Opinion
66078-1-I
06-18-2012
STATE OF WASHINGTON, Respondent, v. JACOB CHUNG LIN a.k.a. JACOB C. H. LIN, Appellant.
UNPUBLISHED OPINION
Dwyer, J.
Over a period of four months, Jacob Lin forged his employer's name on 29 company checks, cashed the checks, and deposited the funds into his personal bank account. Because each unauthorized withdrawal from his employer's accounts constituted a separate and discrete act of theft, Lin's conviction on 29 counts of theft does not constitute double jeopardy. Nor has Lin demonstrated any instructional error or miscalculation of his offender score. The allegations in Lin's statement of additional grounds for review are also without merit. Accordingly, we affirm.
I
Chunshu Zhang has owned Guang Feng International, a Bellevue import-export business, since 1995. Zhang travels frequently on business and is routinely out of her office for several weeks at a time.
In February 2008, Zhang hired Jacob Lin as her personal assistant. Lin's responsibilities were limited and included opening the mail and checking for invoices, credit card bills, payments, and business related forms. Lin would give Zhang all invoices or bills that needed to be paid. Zhang would then prepare and sign the checks and return them to Lin for mailing. Zhang never authorized Lin to sign checks.
In mid-June 2008, Zhang returned from a business trip and noticed two charges on a credit card statement that she did not recognize. She learned that the amounts involved two "convenience checks" totaling $4,000 that had been cashed against the account.
On June 18, Zhang asked Lin about the checks. He apologized and explained that he needed the money because his mother was ill. Zhang reminded Lin that he was not authorized to sign her name on checks and gave him 24 hours to repay the money. On June 25, 2008, Lin gave Zhang a cashier's check for $780. He also sent her an email indicating that he would pay back all of the missing money, but he never did so and also never returned to the business.
Zhang's attempts to determine whether Lin had cashed any other checks were hampered because many of her computer business records had apparently been erased. She also discovered that the mailing address for credit card statements had been changed from her office to a post office box. Zhang eventually determined that Lin had cashed a total of 29 checks after forging her signature.
Bellevue Police Officer John Nourse contacted Lin about the checks on June 30, 2008. Lin claimed that he had paid back a lot of the money and that it was all just "a big misunderstanding." Officer Nourse then arrested Lin and advised him of his rights.
Lin gave a statement admitting that he had forged Zhang's name on four checks. He acknowledged that Zhang had not authorized him to sign her name. But he had asked her for permission to keep some emergency cash on hand when she was travelling. According to Lin, Zhang did not say no, but "just smiled, " leading Lin to believe that she had given her permission.
After arresting and booking Lin, Nourse released him. A short time later, Nourse learned that Lin had continued to forge Zhang's signature on checks after his arrest.
Based on a total of 29 checks that Lin cashed over a period of about four months, the State charged him with 11 counts of first degree theft, 17 counts of second degree theft, and 1 count of third degree theft. In conjunction with the four counts that occurred after his arrest, the State alleged as an aggravating circumstance that Lin had demonstrated or displayed "an egregious lack of remorse." RCW 9.94A.535(3)(q).
In his testimony, Lin admitted that he had forged Zhang's signature, cashed the checks, and deposited the funds into his personal bank account. He claimed that he used all of the money to pay the company's rent or bills that came due while Zhang was traveling. Lin explained that because he was not comfortable sending checks to the payees with forged signatures, he had deposited the money in his bank account and then purchased money orders to pay the bills.
In the midst of the prosecutor's cross-examination of Lin, the trial court took a recess. Lin disappeared during the break. The trial then resumed to conclusion in his absence.
Sometime after the conclusion of trial, Lin was arrested on a bench warrant issued by the trial judge.
The jury found Lin guilty as charged on all counts. The jury also answered the special verdicts in the affirmative, finding that Lin had demonstrated an egregious lack of remorse. The court declined to impose an exceptional sentence and sentenced Lin to concurrent standard-range terms totaling 43 months.
II
Lin contends that his conviction for 29 counts of theft, based on the individual checks that he cashed, violated constitutional prohibitions against double jeopardy. The double jeopardy provisions of both the state and federal constitutions prohibit multiple convictions if the defendant has committed just "one unit of the crime." State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998). The proper inquiry
is what "unit of prosecution" has the Legislature intended as the punishable act under the specific criminal statute. The Legislature has the power, limited by the Eighth Amendment, to define criminal conduct and set out the appropriate punishment for that conduct. . . . When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime.Adel, 136 Wn.2d at 634 (citations omitted). If a statute does not clearly identify the unit of prosecution, we resolve any ambiguity under the rule of lenity to avoid "'turning a single transaction into multiple offenses.'" Adel, 136 Wn.2d at 635 (quoting Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed. 905 (1955)).
Lin argues that the evidence established two separate "criminal impulses and courses of conduct"—one occurring before and one occurring after his arrest—and therefore warranted only two units of prosecution. But this court considered, and rejected, an essentially identical challenge in State v. Kinneman, 120 Wn.App. 327, 84 P.3d 882 (2003).
In Kinneman, the defendant, an attorney, was convicted of 28 counts of first degree theft and 39 counts of second degree theft based on 67 separate unauthorized withdrawals from the defendant's Interest on Lawyer Trust Account (IOLTA) over a period of 16 months. On appeal, he argued that the theft statutes are ambiguous as to the unit of prosecution and that he was therefore guilty of only one count of first degree theft. This court concluded:
The unit of prosecution under RCW 9A.56.030(1)(a) for first degree theft was $1,500, and under RCW 9A.56.040(1)(a) for second degree theft was $250, for each unauthorized withdrawal. The State had the discretionary authority to charge Kinneman with a separate count of theft for each discrete, unauthorized withdrawal he made from his IOLTA account. He was not subject to double jeopardy for 67 theft convictions where each was based on a discrete, unauthorized withdrawal.Kinneman, 120 Wn.App. at 338.
Here, the State charged Lin with 29 counts of theft, occurring over a four-month period. Each count was based on a separate check that Lin cashed and deposited into his personal bank account after forging Zhang's signature. As in Kinneman, this evidence was sufficient to establish that each of Lin's unauthorized withdrawal of funds from Zhang's accounts constituted a separate, discrete theft. See Kinneman, 120 Wn.App. at 338.
Lin's reliance on State v. Turner, 102 Wn.App. 202, 6 P.3d 1226 (2000), and State v. Vining, 2 Wn.App. 802, 472 P.2d 564 (1970), is misplaced. Turner addressed the validity of the State's attempt to aggregate 72 alleged third degree thefts into four counts of first degree theft based on "variations in the methods" by which the defendant took the funds. Turner, 102 Wn.App. at 203; see also former RCW 9A.56.010(17)(c) (1998) (now RCW 9A.56.010(18)(c)) (permitting aggregation of a series of individual third degree thefts that "are a part of a common scheme or plan"). In Vining, the court held that if the evidence establishes successive takings that are the result of a "single, continuing criminal impulse or intent and are pursuant to the execution of a general larcenous scheme or plan, " the State may charge one greater degree offense rather than multiple lesser degree offenses. Vining, 2 Wn.App. at 808.
Both Turner and Vining addressed the propriety of the State's attempts to aggregate multiple lesser charges into greater charges. Neither case suggests that the State was required to aggregate separate thefts under the circumstances here:
[I]t is not incumbent upon the State to prove that separate thefts are the result of independent criminal impulses if, as here, it chooses not to aggregate counts. . . . Vining [does not stand] for the proposition that theft from the same owner at the same place must be charged as a single scheme. The aggregation cases permit, but do not require, the State to aggregate charges in order to charge a defendant with a higher degree of a crime when the State believes a single scheme can be proved.Kinneman, 120 Wn.App. at 340; see also Turner 102 Wn.App. at 212 (expressly declining to address whether "the State was free to charge 72 individual counts of theft in this case"). As in Kinneman, the issue here is not whether the State could have aggregated the charges into fewer counts, but rather whether the State erred in charging the offenses individually. Lin's conviction for 29 counts of theft did not constitute double jeopardy.
III
Lin next contends that the "to convict" instructions for counts 24 and 25 (committed between June 10, 2008 and July 2, 2008) and counts 27 and 28 (committed between June 10, 2008, and July 7, 2008) violated his right to be free of double jeopardy because they failed to require the convictions to be based on "separate and distinct" acts. When multiple counts allegedly occur within the same charging period, the jury instructions must make it manifestly apparent that each count must be based on proof of a separate and distinct underlying act. See State v. Borsheim, 140 Wn.App. 357, 367-68, 165 P.3d 417 (2007).
But contrary to Lin's assertion, the challenged instructions expressly required the State to prove that during the charging period, the defendant wrongfully obtained control over the property of another "separate and distinct from the property in all other counts." Because the instructions required proof of a separate and distinct underlying event for each conviction, they do not raise any double jeopardy concerns.
IV
Lin contends that the trial court miscalculated his offender score by failing to find that the counts in each of his two series of offenses constituted the same criminal conduct. See RCW 9.94A.589(1)(a). But because Lin failed to raise this issue at sentencing, he has waived the claim of error. Appellate review is not warranted.
A defendant cannot waive a challenge to a legal error resulting in an excessive sentence. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002). But "waiver can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion." Goodwin, 146 Wn.2d at 874. Because application of the same criminal conduct statute involves both factual determinations and the exercise of discretion, Lin's failure to raise the issue at sentencing precludes appellate review. See In re Pers. Restraint of Shale, 160 Wn.2d 489, 494-95, 158 P.3d 588 (2007); State v. Jackson, 150 Wn.App. 877, 892, 209 P.3d 553 (2009); State v. Nitsch, 100 Wn.App. 512, 522-23, 997 P.2d 1000 (2000).
Lin's claim that defense counsel raised the same criminal conduct issue at sentencing is without merit. The record shows that defense counsel agreed with the State's calculation of Lin's offender score as 31.
In the alternative, Lin contends that defense counsel's failure to argue that his convictions encompassed the same criminal conduct issue was constitutionally deficient. To establish ineffective assistance of counsel, Lin must demonstrate both (1) that defense counsel's representation fell below an objective standard of reasonableness and (2) resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Multiple offenses encompass the same criminal conduct if the crimes involve the same (1) objective criminal intent, (2) time and place, and (3) victim. RCW 9.94A.589(1)(a). If any of these three elements are missing, the trial court must count the offenses separately when calculating a defendant's offender score. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).
Here, Lin cannot establish that the offenses occurred at the same time and place. He contends that the offenses all occurred at Zhang's office as part of an uninterrupted criminal episode over a short period of time. But Lin did not commit the offenses in Zhang's office. Rather, he wrongfully obtained Zhang's property when he cashed the checks that he forged. See RCW 9A.56.020(1)(a).
Nor does State v. Porter, 133 Wn.2d 177, 942 P.2d 974 (1997), support Lin's claim that the offenses occurred at the same time. Porter involved sequential drug sales that occurred "as closely in time as they could without being simultaneous." 133 Wn.2d at 183. Here, Lin's thefts occurred over a period of about four months and cannot reasonably be characterized as a single, uninterrupted criminal episode.
Because Lin's offenses did not occur at the same time or place, any attempt by counsel to raise the same criminal conduct issue would have failed. Lin cannot establish that he was denied effective assistance of counsel.
V
Relying on State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003), and State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), Lin contends that the trial court erred in instructing the jury that it had to be unanimous to answer "no" to the special verdict on the charged aggravating circumstance. But our Supreme Court has now overruled the nonunanimity rule developed in Goldberg and Bashaw, concluding that it "conflicts with statutory authority, causes needless confusion, does not serve the policies that gave rise to it, and frustrates the purpose of jury unanimity." State v. Nuñez, Nos. 85789-0, 85947-7, 2012 WL 2044377, at *1 (Wash. June 7, 2012). In reaching this decision, the Nuñez court noted that for SRA aggravating circumstances, such as the one involved here, the Legislature "intended complete unanimity to impose or reject an aggravator." Nuñez, 2012 WL 2044377, at *4 (citing RCW 9.94A.537(3)). There was no error in the special verdict instructions.
VI
Lin has filed a statement of additional grounds for review. See RAP 10.10. He first alleges that he was denied effective assistance of counsel when defense counsel failed to object to the admission of evidence and to improper comments on guilt.
Lin contends that defense counsel should have objected to the admission of exhibit 75, an email that Lin purportedly sent to Chunshu Zhang after he told her that he had cashed two checks and that he wanted to pay her back. He argues that the document was not properly authenticated. But Zhang identified the email as one she received on her computer. Other evidence corroborated at least some of the contents of the email. These circumstances were sufficient to authenticate the email. See ER 901(a) (authentication requirement satisfied by evidence sufficient to support a finding "that the matter in question is what its proponent claims").
Lin next contends that both the deputy prosecutor and Zhang made improper comments on his guilt. Generally, witnesses may not express an opinion as to the defendant's guilt. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). In determining whether statements are impermissible opinion testimony, we consider the circumstances of the case, including (1) the type of witness, (2) the nature of the testimony, (3), the nature of the charges, (4) the type of defense, and (5) the other evidence before the jury. Demery, 144 Wn.2d at 759.
Lin asserts that the deputy prosecutor commented on his guilt by referring to Zhang's suspected losses as "theft." He maintains that Zhang offered an opinion on his guilt by suggesting that he erased computer records to avoid detection, referring on one occasion to the fact he may have "stolen" money, and by suggesting that he may have written additional checks "to himself."
Viewed in context, the deputy prosecutor's reference to the existence of a "theft" was a reasonable inference drawn from evidence of unauthorized withdrawals from Zhang's bank accounts. Similarly, Zhang's reference to erased business records was based on her personal knowledge of the computer records and the identity of parties authorized to access those records. Under the circumstances, the comments did not constitute improper opinions on guilt.
The remaining challenged comments occurred during Zhang's explanation of the efforts she undertook to ascertain whether additional funds were missing from the business accounts after Lin admitted cashing the first two checks. Even if improper to some extent, the comments were brief and isolated. Given the overwhelming untainted evidence of Lin's guilt, there is no reasonable likelihood that the result of the trial would have been different had the trial court struck the evidence following an objection. Lin therefore cannot demonstrate prejudice resulting from counsel's alleged deficient performance.
Lin contends that instruction 53, which defined "egregious lack of remorse" as an aggravating circumstance, was insufficient to communicate the appropriate legal standard to the jury. But contrary to Lin's conclusory assertions, instruction 53, which was based on WPIC 300.26, set forth specific examples of words and conduct that the jury could consider when determining whether Lin demonstrated an egregious lack of remorse. Lin does not identify any specific deficiency in the instruction's wording. Moreover, given the trial court's decision not to impose an exceptional sentence, Lin has not identified any prejudice resulting from the alleged error. He is, thus, not entitled to appellate relief on this claim.
11A Washington Practice: Washington Pattern Jury Instructions: Criminal 300.26, at 736 (3d ed. 2008).
Finally, Lin contends that "[d]ue to a misunderstanding, " he was not present when the parties entered into a stipulation about the existence of his prior convictions. But Lin has not sufficiently identified the nature of the alleged error to permit appellate review. See RAP 10.10(c) (appellate court will not consider statement of additional grounds for review unless it informs the court of the nature and occurrence of alleged errors).
Affirmed.
WE CONCUR.