State v. Joy

• Decision Date: 29 April 1993
• Docket Number: No. 59305-1,59305-1
• Citation: 851 P.2d 654,121 Wn.2d 333
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Kenneth Ralph JOY, Respondent. En Banc

Page 333

121 Wn.2d 333

851 P.2d 654

STATE of Washington, Petitioner, v. Kenneth Ralph JOY, Respondent.

No. 59305-1.

Supreme Court of Washington,

En Banc.

April 29, 1993.

Norm Maleng, King County Prosecutor, Ivan Orton, Sr. Deputy, Peter Goldman, Deputy, Seattle, for petitioner.

Washington Appellate Defender Ass'n, Lorraine Lee, Seattle, for respondent.

BRACHTENBACH, Justice.

At issue is whether the evidence is sufficient to convict defendant contractor of embezzlement of funds paid by homeowners for remodeling and cabinet work. "Embezzlement" refers to the statutory definitions cited hereafter.

Defendant was charged with six counts of theft, alternatively charged as theft by color or aid of deception and theft by exertion of unauthorized control over (embezzlement of) funds paid him by homeowners for contracting work. He was convicted of five counts. The other count was later dismissed and is not at issue. The jury instructions did not require unanimity as to which means of committing theft the jury found, nor did the special verdict form direct the jury to indicate a means it unanimously found. The Court of Appeals held that the evidence was insufficient to establish that defendant appropriated the property of another and therefore his convictions on an embezzlement theory could not be upheld. The Court of Appeals then reasoned that because the jury could have reached its verdict on the invalid embezzlement theory, remand and a new trial were required on the theft by deception theory. State v. Joy, 65 Wash.App. 33, 827 P.2d 1065, review granted, 119 Wash.2d 1018, 836 P.2d 222 (1992). We reverse the Court of Appeals as to three counts, and affirm as to the remaining two counts.

The facts underlying each of the five counts on which defendant was convicted are set out below.

Count 1. On October 2, 1986, Mr. and Mrs. Peterson and defendant entered into a written contract for kitchen cabinets to be built by defendant. Exhibit 1. The contract provided that defendant would provide all labor and material. Defendant asked for, and the Petersons paid him, 75 percent of the contract price, $4,431 of the total $5,908, in advance. Mr. Peterson testified that defendant told him defendant needed the down payment to buy materials for the Petersons' kitchen cabinets. Defendant stated he asked for the down payment "[t]o buy material and equipment." Verbatim Report of Proceedings (10-24-89), at 66. He also testified that he spent some of the money for special equipment to build their kitchen and "a portion of it was held back for them to be spent later on." Verbatim Report of Proceedings (10-24-89), at 24, 66. The defendant did no work for the Petersons, nor did he ever return the money. We affirm conviction on this count.

Count 2. Mr. and Mrs. Goldman hired defendant to work on several jobs on their rental houses. They paid him for each job, generally after he completed the work. In late 1986 or January 1987, the Goldmans and defendant orally agreed that defendant would replace some windows in one of the rental houses. The Goldmans gave defendant $590 in advance of the work for removal of the old windows and purchase and installation of the new windows. Defendant testified "I explained to [Mr. Goldman] I was going to be doing the kitchen and I would like him to prepay the amount of the windows so I could get them ordered ...". Verbatim Report of Proceedings (10-24-89), at 19. Defendant testified the Goldmans paid the money in advance because he had worked for them before and they trusted him. Defendant testified he ordered the windows and put them in storage (although at trial he could not recall where), and that when he went to get them they were broken. He did not do the work or refund the money. We affirm conviction on this count.

Count 3. In March 1987, Mr. and Mrs. Hills entered into a written contract with defendant for cabinets to be built in a new home the Hills were constructing. The contract provided that defendant would provide all materials and labor. It called for the Hills to pay one-third of the $6,490 contract price down, one-third upon completion of the cabinet frames, and one-third upon completion of the work. Mrs. Hills testified that defendant said he would use the down payment to buy materials.

On June 9, 1987, defendant asked for the second one-third of the contract amount, although he had not completed the cabinet bases. The Hills made this early payment reluctantly because, Mrs. Hills testified, defendant said he did not have money to finish purchasing materials to finish the job. She testified that defendant said he was going to use the money specifically to buy the materials for their house. Shortly after the second payment was made, defendant indicated he had suffered a back injury which prevented him from heavy lifting.

Defendant worked a few more days, then asked for more money for materials. The Hills, who had already given defendant over $4,300, elected to purchase the remaining materials and provide them to defendant. Defendant never returned to work, refused to complete the job, and refused to return any money to the Hills. Defendant said he did not return the materials for a refund because "[i]t wasn't my money." Verbatim Report of Proceedings (10-24-89), at 98-99. We affirm conviction on this count.

Count 5. On May 26, 1989, Ms. Condo and defendant entered into a written contract for kitchen remodeling at a cost of $21,823.23. Exhibit 12. The contract provided that defendant would provide all materials and labor. One-third of the contract amount was to be paid down, another one-third upon commencement of the work, and the final one-third upon completion of the project. Defendant supplied Ms. Condo with a list of materials needed. Ms. Condo paid $6,700 down. Defendant began work on June 7, 1989, and received a second payment of $6,700 on June 12. Defendant worked a few more days. Defendant did not complete the work (Ms. Condo hired another contractor), and did not return any of the $13,400. Defendant used $4,000 of the first $6,700 for his contractor registration and bond. We reverse conviction on this count.

Count 6. On June 24, 1989, Mr. and Mrs. Love and defendant entered into a written contract for construction and installation of new cabinets at a cost of $2,906.26. Exhibit 34. The Loves paid $1,295 down. Mr. Love testified that he assumed the down was to buy materials but that there was no "official explanation" about what the money was for. The Loves were thereafter unable to locate defendant, and discovered that his places of business were vacant. Defendant never did any work, nor did he refund any money. Defendant testified he purchased some materials for the job. He also testified that he used the money the Loves gave him to pay his employees on June 30, 1989 (although they did no work for the Loves). Defendant closed his business in early July. We reverse conviction on this count.

The jury was instructed on both theft by deception and theft by exerting unauthorized control over (embezzlement of) the funds defendant received from the owners. The instructions did not require unanimity as to which means the jury found. The jury returned a verdict convicting on all but count 4 for which no verdict was returned. The verdict form did not identify which alternative means of theft the jury found defendant committed as to any of the counts.

Defendant appealed, arguing that there was insufficient evidence to support his convictions on the embezzlement theory. The Court of Appeals agreed with defendant and reversed and remanded for a new trial.

The Court of Appeals reasoned that one cannot steal his or her own property, that title to the funds passed to defendant when paid to him, and that defendant therefore could not be convicted of embezzling the funds. The Court of Appeals rejected what it characterized as the State's argument: that the advance payments were earmarked for the purchase of materials and were thus entrusted to defendant as an agent who did not own the money. The Court of Appeals said "the payments here were advance payments pursuant to a contract, within the contract price. Under the cases cited above, this precludes an entrustment or agency relationship." State v. Joy, 65 Wash.App. 33, 40, 827 P.2d 1065, review granted, 119 Wash.2d 1018, 836 P.2d 222 (1992). The court then examined the evidence, and came to the conclusion that there was insufficient evidence of a trust or agency relationship as to all of the counts.

The State maintains that the Court of Appeals erred in holding that the evidence was insufficient to support defendant's convictions for theft by embezzlement. In reviewing the sufficiency of the evidence, the question is whether, after viewing the evidence in the light 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, 616 P.2d 628 (1980); State v. Aver 109 Wash.2d 303, 310-11, 745 P.2d 479 (1987). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).

RCW 9A.56.020 provides in relevant part:

(1) "Theft" means:

(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....

(Italics ours.) Defendant was charged under both the "exerts unauthorized control" and the "[b]y color or aid of deception" alternatives of the statute. The "exerts unauthorized control" alternative includes what was embezzlement under prior...