State v. Reid

• Decision Date: 17 May 1994
• Docket Number: No. 12080-5-III,12080-5-III
• Citation: 872 P.2d 1135,74 Wn.App. 281
• Parties: The STATE of Washington, Respondent, v. Pamela R. REID, Appellant.
• Court: Washington Court of Appeals

Page 281

74 Wn.App. 281

872 P.2d 1135

The STATE of Washington, Respondent, v. Pamela R. REID, Appellant.

No. 12080-5-III.

Court of Appeals of Washington Division 3, Panel Four.

May 17, 1994.

Reconsideration Denied June 30, 1994.

Brian C. O'Brien, Charles S. Dorn, Spokane, for appellant.

Ray D. Lutes, Pros. Atty., Asotin, for respondent.

SWEENEY, Judge.

Pamela R. Reid and Carmen Correll, an elderly widow, became friends in 1986. In 1987, Ms. Reid began asking Mrs. Correll for money. During the next few years, Mrs. Correll wrote checks to Ms. Reid, or on her behalf, in the amount of $21,641.69. In her check register, Mrs. Correll noted that the checks were loans. Ms. Reid repaid $5,273.23. After Mrs. Correll's family learned of the transfers of money to Ms. Reid, they notified authorities and the State charged Ms. Reid with first degree theft. ¹ At trial, the jury was instructed that "[f]raudulent intent may be inferred from the retention for a long period of time of property to which one has no right." The jury returned a verdict of guilty.

On appeal, Ms. Reid contends (1) the inference instruction relieved the State of its burden of proving each element of the offense; (2) the conviction was based solely upon her failure to pay a debt and therefore violated the state constitution; (3) the statute of limitation barred prosecution for conduct occurring 3 years before the date of the information; and (4) the issue of whether the conduct constituted a common scheme or plan was not before the jury. Because we hold the inference instruction violated Ms. Reid's right to due process, we reverse and remand for retrial.

FACTS

Ms. Reid and Mrs. Correll became friends in 1986. They were close companions and saw each other two to three times a week. Ms. Reid spent holidays with Mrs. Correll's family.

In 1987, Ms. Reid began asking Mrs. Correll for money. Mrs. Correll felt sorry for Ms. Reid and thought she could help by giving her money. She paid many of Ms. Reid's expenses, including car repairs, school tuition, books, feed for horses, rent and utility bills, lawn mowing, groceries, and telephone bills. To avoid repossession of Ms. Reid's washer, clothes dryer, range and refrigerator, Mrs. Correll paid $1,648 to an appliance store.

Mrs. Correll wrote checks totaling $21,641.69 to Ms. Reid or on her behalf. When writing the checks, Mrs. Correll noted in her register the money was "for Pam". She never asked Ms. Reid to repay the money nor did she calculate the exact amount Ms. Reid owed. No promissory note was signed, but occasionally Ms. Reid would say, "I'll pay ... this back some day." When Ms. Reid repaid some money, Mrs. Correll noted the payment in her check register. She repaid a total of $5,273.23.

By information dated January 29, 1991, Ms. Reid was charged with first degree theft of property exceeding $250 but less than $1,500 for the period on or about February 1, 1988 and July 30, 1990. An amended information was filed on April 22 charging Ms. Reid with first degree theft of an amount exceeding $1,500 for the same period. On May 21, the date set for trial, the State again amended the information to charge Ms. Reid with first degree theft between August 1, 1987 and July 30, 1990. Ms. Reid objected, arguing the 3-year statute of limitation applied. The court allowed the amendment and the matter proceeded to trial.

Ms. Reid testified it was her understanding she would repay Mrs. Correll when she graduated from Washington State University and had a stable, full-time job. The jury returned a verdict of guilty. Ms. Reid appeals.

FRAUDULENT INTENT INSTRUCTION

The court instructed the jury that "[f]raudulent intent may be inferred from the retention for a long period of time of property to which one has no right." Ms. Reid first contends the instruction effectively relieved the State of its burden of proving, beyond a reasonable doubt, each element of the crime. She maintains the instruction created a mandatory presumption which violated her right to due process. ² Sandstrom v. Montana, 442 U.S. 510, 517, 99 S.Ct. 2450, 2455, 61 L.Ed.2d 39 (1979).

Mandatory Presumptions. A presumption refers to a legal conclusion--if fact A (the basic fact) is proved at trial, the court assumes, as a rule of law, that fact B (the presumed fact) is true until it is rebutted by the opposing party. State v. Jackson, 112 Wash.2d 867, 873, 774 P.2d 1211 (1989); State v. Savage, 94 Wash.2d 569, 573, 618 P.2d 82 (1980); 5 K. Tegland, Wash.Prac., Evidence Law and Practice § 65, at 179 (3d ed. 1989).

A mandatory presumption "instructs the jury it 'must find the [presumed] elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.' " State v. Hanna, 123 Wash.2d 704, 710, 871 P.2d 135 (1994) (quoting County Court of Ulster Cy. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777 (1979)). Mandatory presumptions may not shift the burden of proof on any element of the offense because to do so conflicts with the overriding presumption of innocence and invades the fact finding function. Savage, 94 Wash.2d at 573, 618 P.2d 82; State v. Delmarter, 68 Wash.App. 770, 776, 845 P.2d 1340 (1993) (citing Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985)).

The instruction here allowed, but did not require, that the jury find fraudulent intent. The instruction is not a mandatory presumption. See State v. Shipp, 93 Wash.2d 510, 514, 610 P.2d 1322 (1980) (not a mandatory presumption to advise the jury it was permitted but not required to find knowledge when a reasonable person would have knowledge).

Inferences. Inferences are by definition permissive. ³ They permit, but do not require, the trier of fact to infer an element of the offense from an evidentiary fact. Savage, 94 Wash.2d at 574, 618 P.2d 82. The use of an inference does not relieve the State of its burden to prove each element of the crime because "the State must still convince the jury the suggested conclusion should be inferred from the basic facts proved." Hanna, 123 Wash.2d at 710, 871 P.2d 135; State v. Johnson, 100 Wash.2d 607, 617, 674 P.2d 145 (1983) (inference may not shift the burden of proof on any element from the State to the defendant), overruled on other grounds in State v. Bergeron, 105 Wash.2d 1, 711 P.2d 1000 (1985); 5 K. Tegland, at 181-82.

To determine whether an inference instruction violates a defendant's right to due process of law, we must determine whether the instruction was only part of the State's proof supporting an element of the crime or whether the State relied solely on the inference. Hanna, 123 Wash.2d at 710-11, 871 P.2d 135. If the inference was only part of the proof, due process requires the "presumed fact to flow 'more likely than not' from proof of the basic fact." Hanna, at 710, 871 P.2d 135 (quoting Ulster, 442 U.S. at 165, 167, 99 S.Ct. at 2229, 2230). If, on the other hand, the inference was the sole basis for a finding of guilt, Hanna suggests the inference must satisfy the stringent reasonable doubt standard. Hanna, 123 Wash.2d at 711, 871 P.2d 135; see Delmarter, 68 Wash.App. at 784-85, 845 P.2d 1340.

In Hanna, four eyewitnesses saw a vehicle being driven by Mr. Hanna racing with another car at speeds in excess of 80 m.p.h. Mr. Hanna's vehicle swerved across the median into oncoming traffic. Several accident reconstruction experts testified. One opined that Mr. Hanna's vehicle was traveling at 103 m.p.h. Mr. Hanna testified he was traveling at about 75 m.p.h. The court instructed the jury that "[a] person who drives in excess of the maximum lawful speed at the point of operation may be inferred to have driven in a reckless manner." Hanna, 123 Wash.2d at 709, 871 P.2d 135. Mr. Hanna argued that the inference instruction relieved the State of its burden to prove each element of the offense. The Supreme Court held the reckless inference instruction was only part of the prosecution's proof of guilt and concluded the "more likely than not" standard applied.

In a companion case, State v. Kenyon, 123 Wash.2d 720, 871 P.2d 144 (1994), the jury was also given an instruction which allowed it to infer reckless driving. There, the State introduced evidence that Mr. Kenyon was driving 43 to 60 m.p.h. in a 30 m.p.h. zone, at night, on a slippery road surface, with a flat tire and two overinflated tires. A witness testified Mr. Kenyon's car was " 'sashaying all over the road' ". Kenyon, 123 Wash.2d at 722, 871 P.2d 144. Having concluded the inference instruction was part of the State's proof, the Supreme Court determined the instruction was proper because the "elemental fact of reckless driving more likely than not flowed from the proved fact of Kenyon's excessive speed." Kenyon, 123 Wash.2d at 724, 871 P.2d 144.

Here, the State maintains the inference of fraudulent intent was not the sole proof of intent to deprive and therefore the lesser preponderance standard should apply. It argues other evidence included Ms. Reid's obtaining money from another person at the same time she was obtaining money from Mrs. Correll, her 1982 felony conviction for issuance of a nonsufficient funds check, and her lying to police when she said Mrs. Correll did not pay her rent. We disagree.

The fact Ms. Reid may have obtained money from another person at the same time she was receiving money from Mrs. Correll does not establish that she did not intend to repay Mrs. Correll. The 1982 conviction does not establish Ms. Reid's fraudulent intent to deprive Mrs. Correll. Nor does the fact Ms. Reid initially lied to police establish that she obtained money from Mrs. Correll with fraudulent intent. If proven, the conviction and the lie to police are relevant only on the issue of Ms. Reid's credibility at trial.

Therefore, unlike Hanna and Kenyon, the inference here is the sole basis for a finding of guilt. Accordingly, we must...