From Casetext: Smarter Legal Research

State v. Corner

The Court of Appeals of Washington, Division Two
Mar 30, 2004
120 Wn. App. 1065 (Wash. Ct. App. 2004)

Opinion

No. 29333-1-II.

Filed: March 30, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of Skamania County. Docket No. 02-1-00037-0. Judgment or order under review. Date filed: 09/12/2002. Judge signing: Hon. E. Thompson Reynolds.

Counsel for Appellant(s), R.A. Lewis, Attorney at Law, 430 NE Everett St, Camas, WA 98607-2115.

Counsel for Respondent(s), Peter S. Banks, Attorney at Law, Skamania Co Courthouse, PO Box 790, Stevenson, WA 98648-0790.


A jury convicted Peggy L. Corner, the bookkeeper for a resort lodge, of first degree theft for her double redemption of approximately 15 lodge gift certificates. Corner challenges the trial court's use of her confession, arguing that she gave it while in custody without the benefit of Miranda warnings, and she contends that the State did not prove corpus delicti, because the shortages in the lodge books could be explained by mere bookkeeping errors. She also challenges the jury instructions, mid-trial amendment of the information, and alleges other errors.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The State concedes that the jury's aggregation instructions were improper and that a new trial is necessary. We reverse and remand for further proceedings consistent with this opinion.

FACTS

In the spring of 2002, the controller for the Skamania Lodge, Lenka Stribling, noticed a discrepancy on the Lodge's books. She reported the alleged theft to the police, who came to the Lodge to investigate on June 13, 2002. When Stribling told them that Corner balanced the books, the detectives asked to speak with her. Stribling asked Corner to come to the general manager's office to speak with the police.

Corner is the assistant controller for the Lodge. After initially stating that she redeemed a couple of gift certificates twice to cover for a fellow employee, she later admitted that she had done so several times over the preceding year, taking a total of $2,500 to $3,000. At the detectives' request, Corner filled out a written statement. They told her to go home and contact her employer the next day. The detectives did not arrest nor intend to arrest Corner that day.

The written statement does not appear in the record on appeal.

Ultimately, Corner was arrested and charged with one count of first degree theft. She challenged the use of her confession in a CrR 3.5 hearing, arguing that at the time of the confession, she was in custody, and therefore the detectives should have informed her of her Miranda rights. The trial court ruled that the confession was admissible.

At trial, Corner testified that she could not recall writing the statement, that she was under extreme duress, and that she only confessed because the detectives told her she would not be arrested if she admitted it. The jury convicted Corner of first degree theft and she appeals.

ANALYSIS (1) Custodial Interrogation

Corner first contends that she was in custody when she confessed, and that the trial court should have suppressed her confession because the police failed to provide the necessary Miranda warnings and she assigns error to undisputed Findings of Fact Nos. 5-7, 10, and disputed Finding of Fact No. 1 entered by the trial court following her CrR 3.5 hearing.

A defendant is in custody, for purposes of Miranda, when her freedom of action is curtailed to a `degree associated with formal arrest.' State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986) (quoting Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984)), cert. denied, 480 U.S. 940 (1987). Whether the defendant was in custody is a mixed question of law and fact. State v. Solomon, 114 Wn. App. 781, 787, 60 P.3d 1215 (2002) (citing Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)), review denied, 149 Wn.2d 1025 (2003). The factual inquiry determines `the circumstances surrounding the interrogation;' the legal inquiry determines whether `a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.' Solomon, 114 Wn. App. at 787-88 (quoting Thompson, 516 U.S. at 112-13).

We review challenged factual findings to determine if they are supported by substantial evidence; unchallenged findings are verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). We review conclusions of law de novo. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997). Here, Corner challenges undisputed Findings of Fact Nos. 5-7, 10, and disputed Finding of Fact No. 1.

Corner challenges the court's findings that after Stribling informed the detectives of her suspicions on how the theft had occurred, she asked Corner to go to the general manager's office to speak with the detectives. Corner also challenges the findings that she agreed to go to the general manager's office to speak with the detectives and that the detectives advised her that she was free to go after she met with them. She also challenges the finding that she admitted to taking between $2,500 and $3,000 from the Lodge over the preceding year. But the record contains substantial evidence supporting these findings.

The unchallenged findings establish that once Corner was in the general manager's office, the detectives asked her if she would talk to them, advised her that she did not have to talk to them, and advised her that she was not under arrest. She agreed to speak with the detectives and to give a written statement.

The testimony at the suppression hearing established that Stribling asked Corner to come to the general manager's office. Once there, the detectives told Corner that she was not under arrest and under no obligation to speak; nevertheless, she agreed to talk. Detective Bond testified that they told her she was free to leave. After speaking with Corner for a while, the detectives left to speak to Stribling for clarification of the way the books were kept at the Lodge. They `asked if [Corner] would stay in the office.' Report of Proceedings (RP) at 11. Corner agreed; the detectives were gone approximately 20 minutes. When they returned, the door was open, and Corner was talking to a fellow employee in the hallway. They spoke to Corner for an additional 15-20 minutes.

Corner argues that because the request for her to go to the general manager's office came from her direct supervisor, who was acting on the direction of the police, a reasonable person would not feel free to refuse the request. But the evidence shows that it was her supervisor, not the police, who asked her to go to the general manager's office. A reasonable person would not believe that she was under arrest when her boss requested that she speak with police. Moreover, the detectives told her she was not under arrest and was free to leave. The trial court did not err in admitting Corner's confession.

(2) Corpus Delicti

Corner next asserts that the trial court erred in failing to dismiss the charge at the close of the State's case, because the State failed to establish the corpus delicti.

Confessions or admissions of a person charged with a crime must be corroborated by other evidence:

The confession of a person charged with the commission of a crime is not sufficient to establish the corpus delicti, but if there is independent proof thereof, such confession may then be considered in connection therewith and the corpus delicti established by a combination of the independent proof and the confession.

The independent evidence need not be of such a character as would establish the corpus delicti beyond a reasonable doubt, or even by a preponderance of the proof. It is sufficient if it prima facie establishes the corpus delicti.

State v. Aten, 130 Wn.2d 640, 656, 927 P.2d 210 (1996) (quoting State v. Meyer, 37 Wn.2d 759, 763-64, 226 P.2d 204 (1951)).

Corner claims that the Lodge itself came up with an innocent, non-criminal explanation for the discrepancy in the books. She cites a memo that Stribling sent to general manager Ken Daugherty, dated June 6, 2002 (just seven days before detectives spoke with Corner), that speculates that the discrepancy could be caused by bookkeeping errors.

Daugherty testified that he excluded the possibility of bookkeeping errors as a cause for the loss of Lodge funds and ultimately determined that the funds were taken from the Lodge. He characterized the situation as `theft.' RP at 84.

Stribling testified that there is no business purpose to redeem certificates twice. While she acknowledged thinking at the time she wrote the memo that the discrepancies could have been human error, after conducting her investigation she no longer believed it could be error:

Q . . . So, this double redemption issue, if [the cashier] recorded the gift certificate, is it possible that [Corner] or someone else, yourself or anyone else, could have, through human error, recorded it twice?

A No.

RP at 116. Both Daugherty and Stribling testified that a loss had occurred and that the loss was due to theft. Thus, the State established the corpus delicti, and the trial court properly admitted Corner's confession.

The State also introduced an exhibit showing the gift certificate numbers with both the first and second dates that each was redeemed from the vault. This exhibit was discussed at trial, but is not included in the record on appeal.

(3) Jury Instructions' Failure To Include Question of Successive Takings

Corner contends that the jury instructions improperly removed from the jury the question of whether successive takings were the result of a single, continuing criminal impulse. The State correctly concedes this issue and agrees with Corner that retrial is necessary.

Corner contends that the State improperly commented on the evidence and engaged in prosecutorial misconduct, and she complains that she received ineffective assistance of counsel based on her trial counsel's failure to object to the State's improper comments and questioning and the jury instructions. Because these issues are irrelevant on retrial, we do not address them here.

Our Supreme Court has held that [w]here property is stolen from the same owner and from the same place by a series of acts there may be a series of crimes or there may be a single crime, depending upon the facts and circumstances of each case. If each taking is the result of a separate, independent criminal impulse or intent, then each is a separate crime, but, where the successive takings are the result of a single, continuing criminal impulse or intent and are pursuant to the execution of a general larcenous scheme or plan, such successive takings constitute a single larceny regardless of the time which may elapse between each taking. This is a factual question which must be determined by the jury. An appropriate instruction on the issue should be presented.

State v. Vining, 2 Wn. App. 802, 808-09, 472 P.2d 564 (1970) (emphasis added; citations omitted). See also former RCW 9A.56.010(18)(c) (1999): Whenever any series of transactions which constitute theft, would, when considered separately, constitute theft in the third degree because of value, and said series of transactions are a part of a common scheme or plan, then the transactions may be aggregated in one count and the sum of the value of all said transactions shall be the value considered in determining the degree of theft involved.

Here the testimony established that Corner had taken $2,500-$3,000, but that the money was taken in smaller amounts on several occasions over several months. And here, jury Instruction No. 6 merely states that `[a] person commits the crime of theft in the first degree when he or she commits theft of property or services exceeding $1500 in value other than a firearm.' Clerk's Papers (CP) at 37. The `to convict' instruction, No. 7, similarly omits the necessary instructions.

Instruction No. 7 states:

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 06-21-01 and 05-31-02 the defendant wrongfully obtained or exerted unauthorized control over property of another or the value thereof;

(2) That the property was not a firearm and 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.

CP at 38.

Although Corner did not object below, the jury instructions effectively relieved the State of the burden of proving that the thefts were a series of transactions in a single criminal episode or part of a common scheme or plan. Because this is an error of constitutional magnitude, Corner may raise this issue for the first time on appeal. See RAP 2.5(a)(3). We accept the State's concession and remand for retrial, subject to instructions set forth below.

(4) Mid-trial Amendment of the Charging Document

Next, Corner contends that any amendment of the charging document after the State rests is improper and that the remedy here is dismissal with prejudice, not retrial.

After the State rested, but before Corner began putting on evidence, the State moved to amend the information. Initially the information read: That she, PEGGY LOU CORNER . . . on or between 6-21-01 — 5-31-02, did wrongfully obtain or exert unauthorized control over the property or services of another, to-wit: Dolce Skamania Lodge, or the value thereof, with intent to deprive said person of such property or services, such property or services being in excess of [$1,500] in value; contrary to RCW 9A.56.020(1)(a) and 9A.56.030 (1)(a). CP at 1.

The amended information alleged a series of thefts involving a common scheme or plan and added deception as a means of committing theft: That she, PEGGY LOU CORNER . . . on or between 6-21-01 — 5-31-02, pursuant to a common scheme or plan involving a series of theft transactions, did wrongfully obtain or exert unauthorized control over and/or by color or aid of deception did obtain control over more than [$1,500] in lawful money of the United State[s] of America belonging to another, to-wit: Dolce Skamania Lodge, with intent to deprive said person of said money; contrary to RCW 9A.56.020(1)(a) and (b) and RCW 9A.56.030(1)(a). CP at 27 (emphasis added, denoting changes from original charging document).

At trial, Corner's only objection was that adding extra language was not necessary. The court granted the State's motion to amend, observing that it did not change the charge or the penalty.

Corner argues that any amendment after the State rests is improper and calls for dismissal with prejudice. She relies on State v. Pelkey, 109 Wn.2d 484, 745 P.2d 854 (1987), for her assertion that any information amendment after the State rests is per se error requiring reversal. In Pelkey, the trial court permitted the State to amend an initial bribery charge to the charge of `trading in special influence,' a crime that did not require actions in the defendant's official capacity. The court held that amending a criminal charge after the State presents its case in chief violates the defendant's constitutional rights under article 1, section 22 to be informed of the charges against him when the new charge is not (1) a lesser included offense or (2) an offense of a lesser degree. Pelkey, 109 Wn.2d at 491. See also State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988) (reversing defendant's conviction where jury was given instruction on uncharged alternative means of committing first degree murder).

The court held that since each element of the lesser offense of trading in special influence was not a necessary element of the greater offense of bribery, the new charge was not a lesser included offense. Pelkey, 109 Wn.2d at 489.

Here, the State's amendment made two substantive changes: first, adding deception as an alternative means of committing theft; and second, adding aggregation language alleging that Corner stole the money in a series of theft transactions under a common scheme or plan. The State's action does not meet the Pelkey exceptions. Thus, under Pelkey, the State's mid-trial amendment here was per se improper, and reversal is necessary. See 109 Wn.2d at 491. See also State v. Markle, 118 Wn.2d 424, 437, 823 P.2d 1101 (1992). But case law does not support Corner's assertion that the remedy for mid-trial amendment here is dismissal with prejudice.

Corner argues that under State v. Dallas, 126 Wn.2d 324, 892 P.2d 1082 (1995), mandatory joinder would require dismissal on remand. Under current CrR 4.3.1(b)(3):

A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related offense, unless a motion for consolidation of these offenses was previously denied or the right of consolidation was waived as provided in this rule. The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney was unaware of the facts constituting the related offense or did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.

See also CrR 4.3(c)(3) (1995).

In Dallas, the State had originally charged the defendant with third degree possession of stolen property and then amended the charge at the conclusion of its case to third degree theft. 126 Wn.2d 324. The court held that, based on mandatory joinder, the theft charge must be dismissed with prejudice. Dallas, 126 Wn.2d at 332. The court clarified:

There are at least four distinct problems with informations that may cause the State to seek amendment: (1) failure to state any crime at all because an essential element is omitted, (2) naming a higher crime but omitting an essential element so that only the lesser included is sufficiently charged, (3) charging the wrong crime to conform to the evidence, and (4) charging the wrong alternative means of committing a crime, given the evidence. Only the latter two are affected by the mandatory joinder rule.

Dallas, 126 Wn.2d at 328 n. 1. Dallas involved the third scenario. Corner characterizes the present case as the fourth, `the wrong alternative means of committing a crime, given the evidence,' which could be dismissed under mandatory joinder if charged on remand. See Dallas, 126 Wn.2d at 328 n. 1.

Here, the information added the phrase `by color or aid of deception' (CP at 27), which is an alternative means of committing the crime of theft. Compare RCW 9A.56.020(1)(b) (theft means `[b]y color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him of such property or services') with RCW 9A.56.020(1)(a) (`To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services'). Therefore, under Dallas, on retrial the State may not charge Corner under the alternative means of the color or aid of deception.

Compare State v. Linehan, 147 Wn.2d 638, 654-55, 56 P.3d 542 (2002) (holding that within RCW 9A.56.020(1)(a), to `wrongfully obtain' and `exert unauthorized control' are not alternative means of committing the crime of theft), cert. denied, 538 U.S. 945 (2003).

The trial court never instructed the jury on deception as an alternate means. See CP at 38 (Jury Instruction No. 7) (providing `[t]hat on or between 06-21-01 and 05-31-02 the defendant wrongfully obtained or exerted unauthorized control over property of another or the value thereof'). Thus, it appears that the State loses little in not being able to charge Corner under the deception alternative on retrial.

Corner also argues that aggregation of successive takings is an `alternative theory of liability' (Br. of Appellant at 24) and therefore she may not be retried for first degree theft based on aggregation. But Corner cites no authority for the proposition that aggregation is an alternative means of committing theft. Therefore, the State is free to proceed under this theory on retrial. The remedy here is reversal, not dismissal with prejudice.

The defendants in some earlier cases did not raise mandatory joinder as grounds for dismissal with prejudice. See Dallas, 126 Wn.2d at 331 ('The failure of the defendants in Markle and Irizarry to argue mandatory joinder ought not dictate the results here'). For example, Markle clarified that retrial on the offense for which the defendant was convicted would not violate double jeopardy:

[W]e are reversing Mr. Markle's conviction based upon an improper midtrial amendment to the information. We are not reversing for insufficiency of the evidence, and thus the defendant may be retried for the offense for which he was convicted, indecent liberties, under the rule stated above in [State v.] Anderson[, 96 Wn.2d 739, 638 P.2d 1205, cert. denied, 459 U.S. 842 (1982)]. Mr. Markle may not be retried, however, for any offense of a higher degree than the one for which he was convicted.

Consistent with our holding in Irizarry, though this court reverses Mr. Markle's convictions on counts 1 and 2, Mr. Markle may still be charged with indecent liberties, the offense for which he was convicted by a jury, without violating Mr. Markle's protections against double jeopardy. Markle, 118 Wn.2d at 441. But that case did not address the mandatory joinder issue.

(5) Biological Sample Collection Fee

Finally, Corner objects to the trial court's imposition of a $100 felony deoxyribonucleic acid (DNA) collection fee. RCW 43.43.7541 requires the fee for felonies committed on or after July 1, 2002, only. This fee was improper in Corner's case because the crimes were committed between June 21, 2001, and May 31, 2002.

That statute reads, in part:

Every sentence imposed under chapter 9.94A RCW, for a felony specified in RCW 43.43.754 that is committed on or after July 1, 2002, must include a fee of one hundred dollars for collection of a biological sample as required under RCW 43.43.754, unless the court finds that imposing the fee would result in undue hardship on the offender. RCW 43.43.7541 (emphasis added).

We therefore reverse with instructions that the court not impose this fee if Corner is convicted on retrial.

Reversed and remanded for a new trial.

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.


Summaries of

State v. Corner

The Court of Appeals of Washington, Division Two
Mar 30, 2004
120 Wn. App. 1065 (Wash. Ct. App. 2004)
Case details for

State v. Corner

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. PEGGY LOU CORNER, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Mar 30, 2004

Citations

120 Wn. App. 1065 (Wash. Ct. App. 2004)
120 Wash. App. 1065