State v. Smith
| Decision Date | 27 May 2020 |
| Docket Number | No. 51946-1-II,51946-1-II |
| Citation | 464 P.3d 554,13 Wash.App.2d 420 |
| Parties | STATE of Washington, Respondent. v. Anthony Jerrod SMITH, Appellant. |
| Court | Washington Court of Appeals |
Catherine E. Glinski, Glinski Law Firm PLLC, Po Box 761, Manchester, WA, 98353-0761, for Appellant.
Kristie Barham, Pierce County Prosecuting Attorney's Off, 930 Tacoma Ave. S Rm. 946, Tacoma, WA, 98402-2171, Jeremy Aaron Morris, Glisson & Morris, 623 Dwight St., Port Orchard, WA, 98366-4619, for Respondent.
PART PUBLISHED OPINION
Maxa, P.J. ¶ 1 Anthony Smith appeals his convictions of one count of first degree theft, two counts of forgery, and one count of money laundering. Smith's convictions arose from his involvement in certain transactions with his half-brothers, Derek James and Adrian Broussard. The transactions involved creating auto dealer businesses and using invalid social security numbers to obtain loans from credit unions to purchase cars from the auto dealers. The men then would deposit the loan amount into a bank account for one of the auto dealer businesses but would not actually complete the car sale.
¶ 2 Smith created an auto dealer business and opened a business banking account for that business using a social security number belonging to another person. James obtained a loan from a credit union to purchase a car from Smith's business. The credit union issued a check payable to Smith's business, which was deposited into the business's bank account. Two days later, Smith opened another business banking account using the same social security number and transferred the funds from the credit union loan in the first account to that new account. Shortly afterward, Smith withdrew nearly all the funds from the new account. There was no indication that James ever purchased the car for which he obtained the loan.
¶ 3 In the published portion of this opinion, we hold that (1) the evidence was sufficient to convict Smith of the two counts of forgery because there was evidence that his two bank account applications had legal efficacy and were falsely completed, and (2) the trial court did not err in refusing to give an instruction defining "instrument" to include a legal efficacy requirement because the legal efficacy of the bank account applications was a question of law for the trial court. In the unpublished portion, we address and reject Smith's other arguments but conclude that the criminal filing fee must be stricken. Accordingly, we affirm Smith's convictions, but we remand for the trial court to strike the criminal filing fee from the judgment and sentence.
FACTS
Business Formation, Bank Account Applications, and Loan Transactions
¶ 4 Smith, James, and Broussard each registered businesses with the Secretary of State. In April 2016, James registered a business named "Fast Lane Autos." On the same day, Broussard registered a business named "Brown Bear Auto." In June, Smith registered a business named "A.J. Motors."
¶ 5 On June 23, Smith opened a Wells Fargo business banking account for A.J. Motors using a social security number belonging to a child from Indiana. Around the same time, James and Broussard also opened bank accounts for their businesses.
¶ 6 On June 24, James obtained a $14,840 loan from Inspirus Credit Union to purchase a car from Smith's business, A.J. Motors. James applied for the loan using the social security number of a child in Ohio. On June 28, the credit union issued a check for $14,840 payable to A.J. Motors. On June 29, the check was deposited into A.J. Motors’ bank account. This deposit was the first and only deposit of funds into the account.
¶ 7 On July 1, Smith returned to the Wells Fargo branch where he had opened the A.J. Motors account and asked a banker to stop payment on an unauthorized deposit to the account for $14,840. The banker was unable to do so because of the status of the deposit. The banker offered to initiate a procedure involved opening a new account, transferring all the funds from the old account to the new account, and closing the old account. Smith opened another Wells Fargo business banking account for A.J. Motors, again using the social security number of the Indiana child. With Smith's authorization, the bank transferred all of the $14,840 in the old account to the new account.
¶ 8 On July 11, surveillance footage showed Smith making two withdrawals from the new account, the first in the amount of $5,000 and the second in the amount of $9,800. Without the prior transfer from the initial account, there would not have been sufficient funds in the new account to make these withdrawals. There was no indication that James ever purchased the car for which he obtained the loan.
¶ 9 Tacoma Police investigated the transactions involving Smith, James, and Broussard. The State later charged Smith with two counts of forgery, one count of first degree theft, and one count of money laundering.
Motion to Dismiss Forgery Charges
7 Report of Proceedings (RP at 994-95.
Jury Instructions
¶ 11 The trial court gave a jury instruction that stated, "A person commits the crime of Forgery when, with intent to injure or defraud, he or she falsely completes a written instrument or possesses, offers, or puts off as true, a written instrument which he or she knows to be forged." Clerk's Papers (CP) at 299. The court also gave the following instruction: " ‘Written instrument’ means any paper, document or other instrument containing written or printed matter or its equivalent." CP at 301.
¶ 12 Smith proposed an instruction that stated, "An instrument is something, which, if genuine, may have legal effect or be the foundation of legal liability." CP at 224. He argued that the definition of "instrument" as proposed in his instruction reflected the common law definition. The trial court declined to give this instruction.
Conviction
¶ 13 The jury found Smith guilty of two counts of forgery, one count of first degree theft, and one count of money laundering. Smith appeals his convictions.
ANALYSIS
¶ 14 Smith argues that the State failed to present sufficient evidence on the two forgery counts because it failed to establish that (1) the bank account applications Smith completed for A.J. Motors had legal efficacy and (2) the applications were falsely completed. We disagree.
¶ 15 The test for determining sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Cardenas-Flores , 189 Wash.2d 243, 265, 401 P.3d 19 (2017). In a sufficiency of the evidence claim, the defendant admits the truth of the evidence and the court views the evidence and all reasonable inferences drawn from that evidence in the light most favorable to the State. Id . at 265-66, 401 P.3d 19. Credibility determinations are made by the trier of fact and are not subject to review. Id . at 266, 401 P.3d 19. Circumstantial and direct evidence are equally reliable. Id .
Under this statute, the existence of a written instrument is an element of forgery. State v. Ring , 191 Wash. App. 787, 791, 364 P.3d 853 (2015).
Although this definition refers to an "other instrument," neither RCW 9A.60.020(1) nor RCW 9A.60.010(7) defines "instrument." Therefore, the common law provides the definition. Ring , 191 Wash. App. at 792, 364 P.3d 853 ; see RCW 9A.04.060 ().
¶ 18 "Under the common law, an instrument is something that, if genuine, would have legal effect or be the foundation of legal liability." Ring , 191 Wash. App. at 792, 364 P.3d 853. Therefore, a "written instrument" as used in RCW 9A.60.020 is defined as a writing that has legal efficacy. Id. Under this definition, "a writing can support a forgery charge only if the writing would have legal efficacy if genuine." Id.
¶ 19 Smith argues that the evidence does not establish that the bank account applications at issue constituted "written instruments" under the forgery statute because there was no evidence that the applications had any legal effect or that they could be foundations for legal liability. We disagree.
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