State v. Jenson

• Citation: 194 Wash.App. 900,378 P.3d 270
• Decision Date: 06 July 2016
• Docket Number: No. 47647–9–II,47647–9–II
• Court: Court of Appeals of Washington
• Parties: State of Washington, Respondent, v. Elizabeth B. Jenson, Appellant.

194 Wash.App. 900

378 P.3d 270

State of Washington, Respondent

v.Elizabeth B. Jenson, Appellant.

No. 47647–9–II

Court of Appeals of Washington, Division 2.

July 6, 2016

Jodi R. Backlund, Backlund & Mistry, P.O. Box 6490, Olympia, WA, 98507–6490, Counsel for Appellant.

Thomas Charles Roberts, Pierce County Prosecuting Attorney, 930 Tacoma Avenue S Room 946, Tacoma, WA, 98402–2171, Counsel for Respondent.

Johanson

, P.J.

¶ 1 A jury found Elizabeth Jenson guilty of two counts of first degree identity theft, two counts of second degree theft, one count of second degree identity theft, and one count of third degree theft. Jenson appeals her convictions and sentence. In the published portion of the opinion, we hold that the trial court's reasonable doubt instruction did not improperly focus the jury on a search for “the truth.” In the unpublished portion of the opinion, we conclude that the charging document is constitutionally sufficient, that the identity theft statute is constitutional, and that the trial court properly calculated Jenson's offender score. We affirm Jensen's convictions and sentence.

Reasonable Doubt Instruction

¶ 2 Jenson argues that the trial court's reasonable doubt jury instruction improperly focused the jury on a “search for the truth.” We reject this argument and adopt the reasoning in State v. Fedorov , 181 Wash.App. 187, 324 P.3d 784

, review denied , 181 Wash.2d 1009, 335 P.3d 941 (2014).

¶ 3 We review a challenged jury instruction de novo, evaluating it in the context of the instructions as a whole. State v. Brett , 126 Wash.2d 136, 171, 892 P.2d 29 (1995)

. Although no specific wording is required, jury instructions must define reasonable doubt and clearly communicate that the State carries the burden of proof. State v. Bennett , 161 Wash.2d 303, 307, 165 P.3d 1241 (2007).

¶ 4 Here, the trial court instructed the jury based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 85 (3d ed. 2008), which provides,

A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. [If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.]

The trial court included the optional bracketed language. Our Supreme Court has approved this “abiding belief in the truth” language. State v. Pirtle , 127 Wash.2d 628, 658, 904 P.2d 245 (1995)

.

¶ 5 Jenson, acknowledging that the phrase “abiding belief in the truth” passes constitutional muster, admits that she does not challenge the use of that phrase. Rather, she challenges what she calls the instruction's focus on “the truth.” She cites State v. Emery

, arguing that the “belief in the truth” language is similar to the impermissible “speak the truth” remarks made by the State during closing argument in Emery. 174 Wash.2d 741, 760, 278 P.3d 653 (2012).

¶ 6 But in Fedorov

, Division One of this court rejected the argument that Jenson makes here—that this “ ‘belief in the truth’ ” language encourages the jury to undertake an impermissible search for the truth. 181 Wash.App. at 199–200, 324 P.3d 784. Fedorov reasoned that language was not analogous to the remarks at issue in Emery. 181 Wash.App. at 200, 324 P.3d 784. The Fedorov court held that the instructions precisely stated the law because the “belief in the truth” phrase “accurately informs the jury its ‘job is to determine whether the State has proved the charged offenses beyond a reasonable doubt.’ ” 181 Wash.App. at 200, 324 P.3d 784 (quoting Emery , 174 Wash.2d at 760, 278 P.3d 653 ).

¶ 7 We adopt Division One's reasoning in Fedorov

. The circumstances in Emery are different than those here. To invite a jury to declare the truth mischaracterizes the jury's role, suggesting that its role is to solve the case. Emery , 174 Wash.2d at 760, 278 P.3d 653. The existence or nonexistence of an “abiding belief in the truth,” however, correctly invites the jury to weigh the evidence. We, therefore, hold that the trial court's instruction accurately defined reasonable doubt and clearly communicated the State's burden of proof. Jenson's argument fails. We affirm her convictions and sentence.

¶ 8 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040

, it is so ordered.

FACTS

I. Background Facts

¶ 9 Jack Falk was a man of limited means. He lived in an apartment run by the Tacoma Rescue Mission and Social Security is his only income. Falk needed assistance managing his finances. Jenson, a mission employee, assisted Falk by paying his monthly bills and regulating his spending money.

¶ 10 Falk had several active bank accounts, some of which he shared with Jenson while others were maintained solely in Falk's name. Jenson was designated as payee for one of Falk's accounts, and the two also shared a separate joint account from which either Jenson or Falk could make withdrawals. Jenson had her own separate checking account that was unrelated to her management of Falk's finances.

¶ 11 Falk's bills were few, and his spending habits were basic and consistent. But in 2014, Falk approached his friend, Mark Sylvester, with concerns about irregular spending from his accounts. Sylvester reviewed Falk's accounts and concluded that some charges did not make sense.

¶ 12 Detective Elizabeth Schieferdecker examined both Falk's and Jenson's bank accounts. She concluded there was a copious amount of unexplained charges and transfers involving Falk's accounts, the vast majority of which appeared to be facilitated by Jenson over a period of years. Satisfied that Jenson was engaged in criminal activity, Detective Schieferdecker arrested Jenson. Falk's total financial loss attributed to Jenson was $8,254.38.

II. Procedural Facts

¶ 13 The State charged Jenson with two counts of first degree identity theft, two counts of second degree theft, one count of second degree identity theft, and one count of third degree theft based on different date ranges from 2011 to 2014. The charging document charged Jenson with first degree identity theft in count I and alleged

[t]hat ELIZABETH B. JENSON, in the State of Washington, during the period between the 5th day of July, 2011 and the 11th day of April, 2014, did unlawfully, feloniously, knowingly obtain, possess, use or transfer a means of identification or financial information of another person, living or dead, to-wit: Jack Falk, with the intent to commit, or to aid or abet, any crime and thereby obtains an aggregate total of credit, money, goods, service, or anything else of value in excess of one thousand five hundred dollars.

Clerk's Papers (CP) at 44. Regarding each of the other five counts, the charging document referred specifically to Jenson having committed the crimes as part of a “series of acts connected together or constituting parts of a single scheme or plan.” CP at 45–47. Jenson did not request a bill of particulars.

¶ 14 At trial, the State laboriously and meticulously questioned Detective Schieferdecker regarding each suspicious charge and withdrawal from each of Falk's accounts in chronological order. Jenson testified in her own defense. The jury found Jenson guilty as charged.

¶ 15 The trial court calculated Jenson's offender score as two based on a finding that counts I and II (first degree identity theft and second degree theft) were the same criminal conduct and counts III and IV (additional counts of first degree identity theft and second degree theft) were the same criminal conduct, but were separate crimes from counts I and II. Jenson appeals.

ANALYSIS

I. Sufficient Charging Document

¶ 16 Jenson argues that reversal is required because the State failed to allege in the charging document that she committed multiple acts of theft and identity theft as part of a common scheme or plan, which, in her view, is an essential element of the crime. We disagree.

¶ 17 We review a challenge to the sufficiency of a charging document de novo. State v. Williams , 162 Wash.2d 177, 182, 170 P.3d 30 (2007)

.

¶ 18 A charging document must allege “[a]ll essential elements of a crime, statutory or otherwise” to provide a defendant with sufficient notice of the nature and cause of the accusation against her. State v. Kjorsvik , 117 Wash.2d 93, 97, 812 P.2d 86 (1991)

; U.S. Const. amend. VI ; Wash. Const. art. I, § 22. To satisfy this requirement, the charging document must allege (1) “every element of the charged offense” and (2) “particular facts supporting them.” State v. Nonog , 169 Wash.2d 220, 226, 237 P.3d 250 (2010) (citing State v. Vangerpen , 125 Wash.2d 782, 787, 888 P.2d 1177 (1995) ; State v. Leach , 113 Wash.2d 679, 688, 782 P.2d 552 (1989) ); see also

State v. Simms , 171 Wash.2d 244, 250, 250 P.3d 107 (2011). The primary purpose of the rule is to give the defendant sufficient notice of her charges so she can prepare an adequate defense. State v. Tandecki , 153 Wash.2d 842, 846, 109 P.3d 398 (2005). Where the charging document's sufficiency is challenged for the first time on appeal, we construe the document liberally in favor of validity. State v. Brown , 169 Wash.2d 195, 197, 234 P.3d 212 (2010).

¶ 19 To determine whether a charging document is sufficient, we ask whether the necessary facts appear in any form or by fair construction can they be found in the charging document and, if so, can the defendant show that she was actually prejudiced by the inartful language which caused a lack of notice?¹ Kjorsvik , 117 Wash.2d at 105–06, 812 P.2d 86

. If the necessary elements are neither found nor fairly implied in the charging document, we presume prejudice and reverse without reaching the question of prejudice. State v. Goodman , 150 Wash.2d 774, 788, 83...