts surrounding Nordquist's arrest and the subsequent search incident to arrest. See generally State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (in determining whether statements are in fact impermissible opinion testimony, the court generally considers the circumstances of the case); City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994). Such testimony was not objectionable. Thus, Nordquist's failure to object to this testimony was not deficient performance.
Nordquist has not shown that his counsel's performance was deficient. Since he has failed to establish this first prong, we need not address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). We hold, therefore, that Nordquist has not established ineffective assistance of counsel.
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
Quinn-Brintnall, J., concur.
I disagree with the majority in that I would hold that the statement the credit union employee received on her computer that "this particular series of check numbers may have been stolen and to use caution when verifying the signature" was hearsay. But, I agree that any error was harmless for the reasons stated by the majority.
Nordquist claims that the trial court abused its discretion when, over his objection, it allowed Thompson to testify, "[T]here was a memo stating that this particular series of check numbers may have been stolen and to use caution when verifying the signature." RP at 40. Nordquist argues that the memo's statement was inadmissible hearsay evidence under ER 801(c). I agree, but agree that the error was harmless.
The decision to admit evidence lies within the sound discretion of the trial court. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). We review the trial court's admission of evidence for an abuse of discretion. Neal, 144 Wn.2d at 609. "`A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds.'" State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (quoting Havens v. CD Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)), review denied, 133 Wn.2d 1019 (1997). We may affirm on any ground adequately supported by the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004). Finally, the appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), rev'd on other grounds, 99 Wn.2d 538, 663 P.2d 476 (1983).
"ER 801(c) embodies the basic definition of hearsay." State v. Sua, 115 Wn. App. 29, 40, 60 P.3d 1234 (2003). Hearsay is: (1) a statement; (2) other than one made by the declarant while testifying at the trial or hearing; and (3) offered in evidence to prove the truth of the matter asserted. ER 801(c); Sua, 115 Wn. App. at 40.
Here, there is no doubt that the memo included at least one statement.
After all, under ER 801(a), a statement includes a written assertion. ER 801(a)(1). At least one author has noted that the term "assertion" means "a description of facts that occurred in the past; i.e., describing an event or condition that occurred in the past." 5B Karl B. Tegland, Washington Practice: Evidence Law and Practice §§ 801.3, at 320 n. 1 (5th ed. 2007) (citing 2 McCormick on Evidence §§ 246, at 96-97 (John W. Strong ed., 5th ed. 1999)). And according to Thompson, the memo "asserted" that "this particular series of check numbers may have been stolen." RP at 40.
Also, there is no doubt that this statement in the memo was "other than one made by the declarant while testifying at the trial or hearing." ER 801(c). In other words, it was an out-of-court statement that the witness did not make at the present trial or hearing. And the effect of ER 801(c)'s middle clause is to bring within the definition of hearsay any out-of-court statement offered to prove the truth of the matter asserted. Sua, 115 Wn. App. at 41.
The admission of the statement would serve no purpose in this case other than to prove the truth of the matter asserted — that Thompson used caution because this particular series of check numbers may have been stolen. See State v. Ashurst, 45 Wn. App. 48, 53, 723 P.2d 1189 (1986) (the statements "cannot locate acct." and "endorsement cancelled" stamped on the back of a check would serve no purpose other than to prove that the bank was unable to locate the account upon which the check was drawn).
The State argues that the memo may have been admissible as a business record under RCW 5.45.020. But the State has failed to explain how the bank teller either had custody of the memo as a regular part of her work or supervised its creation. RCW 5.45.020; Cf. State v. BenNeth, 34 Wn. App. 600, 602-605, 663 P.2d 156 (1983).
I agree with Nordquist that the trial court erred in admitting this evidence. But, I agree that the error was harmless for the reasons expressed by the majority. In all other respects I concur with the majority.