Opinion
No. 64618-4-I.
November 15, 2010.
Appeal from a judgment of the Superior Court for King County, No. 09-1-02293-0, Richard McDermott, J., entered November 12, 2009.
Affirmed by unpublished opinion per Schindler, J., concurred in by Grosse and Spearman, JJ.
The court granted the State's motion to amend the information on the first day of trial to charge Francisca Othieno with theft in the first degree committed by deception or, in the alternative, by exerting unauthorized control over the property of another. Othieno appeals her conviction of theft in the first degree, arguing that the trial court erred in allowing the State to amend the information to charge the alternate means of theft by deception. Othieno claims the amendment was prejudicial because as a matter of law her defense of good faith claim of title did not apply to theft by deception. But because the jury instructions clearly charged her with the alternative means of committing theft in the first degree and she was able to assert her defense of good faith claim of title as to the alternative means of exerting unauthorized control, we affirm.
FACTS
Francisca Othieno was a member of Neema Seeds LLC, an investing group formed in April 2006 by Kenyan immigrants, consisting of ten to twelve members. The purpose of Neema Seeds is to pool their money to invest in order to generate larger returns. Each member had to pay a $50 nonrefundable registration fee, contribute $150 per month, and attend monthly meetings. At the first meeting, the members elected three officers: Peter Kimuhu as the chairman, Ezibon Njuguna as the treasurer, and Othieno as the secretary. The group agreed that all members had to consent to any withdrawals, that only the treasurer could make deposits and withdrawals for Neema Seeds, and that any member seeking to withdraw from Neema Seeds had to provide written notice.
The officers opened a business savings account for Neema Seeds with Boeing Employees Credit Union (BECU). Each of the elected officers was listed as an authorized signer on the account. Othieno also had a personal savings account at BECU.
Othieno and her husband stopped attending the monthly meetings. In December 2006, they gave written notice that they were leaving Neema Seeds. In January 2007, Othieno and her husband received a letter confirming their withdrawal from Neema Seeds, with a check for $900 for their investment minus the nonrefundable fees.
After Othieno left Neema Seeds, Njuguna called BECU and asked the bank to remove Othieno as an authorized signer on the Neema Seeds savings account. Because BECU requires such requests to be in writing, Othieno inadvertently remained on the Neema Seeds account as an authorized signatory.
On September 25, 2007, BECU issued checks at Othieno's request drawn on the Neema Seeds account, payable to Dish Network for $80, Best Buy for $200, T Mobile for $250, and U.S. Bank for $72. Othieno's name is printed on each check. Othieno also signed each check.
Evidence at trial showed that Othieno did not have sufficient funds in her personal account on September 25 to pay for all of the checks that she obtained.
On September 27, BECU issued a $20,000 check payable to Othieno drawn on the Neema Seeds account. The next day Othieno returned to BECU and obtained a $1,000 check payable to Macy's drawn on the Neema Seeds account.
In preparing for the monthly meeting, Njuguna checked the Neema Seeds account online and saw there were a number of unauthorized withdrawals totaling $21,602. Njuguna obtained copies of the checks from the bank. The copies showed that Othieno signed each of the unauthorized checks. Njuguna and other Neema Seeds members went to Othieno's house and confronted her about the missing money. Othieno denied withdrawing the money from the Neema Seeds' account.
On February 5, 2009, the prosecutor charged Othieno with one count of theft in the first degree by wrongfully obtaining money that belonged to Neema Seeds. The information alleged:
That the defendant FRANCISCA S. OTHIENO in King County, Washington, during a period of time intervening between September 25, 2007 through September 28, 2007, with intent to deprive another of property, to-wit: money, did wrongfully obtain such property belonging to Neema Seeds LLC; that the thefts were a series of transactions which
were part of a criminal episode or common scheme or plan in which the sum value of the property taken in the said transaction did exceed $1,500;
Contrary to RCW 9A.56.030(1)(a), 9A.56.020(1)(a) and 9A.56.010(18)(c), and against the peace and dignity of the State of Washington.
On the first day of trial, the State moved to amend the information to also charge Othieno with the alternative means of theft by deception. Citing State v. Casey, 81 Wn. App. 524, 526-27, 915 P.2d 587 (1996), defense counsel objected on the grounds that the amendment would eliminate Othieno's statutory defense of good faith claim of title. The court granted the State's motion to amend. In granting the motion, the trial court assured Othieno that she could still assert the defense of a good faith claim of title at trial. The court stated:
The crime of theft is defined under RCW 9A.56.020. RCW 9A.56.020(2)(a) provides that it is a sufficient defense in a prosecution for theft if "[t]he property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable."
Counsel, I have reviewed the amended information with the proposed amended information and the offense is theft in the first degree. It's still the same offense. The change was to the second paragraph and I don't really believe, Ms. Lapps, that the change would prevent you at all from presenting your defense as you outlined to me yesterday. And so, I certainly will not preclude you from doing so in any way.
The amended information alleges, in pertinent part:
That the defendant FRANCISCA S. OTHIENO in King County, Washington, during a period of time intervening between September 25, 2007 through September 28, 2007, with intent to deprive another of property, to-wit: U.S. Currency, having a value in excess of $1,500, did obtain control over such property belonging to Neema Seeds, L.L.C., by color and aid of deception, and, did exert unauthorized control over such property.
The State presented the testimony of a BECU employee and the officers of Neema Seeds. The State also introduced into evidence BECU records for the checks written on the Neema Seeds account and signed by Othieno.
Othieno testified that she went to the bank on September 25 to pay her bills because she did not have a checking account. Othieno testified that the BECU teller told her that she had more than $20,000 available. Othieno said that she believed the money was rightfully hers, and that the $20,000 check was "[a] miracle" because she knew she did not have $20,000 in the bank.
In rebuttal, the detective testified that Othieno told him that she had withdrawn money from her personal savings account using an ATM card, and that she would not have been able to withdraw money from the Neema Seeds account if her name had been removed.
The defense requested the court instruct the jury on the defense of good faith claim of title. The jury instruction states that "[t]he State has the burden of proving beyond a reasonable doubt that the defendant did not appropriate the property openly and avowedly under a good faith claim of title." Over the State's objection, the court agreed to give the jury instruction requested by the defense. The court explained:
The instruction was based on RCW 9A.56.020(2) and Washington Practice: Washington Pattern Jury Instructions: Criminal 19.08, at 252 (2d ed. 1994).
It seems to me that there is evidence here before the jury that they could take a look at either of your allegations and certainly could decide that she wrongfully obtained or exercised unauthorized control over the property of another without being deceptive and still be guilty. If that's the case, then it's a [sic] appropriate for me to give [the good faith claim of title instruction].
The court also instructed the jury that to convict Othieno of theft, the State had to prove beyond a reasonable doubt that Othieno either: "(a) wrongfully obtained or exerted unauthorized control over property of another . . . or (b) by color or aid of deception, obtained control over property of another," and instructed the jury on each of the alternate means.
Jury Instruction 9 defines "exert unauthorized control" as: "having any property or services in one's possession, custody, or control as partner, to secrete, withhold, or appropriate the same to his or her own use. . . ." Jury Instruction 11 states: "[A]n actor knowingly creates or confirms another's false impression that the actor knows to be false or fails to correct another's impression that the actor previously has created or confirmed or prevents another from acquiring information material to the disposition of the property involved."
The jury convicted Othieno of theft in the first degree. The court imposed a standard range sentence and ordered restitution.
ANALYSIS
On appeal, Othieno contends the trial court erred in permitting the State to amend the information on the first day of trial. We review the decision to grant a motion to amend for abuse of discretion. State v. Schaffer, 120 Wn.2d 616, 621-22, 845 P.2d 281 (1993). A trial court abuses its discretion if its decision is manifestly unreasonable or exercised on untenable grounds, or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Under CrR 2.1(d), "[t]he court may permit any information . . . to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced." See Schaffer, 120 Wn.2d at 621.
The defendant has the burden of showing prejudice. State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982). Prejudice is less likely where the State merely specifies a different means of committing the charged crime. Schaffer, 120 Wn.2d at 621. It is not an abuse of discretion to allow an amendment at the beginning of the trial where "the principal element in the new charge is inherent in the previous charge" and the defendant does not demonstrate any other prejudice. Gosser, 33 Wn. App. at 435.
There is no dispute that the amendment was based on the same underlying facts, and only charged a different means of committing the crime of theft in the first degree. Othieno argues that the amendment denied her the right to present the defense that she appropriated the money "openly and avowedly under a claim of title made in good faith." RCW 9A.56.020(2)(a).
Relying on Casey, 81 Wn. App. at 526-27, Othieno argues that the good faith claim of title defense is inapplicable as a matter of law to theft by deception. In Casey, the State charged the defendants with theft by deception for a driveway paving scheme. Casey, 81 Wn. App. at 525-26. The defendants requested a jury instruction on the defense of good faith claim of title. The trial court refused to give the instruction. This court affirmed the refusal to give an instruction on the defense of good faith claim of title where the defendants were charged with theft by deception.
We do not agree that this statute requires instruction on a defense of a good faith claim of title in cases where, as here, it is logically impossible to convict without implicitly rejecting any claim of good faith. A jury cannot convict on a charge of theft by deception without first rejecting any claim of good faith by the defendant.
Casey, 81 Wn. App. at 527. Because deception is an element of the crime of theft by deception that the State must prove beyond a reasonable doubt, the court concluded that an instruction on good faith claim of title is not necessary. Casey, 81 Wn. App. at 527; see also State v. Stanton, 68 Wn. App. 855, 868, 845 P.2d 1365 (1993) ("The jury need not consider the same finding a second time, and, thus, the court need not instruct on the defense of good faith claim of title.").
While under Casey a defendant is not entitled to jury instruction on good faith claim of title when charged with theft by deception, as a matter of law the defendant is entitled to that jury instruction as a defense to the charge of theft by wrongfully obtaining or exerting unauthorized control. RCW 9A.56.020. Consequently, Othieno was entitled to present the defense as to the alternative means of committing theft by wrongfully obtaining or exerting unauthorized control.
Moreover, Othieno cannot show prejudice. Othieno asserted the defense of good faith claim of title at trial and the court instructed the jury on that defense.
Because the trial court did not abuse its discretion by allowing the State to amend the information to allege an alternative means of committing theft in the first degree, we affirm.
Othieno also claims prejudice because she had inadequate time to prepare to defend against the charge of theft by deception. But Othieno acknowledges that she did not ask for a continuance of the trial. See Gosser, 33 Wn. App. at 435 (Failure to ask for a continuance undermines her claim of prejudice.).
WE CONCUR: