Opinion
No. 35020-3-II.
February 20, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-02047-2, Sally F Olsen, J., entered May 26, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Hunt, JJ.
Thomas E. Smith appeals his second degree burglary and money laundering convictions. He asks this court to infer intent to conceal or disguise the source of the funds as an element of the money laundering statute, RCW 9A.83.020(1)(a). Additionally, he challenges the sufficiency of the charging document, claims prosecutorial vindictiveness, and assigns error to the trial court's exclusion of a non-testifying witness's criminal history. We affirm.
Facts
On Friday, August 26, 2005, Debbie Smith was working at Kitsap Property Management in Port Orchard, Washington, when her brother, Smith, stopped in to share a ride with her. While he was there, Diane Idle was completing a lease transaction with a new client and had $3,100 in cash on her desk. Idle completed the transaction, put the money in a back office safe, locked it, and then accompanied Debbie and Smith out the door, and locked it. Idle had earlier placed $300 from an association luncheon and a $45 application fee in the safe.
On Monday, August 29, 2005, Idle came to work and discovered the safe open and the money gone. She called the business owner, Leslie Huff, who said that she had not been in during the weekend, and then called the police.
Kitsap County Sheriff's Deputy Steve Clarkson responded. He spoke with Huff, checked the doors, windows, and safe for a forced entry but found none. He was unable to find any usable fingerprints and then went to Debbie's residence to speak with her. When he explained to Debbie what had happened, she acted quite surprised. He also asked Smith about it, but Smith denied knowing anything.
While Deputy Clarkson was speaking with Smith, Debbie came out and said, "If you had anything to do with this you better tell me." Report of Proceedings (RP) (Apr. 20, 2006) at 48. Deputy Clarkson explained that Debbie was very concerned that she was going to lose her job. Deputy Clarkson asked Debbie if she would take a truth verification exam and she was adamant that she wanted to do so right away. When he asked Smith, Smith was hesitant and responded, "Uh, yeah. Sure." RP (Apr. 20, 2006) at 50. Debbie was scheduled to take the test on September 16.
The deputy was referring to a CSVA, an acronym for a Computer Voice Stress Analysis.
On September 15, 2005, Debbie and Smith celebrated his birthday by consuming large amounts of rum and vodka. She asked him several times that night if he was involved in the burglary. Finally, he admitted that he had made a copy of her office key, given it to someone named Jesse Martinez, and bought a car with the money. She then insisted that he take her to Martinez's, which he did, and when she confronted Martinez and his girlfriend Rachel McManus, they neither acknowledged nor denied the accusation.
The next morning Debbie went to the Sheriff's Office for her voice stress examination. Before taking the exam, she told Detective Ronald Trogdon what Smith had told her the night before. Debbie agreed to let Detective Trogdon speak with Smith, who was living in her apartment. En route, she called Smith and told him to get the registration, title, and bill of sale for the Dodge Intrepid that he had shown her the night before.
Smith voluntarily talked with Detective Trogdon and fellow Detective Mike Rodrigue. Smith explained that on Saturday, August 28, 2005, he was with Martinez and McManus and they were all smoking marijuana. During the evening, he mentioned to them that it would be easy to break into Debbie's office because he had a key and the money was easily accessible. He then gave them his key. The next day, he and Martinez bought a car for $3,500 in cash. He said that Martinez gave the money to the seller. Smith explained that Martinez had the car, even though the title was in Smith's name, because he owed Martinez some money for cigarettes and groceries.
Smith told the detectives that he was afraid of Martinez and that he did not participate because he was afraid to and instead gave Martinez and McManus the key.
The State initially charged Smith with second degree burglary. By amended information, the State charged Smith with second degree burglary and trafficking in stolen property. The trial court dismissed the trafficking count for lack of probable cause. Then, by second amended information, the State charged Smith with second degree burglary and money laundering. The trial court allowed this amendment.
Following a CrR 3.5 hearing and a jury trial, the jury convicted Smith of second degree burglary and money laundering. The court then imposed standard range concurrent sentences.
analysis
I. Money Laundering Elements
Smith first urges us to infer an additional element into the money laundering offense that he had to have intended to conceal or disguise the source of funds. He argues that federal courts have inferred such an element and we should follow suit. He argues that it should not be a criminal event when someone uses stolen money in an ordinary commercial transaction.
The State charged Smith with violating RCW 9A.83.020(1)(a). The full statute provides:
(1) A person is guilty of money laundering when that person conducts or attempts to conduct a financial transaction involving the proceeds of specified unlawful activity and:
(a) Knows the property is proceeds of specified unlawful activity; or
(b) Knows that the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership, or control of the proceeds, and acts recklessly as to whether the property is proceeds of specified unlawful activity; or
(c) Knows that the transaction is designed in whole or in part to avoid a transaction reporting requirement under federal law.
(2) In consideration of the constitutional right to counsel afforded by the Fifth and Sixth amendments to the United States Constitution and Article 1, Section 22 of the Constitution of Washington, an additional proof requirement is imposed when a case involves a licensed attorney who accepts a fee for representing a client in an actual criminal investigation or proceeding. In these situations, the prosecution is required to prove that the attorney accepted proceeds of specified unlawful activity with intent:
(a) To conceal or disguise the nature, location, source, ownership, or control of the proceeds, knowing the property is proceeds of specified unlawful activity; or . . .
Regarding this statute, this court has observed:
Because the Legislature specifically included "intent to conceal or disguise" proceeds' illegal origin under subsection (2)(a) of RCW 9A.83.020, but not under subsection (1)(a), it follows that the Legislature did not intend "manipulation with intent to conceal" illegal origin to be an element of money laundering under subsection (1)(a), pursuant to which McCarty was charged.
State v. McCarty, 90 Wn. App. 195, 203, 950 P.2d 992 (1998) (specifically rejecting element that defendant intended to conceal source of funds based on plain statutory language). Smith fails to give adequate reasons for this court to reconsider its McCarty holding. Therefore, we decline Smith's request that we analyze this statute under State v. Bash, 130 Wn.2d 594, 925 P.2d 978 (1996), and Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994).
Smith argues that his case is indistinguishable from United States v. Sanders, 929 F.2d 1466 (1991). We disagree. There the prosecution had to prove the statutory element that the purpose of the financial transaction was "to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity." 929 F.2d at 1471 (quoting U.S.C. § 1956(a)(1)(B)(i)). Sanders has no bearing here.
II. Sufficiency of the Charging Document
Smith argues that because money laundering has an additional non-statutory element, that the charging document failed to apprise him of this requirement and therefore was deficient. As we find no inferred element in the statute, this argument fails.
III. Prosecutorial Vindictiveness
Smith argues that the State's late addition of a money laundering charge was simply prosecutorial vindictiveness and the trial court abused its discretion in allowing the late amendment. He complains that he did not have timely notice of this charge and the prosecutor did not list it on the plea negotiations as a potential "holdback" charge that the prosecutor might bring if Smith refused to plead guilty. The plea form listed holdback charges as first or second degree trafficking in stolen property, a domestic violence allegation, and an abuse of trust special allegation.
When the State sought to charge Smith with trafficking in stolen property, the court found that probable cause did not exist. The State then sought to charge Smith with money laundering instead. Smith complained:
During negotiations this charge was never mentioned at all. Listed in the plea agreement where they typically list any possible further arraignment charges, they did not list this charge at all.
And although I understand they're not bound by that, that is typically the practice here in Kitsap County. I don't think I have encountered a case before where a charge has come that was never listed on the plea agreement as a further arraignment notice, and Mr. Smith is prejudiced. It comes as a surprise to him.
RP (Apr. 18, 2006) at 6-7. The trial court denied his motion to disallow the amendment, ruling:
First of all, I'm not going to dismiss based on Criminal Rule 8. I don't think there has been a showing of prosecutorial vindictiveness or — I'll suffice it at that.
The Court is somewhat concerned at the lateness of them filing the new charge; however, under the circumstances I'm not saying the Court agrees or disagrees, but the Court understands why they did it. They were proceeding under trafficking. The previous court ruled that that charge could not go forward, and they filed a new charge based on the same facts.
Because counsel — both counsel have known — been operating under the same fact pattern and the fact that the defense indicated they had not asked for a continuance yesterday and were ready to proceed, the Court is not satisfied that the defense has made a showing of substantial prejudice. I don't think the defendant has carried its burden. For those reasons, I'm going to deny the defense's motion.
RP (Apr. 18, 2006) at 37.
Smith argues that his case is unlike State v. Bonisisio, 92 Wn. App. 783, 964 P.2d 1222 (1998), where this court rejected a claim of prosecutorial vindictiveness when the State added more serious charges on the eve of trial. Unlike Bonisisio, Smith argues that (1) he objected on timeliness grounds; (2) money laundering was never listed as a holdback charge and he realistically believed that he could defend against a trafficking charge that was listed; (3) the State failed to provide complete and accurate discovery on the money laundering charge in that it did not produce a bill of sale until he argued his motion to dismiss; and (4) the State deviated from its standard practice in finding some offense to charge him with.
Initially, the State disputes Smith's claim that it violated its discovery obligations, pointing out that the bill of sale was mentioned in the police reports and in the probable cause statement. Further, it acknowledges that the police reports included an incorrect date for the bill of sale, preceding the burglary, but points out that Smith was well aware before the trafficking count was dismissed that it was based on the bill of sale dated after the burglary. As both the trafficking and money laundering charges were based on this bill of sale, the State disputes that there was a complete defense to the trafficking charge. We agree.
Nor does the record support Smith's claim that the State did not act diligently in adding the money laundering charge. On Friday, April 7, 2006, the court first ruled that the State lacked probable cause for the trafficking charge. On Monday, April 10, 2006, the court denied the State's request that it reconsider its ruling. The next day, April 11, 2006, the State gave Smith notice that it would be adding a money laundering charge. Trial began a week later, on April 18 and 19.
CrR 2.1(d) provides that the trial court may permit the State to amend an information "at any time before verdict or finding if substantial rights of the defendant are not prejudiced." The defendant bears the burden of showing prejudice. State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982). It is well-settled that prosecutors have wide discretion in their decisions to charge suspects with criminal offenses, unless done for unjustifiable reasons. State v. Pittman, 59 Wn. App. 825, 833, 801 P.2d 999 (1990). In State v. Gosser, the court held that where the principal element in the new charge is inherent in the previous charge and no other prejudice is demonstrated, the trial court does not abuse its discretion when it allows an amendment on the date of trial. Gosser, 33 Wn. App. at 435. The defendant's failure to request a continuance is persuasive evidence of a lack of surprise and prejudice. Gosser, 33 Wn. App. at 435.
Similarly here, Smith fails to show substantial prejudice. The amended charges were based on the same factual circumstances as the proposed trafficking charge. The State gave Smith a week's notice. Smith did not ask for a continuance. The trial court did not abuse its discretion in allowing the amendment. See also State v. Korum, 157 Wn.2d 614, 141 P.3d 13 (2006) (no presumption of prosecutorial vindictiveness when pre-plea offer was 10 years but post-plea sentence based on new charges was for 100 years).
IV. Exclusion of Conviction
Smith argues that the trial court abused its discretion when it refused to allow him to present evidence that Martinez had served time in prison for a robbery conviction. He claims this would have bolstered the evidence that he acted out of fear and would have made his defense more plausible. He relies on ER 106, the rule of completeness, and ER 609, the rule allowing impeachment of witnesses with crimes of dishonesty.
We do not address these grounds because Smith did not present them below. An objection to evidence must specify the particular ground on which it is based to preserve the error for review. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). And a party may only appeal the admission of evidence based on the specific ground made at trial. Guloy, 104 Wn.2d at 422.
The only claim Smith made below was that the evidence was admissible to support his other suspect theory. In that regard, the trial court excluded the conviction because its prejudicial impact exceeded its probative value:
I think it's too prejudicial and overweighs any relevance in the probative value. The jury may conclude that he's more likely a suspect based on the conviction alone, and I think that would be improper.
RP (Apr. 19, 2006) at 21-22. The court did, though, allow defense counsel to ask Detective Trogdon whether Smith said that he was afraid of Martinez. Further, the trial court's ruling did not impede Smith's ability to present his case theory. His theme throughout closing was that Smith was afraid of Martinez:
[W]e can't forget that Mr. Smith is scared of Jesse; can't forget that. Mr. Smith has reason to be afraid of Jesse. We have to keep that in our mind when we our [sic] looking at Mr. Smith's actions.
. . . .
Jesse gets the car? Remember Mr. Smith is scared of Jesse. That is consistent with an individual who would do what somebody tells him to do if you are scared of him. It is consistent with Jesse telling Mr. Smith, "My client found a car. Let's go. Let's look at it. I want to buy it here. You go pay for it," because Jesse knows that he is the one that broke in and stole that money and doesn't want to be connected to this. He's not done. He has had a friend who he keeps as a friend based upon fear and who is not the brightest ball. That is not a crime.
. . . .
Keep in mind that the detective testified that Mr. Smith is afraid of Jesse and that he has reason to be afraid of Jesse. This is — you know, this is Jesse being smart. This is my client being dumb, but he's not a criminal.
. . . .
And don't forget that Mr. Smith was afraid of Jesse.
RP (Apr. 20, 2006) at 127, 128, 133, 134. We find no abuse of discretion here. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985). Allowing Smith to additionally argue that Martinez had a prior robbery would have simply invited the jury to rely on improper propensity evidence.
We affirm.
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, P.J., HUNT, J., concur.