Opinion
No. 21556-3-III.
Filed: March 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 02-1-00453-2. Judgment or order under review. Date filed: 10/25/2002. Judge signing: Hon. Carolyn A. Brown.
Counsel for Appellant(s), Sharon Marie Brown, Attorney at Law, PO Box 4056, Pasco, WA 99302-4056.
Counsel for Respondent(s), Terry Jay Bloor, Attorney at Law, 7122 W Okanogan Pl Box G, Kennewick, WA 99336.
Timothy John Rapose appeals from his 2002 Benton County convictions for one count each of first degree theft and second degree theft, stemming from his taking the money from winning bidders in his eBay and Yahoo Internet auctions but failing to deliver the products. We agree with Mr. Rapose that the evidence is insufficient to support the first degree theft conviction because the State improperly aggregated transactions to charge that crime. We therefore vacate that conviction and corresponding exceptional sentence, and remand for entry of judgment on second degree theft. We affirm the second degree theft conviction.
FACTS
Mr. Rapose was charged in original and amended informations with one count each of first and second degree theft based upon the State's aggregating transactions involving up to 14 alleged victims residing in several states. On the eve of the August 6, 2002 trial, the State amended the charges to reflect the six individuals who made the trip to Richland to testify against Mr. Rapose. For first degree theft in count I, the State aggregated transactions involving Sharon Clement, Andy Rosa, Darrin Thornton, and Charles Allen. For second degree theft in count II, the State aggregated transactions involving James Coon and Todd Raeside. The State's first trial witness was eBay fraud investigator Sheree Jones. She researched the company's records and uncovered numerous e-mail addresses connected with Mr. Rapose's multiple registrations as an eBay auction website user. E-mail is the typical method by which the buyer and seller communicate item payment and shipping details in an eBay auction transaction. Mr. Rapose's counsel voiced immediate concern about Ms. Jones's testimony. Specifically, he argued that Mr. Rapose's right to confrontation would be violated if Ms. Jones testified about e-mail addresses not connected to a victim who would testify. The prosecutor countered that Ms. Jones's testimony would show a pattern of Mr. Rapose's multiple switching of e-mail addresses as evidence of intent to deceive — not that any specific individual bought a product at a certain e-mail address. The court withheld ruling until the testimony developed. Ms. Jones then testified that eBay repeatedly suspended Mr. Rapose's account due to fraud complaints or for nonpayment of eBay fees. Whenever Mr. Rapose was suspended, he would then set up a new account, which violated eBay rules. Between August 5, 1999, and March 12, 2002, he was able to set up 18 different eBay accounts by using a different e-mail address each time and using numerous fictitious names and physical addresses. But every e-mail address proved to originate from Mr. Rapose's computer in Richland, as traced through his Internet service provider. Ms. Jones specified each e-mail address and the name and address under which Mr. Rapose registered with eBay. Included were false names and physical addresses of people in Washington, California, Arizona, and Oregon. Ms. Jones testified that because all of the different e-mail addresses used in this case originated from the same computer, `[t]his is someone that was trying to deceive the users in who they were.' Report of Proceedings (RP) at 34. Defense counsel objected on the basis of legal conclusion. Ms. Jones rephrased the answer, without objection, that use of the different names, telephone numbers, and addresses in different states shows an intent to hide one's identity.
The prosecutor then asked why Mr. Rapose's activities were not merely bad business. Ms. Jones responded, `Because it happened 18 times.' RP at 35. The prosecutor next asked `Any other tip-offs?' RP at 35. Ms. Jones responded, `The indication when we tried to bill the accounts, we received codes back from the Visa company or the Master Card company that would indicate that the credit cards were stolen and not supposed to be used.' RP at 36. Mr. Rapose's counsel then objected and moved for a curative instruction and a mistrial, contending reference to unproven credit card theft prejudiced the jury. The court denied the motion and instructed the jury to disregard Ms. Jones's comment that the credit cards may have been stolen.
Defense counsel later asked Ms. Jones on cross-examination if her investigation revealed Mr. Rapose was trying to deceive his buyers and possibly eBay. Ms. Jones said `[y]es.' RP at 46. On redirect, Ms. Jones stated that deceiving eBay and the buyers are not mutually exclusive. The bottom line is the person is hiding his identity from both.
Throughout testimony by each theft victim, the court admitted exhibits containing e-mail communications and Internet documents pertaining to each victim's particular transaction with Mr. Rapose.
Aggregated Count I — First Degree Theft. On July 2, 2001, Oregon resident Sharon Clement was the winning bidder for a camcorder in Mr. Rapose's eBay auction. Mr. Rapose was then registered with eBay under the false name `Jason Peel' at a Newhall, California address. RP at 26. Ms. Clement thought she was dealing with `Mr. Peel' and, per his e-mail instructions, sent a $205.50 money order to `Creative Marketing' in Richland. RP at 89. Ms. Clement filed a fraud complaint when she failed to receive the camcorder and her repeated attempts to contact `Mr. Peel' failed. The eBay insurance program ultimately reimbursed Ms. Clement for $170 of her loss.
Dollar amounts are purchase price plus buyer shipping costs.
On September 21, 2001, New York resident Andy Rosa purchased a car stereo system in Mr. Rapose's eBay auction for $1,065. After e-mail and telephone discussions, Mr. Rosa made payment to Mr. Rapose's PayPal account and confirmed that Mr. Rapose received the funds. Mr. Rosa notified the Richland police when he failed to receive the stereo and was unable to contact Mr. Rapose. Several weeks later, Mr. Rosa discovered that Mr. Rapose had relisted the same stereo for auction under a different seller name. Mr. Rosa recontacted Mr. Rapose, who responded that Mr. Rosa had failed to pay for the stereo so Mr. Rapose had relisted it on eBay. Mr. Rapose then stated the stereo had been stolen from his car. Mr. Rosa was unable to recover the amount he paid for the stereo.
PayPal is a third party company that facilitates credit card and bank account money transfers between its members for Internet auctions and other transactions.
On January 8, 2002, Iowa resident Darrin Thornton purchased a digital camera from Mr. Rapose in a Yahoo auction for $270. The next day, he deposited the $270 in Mr. Rapose's designated PayPal account registered in the name `Jennifer Ross.' RP at 98. Although he had subsequent contacts with Mr. Rapose, Mr. Thornton did not receive the camera or a refund. After Mr. Thornton complained to PayPal, Mr. Rapose told Mr. Thornton that he would have to drop the complaint if he still wanted the camera. At that time, Mr. Thornton said he would contact the police. Mr. Rapose said not to threaten him and that he was `not afraid of the [expletive] little Richland Police.' RP at 189. Mr. Thornton's credit card company ultimately reimbursed him for his loss.
On February 27, 2002, Texas resident Charles Allen bought a digital camera from Mr. Rapose in a Yahoo auction for $280.30. He paid via PayPal and confirmed that Mr. Rapose received the payment. Mr. Allen did not receive the camera and he was unable to contact Mr. Rapose until the police became involved. Mr. Allen's credit card company ultimately reimbursed him for his loss.
Aggregated Count II — Second Degree Theft. On March 26, 2002, Michigan resident James Coon bought a hand-held computer in Mr. Rapose's eBay auction for $279. He paid via PayPal as instructed by Mr. Rapose and confirmed that Mr. Rapose received the money. When Mr. Coon failed to receive the computer, he contacted Mr. Rapose, who claimed PayPal had frozen the money in his account. Mr. Coon was then confused because the names on the PayPal account, e-mail address, and eBay registration for the seller were all different. Mr. Coon did not receive a refund from Mr. Rapose and was awaiting reimbursement through eBay's fraud protection insurance at the time of trial.
On March 27, 2002, California resident Todd Raeside purchased a DVD changer in Mr. Rapose's eBay auction for $391. Mr. Raeside was directed to send the payment to a Richland address. When Mr. Raeside learned this physical address was not associated with Mr. Rapose's e-mail address, he paid through an Internet payment service and confirmed that Mr. Rapose received the money. Mr. Rapose did not ship the item or respond to communications from Mr. Raeside. When Mr. Raeside later learned that criminal charges were pending, he e-mailed Mr. Rapose and said he would see Mr. Rapose in court since he `failed to do the right thing.' RP at 165. Mr. Rapose then contacted Mr. Raeside and reimbursed him nearly in full, using a friend's PayPal account.
Richland Police Officer Lewis Reed investigated Mr. Rapose's Internet activities. He testified that his review of the sheer number of complaints and his conversations with persons at eBay and PayPal led him to conclude Mr. Rapose's conduct was not merely business error and should be criminally investigated. The court sustained defense counsel's objection to Officer Reed's testimony.
At the close of the State's case, Mr. Rapose renewed the motion for mistrial he made during Ms. Jones's testimony. The court ruled the e-mail evidence admissible to show intent and thus denied the motion. The court also denied Mr. Rapose's additional motion to dismiss the charges for claimed failure by the State to prove criminal intent or that the offenses occurred in Washington.
During his testimony, Mr. Rapose admitted trying to deceive eBay by repeatedly opening new accounts when his existing accounts were suspended. He alleged his intent was not to deceive customers. He also admitted that he fabricated the names and addresses that Ms. Jones referred to in her testimony.
Mr. Rapose then explained why some customers did not receive their products. Mr. Rapose stated he did not ship Mr. Thornton's digital camera because PayPal reversed payment or restricted access to his money when Mr. Thornton filed complaints. Similarly, Mr. Rapose claimed he no longer had Mr. Rosa's money because PayPal froze the funds in his account when Mr. Rosa filed a complaint. Mr. Rapose claimed that he and Mr. Rosa agreed to delay shipping. Yet, he admittedly used a new identity to relist that same stereo for sale on eBay. Mr. Rapose testified he received Ms. Clement's money order but she `got lost in the shuffle.' RP at 244. He testified he did not intend to defraud her, although he did admit that using the false name and address for Jason Peel in Newhall, California, could be considered deceiving. Mr. Rapose testified he did not recall the specific details of the transaction with Mr. Coon, except he claimed that Mr. Coon's PayPal payment was not actual payment because he (Mr. Rapose) did not yet have the money in his bank account. Mr. Rapose denied receiving payment from Mr. Raeside, yet borrowed money to pay Mr. Raeside a refund. He admittedly repaid Mr. Raeside to encourage him not to come to court. Mr. Rapose produced no written evidence to support his claims regarding receipts or disbursements in the PayPal account. He told the prosecutor on cross-examination, `I guess you'll have to take my word for it.' RP at 259.
Mr. Rapose also testified on both direct and cross-examination that he sold hundreds of items on eBay and never intended to deceive the buyers. The State then offered Exhibits Nos. 9 through 11 to impeach this claim. The exhibits were comprised of eBay `feedback' documents regarding Mr. Rapose's transactions from 2000 to early 2002, under his various eBay user IDs. Mr. Rapose first objected to admission of Exhibit No. 9 for lack of foundation. But all three exhibits were admitted without further objection when he identified them as showing his own eBay feedback.
The eBay `feedback forum' allows buyers and sellers the option to rate a transaction by giving each other a compliment (a positive feedback), a criticism (a negative feedback) or other comments (a neutral feedback).
The general theme of the numerous negative feedback comments in Exhibits Nos. 9 through 11 was that Mr. Rapose was dilatory and/or acting fraudulently by not sending paid-for items when he was the seller in a transaction. The majority of his positive feedbacks were from other eBay sellers who complimented him as a fast-paying buyer.
Representative examples of negative feedback are, e.g., `BEWARE!!!! I paid for item, I'm still waiting for prod. poor communication!' `FRAUD! Paid via paypal, he then asked for a check. Won't return emails or calls!' `RIP OFF, TAKES MONEY, DOES NOT DELIVER ITEM, DON'T BUY FROM HIM EVER.' (Exs. 9, 10, 11)
On redirect examination, the court admitted Mr. Rapose's Exhibits Nos. 12 through 16, which were similar in theme to Exhibits Nos. 9 through 11, except they contained a proportionately higher percentage of positive feedbacks in his seller transactions. But these feedbacks predated the transactions regarding counts I and II.
The jury convicted Mr. Rapose as charged. The court imposed a standard range 12-month sentence for the second degree theft and a concurrent 36-month exceptional sentence for the first degree theft. Mr. Rapose appeals.
ANALYSIS Evidentiary Issues
Mr. Rapose contends the court committed reversible error by admitting into evidence Exhibits Nos. 1 through 16 containing e-mail and Internet documents without sufficient foundation and in violation of the hearsay rule. He argues the Internet printouts did not meet the public records exception to the hearsay rule under RCW 5.44.040, and did not qualify as self-authenticating under ER 902(e). State v. Davis, 141 Wn.2d 798, 854, 10 P.3d 977 (2000). He further contends that admission of the hearsay `feedback' documents from individuals not present to be cross-examined violated his constitutional right to confront witnesses. And finally he contends the `feedback' documents are impermissible lay opinion of guilt. ER 704. We find no error.
The court's decision to admit or exclude evidence is given great weight and will be reversed only for manifest abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). Under ER 901, the requirement of authentication or identification as a condition precedent to admissibility is satisfied by testimony from a witness with knowledge `that a matter is what it is claimed to be.' ER 901(b)(1); see State v. Kinard, 109 Wn. App. 428, 436, 36 P.3d 573 (2001), review denied, 146 Wn.2d 1022 (2002).
Here, each exhibit was identified and authenticated by the person testifying from personal knowledge of the contents. On two occasions, the court partially sustained Mr. Rapose's hearsay objections and removed specific offending documents from the exhibits. The ER 901 requirements were thus met with respect to Exhibits Nos. 1 through 8. Kinard, 109 Wn. App. at 436. None of the documents posed the unauthenticated Internet printout problem in Davis, 141 Wn.2d at 853-54 (population statistics printout from Internet not self-authenticating or within public records exception to hearsay rule).
As for the eBay `feedback' Exhibits Nos. 9 through 16, Mr. Rapose objected only to admission of Exhibit No. 9 for lack of foundation. But after he identified the exhibits as showing feedback for his own eBay transactions, they were all admitted without further objection. The exhibits were thus sufficiently authenticated under ER 901(b)(1). Mr. Rapose introduced Exhibits Nos. 12 through 16 on redirect examination to rehabilitate his claim of lack of intent to defraud. Any confrontation issue or claim the feedback exhibits were improper opinion evidence of guilt is waived in this situation.
The exhibits were not opinion of guilt evidence in any event, but were accurate reflections of his buyers' experiences as a means of impeaching Mr. Rapose's claim that he did not intend to defraud the buyers. See State v. Baird, 83 Wn. App. 477, 484, 922 P.2d 157 (1996) (whether testimony constitutes opinion regarding defendant's guilt depends upon circumstances of case).
The court did not abuse its discretion in admitting Exhibits Nos. 1 through 16. Bourgeois, 133 Wn.2d at 399.
Sufficiency of the Evidence
Mr. Rapose primarily contends that neither conviction is supported by sufficient evidence because the State failed to prove he intended to defraud or steal from any of his customers. At most, he contends, the State proved he was a bad businessman, but not a criminal. Mindful of this argument, we first address Mr. Rapose's additional contention that the evidence was insufficient to support the convictions because under both common law and statute, the State impermissibly aggregated the four different victims into count I and two different victims into count II. State v. Atterton, 81 Wn. App. 470, 915 P.2d 535 (1996).
Improper aggregation of theft transactions does implicate the sufficiency of the evidence and may therefore be raised initially on appeal, as Mr. Rapose does here. Id. at 471-72. Aggregation of individual transactions to meet the threshold for a particular degree of theft is allowed by common law and statute, subject to certain restrictions. See State v. Barton, 28 Wn. App. 690, 694, 626 P.2d 509 (1981). As reiterated in Atterton:
The common law allows aggregation of a series of thefts, so long as the thefts are from the same owner and the same place and result from a single criminal impulse pursuant to a general larcenous scheme. State v. Vining, 2 Wn. App. 802, 808, 472 P.2d 564, 53 A.L.R.3d 390 (1970). The common law also allows aggregation of thefts from the same victim over a period of time or from several victims at the same time and place, if the takings are part of a common scheme or plan. State v. Meyer, 26 Wn. App. 119, 124, 613 P.2d 132 (1980). But the common law does not allow aggregation of thefts from different victims at different times and places. Meyer, 26 Wn. App. 124[.]
Atterton, 81 Wn. App. at 472 (emphasis added).
The statutory aggregation rules are set forth in former RCW 9A.56.010(18)(c) (1999):
Whenever any series of transactions which constitute theft, would, when considered separately, constitute theft in the third degree because of value, and said series of transactions are a part of a common scheme or plan, then the transactions may be aggregated in one count and the sum of the value of all said transactions shall be the value considered in determining the degree of theft involved.
(Emphasis added.) The statutory `common scheme or plan' requirement has been interpreted as being consistent with the common law in that thefts involving different victims in different places cannot be statutorily aggregated. Atterton, 81 Wn. App. at 472-73; Meyer, 26 Wn. App. at 124; see also State v. Garman, 100 Wn. App. 307, 314-15, 984 P.2d 453 (1999). Applying the above principles to count I, aggregation was improper under the common law and statute because it involved Mr. Rapose's transactions on different dates with four different victims to reach the $1,500 first degree theft threshold: Ms. Clement, $205.50 in July 2001; Mr. Rosa, $1,065 in September 2001; Mr. Thornton, $270 in January 2002; and, Mr. Allen $280 in February 2002. Only Ms. Clement's transaction was below the $250 second degree theft threshold. Thus, because the four thefts cannot be aggregated and none individually meets the $1,500 threshold, there was insufficient evidence of first degree theft. See Atterton, 81 Wn. App. at 472-73.
But to exceed $1,500, the jury must have found Mr. Rapose guilty of the $1,065 theft from Mr. Rosa, because the other three victims' losses in aggregate do not total $1,500. Accordingly, if there is sufficient evidence to support guilt for theft in the Rosa transaction, the remedy is to vacate the judgment and sentence for count I and remand for entry of judgment and sentence on the lesser degree crime of second degree theft. Id. at 473-74.
Our review of a challenge to the sufficiency of the evidence is guided by State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980), which requires that we view the evidence and all reasonable inferences in a light most favorable to the State. There is sufficient evidence to support the conviction if a rational trier of fact could find each element of the crime proven beyond a reasonable doubt. Id. Circumstantial evidence is no less reliable than direct evidence, and specific criminal intent may be inferred when a defendant's conduct plainly indicates the requisite intent as a matter of logical probability. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). It is the province of the jury to weigh the credibility of witnesses and to decide what inferences to draw from the evidence. State v. Atsbeha, 142 Wn.2d 904, 925, 16 P.3d 626 (2001).
As pertinent here, RCW 9A.56.020(1) defines theft to mean:
(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[.]
Furthermore, with regard to State criminal jurisdiction (a point argued in Mr. Rapose's directed verdict motion), RCW 9A.04.030 includes the following persons as liable to punishment:
(1) A person who commits in the state any crime, in whole or in part.
(2) A person who commits out of the state any act which, if committed within it, would be theft and is afterward found in the state with any of the stolen property.
Mr. Rapose does not challenge the admissibility, per se, of Ms. Jones's testimony that his efforts to hide his identity through multiple e-mail and physical addresses is evidence of deception. And Mr. Rapose admitted he tried to deceive eBay by opening new accounts when he was suspended from the site, but that he did not intend to deceive or steal from his customers. But the negative feedback documents in Exhibits Nos. 9 through 11 impeached that claim. And Ms. Jones stated that deceiving eBay and the buyers are not mutually exclusive — Mr. Rapose was hiding his identity from both. Since his deceptive practices all occurred while he deprived his customers in counts I and II of their money, the jury could consider the evidence (at least for the four eBay auction transactions) to infer criminal intent and reject his claim he was merely a poor businessman.
Mr. Rapose contends that the court erred in denying his motion for a mistrial at the close of the State's case because the State did not present a witness regarding each of the 18 e-mail addresses referred to during Ms. Jones's testimony.
For the Rosa transaction, the evidence shows that Mr. Rosa paid Mr. Rapose $1,065 for the stereo system via PayPal. Mr. Rosa confirmed that his funds went into Mr. Rapose's PayPal account. Mr. Rapose failed to ship the stereo and evaded communication with Mr. Rosa. Mr. Rapose then relisted the stereo system on eBay using a different seller name. When Mr. Rosa again contacted Mr. Rapose, he claimed both that the stereo had been stolen from his car, and that he had to relist it for sale because Mr. Rosa never paid for it. Mr. Rosa did not receive either the stereo or a refund for his payment.
These facts, in conjunction with Ms. Jones's testimony, allowed the jury to conclude that Mr. Rapose in fact received Mr. Rosa's $1,065, did not intend to deliver the stereo, and, as a matter of logical probability, intended to steal Mr. Rosa's money while operating from his computer in Richland. The jury rejected Mr. Rapose's testimony that he lacked intent to steal — a determination that is not disturbed on appeal. Atsbeha, 142 Wn.2d at 925. The evidence is sufficient to sustain a conviction for second degree theft of property exceeding $250 in value for count I.
We note that under the Green standard, the evidence was also sufficient to support findings of guilt for the Thornton, Allen, and Clement transactions. The evidence establishes that each of these individuals paid Mr. Rapose for an item never received and that Mr. Rapose intentionally deprived them of their money. Any or all of those transactions contribute to the single second degree theft conviction.
With respect to count II, the State also improperly aggregated the transactions involving two second degree thefts into a single count — James Coon, $279 on March 26, 2002, and Todd Raeside, $391 on March 27, 2002. But Mr. Rapose suffers no prejudice from a single conviction for count II if the State produced sufficient evidence to prove guilt in both transactions. And it did.
Mr. Coon confirmed that Mr. Rapose received his $279 PayPal payment for the hand-held computer. Mr. Coon did not receive either the item or a refund for his payment. Mr. Rapose claimed PayPal had frozen the money in his account and, thus, he never actually received payment from Mr. Coon. The jury rejected that claim.
Mr. Raeside confirmed that Mr. Rapose received his $391 payment for the DVD changer. Mr. Rapose never shipped the item and stopped responding to e-mails, so Mr. Raeside filed complaints. It was only after he told Mr. Rapose he would see him in court that Mr. Rapose undertook to repay him. Mr. Rapose admitted he repaid Mr. Raeside to encourage him not to come to court. Yet, he still denied ever receiving money from Mr. Raeside. Even though Mr. Rapose ultimately refunded most of Mr. Raeside's money, the jury could still consider the theft already completed.
The above evidence, considered in conjunction with Ms. Jones's testimony, allowed the jury to reasonably infer as a matter of logical probability that while physically operating from his computer in Richland, Mr. Rapose did receive payments from both Mr. Coon and Mr. Raeside and took their money with no intention of delivering their products. Again, the jury rejected Mr. Rapose's testimony to the contrary and that determination will not be disturbed on appeal. Atsbeha, 142 Wn.2d at 925. A rational trier of fact could find Mr. Rapose guilty of second degree theft in count II based upon the evidence. Green, 94 Wn.2d 216.
The first degree theft conviction in count I is vacated and remanded for entry of judgment and resentencing for second degree theft. Atterton, 81 Wn. App. at 473-74. Since the court imposed an exceptional sentence only as to count I, the exceptional sentence is likewise vacated. The second degree theft conviction and sentence in count II is affirmed.
Unanimity Instruction
Mr. Rapose contends for the first time on appeal that the court violated his right to a fair trial by failing to give a unanimity instruction, even though he was charged with theft by three alternate means — wrongfully obtaining, exerting unauthorized control, or obtaining control over property by color or aid of deception. State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988). We disagree.
A court's failure to give a unanimity instruction, when required, is an error of constitutional magnitude that may be raised initially on appeal. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991). But the crimes of theft under both RCW 9A.56.030 (first degree) and RCW 9A.56.040 (second degree) do not contain further definitional elements and are already alternate means offenses as defined by RCW 9A.56.020. See State v. Linehan, 147 Wn.2d 638, 56 P.3d 542 (2002), cert. denied, 538 U.S. 945 (2003). Thus, the theft statute defining an element of the offense in multiple ways stated disjunctively does not create additional alternative means of committing theft on which jurors must unanimously agree in order to find the defendant guilty. Id. at 646-49. The Kitchen principle requiring a unanimity instruction when multiple acts are involved does not apply here. Mr. Rapose's contention fails.
Motions for a Mistrial
Mr. Rapose next contends the court erred in denying his motions for a mistrial (1) because of Ms. Jones's reference to stolen credit cards; (2) because the State failed to link all of the e-mail addresses to particular victims during Ms. Jones's testimony; and (3) because witnesses discussed the case during a recess.
The trial court's denial of a motion for a mistrial is reviewed for abuse of discretion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). The court's decision will be overturned only when there is a substantial likelihood that the error prompting the request for mistrial affected the jury's verdict, i.e., the defendant has been so prejudiced that nothing short of a new trial can ensure the defendant will be tried fairly. Id. at 269-70.
1. Reference to stolen credit cards. Mr. Rapose contends the court erred in refusing to declare a mistrial when Ms. Jones testified Mr. Rapose registered with eBay using credit cards that the Visa and MasterCard companies indicated were stolen. We disagree.
The motion for a mistrial arose in the context of the prosecutor asking Ms. Jones about her role as an eBay fraud investigator. She stated that she looks for a pattern of frequently changed e-mail addresses, which is typical in someone who is trying to deceive others. She then stated that because all of the different e-mail addresses used in this case originated from the same computer, `[t]his is someone that was trying to deceive the users in who they were.' RP at 34. Defense counsel objected on the basis of legal conclusion. Ms. Jones then rephrased her answer, without objection, that use of different names and telephone numbers together with addresses in different states shows this was someone trying to hide their identity. The prosecutor then asked why this is not just bad business accounting. Ms. Jones responded, `Because it happened 18 times.' RP at 35. The prosecutor next asked `Any other tip-offs?' RP at 35. Ms. Jones responded, `The indication when we tried to bill the accounts, we received codes back from the Visa company or the Master Card company that would indicate that the credit cards were stolen and not supposed to be used.' RP at 36. Defense counsel then objected and moved for a curative instruction or mistrial on the basis Ms. Jones's reference to unproven credit card theft prejudiced the jury. The court denied the motion and instructed the jury to disregard Ms. Jones's comment that the credit cards may have been stolen.
The comment was an improper reference to another uncharged crime. But the jury could already strongly infer Mr. Rapose's intent to deceive from Ms. Jones's proper testimony that the multiple e-mail addresses and false names indicated attempt to hide identity. The court did not abuse its discretion in denying the motion for a mistrial and instead giving a curative instruction at that point in the trial. Rodriguez, 146 Wn.2d at 269. Moreover, Mr. Rapose's counsel perpetuated the same questioning on cross-examination by asking Ms. Jones if her investigation revealed Mr. Rapose was trying to deceive his buyers and possibly eBay. Ms. Jones said `[y]es.' RP at 46. And Mr. Rapose later admitted in his testimony that he tried to deceive eBay with his multiple addresses. Since the improper reference to stolen credit cards arose within the specific topic of deceit when registering with eBay, it is unlikely to have affected the verdict. Rodriguez, 146 Wn.2d at 269-70. And the jury is presumed to have followed the court's curative instruction and disregarded the improper comment. State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995).
2. E-mail addresses not linked to victims. Mr. Rapose contends the court erred in denying his motion for mistrial at the close of the State's case on his theory preserved at the outset of trial: the State violated his confrontation rights by deliberately eliciting evidence of 18 e-mail addresses from Ms. Jones when only 7 were pertinent to the testifying victims. He states this prejudiced him by leaving the jury with the impression there were other victims in addition to those who testified at trial. Again, we disagree.
The theme of Ms. Jones's testimony was that the frequent changing of e-mail addresses was not merely bad business practice, but showed intent to conceal identity from both eBay and Mr. Rapose's buyers. The two are not mutually exclusive according to Ms. Jones. This testimony was relevant and admissible under ER 401 and ER 402. Since Ms. Jones made no reference to the other 11 e-mail addresses being used in a particular eBay transaction or theft incident, none of the e-mail address testimony was unduly prejudicial. ER 403. The court did not abuse its discretion in denying the motion for a mistrial. Rodriguez, 146 Wn.2d at 269.
3. Witness discussion of case during recess. Mr. Rapose contends the court erred in denying his motion for a mistrial after prosecution witnesses admittedly discussed the case with Officer Reed during a lunch recess, in violation of the court's order to recuse witnesses. We find no prejudice to Mr. Rapose.
Ms. Clement was the second State's witness to testify — after Ms. Jones. Defense counsel asked Ms. Clement on cross-examination if she had discussed the case with either law enforcement or anyone else prior to her testimony. She said that she and the other testifying witnesses, including Officer Reed, went to lunch together and talked about `[w]hat was happening in court this morning.' RP at 93. Mr. Rapose's counsel then moved for a mistrial for violation of the court's earlier order to recuse witnesses. The court reserved ruling pending further testimony.
Mr. Thornton testified next. He said he did not talk about the trial at lunch, nor did he hear anyone else do so. He said there was considerable noise and commotion in the restaurant. Next, Officer Reed stated under oath that the victims did not talk about what occurred in court, but discussed their e-mails to one another or with Mr. Rapose during the police investigation. This lunch gathering was the first time the victims met each other in person. They discussed Internet transactions, but not actual court testimony. Officer Reed did discuss Ms. Jones's already-completed testimony with her, but he did not discuss testimony with anyone else at the table. Nor did he hear Ms. Jones's testimony being discussed with any of the victims. Mr. Rosa also testified that he attended the lunch but did not speak with the other witnesses about the case.
The court denied the motion for a mistrial, reasoning:
The testimony of the witnesses is individual enough that I think their discussing their individual cases with one another would not have influenced their testimony in that particular instance.
What worried me was the possibility that they knew what Sheree Jones had said and, apparently, based on what Officer Reed has said, they did not.
RP at 128.
The violation of the court's witness recusal order is a troubling trial irregularity. See State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996) (new trial appropriate when trial irregularity so prejudices defendant that nothing short of new trial will ensure fair trial). But the trial judge was in the best position to appraise the irregularity and assess its prejudicial impact. The trial judge saw no prejudice from any of the lunch conversation between witnesses. We agree. The court did not abuse its discretion in denying the motion for a mistrial. Rodriguez, 146 Wn.2d at 269.
4. Other mistrial claims. Mr. Rapose additionally contends a mistrial was warranted because Officer Reed stated he conducted a criminal investigation because of the sheer number of complaints he received. The contention lacks merit. No motion for a mistrial was made during Officer Reed's testimony. And the court granted Mr. Rapose's requested relief that Officer Reed be precluded from elaborating on complaints not pertinent to witnesses present at trial.
Mr. Rapose additionally contends a mistrial was warranted because the court admitted the eBay feedback exhibits. No motion for a mistrial was made and there was no error in admitting the exhibits. The contention is frivolous. The court did not abuse its discretion in denying any of Mr. Rapose's motions for a mistrial. There is no substantial likelihood that any impropriety affected the trial outcome. Rodriguez, 146 Wn.2d at 269-70.
The first degree theft conviction is reversed and the exceptional sentence vacated. The matter is remanded for entry of judgment and sentencing anew on lesser degree second degree theft for count I, without prejudice to the State's right to seek an exceptional sentence. See State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997) (court may impose exceptional sentence on remand if valid aggravating factor present, but must start with correct standard range). The second degree theft conviction for count II and sentence are affirmed.
Because the first degree theft sentence is vacated, we express no opinion on the validity of the aggravating factors used.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, C.J. and KATO, J., concur.