State v. Hanson

• Decision Date: 29 November 1990
• Docket Number: No. 12080-1-II,12080-1-II
• Citation: 800 P.2d 1124,59 Wn.App. 651
• Parties: The STATE of Washington, Respondent, v. Mollie HANSON, Appellant.
• Court: Washington Court of Appeals

Page 651

59 Wn.App. 651

800 P.2d 1124

The STATE of Washington, Respondent, v. Mollie HANSON, Appellant.

No. 12080-1-II.

Court of Appeals of Washington,

Division 2.

Nov. 29, 1990.

R. Wayne Torneby, Jr., Springer Norman & Workman, Longview, for appellant.

C.C. Bridgewater, Prosecutor, Randolph Furman, Deputy, Kelso, for respondent.

MORGAN, Judge Pro Tem. ^*

Mollie Hanson appeals her conviction on three counts of violating certain state statutes regulating the sale of prearrangement contracts by cemeteries. RCW 68.46.210. Because of constitutional errors in the jury instructions, we reverse and remand for new trial.

Green Hills Cemetery, a corporation, was doing business in Cowlitz County in 1985, 1986 and 1987. Among other activities, it sold funeral goods and services on a "pre-need" basis. When such a sale was made, the purchaser would promise to pay a fixed purchase price, and Green Hills would promise to deliver funeral goods and services when the purchaser or his beneficiary died. The purchaser would pay the fixed purchase price in one lump sum at the time of the sale, or by installments commencing at or shortly after the time of the sale. Each sale was embodied in a written contract, with the parties to the contract being the purchaser and Green Hills.

In 1985 and 1986, Green Hills had neither a license to sell prearrangement contracts nor an exemption from the requirement that a license be obtained. In 1987, it obtained an exemption.

In 1985, 1986, and 1987, Mollie Hanson was the general manager and treasurer of Green Hills. She ran the business on a day-to-day basis and was also a minority stockholder. She personally participated in some of the corporation's "pre-need" sales, but she was not a party to any of the resulting contracts.

The State commenced this case by filing a three-count information against Mollie Hanson. Counts I and II charged violations in 1986 and 1985, respectively. Each alleged that the defendant knowingly entered into prearrangement contracts without a license and without an exemption. Count III charged violations in 1987. It alleged that the defendant, after obtaining an exemption, knowingly entered into prearrangement contracts without depositing into a prearrangement trust fund 100 percent of the funds received. A jury trial was held, and the jury convicted on all three counts.

I

Defendant's first contention is that the "pre-need" sales by Green Hills were not "prearrangement contracts" within the meaning of RCW 68.46.010(1). ¹ Specifically, defendant contends that the statute does not encompass all situations in which the purchaser pays partly or fully in advance, but only those situations in which a cemetery refuses to sell goods or services unless the purchaser pays in full at the time the contract is formed.

We disagree, for defendant's contention is contrary to the plain meaning of the statute. The statute by its terms encompasses all contracts for cemetery merchandise or services pursuant to which the purchaser makes full or partial payment before the cemetery's performance is due.

II

Defendant's second contention is that RCW 68.46.010(1) ² and 68.46.210 ³ are void for vagueness. In support of this contention, she relies upon State v. Postema, 46 Wash.App. 512, 515, 731 P.2d 13 (1987). In that case, the court said:

Therefore, the test for vagueness is whether a person of common intelligence must necessarily guess at its meaning and differ as to its application. State v. O'Neill, [103 Wash.2d 853, 700 P.2d 711 (1985) ] supra. This test includes two components: Adequate notice to citizens and adequate standards to prevent arbitrary enforcement. [State v. Maciolek, [101 Wash.2d 259] at 264 [676 P.2d 996 (1984) ].

RCW 68.46.010(1) is not void for vagueness. Although inartfully drafted, it adequately apprises people of common intelligence that when a purchaser pays part or all of the consideration due for cemetery goods and services in advance of the date on which the cemetery is to perform, the contract will be deemed a prearrangement one, and will be subject to the licensing and exemption requirements of RCW 68.46.

Likewise, RCW 68.46.210 is not void for vagueness. Although it must be read in conjunction with the other "provisions of this chapter," a person of common intelligence can do that, and upon doing it can discern what is required and what is prohibited.

III

Defendant's third contention is that the trial court erred on each count by failing to give what will hereinafter be called a Petrich instruction. The state responds by arguing that such an instruction was not required, and that if it was, any error was waived or harmless.

In State v. Petrich, 101 Wash.2d 566, 572, 683 P.2d 173 (1984), the Supreme Court said:

When the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected. We therefore adhere to the Workman rule, with the following modification. The State may, in its discretion, elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured. When the State chooses not to elect, this jury instruction must be given to ensure the jury's understanding of the unanimity requirement. [ ⁴]

To apply Petrich, three questions must be asked. First, what must be proven under the applicable statute? ⁵ With most criminal statutes, this will be a single event, such as a burglary, robbery or assault. With some, though, it will be a continuing course of conduct, such as operating a prostitution enterprise. RCW 9A.88.060(1); State v. Elliott, 114 Wash.2d 6, 14, 785 P.2d 440 (1990). When the requirements of a particular statute are disputed, the rules of statutory construction will govern.

Second, what does the evidence disclose? As with all proposed jury instructions, this involves looking at the evidence in the light most favorable to the proponent of the instruction. ⁶ Seattle v. Cadigan, 55 Wash.App. 30, 37, 776 P.2d 727 (1989); Lundberg v. All-Pure Chemical Co., 55 Wash.App. 181, 187, 777 P.2d 15 (1989).

Third, does the evidence disclose more than one violation of the statute? This requires a comparison of what the statute requires with what the evidence proves. If the evidence proves only one violation, then no Petrich instruction is required, for a general verdict will necessarily reflect unanimous agreement that the one violation occurred. ⁷ On the other hand, if the evidence discloses two or more violations, then a Petrich instruction will be required, for without it some jurors might convict on the basis of one violation while others convict on the basis of a different violation. ⁸ In the latter situation, the result is a lack of jury unanimity with respect to the facts necessary to support conviction, and a consequent abridgment of the right to jury trial.

Counts I and II were based on RCW 68.46.170 ⁹ and 68.46.210. ¹⁰ RCW 68.46.170 prohibits the sale of any prearrangement contract without a license or exemption, and RCW 68.46.210 makes any violation of RCW 68.46 a class C felony. As a result, each sale of a prearrangement contract without a license or exemption is an event sufficient to support conviction.

The evidence on Counts I and II showed a multitude of events sufficient to support conviction. Exhibit 8, related to Count I, and exhibit 7, related to Count II, each disclosed perhaps 100 prearrangement contracts, all formed without a license or exemption. While the defendant may not have participated in the formation of all of these, the evidence was sufficient to support a finding that she participated in the formation of many of them. Thus, the evidence disclosed multiple events sufficient to convict, and a Petrich instruction was required.

Count III was based on RCW 68.46.130 ¹¹ and 68.46.210. ¹² RCW 68.46.130 requires that an exempt cemetery deposit into its trust account one hundred percent of each payment received on a prearrangement contract, ¹³ and that the deposit be made by the twentieth of the month following receipt. RCW 68.46.010(5). Therefore, each failure to deposit by the twentieth of the following month is a violation of RCW 68.46, and an event sufficient to support conviction. RCW 68.46.210.

Although the record provided to us is scanty, it seems to indicate many failures to deposit prearrangement funds into trust, with many of those failures being the responsibility of the defendant. Thus, we conclude that the evidence on Count III disclosed multiple events, any one of which would have been sufficient to convict, and that in order to assure jury unanimity, a Petrich instruction was required.

The State argues that the defendant waived her right to Petrich instructions when she failed to object at trial, but we cannot agree. Usually, an appellate court will refuse to review error not raised at trial, but error affecting a constitutional right is an exception. RAP 2.5(a)(3); State v. Scott, 110 Wash.2d 682, 685, 757 P.2d 492 (1988). Failure to give Petrich instructions affects the defendant's constitutional right to jury trial, State v. Camarillo, 115 Wash.2d 60, 64, 794 P.2d 850 (1990); State v. Kitchen, 110 Wash.2d 403, 409, 756 P.2d 105 (1988), and thus may be raised for the first time on appeal.

The State also argues that the failure to give Petrich instructions was harmless, but again we cannot agree. Constitutional error requires reversal unless it is harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), State v. Camarillo, supra, State v. Handran, 113 Wash.2d 11, 15-16, 775 P.2d 453 (1989), and as explained in State v. Kitchen, 110 Wash.2d at 411, 756 P.2d 105, error will be deemed harmless only if no rational trier of fact could have a...