State v. Knutz

• Decision Date: 20 April 2011
• Docket Number: No. 39925–3–II.,39925–3–II.
• Citation: 253 P.3d 437,161 Wash.App. 395
• Parties: STATE of Washington, Respondent,v.Lisa Renee KNUTZ, Appellant.
• Court: Washington Court of Appeals

161 Wash.App. 395

253 P.3d 437

STATE of Washington, Respondent,

v.Lisa Renee KNUTZ, Appellant.

No. 39925–3–II.

Court of Appeals of Washington, Division 2.

April 20, 2011.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.Sara I. Beigh, Lewis County Prosecutor's Office, Chehalis, WA, for Respondent.HUNT, J.

[161 Wash.App. 398] ¶ 1 Lisa Renee Knutz appeals her jury conviction and exceptional sentence for first degree theft with aggravating factors. She argues that the trial court erred in failing to instruct the jury more specifically on the “reliance” element of first degree theft, failing to give a Petrich ¹ unanimity instruction, and imposing a clearly excessive sentence. We affirm.

FACTS

I. Theft by Fraud from Senior Citizen

¶ 2 Robert J. Von Gruenigen is a retired music professor from Ohio State University. In 2005, at age 75, Von Gruenigen moved to an “assisted living home” in Seattle. I Verbatim Report of Proceedings (VRP) at 75. Soon thereafter he met Lisa Renee Knutz. On December 8, 2005, he loaned Knutz $470 in cash, the first of many such cash loans,² which totaled approximately $347,000 between December 8, 2005, and April 2, 2008.

¶ 3 According to Von Gruenigen, Knutz requested these cash loans for a variety of reasons: “traffic fine,” I VRP at 82; “to open a bank account,” I VRP at 83; “gas,” I VRP at 85; “welfare penalty,” VRP at 94; replacement of a previous cash loan from Von Gruenigen that was missing or stolen; medical bills; and bail. Between October 1, 2007, and March 7, 2008, Von Gruenigen provided Knutz with 43 cash loans, all but one of which exceeded $2,000: ³ For example, one loan was for $20,000. Another large loan was for $11,500, “to reimburse [Knutz's] landlord so that [Knutz] wouldn't be in legal trouble” because of “vandalism.” I VRP at 106. On March 17 and 18, 2008, Von Gruenigen provided Knutz with $13,700 and $10,000, respectively, when Knutz told Von Gruenigen that she had cancer and needed an operation.

¶ 4 “Only once in a while” did Von Gruenigen ask Knutz for documented proof of her alleged purchases or bills. I VRP at 87. He asked questions about her purchases only “sometimes.” I VRP at 88. According to Von Gruenigen, despite some suspicions, he did not ask more questions or demand more proof because, “I guess I believed her.” I VRP at 89.

¶ 5 Although Von Gruenigen eventually stopped believing that Knutz would repay him, he continued to provide her cash out of fear that, if he stopped, she would go to prison, and would then be unable to take care of her siblings, whose parents, Knutz had said, were incarcerated. Von Gruenigen also believed that Knutz had given birth to triplets, one of which had died, one of which Knutz had relinquished for adoption, and one that Knutz kept and cared for. Knutz did repay some of the loans by performing tasks for Von Gruenigen such as hanging pictures, and driving him around in her car. The last cash transfer from Von Gruenigen to Knutz occurred on April, 2, 2008. He stopped giving Knutz money in April 2008 after a person at his assisted living home told him that Knutz might be taking advantage of him.

¶ 6 On April 9, 2008, Centralia Police Department Detective Patrick F. Beall received a report from Adult Protective Services that Von Gruenigen had provided Knutz with $50,000 for the costs of surgery. Centralia Police Department Detectives Beall and Buster⁴ arrived at Knutz's residence while she was exiting her vehicle in the driveway. Knutz invited the detectives into her home. After Beall asked about her surgery, Knutz started crying and admitted to having lied to Von Gruenigen about the surgery in order to obtain money. She told Beall and Buster she had given some of the money to her father, a methamphetamine addict, and to her boyfriend, also a drug addict with a “gambling problem.” I VRP at 217. She admitted to Beall that she had lied to Von Gruenigen to obtain money from him.

II. Procedure

¶ 7 The State charged Knutz with first degree theft under RCW 9A.56.030(1)(a) and RCW 9A.56.020(1)(b), alleging the following aggravating factors:

[A]t the time of the commission of said offense, the defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable o[f] resistance, thus adding to defendant's offender score pursuant to [former] RCW 9.94A.525(3)(b) [2009].

...

[253 P.3d 440 , 161 Wash.App. 401]

[T]he commission of said offense was a major economic offense or series of offenses in that the offense involved multiple victims or multiple incidents per victim, thus adding to defendant's offender score pursuant to [former] 9.94A.535(3)(d)(i) [2009].

...

[T]he commission of said offense was a major economic offense or series of offenses in that the offense involved attempted or actual monetary loss substantially greater than typical for the offense, thus adding to defendant's offender score pursuant to [former] RCW 9.94A.535(3)(d)(ii) [2009].

CP at 28–29.

¶ 8 The “to convict” instruction provided:

To convict the defendant of the crime of theft in the first degree, each of the following four elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about and between January 1, 2005 and March 30, 2008 the defendant by color or aid of deception, obtained control over property or services of another, to wit: money belonging to Robert J. Von Gruenigen, or the value thereof; and

(2) That the property exceeded $1500 in value;

(3) That the defendant intended to deprive the other person of the property;

and

(4) That this act occurred in the State of Washington.

If you find from the evidence that elements (1), (2), (3), and (4), have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of the elements (1), (2), (3) or (4), then it will be your duty to return a verdict of not guilty.

CP at 37 (jury instruction 4) (emphasis added).

¶ 9 The trial court also instructed the jury on the definition of “[t]heft” “by color or aid of deception,” CP at 38 (jury instruction 5); CP at 39 (jury instruction 6), which the trial court defined as follows:

[D]eception occurs when an actor knowingly creates or confirms another's false impression that the actor knows to be false, or fails to correct another's impression that the actor previously has created or confirmed, or prevents another from acquiring information material to the disposition of the property involved, or promises performance that the actor does not intend to perform or knows will not be performed.

CP at 40 (jury instruction 7). Knutz did not ask the trial court to instruct the jury that it must be unanimous as to the method she used to deceive or to obtain the money from Von Gruenigen. Nor did she take exception to the trial court's jury instructions.

¶ 10 The jury found Knutz guilty of first degree theft, also finding all three aggravating factors. Based on Knutz's offender score⁵ and the seriousness level of her conviction, the standard range for her sentence was only two to six months of confinement; the statutory maximum, in contrast, was ten years. Based on the jury's finding of aggravating factors (vulnerable victim, major economic offense involving multiple victims or incidents, major economic offense involving an atypically large monetary loss), the trial court imposed an exceptional sentence of five years, and ordered Knutz to pay Von Gruenigen $340,000 restitution. In so doing, the trial court noted that Knutz's theft was “210 times the minimum of Theft in the First Degree” and it “c[ouldn't] think of [a] case that would be more appropriate to give an exceptional sentence than this one.” II VRP at 328.

¶ 11 Knutz appeals.

ANALYSIS

I. Jury Instructions

¶ 12 Knutz argues that the trial court made several reversible errors in instructing the jury. We address each in turn.

[253 P.3d 441 , 161 Wash.App. 403]

A. Standard of Review

¶ 13 We review a challenge to a jury instruction de novo, evaluating the jury instruction “in the context of the instructions as a whole.” State v. Benn, 120 Wash.2d 631, 654–55, 845 P.2d 289 (1993). “ ‘Jury instructions are sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law.’ ” State v. Aguirre, 168 Wash.2d 350, 363–64, 229 P.3d 669 (2010) (internal quotation marks omitted) (quoting Keller v. City of Spokane, 146 Wash.2d 237, 249, 44 P.3d 845 (2002)) (emphasis omitted). “Jury instructions are sufficient if they are readily understood and are not misleading to the ordinary mind.” State v. Sublett, 156 Wash.App. 160, 183, 231 P.3d 231 (2010) (citing State v. Dana, 73 Wash.2d 533, 537, 439 P.2d 403 (1968)), review granted, 170 Wash.2d 1016, 245 P.3d 775 (2010). “Even if an instruction may be misleading, it will not be reversed unless prejudice is shown by the complaining party.” Aguirre, 168 Wash.2d at 364, 229 P.3d 669 (citing Keller, 146 Wash.2d at 249, 44 P.3d 845).

¶ 14 We review a challenge to a trial court's refusal to give a jury instruction for abuse of discretion. Stiley v. Block, 130 Wash.2d 486, 498, 925 P.2d 194 (1996); State v. Winings, 126 Wash.App. 75, 86, 107 P.3d 141 (2005). A defendant is entitled to have his theory of the case submitted to the jury under appropriate instructions when substantial evidence in the record supports that theory. State v. Harvill, 169 Wash.2d 254, 259, 234 P.3d 1166 (2010).

B. “Reliance” Element

¶ 15 Knutz first argues that the “to convict” and related instructions relieved the State of its burden to prove the “reliance” element of first degree theft “[b]y color or aid of deception.” Br. of Appellant at 9. We disagree.

¶ 16 The trial court instructed the jury that (1) to convict Knutz of first degree theft, the State had to prove beyond a...