State Of Washington v. Koran Butler , 194 Wash. App. 525 ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
June 14, 2016
DIVISION II
STATE OF WASHINGTON, No. 46935-9-II
Respondent,
v.
KORAN RASHAD BUTLER, PART PUBLISHED OPINION
Appellant.
WORSWICK, P.J. — Koran Butler appeals his convictions and sentence for forgery,
second degree identity theft, and attempted second degree theft. He primarily argues that the
trial court violated his constitutional right to a unanimous verdict by not issuing a unanimity
instruction because the State provided insufficient evidence of one of the alternative means of
committing identity theft. In the published portion of this opinion we hold that identity theft is
not an alternative means crime. In the unpublished portion of this opinion we consider and reject
Butler’s arguments regarding the trial court’s reasonable doubt instruction, ineffective assistance
of counsel, and legal financial obligations (LFOs). We affirm Butler’s convictions.
FACTS
On February 3, 2014, Koran Butler attempted to cash a check at Heritage Bank in
Tacoma. The check was made out for $1,500 and was to be paid to “K. Butler” for “auto work.”
Verbatim Report of Proceedings (VRP) (Oct. 28, 2014) at 78. Assistant branch manager,
Marlene Wheeler, compared the signature on the check to the account holder’s on-file signature
and concluded the signatures did not match. Law enforcement officers arrived at Heritage Bank
and arrested Butler.
No. 46935-9-II
The State charged Butler with second degree identity theft, forgery, and attempted second
degree theft. The jury found Butler guilty of all three charges.
ANALYSIS
Butler argues that the trial court instructed the jury on alternative means of committing
identity theft without including a unanimity instruction, and because the State presented
insufficient evidence to prove one of the alternative means, Butler’s constitutional right to a
unanimous verdict was violated. Butler did not object to the trial court’s jury instructions or
request a unanimity instruction. Generally we will not review claims raised for the first time on
appeal unless the party claiming the error can show the presence of an exception to that rule,
such as a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Robinson, 171
Wash. 2d 292, 304, 253 P.3d 84 (2011); State v. O'Hara, 167 Wash. 2d 91, 97-98, 217 P.3d 756
(2009). However, even assuming Butler can raise this claim for the first time on appeal, we hold
that identity theft is not an alternative means crime and no unanimity instruction was necessary.
Therefore, Butler’s claim fails.
“An ‘alternative means crime’ is one ‘that provide[s] that the proscribed criminal conduct
may be proved in a variety of ways.’” State v. Peterson, 168 Wash. 2d 763, 769, 230 P.3d 588
(2010) (alteration in original) (quoting State v. Smith, 159 Wash. 2d 778, 784, 154 P.3d 873
(2007)). Because the legislature has not defined what constitutes an alternative means crime,
whether a statute provides an alternative means for committing a particular crime is left to
judicial determination. Peterson, 168 Wash. 2d at 769. We review questions of statutory
interpretation de novo and interpret statutes to give effect to the legislature’s intentions. State v.
Bunker, 169 Wash. 2d 571, 577-78, 238 P.3d 487 (2010).
2
No. 46935-9-II
There is no bright-line rule for making this determination and we must evaluate each case
on its own merits. Peterson, 168 Wash. 2d at 769. “The statutory analysis focuses on whether each
alleged alternative describes ‘distinct acts that amount to the same crime.”’ State v. Sandholm,
184 Wash. 2d 726, 734, 364 P.3d 87 (2015) (quoting Peterson, 168 Wash. 2d at 770). The more
varied the criminal conduct, the more likely the statute describes alternative means. Sandholm,
184 Wash. 2d at 734. Thus, we focus our analysis on the different underlying acts that could
constitute the same crime. State v. Owens, 180 Wash. 2d 90, 96-97, 323 P.3d 1030 (2014). The
various underlying acts must vary significantly to constitute distinct alternative means. 180
Wash. 2d at 97. But when the statute describes minor nuances inhering in the same act, the more
likely the various “alternatives” are merely facets of the same criminal conduct. Sandholm, 184
Wash. 2d at 734. Merely stating methods of committing a crime in the disjunctive does not mean
that there are alternative means of committing a crime. State v. Lindsey, 177 Wash. App. 233, 240-
41, 311 P.3d 61 (2013). A statute divided into subparts is more likely to designate alternative
means. 177 Wash. App. at 241. We place less weight on the use of the disjunctive “or” and more
weight on the distinctiveness of the criminal conduct. Sandholm, 184 Wash. 2d at 726.
We begin our review by analyzing the language of the criminal statute at issue. See
Owens, 180 Wash. 2d at 96. RCW 9.35.020 reads:
(1) No person may knowingly obtain, possess, use, or transfer a means of
identification or financial information of another person, living or dead, with the
intent to commit, or to aid or abet, any crime.
....
(3) A person is guilty of identity theft in the second degree when he or she violates
subsection (1) of this section under circumstances not amounting to identity theft
in the first degree.
Butler contends the use of four different verbs in the statute—obtain, possess, transfer,
and use—establish that the crime is committable in more than one way, and is therefore an
3
No. 46935-9-II
alternative means crime. Butler’s argument is similar to the one our Supreme Court rejected in
Owens. 180 Wash. 2d at 99. The statute addressed in Owens provided that a person who
“knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of
property for sale to others, or who knowingly traffics in stolen property, is guilty of trafficking in
stolen property in the first degree.” RCW 9A.82.050(1). There, the defendant argued that the
eight different verbs articulated eight alternative means for committing the crime of first degree
trafficking in stolen property. Owens, 180 Wash. 2d at 95-96. He argued that his conviction had to
be reversed because the State charged all eight and there was not substantial evidence to support
each means charged. 180 Wash. 2d at 95-96.
Relying on the placement of the word “knowingly” in two different positions in the list of
verbs, the Owens court concluded that the statute articulated only two alternative means, not
eight. 180 Wash. 2d at 99. The court also pointed out that the first seven verbs were so closely
related they did not really address distinct acts:
For example, it would be hard to imagine a single act of stealing whereby a person
“organizes” the theft but does not “plan” it. Likewise, it would be difficult to
imagine a situation whereby a person “directs” the theft but does not “manage” it.
Any one act of stealing often involves more than one of these terms. Thus, these
terms are merely different ways of committing one act, specifically stealing.
Consistent with Peterson, where the various acts of moving without giving proper
notice were too similar to constitute distinct alternative means, an individual’s
conduct under RCW 9A.82.050(1) does not vary significantly between the seven
terms listed in the first clause.
Owens, 180 Wash. 2d at 99; see Peterson, 168 Wash. 2d 763.
Here, the four verbs describing identity theft are like the seven verbs that described the
first alternative means of trafficking in stolen property in Owens. The verbs here are not distinct
means by which to commit identity theft, but rather are multiple facets of a single means. For
instance, following the analysis in Owens, it would be hard to imagine the crime of identity theft
4
No. 46935-9-II
being committed by a single act of “using” a check that did not also involve “obtaining” and
“possessing” the check. Likewise, one could not “transfer” financial information without also
“obtaining” and “possessing” that information.
Butler attempts to distinguish these verbs from those in Owens by arguing that one could
“obtain” financial information without “using” or “transferring” it. Reply Br. of Appellant 6.
However, not every verb must overlap in order to constitute a single means. For instance, in
Owens it could be said that one could “supervise” the theft without “financing” it. See 180
Wash. 2d at 99. Because no single action in the statute could be completed without simultaneously
completing at least one other action, the various acts are too similar to constitute distinct
alternative means. See 180 Wash. 2d at 99.
We hold that identity theft is not an alternative means crime, and therefore the trial court
did not err by not issuing a unanimity instruction.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2.06.040, it is so ordered.
ADDITIONAL FACTS
At Butler’s trial, the court issued the following “to convict” jury instruction for second
degree identity theft:
To convict the defendants [sic] of identity theft in the second degree, the
following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 3rd day of February, 2014, the defendant knowingly
obtained, possessed, transferred, or used a means of identification or financial
information of another person, living or dead, to-wit: Patricia Gann;
(2) That the defendant acted with the intent to commit, or aid or abet, any
crime; and
(3) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements have been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
5
No. 46935-9-II
On the other hand, if after weighing all the evidence, you have a reasonable
doubt as to any one of these elements, then it will be your duty to return a verdict
of not guilty.
Clerk’s Papers (CP) at 22. The trial court did not issue a unanimity instruction. Butler neither
objected to the use of this instruction nor proposed an alternative instruction.
The trial court also instructed the jury as to reasonable doubt, using Washington’s pattern
instruction for reasonable doubt:
The defendant has entered a plea of not guilty. That plea puts in issue every
element of each crime charged. The State is the plaintiff and has the burden of
proving each element of each crime beyond a reasonable doubt. The defendant has
no burden of proving that a reasonable doubt exists as to these elements.
A defendant is presumed innocent. This presumption continues throughout
the entire trial unless during your deliberations you find it has been overcome by
the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the
evidence or lack of evidence. It is such a doubt as would exist in the mind of a
reasonable person after fully, fairly, and carefully considering all of the evidence
or lack of evidence. If, from such consideration, you have an abiding belief in the
truth of the charge, you are satisfied beyond a reasonable doubt.
CP at 16; See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at
85 (3d ed. 2009) (WPIC). Butler neither objected to the use of the pattern instruction nor
proposed a different instruction.
At sentencing, Butler stipulated to the State’s calculation of his offender score, which did
not recognize his second degree identity theft and forgery convictions as the same criminal
conduct. The sentencing court ordered Butler to pay $1,550 in LFOs. Butler did not object to
the imposition of LFOs.
ADDITIONAL ANALYSIS
I. “REASONABLE DOUBT” INSTRUCTION
Butler argues that the trial court’s reasonable doubt instruction infringed on his
Fourteenth Amendment right to due process. We decline to consider this argument.
6
No. 46935-9-II
Butler did not comply with CrR 6.15(c) by failing to timely object to the trial court’s
instruction on the definition of reasonable doubt. CrR 6.15(c) requires timely and well-stated
objections to jury instructions “‘in order that the trial court may have the opportunity to correct
any error.’” State v. Scott, 110 Wash. 2d 682, 686, 757 P.2d 492 (1988) (quoting Seattle v.
Rainwater, 86 Wash. 2d 567, 571, 546 P.2d 450 (1976)). As previously mentioned, we will not
review claims raised for the first time on appeal, unless the party claiming the error can show the
presence of an exception to that rule, such as a manifest error affecting a constitutional right.
RAP 2.5(a)(3); Robinson, 171 Wash. 2d at 304; O’Hara, 167 Wash. 2d at 97-98. Butler must show
that the error is both manifest and that it implicates a specifically identified constitutional right.
O’Hara, 167 Wash. 2d at 98.
Butler does not identify a manifest error in the challenged instruction. Here, the
instruction issued by the trial court followed the language of WPIC 4.01 exactly. In 2007, our
Supreme Court directed that trial courts use WPIC 4.01 to instruct the jury on the burden of
proof and the definition of reasonable doubt. State v. Bennett, 161 Wash. 2d 303, 318, 165 P.3d
1241 (2007). By providing the jury with WPIC 4.01, the trial court complied with our Supreme
Court’s explicit directive.
Butler cannot show that following the Supreme Court’s directive was a manifest error
implicating one of his specifically identified constitutional rights. Therefore, his challenge fails
to fall within the very limited scope of RAP 2.5(a)(3) and, as such, we do not address the
challenge for the first time on review.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Butler next argues his trial counsel rendered ineffective assistance by stipulating to an
improper offender score. Butler argues that his identity theft and forgery offenses constituted the
7
No. 46935-9-II
same criminal conduct for sentencing purposes and should have together counted as one point.
We disagree.
Because ineffective assistance of counsel claims present mixed questions of law and fact,
we review them de novo. State v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009). To show
ineffective assistance of counsel, a defendant must show that defense counsel’s conduct was
deficient, and that the deficient performance resulted in prejudice. State v. Reichenbach, 153
Wash. 2d 126, 130, 101 P.3d 80 (2004); see also Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel’s performance is deficient if it falls below an
objective standard of reasonableness. Reichenbach, 153 Wash. 2d at 130. “The threshold for the
deficient performance prong is high, given the deference afforded to [the] decisions of defense
counsel in the course of representation.” State v. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260
(2011).
Butler cannot prove his counsel performed deficiently because the court properly
calculated his offender score. “Same criminal conduct” exists when “two or more crimes that
require the same criminal intent, are committed at the same time and place, and involve the same
victim.” RCW 9.94A.589(1)(a). All three elements must be satisfied to find two crimes to be
the same criminal conduct. State v. Graciano, 176 Wash. 2d 531, 540, 295 P.3d 219 (2013).
Here, Butler’s identity theft had one victim, Patricia Gann, because Butler used financial
information of only Gann when he presented the checks. See State v. Fisher, 139 Wash. App. 578,
584, 161 P.3d 1054 (2007) (identity theft is committed against each person whose identity has
been stolen). In contrast, the forgery had two victims, Gann and Heritage Bank. See State v.
Calvert, 79 Wash. App. 569, 580, 903 P.2d 1003 (1995) (both the account holder and the bank are
victims of a forgery involving bad checks). Because these crimes had different victims, they did
8
No. 46935-9-II
not involve the same criminal conduct. State v. Webb, 112 Wash. App. 618, 624, 50 P.3d 654
(2002). Therefore, counsel’s stipulation was reasonable and not deficient performance.
III. LEGAL FINANCIAL OBLIGATIONS
Butler argues that the sentencing court improperly imposed LFOs without considering his
ability to pay. Butler did not challenge this finding during sentencing and, thus, he cannot do so
as a matter of right for the first time on appeal. State v. Blazina, 174 Wash. App. 906, 911, 301
P.3d 492 (2013), remanded, 182 Wash. 2d 827 (2015). Our decision in Blazina, over a year before
Butler’s November 2014 sentencing hearing, provided notice that the failure to object to LFOs
imposed at sentencing waived the issue on appeal. 174 Wash. App. at 911. As our Supreme Court
noted in reviewing our decision in Blazina, an appellate court may in its discretion decline to
reach such unpreserved claims of error. Blazina, 182 Wash. 2d at 830.
The record reflects that at the sentencing hearing, the State initially requested $2,300 in
LFOs. After hearing from Butler that at the time of the crime he was employed as a licensed
pharmacy technician, the sentencing court ultimately reduced the LFOs to $1,550. In light of the
sentencing court’s colloquy and the subsequent reduction in LFOs, and because Butler had
sufficient notice of his obligation to object to LFOs imposed at sentencing to preserve the issue
for appeal, we exercise our discretion and decline to address Butler’s contention regarding his
LFOs for the first time on appeal.
Because identity theft is not an alternative means crime, Butler failed to preserve his
reasonable doubt jury instruction argument, Butler’s counsel was not ineffective, and Butler
failed to preserve his LFO argument, we affirm his conviction and sentence.
9
No. 46935-9-II
IV. APPELLATE COSTS
Butler filed a supplemental brief requesting that, if the State substantially prevails in this
appeal, we decline to impose appellate costs on him because he claims he is indigent. The State
did not respond. We exercise our discretion and decline to impose appellate costs.
Under former RCW 10.73.160(1) (1995), we have broad discretion whether to grant or
deny appellate costs to the prevailing party. State v. Nolan, 141 Wash. 2d 620, 626, 8 P.3d 300
(2000); State v. Sinclair, 192 Wash. App. 380, 388, ___ P.3d ___ (2016). Ability to pay is an
important factor in the exercise of that discretion, although it is not the only relevant factor.
Sinclair, 192 Wash. App. at 389.
It appears from the limited trial court record that Butler does not have the present ability
to pay appellate costs and it is questionable whether he will have the future ability to pay. The
trial court found Butler indigent at trial, and counsel was appointed to represent Butler on appeal.
The record does not support, nor does the State argue, that Butler’s indigent status is likely to
change. RAP 15.2(f).
Under the specific circumstances of this case, we decline to impose appellate costs on
Butler.
Worswick, P.J.
We concur:
Johanson, J.
Lee, J.
10