State v. Linehan

• Decision Date: 24 October 2002
• Docket Number: No. 71676-5.,71676-5.
• Citation: 56 P.3d 542,147 Wn.2d 638,147 Wash.2d 638
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Timothy LINEHAN, Appellant.

56 P.3d 542

147 Wn.2d 638

147 Wash.2d 638

STATE of Washington, Respondent, v. Timothy LINEHAN, Appellant.

No. 71676-5.

Supreme Court of Washington, En Banc.

Argued May 9, 2002.

Decided October 24, 2002.

Francisco Rodriguez, Seattle, for Appellant.

Norm Maleng, King County Prosecutor, Keith Scully, Deputy, James Whisman, Deputy, for Respondent.

IRELAND, J.

Petitioner Timothy Linehan seeks review of the Court of Appeals decision affirming his jury conviction on one count of first degree theft. We hold that any error in defining one alternative means of committing first degree theft was harmless, as there was sufficient evidence for the jury to convict using other definitions for the alternative means set forth in RCW 9A.56.020 under which Linehan was charged.

FACTS

In March 1998, Timothy Linehan and his business partner received $130,061.51 after completing a real estate transaction. Because the check was made out to Linehan personally, instead of to the partnership, on March 30, 1998 Linehan deposited the check in his personal account at Washington Mutual. He then wrote a check in the same amount from his Washington Mutual account and had his partner deposit it in the partnership account at Seafirst Bank on April 2, 1998. However, only $13,061.95 was deducted from Linehan's personal account at Washington Mutual due to an encoding error when processing the check. Seafirst corrected this error on April 7, 1998 by withdrawing the $116,999 balance from Linehan's Washington Mutual account. Washington Mutual did not detect the error at that time. Hence, the improper $116,999 balance was left showing on Linehan's account.

The error prompted Linehan to ask his attorney what his options were concerning the extra sum. Linehan was advised that he could not keep the money and that the bank could demand the entire amount plus up to 12 percent interest. At no time did Linehan bring the error to the attention of Washington Mutual. Rather, on April 15, 1998, Linehan withdrew $105,000 from his Washington Mutual account and deposited the sum, in the form of a cashier's check, in his personal savings account at Continental Savings Bank on April 16, 1998. Between mid-April and July 1998, Linehan made 22 withdrawals from his Continental account.

Washington Mutual learned of the encoding error in June 1998 and fraud investigators contacted Linehan in July asking that the money be returned. The investigators explained that Washington Mutual would accept a promissory note for the outstanding sum if Linehan would secure it with collateral, which Linehan refused to do. After two unsuccessful attempts to recoup the money from Linehan, Washington Mutual contacted the police.

Linehan was charged by amended information with one count of first degree theft on September 13, 1999. The information charged that Linehan intentionally deprived Washington Mutual of property valued in excess of $1,500, and that he wrongfully obtained the money, exerted unauthorized control over the money, and that he obtained the money by color and aid of deception. The jury returned a guilty verdict on September 16, 1999.

Linehan appealed, contending in part that the trial court's instructions were erroneous because there was insufficient evidence to support a conviction under two of the three alternative means instructed upon and that it was impossible to determine on which means the jury based the verdict. Linehan also contended that the trial court gave an incorrect definition of "exerts unauthorized control," one of the alternative means charged. In its unpublished opinion, the Court of Appeals did not address Linehan's definitional concern, but affirmed the conviction, holding there was substantial evidence to support the verdict under each of the alternative means charged. State v. Linehan, Noted at 107 Wash.App. 1016, 2001 WL 828640 at *4.

ANALYSIS

Standard of Review

Whether a jury instruction correctly states the applicable law is a question of law that we review de novo. See State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995). Before addressing whether an instruction fairly allowed the parties to argue the case, the court must first determine whether the instruction accurately stated the law without misleading the jury. State v. Acosta, 101 Wash.2d 612, 619-20, 683 P.2d 1069 (1984). Jury instructions must be relevant to the evidence presented. State v. Hughes, 106 Wash.2d 176, 191, 721 P.2d 902 (1986). Instructing a jury so as to relieve the State of its burden to prove all of the elements of the case is reversible error. State v. Scott, 110 Wash.2d 682, 690, 757 P.2d 492 (1988). A constitutional error is harmless only if we are convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error. State v. Easter, 130 Wash.2d 228, 242, 922 P.2d 1285 (1996).

Issues

Whether, in an alternative means case, an instructional error that omits a required portion of a definition and is unsupported by the evidence can be harmless.

Whether the alternative means "exerts unauthorized control" is defined by former RCW 9A.56.010(7)(b) and (c), exclusively, thereby applying only to embezzlement cases.

Applicable Law

The theft statute reads in relevant part:

9A.56.030 Theft in the first degree—Other than a firearm. (1) A person is guilty of theft in the first degree if he or she commits theft of:

(a) Property or services which exceed(s) one thousand five hundred dollars in value other than a firearm as defined in RCW 9.41.010; or

(b) Property of any value other than a firearm as defined in RCW 9.41.010 taken from the person of another.

. . . .

9A.56.020 Theft—Definition, defense.

(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;...

. . . .

The terms "wrongfully obtain" and "exert unauthorized control" in RCW 9A.56.020(1)(a) are sometimes referred to together as theft by taking and subsection (1)(b) is sometimes referred to as theft by deception. See State v. Smith, 115 Wash.2d 434, 798 P.2d 1146 (1990).

The phrases "wrongfully obtain" and "exerts unauthorized control" are defined together in former RCW 9A.56.010(7), which reads:

(7) "Wrongfully obtains" or "exerts unauthorized control" means:

(a) To take the property or services of another;

(b) Having any property or services in one's possession, custody or control as bailee, factor, lessee, pledgee, renter, 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; or

(c) Having any property or services in one's possession, custody, or control as partner, to secrete, withhold, or appropriate the same to his or her use or to the use of any person other than the true owner or person entitled thereto, where the use is unauthorized by the partnership agreement[.] Former RCW 9A.56.010(7)(a)-(c).¹ Subsection (b) is commonly referred to as theft by embezzlement. See State v. Ager, 128 Wash.2d 85, 91, 904 P.2d 715 (1995) (citing State v. Vargas, 37 Wash.App. 780, 781-82, 683 P.2d 234 (1984)).

I. Alternative Means Analysis

A. Jury Unanimity

Linehan contends that, besides the alternative means provided in RCW 9A.56.020, the statute defining "wrongfully obtain or exert unauthorized control" describes at least one additional alternative means—theft by embezzlement. See former RCW 9A.56.010(7)(b). As such, Linehan asserts it was error for the trial court to fail to instruct the jury that it must be unanimous as to which means he used to commit theft since there was not substantial evidence supporting the theft by embezzlement "alternative."

In alternative means cases, jury unanimity as to the means used to commit the crime is not required if there is substantial evidence to support each of the alternative means charged. State v. Arndt, 87 Wash.2d 374, 377, 553 P.2d 1328 (1976). Linehan was charged with first degree theft under the language of RCW 9A.56.020(1)(a) and (b) and RCW 9A.56.030(1)(a):

TIMOTHY LINEHAN ... with intent to deprive another of property ... having a value in excess of $1,500 ... did obtain control over such property belonging to Washington Mutual Bank, by color and aid of deception, and, did exert unauthorized control over such property; and wrongfully obtain such property;

Contrary to RCW 9A.56.030(1)(a) and (b), and 9A.56.020(1)(a) and (b)....

Clerk's Papers at 37 (emphasis added). "Wrongfully obtain" and "exert unauthorized control" are defined together in subsection (7) of the general definitions section of the Theft and Robbery chapter of the revised code. Former RCW 9A.56.010(7). The commonly used phrase "theft by embezzlement" refers to the definition provided in subsection (b) of former RCW 9A.56.010(7).

B. Definition Statutes and Unanimity

Definition statutes do not create additional alternative means of committing an offense. State v. Laico, 97 Wash.App. 759, 763, 987 P.2d 638 (1999) (citing State v. Strohm, 75 Wash.App. 301, 309, 879 P.2d 962 (1994), review denied, 126 Wash.2d 1002, 891 P.2d 37 (1995)). See also State v. Marko, 107 Wash.App. 215, 220, 27 P.3d 228,(2001) (the definitions of "threat" do not create alternative elements to the crime of intimidating a witness); State v. Garvin, 28 Wash.App. 82, 86, 621 P.2d 215 (1980) (the definitions of "threat," for purposes of the extortion statute, do not create alternative elements to the crime but...