State v. Funkhouser

• Decision Date: 08 December 1981
• Docket Number: No. 4199-II,4199-II
• Citation: 30 Wn.App. 617,637 P.2d 974
• Parties: The STATE of Washington, Respondent, v. Howard W. FUNKHOUSER, Appellant.
• Court: Washington Court of Appeals

Page 617

30 Wn.App. 617

637 P.2d 974

The STATE of Washington, Respondent, v. Howard W. FUNKHOUSER, Appellant.

No. 4199-II.

Court of Appeals of Washington, Division 2.

Dec. 8, 1981.

Malcolm L. Edwards, Seattle, for appellant.

Jeff Campiche, Pros. Atty., South Bend, Jeremy Randolph, Special Deputy Pros. Atty., Chehalis, for respondent.

REED, Chief Judge.

Defendant Howard W. Funkhouser appeals his conviction of keeping a false account by a public officer. We reverse.

From 1969 until mid-1978, defendant served as police chief of the City of Raymond. During defendant's tenure the part time department secretary also served as part time clerk of the municipal court. Among the principal duties of the court clerk were accepting and keeping records of bail payments and fines. The clerk's desk was located in the police station. Three women successively served as court clerk and police department secretary during this period: Irene Lindberg (1969-73), Kris McFarland (1973-77) (who was married to defendant from 1976 to 1978), and Colene Mason (1977-78). The municipal court judge reportedly was disabled during most of this period and did not effectively supervise the court clerk. Several people testified that defendant responded to this situation by assuming some degree of supervision over the clerks in the performance of their court duties. Defendant denied he asserted any general control over the court clerks but acknowledged he stepped in when McFarland neglected her duties and helped to get the office in order after Mason succeeded her.

At the time defendant became police chief, fines and other payments were recorded in a "Redi-Form" receipt book. Shortly thereafter, at the urging of the State Auditor's office, the municipal court began to use a "transaction journal" instead of the receipt books. Defendant instructed his officers, however, to continue using the receipt books when accepting fines or other payments in the clerk's absence, thereby creating two sets of books. Defendant explained that because his officers did not understand the new system they frequently made mistakes in the transaction journal. Using the receipt books, he explained, eliminated this problem because the clerk would enter the payments in the transaction journal when she returned to the station. McFarland testified, however, that defendant told her also to use the receipt books.

Beginning in 1971, unexplained cash shortages began to appear in the court's account. Lindberg testified that when she first reported a cash shortage to defendant, he told her he suspected a particular police officer was responsible and instructed her to hold back receipts until the next month to cover the shortage. Lindberg testified that shortages continued and that finally defendant instructed her to write false refund receipts to cover the missing funds. McFarland also testified that defendant instructed her to falsify records to conceal continuing cash shortages. She further testified that defendant told her to place court funds in his office overnight for safekeeping. Mason testified that shortages continued during the time she was turning over court funds to defendant. Defendant denied instructing any of the clerks to falsify records.

In 1978 defendant learned that the State Auditor would be coming to examine the court's books. Defendant asked Mason to determine exactly how much money was currently missing. Upon being informed the account was $2,600 out of balance, defendant obtained a bank loan to generate the needed cash and gave it to Mason to deposit in the court's account. In the course of his subsequent examination, the auditor discovered that during the previous 61/2 years, an estimated $45,000 in cash had been taken from the court's account and that court records reflecting the disposition of those funds had been falsified. Defendant resigned as police chief shortly thereafter.

In November 1978, after granting immunity to Lindberg and McFarland, the State prosecuted defendant on four counts of misappropriating public funds under RCW 42.20.070(1) and one count of keeping a false account under RCW 42.20.070(2). ¹ The jury acquitted defendant of all misappropriation charges but convicted him of keeping a false account. In response to a posttrial motion, the trial court set aside the guilty verdict because the jury instruction on keeping a false account had not contained two essential elements of the crime. In April 1979, after several unsuccessful defense motions for exclusion of evidence or dismissal, defendant was retried on the single charge of keeping a false account. In the second trial, the jury again found defendant guilty. The court sentenced defendant to 15 years imprisonment. Defendant now appeals that conviction.

Defendant first argues that his retrial for keeping a false account subjected him to double jeopardy because he was formerly acquitted of all charges of misappropriating public funds. His argument is twofold: first, because the State alleged in the information that he committed the crime of keeping a false account to conceal his misappropriation of public funds, proof of the false account charge required proof of an incorporated charge of misappropriation; second, because the State alleged in the information at the initial trial that he ordered court employees to falsify records as part of the "manner and means" of committing the crime of misappropriation, the crime of keeping a false account constituted attempted misappropriation, a lesser included offense of misappropriation of which he was acquitted. Defendant thus contends his conviction must be reversed and all charges against him must be dismissed. We disagree.

The briefs in this case seem to indicate that the parties believe the double jeopardy issue turns on whether RCW 42.20.070 defines a single crime that can be committed in more than one way or instead defines multiple crimes carrying the same punishment. See, e.g. State v. Orsborn, 28 Wash.App. 111, 626 P.2d 980 (1980). Although this argument presents an intriguing question upon which sharply conflicting authority can be found, we do not believe it is material to the double jeopardy issue presented in this case.

In our view, the fact determinative of this issue is that the jury in the first trial found defendant guilty of keeping a false account. That conviction was set aside by the trial court only because of unintentional errors in the instructions defining the crime, and defendant was retried on the same charge of keeping a false account. Reversal of a conviction based upon an erroneous instruction is not an acquittal. State v. Dault, 25 Wash.App. 568, 608 P.2d 270 (1980). The double jeopardy clause does not bar retrial of a defendant after a tainted conviction is reversed unless the defendant can show that the taint was a product of deliberate harassment or overreaching. E.g., United States v. Jorn, 400 U.S. 470, 483-84, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971) (plurality opinion); Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1895). See generally, Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich.L.Rev. 1001 (1980). Defendant has made no such showing here. Thus, regardless of whether RCW 42.20.070 defines a single crime or multiple crimes, the crucial fact in determining whether defendant's retrial was barred by double jeopardy principles is his conviction in the first trial of keeping a false account, not his acquittal of misappropriating public funds. See State v. Scott, 64 Wash.2d 992, 395 P.2d 377 (1964).

Turning then to defendant's twofold argument, we first reject his contention that proof of the false account charge required proof of misappropriation of public funds. Although the State alleged several acts of misappropriation in the information charging defendant with keeping a false account, the information would remain sufficient to charge a crime under RCW 42.20.070(2) even if the allegations of misappropriation were deleted. Cf. People v. Sperl, 54 Cal.App.3d 640, 654-55, 126 Cal.Rptr. 907, cert. denied, Sperl v. California, 429 U.S. 832, 97 S.Ct. 95, 50 L.Ed.2d 97 (1976) (Cal. Penal Code § 424(3), prohibiting keeping a false account, does not become "inoperative" when there is no misappropriation of funds under § 424(1)). The jury in the second trial was not instructed that the State needed to prove misappropriation to convict defendant as charged. See State v. Worland, 20 Wash.App. 559, 582 P.2d 539 (1978). Thus, the allegations of misappropriation were merely surplusage. State v. Holt, 52 Wash.2d 195, 198, 324 P.2d 793 (1958).

We likewise reject defendant's contention that keeping a false account constitutes attempted misappropriation, thus barring retrial on a false account charge after his acquittal of misappropriation. In support of this argument defendant relies upon State v. Roybal, 82 Wash.2d 577, 512 P.2d 718 (1973), in which the court indicated that acquittal of an offense is a bar to conviction of the same offense or any lesser included offense in a subsequent trial. See RCW 10.43.020, .050; State v. Peck, 146 Wash. 101, 261 P. 779 (1927). Defendant's reliance on Roybal is misplaced. Keeping a false account is not a lesser included offense of misappropriation of public funds. As the Roybal court explained:

A lesser included offense exists when all of the elements of the lesser offense are necessary elements of the greater offense. Put another way, if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime.

(Citation omitted.) Roybal, 82 Wash.2d at 583, 512 P.2d 718. See State v. Rapp, 25 Wash.App. 63, 604 P.2d 534 (1979). The Roybal court also indicated that the test focuses on the statutory elements of the two offenses, not on the allegations contained in the formal charges. Roybal, 82 Wash.2d at 580-83, 512 P.2d 718....