State v. Joy
| Decision Date | 13 April 1992 |
| Docket Number | No. 25557-6-I,25557-6-I |
| Citation | 827 P.2d 1065,65 Wn.App. 33 |
| Parties | STATE of Washington, Respondent v. Kenneth Ralph JOY, Appellant. |
| Court | Washington Court of Appeals |
Washington Appellate Defenders, Suzanne Lee Elliott, Seattle, for appellant.
Norm Maleng, King County Pros. Atty., Peter Goldman, Deputy, Seattle, for respondent.
Kenneth Ralph Joy appeals his convictions on three counts of theft in the first degree and two counts of theft in the second degree, alleging the evidence was insufficient to sustain his convictions on one of two alternative means of committing theft on which the jury was instructed. We agree, and reverse and remand for a new trial.
Kenneth Joy is a cabinetmaker and handyman who entered into contracts to perform work in six residences and failed to complete the work. He was charged with four counts of theft in the first degree and two counts of theft in the second degree. A jury convicted him on all but one of the counts. The pertinent facts concerning the conviction counts are as follows.
Count 1. Joy entered into a written contract 1 to build and install cabinets for Betty and Clarence Peterson. He requested and received a payment of 75 percent of the contract price, or $4,431, in advance of beginning the work. Ms. Peterson testified that Joy did not state that the advance payment was for purchasing materials, but she and her husband assumed that it was. Mr. Peterson, on the other hand, testified that Joy did state he needed the money to buy materials. Joy neither installed the cabinets nor refunded the advance payment.
Count 2. For approximately 1 year Joy worked for Reuben Goldman as an occasional handyman doing repairs on Goldman's rental properties. The last such job involved installing new windows. By oral agreement, Joy was to tear out the old windows and purchase and install new ones. Joy testified that he asked Goldman to prepay the amount needed to purchase the windows, but that Goldman's advance covered the cost of installation as well as purchase. Joy neither installed the windows nor returned the advance payment.
Count 3. Susan and Russell Hill contracted with Joy for the construction and installation of cabinets in their home. The contract was for a total price of $6,400, to be paid one-third down, one-third upon completion of the cabinet frames, and one-third upon completion of the entire job. The down payment was made and Joy began to work sporadically. Before the cabinet frames were completed, Joy requested the second payment, stating he needed more money for materials. The Hills complied, even though Joy had not completed the frames, because they wanted the job finished on time. When Joy subsequently asked for more money for materials, the Hills purchased the materials themselves directly from the supplier. Joy told them his work was delayed due to a back injury. Ms. Hill testified that Joy completed approximately one-third of the job. He refused to refund any payment, stating he needed it for medical bills. Joy told the Hills they would not be able to collect from him because he was going to file for bankruptcy.
Count 5. Eiko Condo contracted with Joy for almost $22,000 worth of renovations and cabinet work in her home, to be paid in one-third installments. After payments of the first one-third, Joy worked for approximately 5 days. After the second payment he worked an additional 5 or 6 days. Joy never completed the work or refunded any payment.
Count 6. Charles Love contracted with Joy for cabinet work. The total contract price was $3,704.85, to be paid in three installments. Joy did not explain why he needed the first installment before commencing work, but Love assumed it was to purchase materials. Love paid, but Joy neither did the work nor refunded the money.
After the State rested its case, Joy moved to dismiss the charges based on the State's failure to make a prima facie case of embezzlement. Joy conceded the State had made a prima facie case of theft by deception. The court denied the motion.
Joy testified in his own defense, admitting the State's basic allegations but excusing his failure to fulfill the contracts or refund any money on the grounds of injury, depression, lack of time, ineptitude and receipt of warped materials. The jury was instructed on two alternative grounds for convicting Joy of theft: theft by embezzlement (RCW 9A.56.020(1)(a) and RCW 9A.56.010(7)(b)), and theft by color or aid of deception (RCW 9A.56.020(1)(b)). Joy appeals the judgment entered on the jury's general verdict of guilty on counts 1, 2, 3, 5 and 6.
The test for sufficiency of the evidence in a criminal case is whether, after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980).
"Theft" is defined in part as follows:
(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; or
(b) By 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[.]
RCW 9A.56.020(1)(a), (b). Subsection (1)(a) includes what was embezzlement under prior law. State v. Gillespie, 41 Wash.App. 640, 643, 705 P.2d 808 (1985), review denied, 108 Wash.2d 1009 and 106 Wash.2d 1006 (1986). The term "wrongfully obtain or exert unauthorized control" within the theft statute is defined in pertinent part as:
Having any property or services in one's possession, custody or control as bailee, factor, pledgee, servant, attorney, agent, employee, trustee, executor, administrator, guardian, or officer of any person, estate, association, or corporation, or as a public officer, or person authorized by agreement or competent authority to take or hold such possession, custody, or control, to secrete, withhold, or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto[.]
RCW 9A.56.010(7)(b). Embezzlement requires the fraudulent or unlawful appropriation of the property of another that came lawfully into the taker's possession. State v. Berman, 50 Wash.App. 125, 130, 747 P.2d 492 (1987), review denied, 110 Wash.2d 1019 (1988).
State v. Oglesbee, 24 Wash.App. 769, 603 P.2d 1275 (1979), review denied, 93 Wash.2d 1017 (1980) is the only reported case in which a construction contractor has been convicted of embezzlement under these statutes. In Oglesbee, the owner of a home construction company used progress payments received from a homebuilding contract to pay a supplier with whom he had an open account. The defendant had used this supplier on previous jobs, and knew that the supplier would apply the payment to the most delinquent of the defendant's accounts. Defendant's company filed for bankruptcy and the homeowners were left with $12,000 in construction liens on their home. Defendant was convicted of theft by embezzlement.
The Court of Appeals affirmed, holding that the defendant, as an independent contractor, had property in his possession, custody or control as a "person authorized by agreement ... to take or hold such possession, custody, or control", and that he appropriated it "to the use of [a] person other than the true owner". Oglesbee, 24 Wash.App. at 771, 603 P.2d 1275 (quoting RCW 9A.56.010(7)(b)). The court stated:
We find most persuasive ... the defendant's testimony that he had used part of the Lupfer draw money to pay unrelated corporate debts and intended to take the money to keep his corporation afloat. This evinces an intent to use Lupfers' money for purposes unrelated to payment of the debts incurred for the construction of Lupfers' house.
Oglesbee, 24 Wash.App. at 772, 603 P.2d 1275. Oglesbee does not discuss whether the progress payments received by the defendant were his own property or the property of the Lupfers. RCW 9A.56.020(1)(a). The case has not been cited in any other reported decision.
"A fundamental principle of the common law is that one cannot steal his own property and the general rule, therefore, is that the ownership of the property alleged to have been embezzled must not be in accused[.]" 29A Corpus Juris Secundum Embezzlement § 8 at 16 (1965). Our courts have applied this rule in contexts other than the one presented here. See State v. Carr, 169 Wash. 56, 13 P.2d 497 (1932) (); State v. Berman, 50 Wash.App. at 131, 747 P.2d 492 (); State v. Birch, 36 Wash.App. 405, 675 P.2d 246 (1984) (). 2 In Carr, the court stated:
Mrs. Carr's obligation to Wyrick [customer] became only that of a debtor as for damages, upon her failure to perform her sale contract obligation. She did not receive the money in trust, but as her own, in part payment of the contemplated sale of the piano from her to him. Her failure to use the advance payment upon the purchase price she would have to make in procuring the piano was not a misappropriation of Wyrick's money. It was her money in a legal sense. It is elementary law that one cannot steal or embezzle his own money so as to render himself criminally liable therefor.
....
The fact that Wyrick made an advance payment to Mrs. Carr upon the purchase price of the piano, for future delivery, it being understood that she did not then have the piano in stock, is not of itself any...
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