State v. Stanton

• Decision Date: 02 March 1993
• Docket Number: No. 13690-2-II,13690-2-II
• Citation: 68 Wn.App. 855,845 P.2d 1365
• Parties: The STATE of Washington, Respondent, v. Lynn STANTON, Appellant.
• Court: Washington Court of Appeals

Page 855

68 Wn.App. 855

845 P.2d 1365

The STATE of Washington, Respondent, v. Lynn STANTON, Appellant.

No. 13690-2-II.

Court of Appeals of Washington,

Division 2.

March 2, 1993.

John P. Brody, Jr., Port Orchard, for appellant.

C. Danny Clem, Pros. Atty., and Michael B. Savage, Deputy Pros. Atty., Port Orchard, for respondent.

MORGAN, Judge.

Lynn Stanton appeals convictions for first degree theft and unlawful issuance of a bank check (UIBC). We reverse and remand.

In 1983, Stanton obtained a general contractor's license from the Department of Labor and Industries. On October 29, 1987, however, the license was suspended due to total impairment of his contractor's surety bond.

In September 1988, Stanton contracted with Carole Krivanek to build a sun room with an exercise pool for approximately $22,000. Stanton knew he was not licensed as a contractor at that time. Although he estimated he could finish the job in 4 to 6 weeks, he actually took 3 months. Krivanek paid him $23,702 for his work.

On September 27, 1988, Stanton contracted to purchase a swim spa from Spa World for Krivanek's sun room. The spa cost $8,624, and Stanton made a down payment of $1,000. He was to pay the balance upon delivery. Spa World is owned by Mike Petrowske.

Stanton and Petrowske disagree on the date the spa was delivered and the circumstances under which Stanton made payments for it. However, they agree that regardless of when the check was actually written, Stanton asked Petrowske not to cash it immediately.

According to Stanton, the spa was delivered on October 5 or 6, 1988, and he paid an additional $4,000 at that time. Petrowske told him not to worry about the balance yet, because some additional equipment remained to be delivered. Petrowske was to come get the check after the spa was "up and running," in part because Petrowske wanted to sell Krivanek a spa maintenance program at the same time. On November 30, 1988, he wrote a check for the remaining $3,640, but he asked Petrowske not to cash it yet because there was not enough money in the bank to cover it.

Petrowske's version is that he received a check for $4,000 from Stanton around October 6-10, 1988, but the spa was not delivered until October 30, 1988. On October 30 Stanton gave him a check for the remaining $3,624. However, Stanton post-dated it to November 30, and Petrowske agreed not to cash it for 30 days. Petrowske called Stanton about the check during the first week in December. Stanton said he needed another 3 to 4 weeks, so Petrowske agreed to continue holding the check. Petrowske further states that he called Stanton a second time in early January 1989 to ask whether he could deposit the check, and Stanton told him the check was good. Stanton denies making the last statement.

In any event, Petrowske deposited the check in early January and it was returned for insufficient funds on January 5, 1989. He then presented the check a second time, but it was returned again for insufficient funds on January 11, 1989. In January, Stanton wrote 19 NSF checks, and his account eventually was closed because of too many such checks.

After the check failed to clear, Petrowske made numerous attempts to phone Stanton, but Stanton rarely, if ever, returned the calls. Subsequently, Petrowske's attorney persuaded Stanton to contact Petrowske, and the two of them agreed that Stanton would pay Petrowske $200 a month, do some carpentry work for him, and give him the titles of his two vehicles as collateral. Stanton then failed to make any payments or perform any carpentry work. He did turn over the vehicle titles, but neither he nor his wife signed them. Stanton's explanation for why he had not paid the balance of the contract was that his family "had to have a Christmas."

Eventually, Petrowske contacted the Kitsap County Prosecutor's Office, and that office filed charges. A second amended information alleged one count of theft in the first degree, one count of unlawful issuance of a bank check, and one count of contracting without a license.

Prior to trial, Stanton stipulated to facts sufficient to support a conviction for contracting without a license. He also moved in limine to exclude evidence of other contract disputes. Two were prior and one was subsequent to disputes being litigated. The State argued such evidence was admissible under ER 404(b) and the "doctrine of chances."

The first contract dispute involved a business called Evergreen Lumber, with whom Stanton had opened an account in late 1986 or early 1987. During the summer of 1987, the account became past due in the amount of approximately $6,500. All of that sum was due by August 10, 1987, and when Stanton failed to pay and failed to return phone calls, Evergreen recovered $6,000 by making a claim against his contractor's bond. It was this claim that impaired the bond and caused Stanton's contractor's license to be suspended.

The second contract dispute involved one Ahmet Chabuk, who had hired Stanton to do some carpentry work in the spring of 1987. The contract price was about $4,200. Stanton was to receive advances in accordance with a payment schedule. However, he repeatedly demanded unscheduled advances, and at one point stopped work for about a week. To induce him to finish the job, Chabuk wrote additional checks for about $1,000, but instead of finishing, Stanton again stopped work and removed his equipment from the job site. Chabuk stopped payment on the additional checks and, in the end, wound up paying about $3,900 for a job that was about three-quarters completed.

The third contract dispute involved a business called Harbor Pre-Fit Door, to whom Stanton became obligated for $3,091 in February, 1989. When Stanton came to pick up certain materials, he did not bring a check and was unable to pay. Although Harbor's policy was that each customer pay for materials upon pick up, it allowed Stanton to take the materials in exchange for his promise to return and pay. He never did so, and Harbor filed suit.

The trial court denied Stanton's motion in limine. It admitted the Evergreen and Chabuk disputes on the following rationale:

[T]he ultimate question the jury is going to have to wrestle with here is did Mr. Stanton get into financial difficulty after he contracted with these two people, the home owner, Krivanek, and his supplier, Petrowske, or was he already in financial difficulty and his plan or scheme was to continue in business and collect money from new customers, get products from new suppliers and use the money that he gets in hand to pay those that were on his back from the past. ¹

The trial court admitted the Harbor Door dispute by saying, "[E]ven though it is subsequent, the State is entitled to use [it] to show there was a common scheme or plan involved in this entire serious [sic] of transactions." ²

Ultimately, the jury convicted Stanton on all three counts: theft in the first degree, UIBC, and contracting without a license. Stanton then moved for arrest of judgment on grounds of insufficient evidence to prove count one, first degree theft, and count two, UIBC. He also moved for a new trial on grounds that evidence of other contract disputes was improperly admitted and that one of his proposed jury instructions was improperly denied. The trial court denied both motions.

Stanton now appeals his convictions for first degree theft and UIBC. He does not appeal his conviction for contracting without a license. He argues that the trial court erred in admitting evidence of other acts, in failing to give a proposed jury instruction, and in submitting the case to the jury.

I. EVIDENCE OF OTHER ACTS

Whether evidence of a defendant's other bad acts should be admitted at trial is governed by ER 404(b), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Before evidence of other crimes, wrongs, or acts can be admitted over proper objection, the trial court must determine that it is logically relevant to a material issue before the jury and that its probative value outweighs its potential for prejudice. ER 401; ER 403; State v. Kelly, 102 Wash.2d 188, 198, 685 P.2d 564 (1984); State v. Saltarelli, 98 Wash.2d 358, 361- 63, 655 P.2d 697 (1982); State v. Robtoy, 98 Wash.2d 30, 42, 653 P.2d 284 (1982); State v. Clark, 48 Wash.App. 850, 863, 743 P.2d 822, review denied, 109 Wash.2d 1015 (1987). In determining whether evidence is logically relevant, the trial court must find that it has a tendency to make more or less probable the existence of a fact that is of consequence to the action, ER 401, Saltarelli, 98 Wash.2d at 363, 655 P.2d 697; see State v. Mutchler, 53 Wash.App. 898, 901, 771 P.2d 1168, review denied, 113 Wash.2d 1002, 777 P.2d 1050 (1989), State v. Thompson, 47 Wash.App. 1, 11, 733 P.2d 584, review denied, 108 Wash.2d 1014 (1987), and generally that such fact will be similar to those listed in ER 404(b). Saltarelli, 98 Wash.2d at 362, 655 P.2d 697; see State v. Goebel (Goebel I ), 36 Wash.2d 367, 378-79, 218 P.2d 300 (1950). In weighing probative value against prejudicial effect, the trial court must exercise its discretion, and its decision will be overturned only for abuse of discretion. Robtoy, 98 Wash.2d at 42, 653 P.2d 284; Thompson, 47 Wash.App. at 12, 733 P.2d 584. However, "this balancing of probative value versus prejudice should be done on the record." State v. Jackson, 102 Wash.2d 689, 693, 689 P.2d 76 (1984); see State v. Smith, 106 Wash.2d 772, 776, 725 P.2d 951 (1986); State v. Tharp, 96 Wash.2d 591, 597, 637 P.2d 961 (1981); State v. Newton, 42 Wash.App. 718, 725, 714 P.2d 684 (1986), reversed on other grounds, 109 Wash.2d 69, 743 P.2d 254 (1987). Applying these principles to this case, we...