State v. Vargas
| Decision Date | 11 June 1984 |
| Docket Number | No. 11757-2-I,11757-2-I |
| Citation | 37 Wn.App. 780,683 P.2d 234 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Andrew VARGAS, Appellant. |
E. Paul Giersch, Seattle (Court-appointed), for appellant.
Norman K. Maleng, King County Pros. Atty., Kurt P. Hermanns, Deputy Pros. Atty., Seattle, for respondent.
Andrew Vargas appeals his conviction of first degree theft. During the summer of 1981, Vargas was the manager of the Rip Tide Apartments in Seattle. A number of the tenants paid their rent to Vargas in cash and received receipts. Some of these payments were never deposited into the Rip Tide's bank account. Vargas was arrested and charged with theft, and was convicted following a jury trial. On appeal, Vargas claims that the trial court erred by refusing to instruct the jury that theft requires an intent to permanently deprive another of property or services.
The statutory definition of theft provides three ways in which the crime can be committed:
(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; or
(c) To appropriate lost or misdelivered property or services of another, or the value thereof, with intent to deprive him of such property or services.
RCW 9A.56.020(1). However, "wrongfully obtains" or "exerts unauthorized control" (.020(1)(a)) is defined to include both theft by taking and embezzlement:
"Wrongfully obtains" or "exerts unauthorized control" means:
(a) To take the property or services of another; or
(b) Having any property or services in one's possession, custody or control as bailee, factor, pledgee, 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 own use or to the use of any person other than the true owner or person entitled thereto;
RCW 9A.56.010(7). Taken together, these statutes set out four distinct types of theft: theft by taking, embezzlement, theft by deception, and appropriation of lost or misdelivered property.
Vargas was originally charged by information with theft by deception. RCW 9A.56.020(1)(b). At trial, the State orally amended the information to charge Vargas pursuant to .020(1)(a) as well (theft by taking or embezzlement). The State apparently intended to utilize only the embezzlement alternative of .020(1)(a), so that Vargas would be charged with embezzlement and theft by deception.
Vargas first argues that intent to permanently deprive is necessary to support a conviction of theft by deception. We disagree. For each of the four types of theft, RCW 9A.56.020(1) requires only the "intent to deprive" the victim of property or services. However, "intent to permanently deprive" has been judicially required in cases of theft by taking. State v. Burnham, 19 Wash.App. 442, 445, 576 P.2d 917 (1978). The rationale for this holding was that the theft statute did not abrogate the intent requirements of common law larceny. Since statutory theft by taking corresponds to common law larceny, the Burnham court applied the common law rule that larceny requires an intent to deprive the owner permanently of his property. See R. Perkins, Criminal Law 266 (2d ed. 1969).
Where the statutorily defined crime was not larceny at common law, our courts have applied the intent requirement as provided by the statute. Thus, it has been held that intent to permanently deprive is not required for embezzlement. State v. Dorman, 30 Wash.App. 351, 355, 633 P.2d 1340 (1981). Similarly, where the statutorily defined theft resembles a form of common law larceny, but our Supreme Court has treated the statutory offense as distinct from larceny, the common law intent requirement does not apply. Thus, it has been held that intent to permanently deprive is not required for the appropriation of lost or misdelivered property. State v. Woll, 35 Wash.App. 560, 566, 668 P.2d 610 (1983), citing State v. Olds, 39 Wash.2d 258, 260, 235 P.2d 165 (1951).
At early common law, the act of obtaining title to another's property by deception was not a crime, but merely gave rise to a civil action. Theft by deception, in the early view, lacked the larcenous element of a trespass, the trespass being avoided by the fraudulent procurement of the consent of the victim. Later courts held that the fraud vitiated the consent, and found a constructive trespass in theft by deception. R. Perkins, at 296. Nevertheless, not every theft by deception constituted larceny. For example, if the thief obtained property from another by fraudulently representing that he intended only to borrow it, his possession of the other's property was a trespass, and hence larcenous. However, if the thief fraudulently induced the owner to part with title as well as possession of the property, it was held not to be a trespass, and hence not larcenous. The theory invoked for this distinction was that, if title passed to the thief, his appropriation was of his own property and thus could not be a trespass. R. Perkins, at 246-47.
Because Vargas fraudulently induced the tenants of the Rip Tide to part with "title" to their rent payments, his acts were not larceny at common law. Pursuant to the Burnham analysis, therefore, the common law "intent to permanently deprive" is not required here. 1 However, even if Vargas' acts did amount to common law larceny, the Washington Supreme Court has never applied the common law intent requirement to the statutory offense of theft by deception. State v. Williams, 163 Wash. 419, 427-28, 1 P.2d 307 (1931), modified, 166 Wash. 704, 8 P.2d 1118 (1932); State v. Wheeler, 101 Wash. 293, 172 P. 225 (1918). Although these cases construed a predecessor theft statute, they indicate that our Supreme court has distinguished the statutory offense of theft by deception from its common law counterparts. Accordingly, we hold that theft by deception, as defined in RCW 9A.56.020(1)(b), does not require the intent to permanently deprive another of property or services.
Pursuant to the amended information, Vargas was charged alternatively with...
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