Opinion
No. 35758-5-II.
June 17, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-00874-8, Russell W Hartman, J., entered December 1, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Van Deren, C.J.; Bridgewater and Armstrong, JJ., concurring in the result only.
This criminal case arises from the failure of Tye and Elizabeth Moore and Don and Debra Aldridge to adequately document the business aspects of their corporation, Northwest Construction Services, Inc. (NWCS). Tye, as NWCS's president, was the only designated corporate officer and a corporate employee. As president, he paid his salary through goods and services purchased with corporate funds. He also paid himself through advances of anticipated corporate profits. Although this matter, and the differences of opinion about NWCS's management, could have been efficiently resolved through a civil suit, the State charged Tye with seven counts of forgery, one count of first degree theft, and one count of second degree theft, all arising from corporate accounting that Tye was responsible for completing. A jury convicted him as charged.
Because the facts involve a substantial discussion of all the parties, we will refer to each party by his or her first name. We intend no disrespect.
Tye appeals, arguing that: (1) the State's evidence was insufficient to prove that he committed these crimes; (2) the forgery convictions violate his constitutional protection against double jeopardy; (3) the trial court improperly instructed the jury; (4) his trial counsel was ineffective; and (5) six of the seven forgery convictions constituted same criminal conduct. We vacate five of Tye's seven forgery convictions, affirm his first degree theft conviction, and remand for resentencing.
The trial court merged Tye's first and second degree theft convictions.
FACTS
Tye, Elizabeth, Don, and Debra decided to start a business building "spec" houses in late 2004. Report of Proceedings (RP) at 91. In February 2005, they incorporated as NWCS. NWCS's articles of incorporation and its initial annual report listed Tye as the president. Don and Debra were labeled as "incorporators," "members," and "investors," but they were not corporate officers or directors. Exs. 48, 52, 53. The parties put very few business plan details in writing. They did agree, however, that Tye and Elizabeth would receive 80 percent of the corporate profits, and that Don and Debra would receive the remaining 20 percent.
Debra described a spec house as a less expensive home that the average homebuyer could afford to purchase.
Debra, although not a corporate officer or board member, testified that Tye was the general contractor. As the general contractor, Debra expected that Tye would perform some construction work on the spec house and that he would hire subcontractors to assist in building the spec house. Debra also testified that NWCS would pay Tye for his work. But she expected him to report his hours to her so she could run a payroll program for him and any other unlicensed subcontractor or corporate employee. Don, Debra's husband, testified that he does not recall that Debra agreed to be responsible for the payroll. He also testified that he would not have wanted her to take on this responsibility because he wanted their family to have limited involvement with NWCS. And although Debra knew Tye was working on the spec house throughout the summer, he never submitted any of his hours or any other employee's hours to her for payroll.
Moreover, Debra testified that Tye had the authority to carry out the day-to-day business operations. But in contrast to Debra's testimony, NWCS's organizational meeting minutes stated: "All monies and credit accounts are at the sole discretion of Tye and Elizabeth Moore to be maintained and spent how [they] so choose in the natural course of business without consult from other board members or investors." Ex. 53. Consistent with Debra's testimony, Tye also testified that he believed he was responsible for all the day-to-day business operations. As part of his accounting role, Tye testified that he set up a QuickBooks ledger with an accounting firm's assistance.
Tye testified that he wrote these minutes in Debra's presence. But an accountant, Melissa Austin, testified that Tye gave her a copy of the minutes on February 14 before the meeting purportedly took place.
QuickBooks is accounting software created by Intuit, Inc. See Intuit QuickBooks Home Page, http://quickbooks.intuit.com (last visited May 15, 2008).
Don and Debra used their home equity to secure a construction loan for NWCS through Westsound Bank and the Aldridges solely were accountable for the loan. Westsound Bank approves construction of only one property per construction loan. The loan closed in May 2005 when NWCS purchased a property at 570 Sroufe Street in Port Orchard, Washington, for the spec house. Westsound Bank linked the Aldridges' construction loan to a NWCS corporate checking account and Tye requested that the bank place periodic draw amounts from the construction loan into the corporate checking account. Tye, Elizabeth, Don, and Debra were all signatories on the checking account.
According to Diana Ambauen-Meade, the mortgage banker with Westsound Bank who assisted the Aldridges with the construction loan, the builder usually fills out the draw request and then the loan owner approves it. Although the testimony is incomplete, it appears that the Aldridges never approved Tye's draw requests. According to Steven Brown, the construction coordinator for Westsound Bank, Ambauen-Mead forwarded Tye's draw requests to Brown and asked him to process them.
Our appellate record is unclear but, at a minimum, Tye and Debra also had access to a credit card account that was linked to the corporate checking account.
Tye began construction on the Sroufe Street house in May 2005. During this time, he also was remodeling his own home at 280 Flower Meadows in Port Orchard, Washington and running for a city council position. Debra was concerned about how Tye's city council campaign would affect his obligations to NWCS, but he assured her that he would only campaign at night.
Tye, Elizabeth, and their children lived with the Aldridges from July until September 2005 to facilitate their home remodel.
On August 31, 2005, Tye and Elizabeth expressed dissatisfaction with Debra's decision to withdraw from a mutual nonprofit organization's board. In response, according to Tye, Debra became upset and she then expressed her dissatisfaction with the construction project. To conciliate Debra, Tye printed out the QuickBooks ledger for her. Tye testified that he advised her that the ledger was incomplete because when he had began filling it out under the accounting firm's supervision, he speculated about who the payees were and he had not had time to update the ledger after meeting with the accounting firm.
Between the end of September and the beginning of October, Debra became increasingly concerned with the progress of the construction because she believed that the remaining loan balance would not fund the full cost of the home. She then obtained all the checking and credit card statements from the bank. Believing that the home construction could not be completed with the remaining construction loan funds and fearing that Tye was misappropriating corporate money, she closed the corporate checking account. At the end of October, Tye gave Debra a compact disk (CD) that he told her contained scanned copies of all the receipts and invoices for the Sroufe Street project. Tye and Elizabeth resigned from NWCS, effective October 1, 2005, and Debra and Don completed the Sroufe Street house, but did not make a profit on the project.
Tye admitted that he used approximately $8,400.00 of corporate money for his personal expenses. He used the corporate money to pay for materials and services on his own home remodel, for his vehicle's license and registration fees, and for his city council campaign. He testified that when he used the corporate funds for personal goods and services, he was paying himself for the work he did at the Sroufe Street house; i.e., he paid for goods and services rather than write himself a paycheck. He also testified that if, at the conclusion of the project, he had overpaid himself for his labor or if he made a mistake in his accounting, he intended to reduce his profit.
In particular, Tye admitted that he used corporate checks to pay Danny's Concrete Pumping, LLC and Fred Hill Materials, Inc. for concrete poured at his own home. He also admitted that on the checks' memo lines, he wrote in "570 Sroufe" as a way to account for the corporate money he was paying himself in salary. Tye also admitted that when he scanned the invoices to the CD for Debra, he hand-wrote the job site address as 570 Sroufe. He testified that he did this because he could not read the proper job site address and believed that 570 Sroufe was correct.
These were check numbers 2037 and 2038.
The State charged Tye with seven counts of forgery (counts I-VII), one count of first degree theft (count IX), and one count of second degree theft (count VIII). The jury found him guilty on all counts, but the trial court merged the first and second degree theft counts and sentenced him for only first degree theft. In addition, the jury found that the crime of first degree theft was aggravated by the circumstance of "destructive and foreseeable impact on persons other than [the victims named in the charging information, Debra, Don, and NWCS]." Clerk's Papers (CP) at 310. The trial court did not sentence Moore to an exceptional sentence, but did sentence him to concurrent terms of 25 months for first degree theft and 18 months for each forgery count.
Tye appeals.
ANALYSIS
I. Sufficiency of the Evidence
Tye argues that the State failed to produce sufficient evidence for the jury to find him guilty of the charged crimes.
A. Standard of Review
Evidence is sufficient to support the defendant's conviction if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We view both circumstantial and direct evidence as equally reliable and do not review credibility determinations on appeal because we defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
B. Forgery
Tye argues that the evidence is insufficient to prove that he committed any act of forgery. The State charged Tye with two alternative means of committing forgery in violation of RCW 9A.60.020(1)(a) and RCW 9A.60.020(1)(b):
(1) A person is guilty of forgery if, with intent to injure or defraud:
(a) He falsely makes, completes, or alters a written instrument or;
(b) He possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged.
While the trial court instructed the jury on counts I (QuickBooks ledger), III (check 2037), and V (check 2038) under both RCW 9A.60.020(1)(a) and (b), the jury, in a special verdict, found him guilty of violating only RCW 9A.60.020(1)(b). And the trial court instructed the jury on counts IV (Fred Hill Materials invoice), VI (Danny's Concrete and Pumping invoice), and VII (NWCS invoice showing Tye's alleged work at 570 Sroufe Street) under only RCW 9A.60.020(1)(a).
Specifically, the trial court instructed that to convict Tye of forgery on counts I, III, and V, the jury must find, among other things, that "(a) the defendant falsely altered a written instrument; or (b) the defendant possessed or uttered or offered or disposed of or put off as true a forged instrument." CP at 287.
The trial court instructed that to convict Tye of forgery on counts IV, VI, and VII, the jury must find, among other things, that "the defendant falsely altered a written instrument." CP at 290.
In his challenge to the sufficiency of the evidence on the forgery counts, Tye contends that "[a] misrepresentation of fact, so long as it does not purport to be the act of someone other than the maker, does not constitute forgery." Br. of Appellant at 13 (citing State v. Mark, 94 Wn.2d 520, 618 P.2d 73 (1980)). The State notes that Mark predates the criminal forgery statute and discusses common law forgery.
In addition, the State argues that
under the plain language of the current forgery statute there is no requirement that the written instrument must purport to be the act of someone other than the maker, nor is there any language which suggests that the statute was meant to incorporate the common law rule that there is a significant distinction between a forgery and a writing falsely representing that the facts which it reports are true.
Br. of Resp't at 28. The State also relies on State v. Smith, 72 Wn. App. 237, 241-42, 864 P.2d 406 (1993), for its argument that the legislative history of the 1975 criminal code does not support Tye's argument. Although we discussed the legislative history of the formation of the criminal forgery statute in Smith, we did so to determine that "the 1975 Legislature intended to continue the rule of legal efficacy [of the written instrument] that had been part of Washington law up to that time." Smith, 72 Wn. App. at 242.
But in interpreting the criminal forgery statute, courts have relied on Mark. See State v. Esquivel, 71 Wn. App. 868, 870-71, 863 P.2d 113 (1993); State v. White, 47 Wn. App. 370, 373, 735 P.2d 684 (1987); State v. Sullivan, 28 Wn. App. 29, 33, 621 P.2d 212 (1980). Specifically, Division One of this court has held:
Forgery does not involve the making of false entries in an otherwise genuine document. It does involve the manufacture of a false or spurious document made to appear to be other than what it actually is. As stated in W. LaFave A. Scott, Criminal Law § 90, at 671 (1972): "Though a forgery, like false pretenses, requires a lie, it must be a lie about the document itself: the lie must relate to the genuineness of the document."
Esquivel, 71 Wn. App. at 870-71 (citations omitted).
1. QuickBooks Ledger (count I), Check 2037 (count III), and Check 2038 (count V)
The jury convicted Tye on counts I, III, and V because it found, among other things, that Tye "possessed or uttered or offered or disposed of or put off as true a forged instrument." CP at 287, 289, 291. While a forged instrument is "a written instrument which has been falsely made, completed, or altered," RCW 9A.60.010(7), the trial court limited the definition and instructed the jury that a forged instrument is "a written instrument which has been falsely altered." CP at 284. A written instrument here is "[a]ny paper, document, or other instrument containing written or printed matter or its equivalent." RCW 9A.60.010(1)(a). And "[t]o `falsely alter' a written instrument means to change, without authorization by anyone entitled to grant it, a written instrument, whether complete or incomplete, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or in any other manner." RCW 9A.60.010(6).
The State's theory of prosecution was that Tye put off as true or offered the written instruments that he falsely altered to Debra. And, seemingly, it theorized that Tye falsely altered the documents by changing them, without authorization, by adding new matter. See RCW 9A.60.010(6). It is unclear who the State relied on as the proper authorizing party, if not Tye as the president and only testifying corporate officer. It is equally unclear what the State's forgery theories are, but on the QuickBooks ledger, it appears to be that he put false information into the ledger when he created it, and that the check forgery was his addition of an allegedly incorrect memo line notation.
The incorporation meeting minutes list Elizabeth as the Secretary/Treasurer but Elizabeth did not testify.
A person falsely alters a written instrument by inserting new matter to the written instrument if the insertion of that new matter changes the document and if it is inserted without authorization. See RCW 9A.60.010(6). Here, Tye had authorization to write checks and account for the expenses on the Sroufe Street house. The State presented no evidence that the QuickBooks ledger and the checks were changed. They were genuine documents and did not purport to be anything other than what they were. See In re Pers. Restraint of Keene, 95 Wn.2d 203, 210-11, 622 P.2d 360 (1980) (office manager who is authorized to use a signed blank check for supplies, but designates himself as payee is guilty of theft, not forgery); Esquivel, 71 Wn. App. at 870-71. Therefore, the QuickBooks ledger and two checks were not forged instruments, and Tye could not commit forgery by possessing them, uttering them, offering them, disposing of them, or putting them off as true. See RCW 9A.60.020(1)(b). Accordingly, we vacate counts I, III, and V for insufficient evidence.
2. Fred Hill Materials Invoice (count IV) and Danny's Concrete Pumping Invoice (count VI)
Again relying on Mark, Tye contends that he did not commit forgery because that he only made "false entries in an otherwise genuine document" when he wrote 570 Sroufe as the job site address on the Fred Hill Materials and Danny's Concrete Pumping invoices. Br. of Appellant at 17. Thus, he argues he is not guilty of forgery because he did not falsely alter a written instrument.
In Mark, the defendant was a pharmacist who the State charged with forgery because he submitted Medicaid reimbursement forms to the State that misrepresented the number and kind of prescriptions he had received. 94 Wn.2d at 522. The Washington Supreme Court reversed Mark's forgery conviction because "[a] misrepresentation of fact, so long as it does not purport to be the act of someone other than the maker, does not constitute forgery." Mark, 94 Wn.2d at 523. The court noted that in writing the physicians' names on the claim forms, Mark represented that the physicians had submitted prescriptions to him but that he did not represent that the doctors themselves had signed the claim forms. Mark, 94 Wn.2d at 523. The court concluded that because "the claim forms submitted by the defendant were exactly what they purported to be, it was error to instruct the jury that it could properly find the defendant guilty of forgery." Mark, 94 Wn.2d at 524.
Here, Tye did not simply fill in a blank form; he altered a carbon copy of a receipt he received from both Fred Hill Materials and Danny's Concrete Pumping by replacing the job address of "280 Flower Meadows" with "570 Sroufe." Exs. 4-6, 9-11. He did not have authorization from Fred Hill Materials or Danny's Concrete Pumping to insert new matter into the written instrument, i.e., to alter the job address. See RCW 9A.60.010(6). Therefore, under the statute's plain language, the State presented sufficient evidence to prove that Tye forged these two invoices. See RCW 9A.60.010(6). There was sufficient evidence to convict Tye of counts IV and VI, and we uphold these convictions.
3. NWCS Invoice (count VII)
The State charged Tye with forgery for falsely altering a written instrument, the NWCS invoice. Here again, the State's theory of prosecution must have been that Tye falsely altered the NWCS invoice by inserting new matter. See RCW 9A.60.010(6). Tye contends that his NWCS invoice cannot be a forgery because it is what it purports to be — an accounting of the work that he performed for NWCS. Tye typed the invoice, but there are hand written notations on the invoice, "Partial Payment made through check # 2029, 2030"; "Balance $183.90"; and "Paid 816.10 8/01/05." Ex. 15A.
Here, the alleged misrepresentations of facts contained in the NWCS invoice and "partial payment" notation do not constitute forgery because the document was what it appeared to be — an accounting. Ex. 15A. See Mark, 94 Wn.2d at 523; Esquivel, 71 Wn. App. at 870-71. Tye had authority to carry out the day-to-day operations of the business and, at a minimum, he was required to create time sheets, i.e., invoices, for the work that he completed and be paid as a corporate employee. Genuine forms that contain misrepresentation of facts in those forms do not constitute forgery. See State v. Scoby, 117 Wn.2d 55, 60, 810 P.2d 1358, as amended, 815 P.2d 1362 (1991). The NWCS invoice and the hand written notations on the invoice do not constitute forgery. They are exactly what they purport to be. Therefore, we vacate Tye's forgery conviction on count VII because the State failed to produce sufficient evidence.
In summary, we vacate counts I, III, V, and VII because the State failed to prove that Tye committed forgery by sufficient evidence, and we affirm counts IV and VI.
B. First Degree Theft
Tye argues that the State failed to present sufficient evidence that he committed first degree theft, specifically that the property he used for personal gain was that "of another," because he had authority to write checks from the corporate checking account and the corporation had to pay him for his services. Br. of Appellant at 21.
To prove first degree theft, the State was required to prove that Tye committed theft of property or services of more than $1500 in value. RCW 9A.56.030(1)(a). On a special verdict, the jury convicted Tye of committing first degree theft "by color or aid of deception [to] obtain control over [the] property of another." CP at 309 (emphasis added); see also RCW 9A.56.020(1)(b). On appeal, Tye challenges only that the evidence was insufficient to prove that he obtained control over the property of another.
Here, the jury heard testimony from Tye that he was entitled to the goods and services he purchased with corporate funds and that he was entitled to advances of his corporate profits because this property was not that of another, but his own. But the jury also heard testimony from Debra that Tye did not have an ownership interest in the corporate funds that he used to pay his salary or used as an advance because the funds were not in the form of a paycheck. Despite Debra's lack of corporate authority to speak on its behalf, Tye did not object to the State's presentation of her testimony, nor did he seek to exclude it. See, e.g., RCW 23B.08.010; RCW 23B.08.410.
RCW 23B.08.010 provides:
(1) Except as provided in subsection (3) of this section, each corporation must have a board of directors.
(2) All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed under the direction of, its board of directors, subject to any limitation set forth in the articles of incorporation.
(3) A corporation may dispense with or limit the authority of its board of directors by describing in its articles of incorporation who will perform some or all of the duties of the board of directors.
RCW 23B.08.410 provides: "Each officer has the authority and shall perform the duties set forth in the bylaws or, to the extent consistent with the bylaws, the duties prescribed by the board of directors or by an officer authorized by the board of directors to prescribe the duties of other officers."
Because the jury heard Debra's testimony without objection and because the trial court's instructions did not explain corporate authority and Tye did not object to them, it is probable that the jury weighed Tye's and Debra's credibility and concluded that Debra was more credible. And therefore, the jury likely believed that Tye did not have authority to pay himself with goods and services nor did he have authority to advance corporate profits to himself. The jury heard two different accounts of Tye's corporate authority over the corporate funds, and we do not second guess its decisions. Thomas, 150 Wn.2d at 874-75. Therefore, we affirm Tye's first degree theft conviction.
Tye also fails to object to the instructions on appeal.
II. Double Jeopardy
Tye next argues that the State violated his constitutional protection against double jeopardy when it punished him twice based on convictions for forging invoices in counts IV, VI, and VII and for copying those forged invoices onto a CD in count II. Therefore, he requests that we vacate his conviction on count II.
We vacated Tye's conviction on count VII for insufficient evidence.
He also argued that the trial court punished him twice because it convicted him of forging checks in counts III and V and for copying those forged checks onto the QuickBooks ledger in count I. But we vacate his convictions on these counts for insufficient evidence.
Tye also challenges his forgery conviction on count II for lack of sufficient evidence, but we vacate his conviction because the State violated his constitutional protection against double jeopardy. Br. of Appellant at 16.
The United States Constitution provides that a person may not be "subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. And the Washington State Constitution provides that a person may not be "twice put in jeopardy for the same offense." Wash. Const. art. I, § 9. The constitutional guarantee against double jeopardy protects a person from receiving multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). And Tye may raise a double jeopardy claim for the first time on appeal. State v. Jackman, 156 Wn. 2d 736, 746, 132 P.3d 136 (2006).
We generally use the same evidence test to determine if the trial court has punished a defendant multiple times for the same offense. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998); see also Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); Jackman, 156 Wn.2d at 746-47. "Under the same evidence test, double jeopardy is violated if a defendant is convicted of offenses which are the same in law and in fact." Adel, 136 Wn.2d at 632.
"When a defendant is convicted for violating one statute multiple times," as Tye is here, "the same evidence test will never be satisfied." Adel, 136 Wn.2d at 633 (alteration in original). Under these circumstances, we must determine "what `unit of prosecution' the Legislature intended as the punishable act under the specific criminal statute." Adel, 136 Wn.2d at 634. The forgery statute, RCW 9A.60.020, "plainly and unambiguously defines the unit of prosecution as the written instrument that is falsely made or put off as true," under RCW 9A.60.020(1)(a) or (b). State v. Williams, 118 Wn. App. 178, 183, 73 P.3d 376 (2003) (alteration in original).
The State argues only that "each of the forgery counts was based on a different written instrument, thus, each involved a different unit of prosecution, and none abridged the Defendant's right against double jeopardy." Br. of Resp't at 32. But the State fails to explain what the written instrument is in count II. It apparently relies on the act of scanning documents onto a CD as creating a separate written instrument. See RCW 9A.60.010(1). At oral argument, the State argued that because the CD contained copies of the invoices that it used to charge Tye with forgery in counts IV, VI, and VII, and copies of other receipts and invoices, the CD was a separate written instrument. The State essentially asks us to hold that photocopying or otherwise copying forged instruments and providing the copies to another creates liability for separate counts of forgery for each original and each copy. We decline the State's invitation.
"The United States Supreme Court has been especially vigilant of overzealous prosecutors seeking multiple convictions based upon spurious distinctions between the charges." Adel, 136 Wn.2d at 635 (citing Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct. 2221, 53 L. Ed.2d 187 (1977)). We hold that copying the invoices onto the CD does not justify additional forgery counts. The written instruments are the altered invoices. We hold that the State may not charge a separate forgery count for merely scanning an altered invoice onto a CD. Therefore, we vacate Tye's conviction for forgery on count II because it violates his constitutional protection against double jeopardy.
III. Assistance of Counsel
Tye next argues that he did not receive effective assistance of counsel because his trial counsel failed to request an affirmative defense instruction against the theft charges. Tye contends that his trial counsel should have proposed an affirmative defense instruction based on a good faith claim of title.
The federal and state constitutions guarantee a defendant effective assistance of counsel. See U.S. Const. amend VI; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, the appellant must show that (1) counsel's performance was deficient, i.e., that the representation "fell below an objective standard of reasonableness based on consideration of all the circumstances" and (2) counsel's deficient performance prejudiced him, i.e., "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We determine whether counsel was competent based on the entire trial record. McFarland, 127 Wn.2d at 335.
Amendment VI to the United States Constitution provides in relevant part: "In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense." And article 1, section 22 of the Washington State Constitution provides in relevant part: "In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel."
We do not address both prongs of the ineffective assistance test if the defendant's showing on one prong is insufficient. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984); State v. Staten, 60 Wn. App. 163, 171, 802 P.2d 1384 (1991). Additionally, we give great judicial deference to trial counsel's performance and we begin our analysis with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689; McFarland, 127 Wn.2d at 335.
RCW 9A.56.020(2)(a) provides that it is a "sufficient defense" to a theft charge that the defendant appropriated the property "openly and avowedly under a claim of title made in good faith, even though the claim [may] be untenable." On appeal, Tye contends that his counsel was ineffective only for failing to request a jury instruction based on this language. But even if the trial court provided this instruction, the jury would have been allowed to compare Tye's and Debra's credibility because he did not object to Debra's authority to speak for the corporation or to the jury instructions that did not properly inform the jury about Tye's corporate authority.
Debra testified that she did not know that Tye was appropriating corporate funds to use on his home remodel, campaign, or other personal goods and services, i.e., Tye was not appropriating the corporate funds openly and avowedly. Furthermore, Debra testified that Tye was entitled to be paid for the work he performed, but he was only entitled to be paid with a paycheck as an employee. Therefore, because we give great judicial deference to trial counsel's performance, we cannot say that there was a reasonable probability that, except for the complained of errors, the result of Tye's trial would have differed. See McFarland, 127 Wn.2d at 335. Tye fails to show that his counsel was ineffective for the reasons which he appeals.
Again, we question whether the State could present Debra's testimony to refute Tye's corporate authority. But Tye did not seek to exclude it or object to it at trial or here. See Thomas, 150 Wn.2d at 868-69.
IV. Jury Instructions
Tye also argues that the trial court's "to convict" forgery jury instruction misstated the law because it failed to instruct the jury that Tye must have known that the written instrument was forged. Br. of Appellant at 18. See RCW 9A.60.020(1)(b). "Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law." State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). "It is prejudicial error to submit an issue to the jury that is not warranted by the evidence." Clausing, 147 Wn.2d at 627. We will reverse the trial court's judgment if we find that it committed prejudicial instructional error. See State v. Townsend, 142 Wn.2d 838, 848, 15 P.3d 145 (2001).
Tye also notes that the trial court failed to instruct the jury on the definition of knowledge. Br. of Appellant at 19 ("Reading the jury instructions as a whole, the only thing that can be concluded is that they are very confusing. . . . Curiously, although the jury instructions include the standard WPIC definition of `intent,' the Court did not instruct the jury on the definition of `knowledge.'"). But Tye fails to assign error to this issue or brief it further; therefore, we do not consider it. See Thomas, 150 Wn.2d at 868-69; RAP 10.3(a)(4), (6).
CrR 6.15 permits each party to prepare proposed jury instructions and affords each party the opportunity to object to the trial court's proposed instructions. "The law of this state is well settled that a defendant will not be allowed to request an instruction or instructions at trial, and then later, on appeal, seek reversal on the basis of claimed error in the instruction or instructions given at the defendant's request." State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990). None of Tye's proposed "[t]o convict" forgery jury instructions included an instruction that Tye must have known that the instrument was forged. CP at 166-72. Therefore, "even if error was committed, of whatever kind, it was at the defendant's invitation and he is therefore precluded from claiming on appeal that it is reversible error." Henderson, 114 Wn.2d at 870.
Tye's argument fails.
Tye also argues that the trial court erred when it provided the jury with instruction 12 because it did not make clear that the instruction was Tye's affirmative defense. Tye contends that the instruction "impermissibly shifted the burden [of proof to him] to prove that he . . . acted in good faith[and] with the care an ordinary, prudent person in a like position would exercise under similar circumstances." Br. of Appellant at 24. And therefore, he argues that he may challenge the jury instruction for the first time on appeal because the error is of constitutional magnitude. See State v. Levy, 156 Wn.2d 709, 719-20, 132 P.3d 1076 (2006).
Instruction 12 provides in relevant part:
In any corporation, all directors and officers with discretionary authority are required by law to discharge their duties under that authority 1) in good faith; 2) with the care an ordinary, prudent person in a like position would exercise under similar circumstances; and 3) in a manner the director or officer reasonably believes to be in the best interests of the corporation. CP at 286.
Tye cites State v. Cantu and State v. Deal in support of his argument. 156 Wn.2d 819, 825-28, 132 P.3d 725 (2006); 128 Wn.2d 693, 700-03, 911 P.2d 996 (1996). These cases are inapplicable because they discuss mandatory and permissive inferences. "The burden of persuasion is deemed to be shifted if the trier of fact is required to draw a certain inference upon the failure of the defendant to prove by some quantum of evidence that the inference should not be drawn." Deal, 128 Wn.2d at 701. Here, instruction 12 does not invite the trier of fact to draw a certain inference upon Tye's failure to prove that the inference should not be drawn.
Tye did not object to instruction 12 at trial as CrR 6.15 requires. Instruction 12 does not shift the burden of proof. It is a definitional instruction defining how corporate directors and officers must discharge their duties. Tye does not raise an issue of constitutional magnitude and we will not review his argument for the first time on appeal. See State v. O'Donnell, 142 Wn. App. 314, 325, 174 P.3d 1205 (2007) ("failure to provide [an instructional] definition is not an issue of constitutional magnitude").
V. Same Criminal Conduct
Tye further argues that the first six forgery counts constitute the same criminal conduct under RCW 9.94A.589 because they occurred on the same date, August 10, 2005; occurred at the same place, 280 Flower Meadows, Port Orchard, Washington; involved the same victim, NWCS; and involved the same criminal intent of concealing the use of corporate funds for personal services. But the State argues that Tye waived this argument because he agreed to his offender score calculation. We agree with the State.
RCW 9.94A.589(1)(a) provides:
Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. . . ." Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.
Generally, a defendant may challenge his sentence on appeal when the trial court miscalculates his offender score upward because "a defendant cannot agree to punishment in excess of that which the legislature has established." 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." In re Pers. Restraint of Shale, 160 Wn.2d 489, 494, 158 P.3d 588 (2007) (alteration in original). "`[W]aiver may be found where a defendant stipulates to incorrect facts.'" In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 875, 123 P.3d 456 (2005) (alteration in original) (quoting In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002)). "[I]f the State alleges the existence of prior convictions and the defense not only fails to specifically object but agrees with the State's depiction of the defendant's criminal history, then the defendant waives the right to challenge the criminal history after sentence is imposed." State v. Bergstrom, 162 Wn.2d 87, 94, 169 P.3d 816 (2007).
Here, in his sentencing memorandum, Tye stated that the forgery counts, "counts 1-7[,] each constitute separate and distinct criminal conduct." CP at 366. Tye cannot affirmatively agree that his forgery counts were separate and distinct criminal conduct and, on appeal, argue that the trial court erred for not undertaking the same criminal conduct analysis based on his stipulation. Therefore, Tye waived his argument by affirmatively agreeing that the counts were separate and distinct criminal conduct. See Shale, 160 Wn.2d at 494; Cadwallader, 155 Wn.2d at 875.
We vacate Tye's forgery convictions on counts I, II, III, V, and VII. We affirm Tye's forgery convictions on counts IV and VI and affirm his first degree theft conviction. We remand for resentencing.
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 so ordered.
I concur in the result only:
Bridgewater, J.
I concur in the result only:
Armstrong, J.