State v. Ellard, 7852-0-II
| Decision Date | 15 December 1986 |
| Docket Number | No. 7852-0-II,7852-0-II |
| Citation | 46 Wn.App. 242,730 P.2d 109 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. David C. ELLARD, Appellant. |
John B. Midgley, Smith & Midgley, P.S., Seattle, for appellant.
Barbara L. Corey-Boulet, Deputy Pros. Atty., Tacoma, for respondent.
David C. Ellard appeals his jury convictions for each of three counts of First Degree Theft by deception. RCW 9A.56.020(2); RCW 9A.56.030. We affirm as to count one. We find the evidence of value as to counts two and three insufficient to support convictions for First Degree Theft. We therefore vacate the judgments on these convictions and remand for imposition of new sentences for second and third degree theft.
Mr. Ellard was accused of unlawfully obtaining money from the Tacoma School District. He is the owner of Ellard Tire & Wheel, a Goodyear tire franchise which was under contract with the school district during the charging period.
Count one alleged that Ellard illegally charged the school district for passenger tires. This charge arose out of a practice of installing tires on automobiles belonging to various individuals, while invoicing those tires to school district buses.
Count two alleged that Ellard charged the school district for higher priced tires than were actually installed on school buses.
Count three alleged that Ellard resold to the school district tire casings that already belonged to it. Casings are the inner part of the tire which may be retreaded.
During a jury trial on all three counts, the State presented evidence of transactions between Ellard Tire & Wheel and governmental entities other than the Tacoma School District. We first consider whether the trial court erred in failing to give a limiting instruction on the jury's consideration of this evidence of uncharged transactions. The judge instructed the jury that:
The money or value of property, if any, received by Ellard Tire & Wheel, Inc. from any entity other than the Tacoma School District shall not be considered in the verdicts as to the value received.
No other limiting instruction was given; however, when the trial court ruled that the evidence was admissible to show a common plan, scheme, or absence of mistake, it invited limiting instructions. The defendant failed to except to the instruction given and failed to propose his own limiting instruction. He is therefore precluded from asserting this challenge on review. State v. Fitzgerald, 39 Wash.App. 652, 694 P.2d 1117 (1985). Contrary to what Ellard urges, the trial court will not be reversed for failure to give the correct limiting instruction sua sponte.
Ellard next assigns error to the instruction given on his defense of good faith claim of title. RCW 9A.56.020(2). The jury was instructed that:
It is a defense to a charge of theft that the property or service was appropriated openly and avowedly under a good faith claim of title, even though the claim be untenable.
Ellard argues that the jury should have been instructed that the State bears the burden of proving the absence of this defense beyond a reasonable doubt. He relies on State v. Hicks, 102 Wash.2d 182, 683 P.2d 186 (1984), which held that because the good faith claim of title defense negates the intent element of robbery, the State should have the burden of proving the nonexistence of the defense beyond a reasonable doubt. Hicks, 102 Wash.2d at 187, 683 P.2d 186.
The defendant also failed to except to this instruction in the trial court; however, "an instruction requiring [the defendant ] to create a reasonable doubt in the minds of the jurors places an unconstitutional burden of persuasion upon him." State v. McCullum, 98 Wash.2d 484, 497, 656 P.2d 1064 (1983). Therefore, the issue is properly raised for the first time on appeal. We find no error, however.
That the property was obtained openly and avowedly under a good faith claim of title is not a defense which is available to a defendant charged with obtaining money by false pretenses. State v. Mercy, 55 Wash.2d 530, 348 P.2d 978 (1960). This rule is equally applicable to a charge of theft by deception. RCW 9A.56.010(4). State v. Pestrin, 43 Wash.App. 705, 719 P.2d 137 (1986). Here, the defendant made false representations of material facts, for the purpose of inducing the Tacoma School District to part with its property and with the intent to deprive it of its property. This behavior is inconsistent with any open and avowed claim of title. Mercy, 55 Wn.2d at 533, 348 P.2d 978, citing State v. Emerson, 43 Wash.2d 5, 259 P.2d 406 (1953).
Because Ellard admitted writing and submitting for payment some of the invoices in evidence on count one, but repeatedly stated that he thought he was entitled to do so, he claims he presented evidence of a good faith claim of title, and was therefore entitled to an instruction placing the burden on the prosecution. However, these invoices did not "openly and avowedly" show that the tires were in fact installed on private passenger cars. To the contrary, the invoices showed that the tires had been installed on buses.
Counts two and three involved similar misrepresentations to the school district. Where the theft is brought about by patently deceptive means, the defense is unavailable. State v. Pestrin, supra. The defendant was...
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