Opinion
No. 36378-0-II.
October 21, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-01230-5, Jay B. Roof, J., entered May 18, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Armstrong, JJ.
Kurt Poust appeals his conviction of three counts of first degree theft by deception, arguing that (1) jury instructions 6, 7, and 8 misstated the law and misled the jury; (2) he received ineffective assistance of counsel; and (3) insufficient evidence supports his convictions. We affirm.
FACTS
We derive the facts from the trial testimony.
Poust worked as a licensed, bonded, and insured general contractor. The State based its charges on his contacts with three individuals.
In May 2003, Leslie Reynolds-Taylor hired him to add a third story to her house and paid him $3,146.50 as a down payment. Poust never initiated the construction and never refunded her money.
On July 30, Patricia Nervik paid Poust a $10,500 down payment to remodel her home.
Nervik believed that Poust would use the money to pay architectural fees and obtain building permits, but he did neither.
Finally, in August, Charles McDowell hired Poust to build a deck on his house and paid him a $2,588.65 down payment. Again, Poust neither began construction nor returned McDowell's money.
Poust severed communication with Taylor, Nervik, and McDowell after receiving their down payments. He also left town.
On August 12, 2005, the State charged Poust with first degree theft, RCW 9A.56.020(1)(a) and (b) and .030(1)(a). At the time of trial, the State filed a second amended information, charging Poust with three counts of first degree theft by either obtaining the property by color or aid of deception or by wrongfully obtaining or exerting unauthorized control over the property.
RCW 9A.56.020(1) provides in pertinent part:
"Theft" means:
(a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services; or
(b) By color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services.
RCW 9A.56.020 was amended by Laws of 2004, ch. 122. The amendment does not affect our analysis, and we cite to the current version.
RCW 9A.56.030(1) provides: "A person is guilty of theft in the first degree if he or she commits theft of . . . (a) Property or services which exceed(s) one thousand five hundred dollars in value other than a firearm as defined in RCW 9.41.010."
Count I charges Poust under RCW 9A.56.030(1)(a) and RCW 9A.56.020 (1)(a), (b) for theft from McDowell. Count II charges Poust under subsection (a) for theft from Taylor. Count III charges Poust under RCW 9A.56.030(1)(a) and RCW 9A.56.020(1)(a) for theft from Nervik.
A jury heard the matter. At trial, Poust testified that he used Taylor's, Nervik's, and McDowell's down payments to hire subcontractors for each job but he presented no documentation to support his testimony. He also testified that he was unable to be contacted because he had fled to Portland after a payroll check did not clear and one of his employees significantly intimidated him. Additionally, Poust believed that Taylor, Nervik, and McDowell had been compensated for their losses because the website link to the Department of Labor and Industries indicated that they had received payouts from his bond. The State argued that the evidence showed that Poust violated RCW 9A.56.020(1)(b) by not intending to complete the work and having the intent to deprive when he obtained the down payments.
At the conclusion of trial, Poust moved to dismiss the case. He claimed insufficient evidence established that he had used deception to acquire the down payments. The State argued it proved the deception where he promised to perform construction when he knew he could not deliver or did not intend to deliver the promised work. The trial court denied his motion.
Poust did not object to the State's proposed jury instructions from the Washington Pattern Instructions and the trial court gave them. Jury instructions 6, 7, and 8 required the jury to find four elements in order to convict Poust of first degree theft:
To convict the defendant of the crime of theft in the first degree . . . each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or between August 13, 2003 and August 11, 2005 [in jury instruction 6; May 9, 2003 and August 11, 2005 in jury instruction 7; July 1, 2003 and August 11, 2005 in jury instruction 8], the defendant, by color or aid of deception, obtained control over property of another;
According to the State:
Under the exerting unauthorized control prong, the relevant charging period would have extended throughout the time period where the Defendant retained the victim's money. Thus, a range of dates was needed. When the jury was ultimately instructed, however, the State chose to only go under the "color or aid of deception prong." While the State could have conceivably moved to amend the information and narrow the relevant charging dates, such an amendment was unnecessary as the specific date of the offense was not material and because there was some uncertainty about which specific dates the Defendant obtained the various checks as well as when he actually cashed the checks and obtained the actual funds. The use of a range of dates, therefore, was still appropriate.
Resp't's Br. at 11, footnote 1.
(2) That the property exceeded $1500 in value;
(3) That the defendant intended to deprive the other person of the property; and
(4) That the acts occurred in the State of Washington.
Clerk's Papers (CP) 159-61. Instruction 11 defined "deception" as occurring when "an actor knowingly promises performance which the actor does not intend to perform or knows will not be performed." CP at 164.
The jury found Poust guilty as charged. He then sought a new trial, arguing that the jury instructions allowed the jury to conclude that the deception may have occurred at a later time than when he obtained the down payments. The trial court denied his motion, and he now appeals his conviction.
ANALYSIS Jury Instructions
We previously noted that although the second amended information charged Poust with violating RCW 9A.56.030(1)(a) for all counts, the charges under RCW 9A.56.020(1) vary by count. Count I references both RCW 9A.56.020 (1)(a) (theft by exerting unauthorized control) and .020(1)(b) (theft by color or aid of deception), but counts II and III omit charges under RCW 9A.56.020(1)(b). The trial court, however, instructed the jury on RCW 9A.56.020(1)(b) for all counts and, on appeal, the State argues it pursued conviction only under the theft by deception theory of the case. Our Supreme Court has held that the statutory definitions of theft create alternative means of committing the crime. State v. Linehan, 147 Wn.2d 638, 644-48, 56 P.3d 542 (2002). Generally, "the trial court may not instruct on an alternative means of committing an offense that was not included in the charging document." State v. Perez, 130 Wn. App. 505, 507, 123 P.3d 135 (2005).
Poust contends that the instructions to support his convictions under RCW 9A.56.020(1)(b) (theft by deception) were inadequate. He also argues that insufficient evidence exists to support that he committed theft by deception. Although his statement of facts notes the different charges for different counts, he does not assert that the instructions for theft by deception for counts II and III should not have been given at all. Unchallenged jury instructions are treated as the applicable law on appeal. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998); see also RAP 2.5(a) (precluding review of issues not raised in trial court); State v. Olson, 126 Wn.2d 315, 321-22, 893 P.2d 629 (1995) (stating that an appellate court will not consider an issue if error not identified and argument not presented in appeal). We, therefore, address the adequacy of the instructions on theft by deception under RCW 9A.56.020(1)(b), as well as the sufficiency of the evidence to support Poust's convictions for theft by deception, for all counts.
Poust first contends that jury instructions 6, 7, and 8 misstated the law and misled the jury. Relying in part on State v. Reid, 74 Wn. App. 281, 287-88, 872 P.2d 1135 (1994), he argues that they relieved the State of its burden to prove that he intended to deprive at the time he obtained the down payments.
The facts in Reid differ from those here. The Reid court held that the trial court erred in instructing the jury that "`fraudulent intent may be inferred from the retention for a long period of time of property to which one has no right.'" 74 Wn. App. at 289. The trial court did not give this instruction here.
Poust did not take exception to the State's proposed instructions. Although generally we do not consider issues raised for the first time on appeal unless manifest error affects a constitutional right, we do so here in the interests of justice. RAP 2.5(a)(3).
A trial court properly instructs a jury where its instructions (1) permit the parties to argue their case theories; (2) do not mislead; and (3) when read as a whole, accurately inform the jury of the applicable law. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). Instructions 6, 7, and 8 conform to this standard.
First, the instructions allowed both parties to argue their theories of the case. In closing, the State argued that the jury had to consider the totality of the circumstances to determine Poust's intent at the time the contracts were formed. Poust, in contrast, argued that the State failed to prove he intended to deprive Taylor, Nervik, and McDowell at the time the contracts were entered. The instructions permitted both sides to argue their theories.
Second, the instructions did not mislead the jury. Poust argues that the instructions misstate the law by not requiring a finding of his intent to deprive at the time he obtained the down payments. He contends the jury could have convicted him, even if it found he had developed the intent to deprive after receiving the down payments but still within the instructions' charged two-year time spans.
Contrary to Poust's assertion, the trial court's to-convict instructions did not permit the jury to convict unless he obtained control over the down payments by deception. Instruction 11 specifies that the deception occurs when the defendant knowingly promises performance he intends not to perform or knows will not be performed. CP at 164. The instructions did not mislead the jury because, in their entirety, they clearly require that the taking and the deception occur at the same time.
Next, the instructions did not misstate the law. As noted, RCW 9A.56.020 (1)(b) and the instructions require that deception occur with the intent to deprive at the time of obtaining another's property. See State v. George, 161 Wn.2d 203, 208, 164 P.3d 506 (2007). When read as a whole, the instructions properly informed the jury of the applicable law. Instruction 11 defined "deception" as occurring when an actor knowingly promised performance, which the actor did not intend to perform or knew would not be performed. CP at 164; see also RCW 9A.56.010(5)(e). The instructions provided that to find Poust guilty, the jury had to find that, when he obtained the down payments, he did not intend to fulfill his promises or knew they would not be fulfilled and he had the intent to deprive. Accordingly, the instructions did not relieve the State of its burden to prove all of the elements of the crime. Therefore, Poust's argument fails.
Sufficiency of the Evidence
Poust next contends that insufficient evidence supports his convictions because the State did not prove that he used deception at the time he obtained the down payments. Deception occurs when a person promises performance that he or she does not intend to perform or knows that will not be performed. RCW 9A.56.010(5)(e).
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational fact finder could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Thomas, 150 Wn.2d 871, 874, 83 P.3d 970 (2004). An appellant's claim of insufficient evidence admits the truth of the State's evidence and all reasonable inferences that can be drawn from the evidence. Thomas, 150 Wn.2d at 874. "This court must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." Thomas, 150 Wn.2d at 874-75.
The evidence supports a finding that, at the time Poust obtained Taylor's, Nervik's, and McDowell's down payments, he did not intend to complete their construction projects or knew the work would not be performed. Poust negotiated contracts with each homeowner within a relatively short period of time and required a down payment. Once he received the funds, he abruptly left town and severed communications. These actions varied from his routine because, in the past, Poust had maintained frequent contact with his clients. He never returned the down payments and never completed the projects.
Additionally, the jury heard Poust's testimony. He claimed that he performed work after taking the checks. At trial, he produced no evidence, other than his testimony, showing that he hired subcontractors or performed any work. We defer to the fact finder to make credibility determinations, and we do not review them on appeal.
Considering the evidence and the reasonable inferences therefrom in the light most favorable to the State, the jury had sufficient evidence to convict Poust. That is, sufficient evidence supported finding that he, at the time of taking the funds, intended to deprive Taylor, Nervik, and McDowell of their down payments by promising to perform work that he did not intend to perform or knew that he would not perform. See RCW 9A.56.010 (5)(e).
Ineffective Assistance of Counsel
Poust finally contends he received ineffective assistance of counsel. He argues that counsel's failure to object to the jury instructions prevented him from receiving a fair trial.
To establish ineffective assistance of counsel, a defendant must prove (1) deficient performance by counsel and (2) resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Poust's argument fails because he cannot establish deficient performance where the trial court properly instructed the jury.
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 so ordered.
BRIDGEWATER, J. and ARMSTRONG, J., concur: