State v. Lee

• Citation: 128 Wn.2d 151,904 P.2d 1143
• Decision Date: 09 November 1995
• Docket Number: No. 62725-8,62725-8
• Court: United States State Supreme Court of Washington
• Parties: The STATE of Washington, Respondent, v. Earl LEE, Petitioner.

Page 151

128 Wn.2d 151

904 P.2d 1143

The STATE of Washington, Respondent, v. Earl LEE, Petitioner.

No. 62725-8.

Supreme Court of Washington En Banc.

Nov. 9, 1995.

Hugh M. Spall, Jr., Attorney at Law, Ellensburg, for petitioner.

Jeffrey Sullivan, Yakima County Prosecutor, Bruce Hanify, Deputy, Michael G. McCarthy, Deputy, Yakima, for respondent.

MADSEN, Justice.

The Defendant seeks review of a court of appeals' decision affirming his conviction for second degree theft. He contends that the jury was improperly instructed and that the evidence was insufficient to support the conviction where neither of the named victims suffered a loss as a result of the alleged taking. We find the jury instructions were correct, but reverse the conviction because the State did not offer sufficient evidence of loss.

Facts

On June 23, 1992, Guy Hanson accepted Earl Lee's offer to buy a house on North 7th Street in Yakima which Hanson had inherited from his mother. Under the terms of the earnest money agreement, Lee was to take possession of the property on July 10, the closing date.

The house had been vacant for several years and was in such a state of disrepair that it would be impossible to obtain insurance, which Lee was obligated to provide. Lee offered to paint the residence before closing to secure insurance. The realtor told Lee to check with his insurance company to see what needed to be done to make the house insurable, but Lee never got back to her. Lee's friends and relatives eventually replaced all of the windows in the house, put a new floor in, laid linoleum, repaired the bathroom, put a wall partition in, and painted the inside and outside of the house. Lee's attorney stated during closing argument that the Lees put more than $1,800 in time, money, and materials into the 7th Street residence. At trial, Hanson denied giving Lee permission to make these repairs or to take early possession for any reason.

On June 24, 1992, Lee signed a Red Cross emergency housing certificate agreeing to rent the 7th Street residence to Victor Valenzuela and Lucila Dominguez from June 28 to July 28. (The Red Cross was providing the couple with emergency housing assistance following the destruction of their apartment in an arson fire on June 22, 1992.) The Red Cross rejected this form, however, because Lee wanted the tenants to pay $200 for insurance. A second form was prepared without that condition and was signed by one of Lee's employees on his behalf. The Red Cross accepted this form and sent Lee a check for $700, which he deposited in his savings account. The evidence was in conflict over whether Lee intended to rent the 7th Street house or a room in a boarding house he owned. In any event, Valenzuela and Dominguez moved into the 7th Street residence on July 5, after repairs to the house were complete.

Hanson visited the house on July 8 and found it repaired and occupied. Valenzuela told Hanson he and Dominguez were renting the property from Lee. When confronted, Lee seemed surprised to hear of their occupancy. Lee failed to appear for closing and forfeited his $350 earnest money. Valenzuela and Dominguez remained on the property and eventually purchased it from Hanson.

The Yakima County prosecutor charged Lee with second degree theft and first degree criminal trespass. In the theft count, the prosecutor alleged that Lee "did wrongfully obtain or exert unauthorized control and/or did, by color or aid of deception obtain control over property, of a value in excess [of] $250.00, belonging to Lucila Dominguez and/or the American Red Cross, with intent to deprive the same of such property." Clerk's Papers at 52.

At the end of the four-day trial, the court instructed the jury that to convict Lee of theft, it had to find that he "wrongfully obtained or exerted unauthorized control over the property of another, and/or by color or aid of deception did obtain control over the property of another," that the property exceeded $250 in value, and that Lee intended to deprive "the other person" of the property. Clerk's Papers at 41. In closing argument, the prosecutor told the jury that the "gist of the case" was that Lee rented a house he did not own and accepted $700 from the Red Cross as rent. Report of Proceedings at 693-94. Defense counsel argued that there was no victim, and thus no theft, because Dominguez received the housing for which the Red Cross paid Lee $700.

At 5:00 p.m. on the first full day of jury deliberations, the trial court directed the bailiff to find out whether the jury wished to continue deliberating during the evening or return the following morning. The jury sent the court a note which said, "We seem to be in deadlock. We have several conflicting opinions, with little hope of change. What are our legal options?" Supplemental Report of Proceedings at 2. After discussing the matter with counsel, the court asked the foreman, outside the presence of the other jurors, if he felt that further deliberations, either that evening or the next morning, would be beneficial. The foreman did not believe so. Following additional discussion with counsel, the court asked the foreman if there was "a reasonable probability of the jury reaching an agreement on one or both counts." Supplemental Report of Proceedings at 22. The foreman said "probably not." Supplemental Report of Proceedings at 22. The court then asked the same question of each juror, outside the presence of the others. All but one was also asked if he or she thought further deliberations either that day or the next would be beneficial. Three jurors thought a verdict might be possible on one count.

Defense counsel moved for a mistrial on the ground that the jury was deadlocked. The court denied this motion and gave the jurors an additional written instruction excusing them until the following morning "when you will return to the jury room for further deliberations." Clerk's Papers at 29. On that following day, the jury acquitted Lee of criminal trespass and found him guilty of second degree theft. The trial court denied Lee's motion for a new trial and ordered a sentence of thirty days converted to 240 hours of community service, and two years of community supervision.

Lee appealed his conviction, arguing that the trial court erred in failing to instruct the jury that it had to unanimously agree on the victim of the theft and that there was insufficient evidence to support his conviction. Lee also argued that the trial court coerced the jury into reaching a verdict after it announced it was deadlocked. The court of appeals affirmed Lee's conviction in a published decision. State v. Lee, 77 Wash.App. 119, 889 P.2d 944 (1995).

Lee then petitioned for discretionary review, which this court granted.

I

The first issue raised is whether the trial court erred in failing to instruct the jury that it had to unanimously agree on the victim of the theft. Lee argued successfully before the court of appeals that the State accused him of committing two offenses against two separate victims in one count of the information but erroneously failed to give the jury a unanimity instruction. The Court of Appeals found, however, that the error was harmless. Lee, 77 Wash.App. at 124, 889 P.2d 944. Lee argues that the failure to give a unanimity instruction cannot be harmless error where alternative crimes are charged and in support cites this court's opinion in State v. Stephens, 93 Wash.2d 186, 607 P.2d 304 (1980).

In Stephens, the State charged the defendant with one count of assault against two victims: Richard Heieck and Norman Jahnke. The jury was instructed, however, that it must find that the defendant assaulted Richard Heieck or Norman Jahnke. Id. at 189, 607 P.2d 304. The court found this instruction impermissible because it allowed conviction if six jurors believed the defendant assaulted Jahnke and six believed he assaulted Heieck. "The instruction, in effect, split the action into two separate crimes (assault against Jahnke and assault against Heieck), while the information charged only one." Id. at 190, 607 P.2d 304. Because alternative crimes were charged in the "to convict" instruction, but no unanimity instruction was given, the court concluded that the defendant's right to a unanimous verdict was violated, requiring reversal. Id. at 190-91, 607 P.2d 304.

If the information and instructions given here presented an alternative crimes situation such as occurred in Stephens, we might be inclined to agree with Lee that failure to give a unanimity instruction constituted reversible error. However, as the State persuasively argues, this is an alternative means of commission case and an expression of jury unanimity is not required if the evidence supports each alternative means charged. See State v. Petrich, 101 Wash.2d 566, 569, 683 P.2d 173 (1984); State v. Arndt, 87 Wash.2d 374, 376-77, 553 P.2d 1328 (1976).

As stated earlier, the theft count of the information charged that Lee

did wrongfully obtain or exert unauthorized control and/or did, by color or aid of deception obtain control over property, of a value in excess of $250.00, belonging to Lucila Dominguez and/or the American Red Cross, with intent to deprive the same of such property....

Clerk's Papers at 52. RCW 9A.56.020, which defines the four types of theft--theft by taking, embezzlement, theft by deception, and appropriation of lost or misdelivered property--defines a single crime. State v. Southard, 49 Wash.App. 59, 62, 741 P.2d 78 (1987). As the court in Southard explained,

Although the elements of each type of theft are different, they are connected to and not inherently different from each other, as each type of theft is merely a variation on the theme of unlawfully obtaining the property or services of another....

....

Accordingly, if there is substantial evidence to support each alternative means charged, "unanimity of the jury as to the mode of commission is not required."

Southard, 49...