Opinion
No. 40418-4-II
11-01-2011
STATE OF WASHINGTON, Respondent, v. DANNY JAMES LAFEVER, Appellant.
UNPUBLISHED OPINION
Hunt, J. — Danny James Lafever appeals his jury convictions for criminal impersonation and forgery based on accomplice liability for his brother Darren's impersonating him during work crew. Lafever argues that we should vacate his convictions and remand with instructions for the trial court to dismiss the charges with prejudice because (1) the record lacks substantial evidence that he acted as an accomplice in any of Darren's criminal actions; and (2) substantial evidence does not support that the work crew sign-in sheet was a "written instrument," an element of the crime of forgery. We affirm.
For the sake of clarity, we refer to Lafever's brother by his first name, Darren; we intend no disrespect.
FACTS
I. Background
On February 4, 2008, a Cowlitz County District Court ordered Danny Lafever to serve ten days of out-of-custody work crew. That same day, Lafever took his referral for work crew to Offender Services, located above the courtroom. There, Lafever signed an application for work crew with the help of Offender Services employee Robin Lux, who gave Lafever a set of work crew guidelines, which he also signed. These guidelines detailed where Lafever was to report for work crew, when he was to report, that he was to bring his own sack lunch and water, what he was to wear, that he was required to sign in to work crew on a time sheet, and that he was required to contact Offender Services immediately if he was unable to participate in work crew on a scheduled day.
Out-of-custody work crew allows a convicted offender to do community service—picking up litter or weeding, for example—instead of serving jail time. The offender's failure to report to do work crew or his failure to complete a scheduled day of work crew results in a warrant and a court hearing, at which the trial court is likely to convert the work-crew order into jail time.
Lafever indicated to Offender Services that he wanted to perform his work crew on weekends, and he signed a copy of the work-crew rules in which he agreed that his first day of work crew would be on February 16, 2008, a Saturday, with check-in no later than 7:30 that morning. These rules that Lafever signed also stated that noncompliance with the work crew rules would result in Lafever's removal from the program and would allow the State to place him back in confinement.
Although he signed the work crew documents and agreed to the above conditions, Lafever did not intend to participate in work crew because he believed the schedule conflicted with his job, which he did not want to lose. After about six months of unemployment, Lafever had acquired an apprenticeship electrician position, for which he was working every day of the week some 40 miles from where he lived, he sometimes stayed overnight near the job site several times per week. Afraid that he would lose this job if he did either the work crew or jail time, Lafever decided to sign up for work crew because his attorney told him that doing so would at least buy him some time before the court converted his work crew into jail time, at which point he might then be able both to serve his time in jail and to keep his job. Apparently, Lafever made no effort to harmonize his work and work-crew schedules.
The record indicates that Offender Services tried to work with personal schedules in setting work crew schedules and that, unlike some offenders, Lafever had no fixed deadline for completing his work crew. Nevertheless, the record reflects no effort by Lafever to notify the trial court or Offender Services about his work situation or to take any steps in an attempt to harmonize his personal work schedule with his work crew schedule.
At the work crew check-in facility at 7:30 that Saturday morning, Lafever's brother Darren presented himself as Lafever to Vic Tiehen, the work-crew officer, and then signed the work crew sign-in sheet as Lafever. Over the next two months, Darren completed the following nine days of work crew for Lafever: February 16, 17, 23, 24; March 1, 2, 8, 15, and 22. On each of these days, Darren signed in as "Danny Lafever." I Verbatim Report of Proceedings (VRP) at 16-17; Ex. 2.
According to Lafever, he did not discuss work crew with Darren because the two did not have any contact with each other during this time; but he (Lafever) did talk with his mother and father about his work crew and his intent not to complete his assignment. Darren claimed that (1) he had heard about his brother's work-crew assignment from their mother; and (2) having done several work-crew assignments in the past himself, he decided to do Lafever's work crew because he was not working then, he had the spare time, and he did not want to see Lafever in jail and out of work.
At the end of March, concerns arose within Offender Services that the person presenting himself for work crew was not, in fact, Danny Lafever. To address these concerns, Tiehen asked for photo ID from Darren when he (Darren) showed up for Lafever's tenth and final day of work crew on April 1, 2008. Darren replied that he needed to go to his car to get his ID. About five minutes later, Darren came back and told Tiehen that he must have left his ID at home. Tiehen told Darren that he would wait for him until 8:30 that morning (an hour after the scheduled check-in time) while Darren went home to get the ID. Darren never returned.
A few days later, Tiehen spoke with Cowlitz County Sheriff's Deputy Mark Johnson about the suspicion that someone else was working Danny Lafever's work-crew assignment. After reviewing Tiehen's written report about what had happened when Tiehen had asked for Darren's ID, Johnson decided to investigate. Johnson visited Lafever's residence on April 13, 2008. Lafever was not home; but Johnson did speak with Darren, who was there and identified himself truthfully. When Johnson began to question Darren about the work crew investigation, Darren requested an attorney. At that point, Johnson gave Darren a business card with the case number on it and requested that Lafever contact Johnson about the case.
According to both Lafever and Darren, they first communicated with each other about Darren's working Lafever's work crew after Johnson left Lafever's residence that day in April. Frightened by Johnson's visit, Darren called Lafever and told him about the conversation.
Shortly thereafter, Lafever called Johnson. After Johnson told Lafever about the suspicion that someone else had been doing his work crew and about the resultant investigation, Johnson asked Lafever whether he had been completing his own work crew. Lafever lied to Johnson, indicating that he had been completing his own work crew and relaying that he had already completed nine days of his assignment.
According to Lafever, when he lied to Johnson, he "was just caught up in the moment" and was trying to protect his brother Darren. I VRP at 97.
After speaking with Lafever, Johnson wrote up a report and submitted the case to the prosecutor's office for evaluation. A few weeks later, the evaluation came back with a request to construct a photo montage for Tiehen to review. In May, Cowlitz County Sheriff's Deputy Fred Taylor showed the anonymous six-person photo montage to Tiehen, who immediately identified Darren's photo as the only person who had represented himself to be Danny Lafever at work crew. Johnson then presented this new information to the prosecutor's office. The State later charged Darren with offenses arising out of his impersonations of Lafever; Darren accepted a plea bargain offer for these charges.
Meanwhile, the sentencing court that had ordered Lafever to perform work crew held a June 2008 hearing to determine whether Lafever had completed his work crew. Lafever claimed that (1) he had performed his own work crew; (2) he had managed to complete nine out of the ten days of work crew that the sentencing court had ordered; (3) when he showed up for his last day of work crew, they had unexpectedly requested his ID; and (4) because he did not have his ID at that moment, they would not allow him to complete his work crew that day. The sentencing court converted the ten-day work-crew order to ten days in jail, which Lafever served.
When, at this June hearing, Lafever lied to the sentencing court about having performed his own work crew, he was unaware of the ongoing criminal investigation that would result, not only in Darren's pleading guilty to charges against him for doing Lafever's work crew, but also in the charges the State formally brought against him (Lafever) in March 2009. Once Lafever found out about the charges against him at issue here, he no longer claimed to have done his own work crew.
II. Procedure
On March 12, 2009, the State charged Danny Lafever with ten counts of first degree criminal impersonation and nine counts of forgery under a theory of accomplice liability for the criminal impersonation and forgery crimes that his brother Darren had committed and to which Darren had plead guilty. At his jury trial, both parties stipulated that Darren was the person who had signed in at work crew as "Danny Lafever" for those nine days that Darren performed work crew for Lafever. I VRP at 16-17. After the State rested, Lafever moved to dismiss, arguing that the State had failed to establish a prima facie case against him for accomplice liability; the trial court denied the motion. Lafever moved for a directed verdict after the defense rested, arguing insufficient evidence to convict beyond a reasonable doubt; the trial court denied this motion as well. The jury found Lafever guilty of all 19 counts. The trial court denied Lafever's motion for arrest of judgment and for a new trial. Lafever appeals.
See RCW 9A.60.040(1)(a).
See RCW 9A.60.020(1).
See RCW 9A.08.020.
ANALYSIS
Lafever argues that substantial evidence does not support his convictions because (1) the record lacks substantial evidence that he acted as an accomplice in any of Darren's work-crew-related criminal impersonations and forgeries; and (2) substantial evidence does not support the conclusion that the work crew sign-in sheet was a "written instrument" for purposes of proving that element of forgery. Br. of Appellant at 10. Both arguments fail.
I. Standards of Review
In a criminal case, the State must prove each element of a crime beyond a reasonable doubt to satisfy the due process demands of article 1, section 3 of the Washington Constitution and the Fourteenth Amendment of the United States Constitution. State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). To satisfy this burden, the State must present substantial evidence supporting a finding that the State has proved each of the crime's elements beyond a reasonable doubt. State v. Anderson, 96 Wn.2d 739, 742, 638 P.2d 1205 (1982); Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981).
We review the record to determine whether the State produced substantial evidence to support the challenged elements of the crimes. State v. Henjum, 136 Wn. App. 807, 810, 150 P.3d 1170 (2007). Substantial evidence exists when there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Importantly, this test for sufficient evidence in a criminal case does not require the State to convince the appellate court that the defendant is guilty beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980); State v. Smith, 31 Wn. App. 226, 228, 640 P.2d 25 (1982) ("[T]his inquiry does not require the reviewing court to determine whether it believes the evidence at trial established guilt beyond a reasonable doubt but rather whether any rational trier of fact could be so convinced") (emphasis added).
A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. State v. Spruell, 57 Wn. App. 383, 385, 788 P.2d 21 (1990). We draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007). Reviewing courts defer to the trier of fact for purposes of resolving conflicting testimony and weighing the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)). Witness credibility is a matter for the trier of fact to determine, which we do not address on appeal. State v. McBride, 74 Wn. App. 460, 462, 873 P.2d 589 (1994).
The law makes no distinction between the weight given to either direct or circumstantial evidence. State v. Clay, 144 Wn. App. 894, 897-98, 184 P.3d 674 (2008), review denied 165 Wn.2d 1014 (2009). This case involves primarily circumstantial evidence, on which the trial court here correctly instructed the jury.
II. Accomplice Liability
Lafever first argues that substantial evidence does not support that he acted as an accomplice in Darren's criminal impersonations and forgeries. We disagree.
The State charged Lafever as an accomplice under RCW 9A.08.020 for the criminal impersonation and forgery crimes that his brother Darren had committed and to which Daren had pleaded guilty. RCW 9A.08.020 provides, in pertinent part:
(1) A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable.Thus, a person is an accomplice of another who commits a crime if he (1) solicits, requests, or otherwise encourages another to commit a crime; and (2) has knowledge that such encouragement will promote or facilitate the commission of the specific crime.
(2) A person is legally accountable for the conduct of another person when:
[...]
(c) He or she is an accomplice of such other person in the commission of the crime.
(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he or she
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it[.]
At trial, Lafever claimed that he did not have knowledge of Darren's crimes until after Darren had committed them and, therefore, he (Lafever) could not have solicited or aided these crimes. On appeal, Lafever contends that even the "extremely suspicious" circumstances under which Darren performed Lafever's work crew do not constitute substantial evidence of his (Lafever's) accomplice liability and, thus, do not support his convictions. Br. of Appellant at 12. The evidence the State presented, however, permitted the jury to draw reasonable inferences that Lafever (1) encouraged and/or recruited Darren to commit criminal impersonation and forgery, and (2) had knowledge of Darren's criminal conduct. The jury had sufficient evidence to reasonably conclude that Lafever was Darren's accomplice.
A. Lafever's Encouragement of Darren's Crimes
The State presented sufficient evidence to support the jury's reasonable inference that Lafever encouraged Darren to commit the crimes of criminal impersonation and forgery. First, the jury reasonably concluded that Lafever communicated the details of his work-crew assignment to Darren before work crew started. Offender Services had given Lafever very specific instructions for work crew that Darren was not likely to have known unless Lafever had told him. Darren knew that Lafever's work crew assignment started on February 16, 2008, at 7:30 am, at the South Parking Lot of the Hall of Justice. Darren also knew about Lafever's preference for working weekends.
Lafever attempted to refute this evidence by showing, through Darren's testimony, that (1) Darren had heard about Lafever's work-crew assignment from their mother; (2) Darren knew what to do on work crew because he had completed work crew for himself on previous occasions; and (3) Lafever himself testified that the only people he told about his plan not to perform work crew were his mother and father. But the record does not reveal exactly what Lafever claimed to have told his parents about this plan; nor does it reveal exactly what his mother had supposedly revealed to Darren about this plan. As sole judges of the witnesses' credibility and the weight of the evidence, the jury could have reasonably inferred that Lafever did not casually reveal such specific details of his work crew assignment to his parents over idle conversation, but rather had communicated them directly to Darren in an attempt to encourage Darren to assume Lafever's work crew duties.
Second, the jury reasonably could have inferred (1) that Lafever and Darren were in constant contact throughout Lafever's work crew assignment period, and (2) that Lafever had encouraged Darren to commit these crimes at some point during that time period. Both Lafever and Darren testified that they had no contact during the time that Lafever was working his new electrician job at the beginning of February 2008. Based on this testimony, Lafever argues on appeal that he and Darren had no contact between the beginning of February 2008 and April 13, 2008, when Darren finally called Lafever after Darren's encounter with Officer Johnson. The jury could have reasonably inferred that this testimony was not credible and that Lafever and Darren were in contact throughout the course of Darren's criminal conduct.
Third, Lafever and Darren purportedly had a close relationship that was strong enough to cause both to deceive officers of the court and law to protect one another. For example, Darren answered the door during Officer Johnson's visit to Lafever's residence, strongly suggesting that the two brothers had regular access to each other's dwellings. Two and one-half months of no communication between two close brothers who live in the same town, who regularly visit each other's residences, and who purport to have a close relationship could have rung false to a reasonable jury.
Although it is plausible that the brothers' mother could have acted as an intermediary, transmitting this information from Lafever to Darren, "a fair-minded, rational person" could also have inferred that Darren heard this concern directly from Lafever. Hill, 123 Wn.2d at 644.
Fourth, the jury could have reasonably inferred that, as the one who stood to gain the most from Darren's actions, Lafever actively recruited Darren to impersonate him for his work crew assignment. If the brothers' plan had succeeded, Lafever would have avoided both jail time and work crew obligations, and presumably he would also have been able to keep his electrician job. Darren, on the other hand, would have stood to gain little, aside from the knowledge that his brother would avoid 10 days of jail time. Moreover, the jury could have reasonably inferred that, during his conversation with Officer Johnson and his June 2008 sentencing hearing, Lafever manifested his intent to take advantage of Darren's criminal actions by attempting to take credit for Darren's nine days of work crew.
B. Lafever's Knowledge of Darren's Crimes
The State also presented sufficient evidence to support the jury's reasonable inference that Lafever had knowledge of Darren's criminal activities and, thus, knew that his actions would promote Darren's crimes of criminal impersonation and forgery. First, the jury could have reasonably inferred that Lafever had direct knowledge of Darren's course of criminal conduct as a result of the brothers' constant contact between February and May 2008. As we have noted above, the evidence showed that Darren had regular access to Lafever's residence. Darren knew of Lafever's plan to be truant from work crew while he worked at his electrician job; Darren also knew the specific details of Lafever's work crew assignment, even though the two brothers purportedly lived in separate houses. Moreover, within a manner of hours of Officer Johnson's leaving his card with Darren on April 13, 2008, Lafever called Johnson's number with some apparent knowledge of Darren's impersonation and forgery, namely the number of Darren's completed work days. The content of this call suggested that at some point Darren had given Johnson's card to Lafever. The jury could reasonably conclude that, because of the close relationship between the brothers, Lafever had knowledge of Darren's criminal conduct.
Lafever testified that he received a phone call from Darren concerning Johnson's visit and did not meet with Darren because he, Lafever, was "at work." I VRP at 95.
Second, Lafever's actions and statements indicated that he had intimate knowledge of Darren's criminal actions and that the two brothers were working in concert. In a few short hours after he "found out . . . [for] the first time" about Darren's actions, Lafever relayed to Officer Johnson the exact number of days that Darren had worked on work crew. I VRP at 96. And at his June 11, 2008 sentencing hearing, Lafever indicated that he knew about Darren's ID incident. From this the jury could have reasonably inferred that Lafever had continuous and intimate knowledge of Darren's criminal actions.
Third, a jury could also have reasonably inferred that Lafever knew of Darren's criminal actions based on Lafever's inactions. As we have explained above, Lafever's plan was to work at his electrician job for two months without attending work crew, after which he would then take 10 days of jail time; but he never followed through on this plan, despite an opportunity to do so at his sentencing hearing on June 11, 2008, four months after he signed up for work crew. Nor, at any point during his work crew assignment period did Lafever call Offender Services to report an excused absence, as was required under the terms of his voluntary participation in work crew. Furthermore, despite having had ample time to cool down after lying while "caught up in the moment," I VRP at 97, Lafever attempted to take credit for Darren's nine days of work and did not recant this lie until March 11, 2009, when he was charged as an accomplice to Darren's crimes. From this, the jury could have reasonably inferred that Lafever failed to act because he had contemporaneous knowledge of Darren's criminal actions.
As we mention above, Lafever lied to the trial court at his June 11, 2008 sentencing hearing, in an apparent attempt to avoid his ten days of jail time: Lafever lied when he asserted that he had completed nine days of his work crew and was turned away on the final day because he forgot his ID. Nevertheless, the trial court converted Lafever's ten work crew days into ten days in jail.
We hold that the jury could have reasonably concluded that Lafever (1) had knowledge of Darren's crimes; (2) actively encouraged Darren to commit them; and (3) thus, was an accomplice to Darren's crimes.
III. Written Instrument
Lafever next argues that substantial evidence does not support his forgery conviction. More specifically, he contends that the "Out of Custody Work Crew" document (the sign-in sheet), Ex. 2, was not a "written instrument" within the definition of RCW 9.A.60.020(1)(b) because it does not have "legal effect." Br. of Appellant at 16 (internal quotation marks omitted). The State counters that the work crew sign-in sheet had legal effect because it was "used to monitor [Lafever's] performance of his work crew sentence" and could have been the foundation for jail time. Br. of Resp't at 12. We agree with the State.
RCW 9A.60.020 provides:
(1) A person is guilty of forgery if, with intent to injure or defraud:RCW 9A.60.010(1). This statutory definition contains a common-law requirement that that the instrument have "'legal efficacy,'" or "be 'something which, if genuine, may have legal effect or be the foundation of legal liability.'"
(a) He or she falsely makes, completes, or alters a written instrument or;In the crime of forgery, a "written instrument" is:
(b) He or she possesses, utters, offers, disposes of, or puts off as true a written instrument which he or she knows to be forged.
(a) Any paper, document, or other instrument containing written or printed matter its equivalent; or (b) any access device, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification[.]
State v. Richards, 109 Wn. App. 648, 654, 36 P.3d 1119 (2001) (quoting State v. Morse, 38 Wn.2d 927, 929, 234 P.2d 478 (1951)).
Richards, 109 Wn. App. at 654 (quoting State v. Scoby, 57 Wn. App. 809, 811, 790 P.2d 226 (1990), aff'd, 117 Wn.2d 55 (1991)).
Courts have found "legal efficacy" in a variety of documents. See, e.g., Richards, 109 Wn. App. at 653-55 (traffic citation requiring a signature only to acknowledge a promise to appear at a later court date); State v. Daniels, 106 Wn. App. 571, 574-76, 23 P.3d 1125 (2001) (charge slip); State v. Young, 97 Wn. App. 235, 239-40, 984 P.2d 1050 (1999) (postdated check). In Richards, we reasoned that a traffic citation had legal effect partly because the arrestee's failure to sign the citation may have resulted in jail time. Richards, 109 Wn. App. at 654-55.
Similarly here, Lafever's participation in work crew "[wa]s conditioned upon . . . compliance with the rules of the program," one of which was that he sign his time sheet before proceeding with his work assignment. Once the time sheet is signed, the work crew member must "stay there" until he is excused. I VRP at 31. The sentencing judge would have used the sign-in sheet to monitor and to guarantee Lafever's compliance with this condition. For example, if Lafever had returned the sign-in sheet to the sentencing judge without any signatures on it or if he had signed in for only eight days, instead of ten, then legal consequences surely would have flowed from these deficiencies, as they would have under Richards. As in Richards, where an arrestee's failure to sign the traffic citation could have resulted in jail time, if Lafever had failed to sign the sign-in sheet, it would have resulted in his removal from work crew and triggered a court date that could have resulted in his imprisonment. Accordingly, the sign-in sheet clearly had "legal effect" and is a written instrument within the definition of RCW 9A.60.020.
Lafever's arguments to the contrary are not persuasive. Lafever contends that the work crew sign-in sheet "was simply a record-keeping device" and "the fact that the paper was signed or unsigned did not affect [his] work crew obligation." Br. of Appellant at 15-16. Although Lafever is correct that the existence of the sign-in obligation stemmed from the sentencing court's order, nevertheless, whether the sign-in sheet was signed or unsigned affected Lafever's compliance with the obligation, the absence of which was a "foundation of legal liability" for which Lafever could have served jail time, like the absence of a signature on a traffic citation. Richards, 109 Wn. App. at 654 (quoting Scoby, 57 Wn. App. at 811). Accordingly, we hold that the record contains sufficient evidence to "persuade a fair-minded, rational person of the truth" that the "Out of Custody Work Crew" document was a "written instrument" for purposes of RCW 9A.60.020.
Lafever also cites State v. Smith, 72 Wn. App. 237, 864 P.2d 406 (1993); but Smith does not apply here. Smith's forged check had no legal effect because the check lacked a drawer's signature and, therefore, was defective, non-negotiable, and not determinative of legal liability. See Smith, 72. Wn. App. at 243 (quoting RCW 62A.3-401(1)) ("No person is liable on an instrument unless his signature appears thereon."). Here, the defect was not in the work crew sign-in sheet, only in Lafever's failure to fill it out.
Hill, 123 Wn.2d at 644.
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We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
Hunt, J.
We concur:
Worswick, A.C.J.
Armstrong, J.