IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON No. 80687-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CANDACE MAE OSBORNE,
Appellant.
SMITH, J. — Over an eight-day period, Candace Mae Osborne cashed five
of Paul Trubnikov’s business checks, totaling over $4,700. Osborne contended
that she did not know the checks belonged to Trubnikov but that she believed the
checks belonged to her boyfriend. Following a stipulated bench trial, the court
found Osborne guilty of one count of second degree theft and five counts of
forgery.
On appeal, Osborne contends that the evidence was insufficient for the
court to find that she had the intent to deprive Trubnikov of his property or to
defraud him, which the State was required to prove. Because the stipulated
evidence, direct and circumstantial, provides for reasonable inferences that
support the trial court’s findings and conclusions, we disagree. Accordingly, we
affirm Osborne’s convictions.
FACTS
Trubnikov ordered checks for his business, Pacific Granite Inc., to be
delivered through the mail to his home in Ferndale, Washington. However,
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80687-4-I/2
Trubnikov never received the checks.
Between February 8 and February 16, 2018, Osborne cashed five of the
missing checks at Whatcom Educational Credit Union (WECU): February 8 for
$850.00; February 9 for $920.00; February 13 for $986.22; February 14 for
$984.54; and February 16 for $983.54. WECU provided photographs of the
individual who deposited or cashed the checks, and the woman in the
photographs appeared to be the same woman in Osborne’s driver’s license
photograph. The total amount of attempted fraud was $4,724.30. The checks
show various signatures, with the last check more clearly signed “Paul.”
Around February 18, 2018, Trubnikov’s wife was notified that Clinton
Berry had cashed one of the missing checks in another jurisdiction, while
carrying additional missing checks. Skagit County Sheriff’s Department
apprehended Berry, who was identified as Osborne’s boyfriend, and Osborne.
Deputy Steven Gonzales found checks on Osborne as well.
On February 22, 2018, Trubnikov reported to the Ferndale Police
Department that his blank checks had been stolen from his residence mailbox.
Trubnikov signed an affidavit of forgery for each cashed check, acknowledging
that the checks were paid to Osborne. He stated that his signature was
“subscribed/altered” by someone other than himself without his knowledge or
permission. Police Officer Frank Spane investigated the fraud and confirmed
with WECU that Osborne cashed four of Trubnikov’s checks at the credit union’s
Ferndale branch and one check at the Birchwood branch in Bellingham. At the
time, Skagit County Sheriff Deputy Gonzales notified Ferndale Police
2 No. 80687-4-I/3
Department that he was charging Berry with possession of stolen property in the
second degree.
On March 9, 2018, the State charged Osborne with five counts of forgery
and one count of theft in the second degree.
On May 8, 2019, Osborne submitted a drug court petition, wherein she
agreed to complete treatment evaluation and the evaluation’s recommended
substance abuse treatment program. She waived her right to a jury trial and
stipulated that, if she was terminated from drug court,
the law enforcement/investigative agency reports or declarations, witness statements, field test results, lab test results, or other expert testing or examinations such as fingerprint or handwriting comparisons, are admissible in the trial to the court and may be considered by the court in its determination of defendant’s guilt in regards to each and every element of the charged offense(s).
The court granted Osborne’s petition for drug court.
On May 23, 2019, Osborne was sanctioned for violation of the terms and
conditions of drug court and committed to the Whatcom County Jail. On
September 12, 2019, the court terminated Osborne from drug court due to
noncompliance.
At the stipulated bench trial, the court concluded “beyond a reasonable
doubt that Ms. Osborne knew that those were not checks that were written to her,
and chose to deposit them knowing that they were not -- that those checks were
not checks that Mr. Trubnikov or anyone else had provided to her for any
reason.”
Following the bench trial, the court entered, among other findings, the
following findings of fact:
3 No. 80687-4-I/4
6. Ms. Osborne argued that she did not know the checks were forged and argued that her boyfriend at the time, Clinton Berry, had given the checks to her and she did not have any way to know that the checks were fraudulent. 7. When Mr. Berry was contacted by the police in Skagit County, he was found to be in possession of some of the checks stolen from Mr. Trubnikov. He was with Ms. Osborne. 8. Mr. Trubnikov told police he did not give the checks to Ms. Osborne and that he did not know her. He also told police that the checks were stolen from his mailbox. .... 10. Ms. Paige argued on behalf of Ms. Osborne that the State failed to prove that Ms. Osborne knew the checks to be forged; however, given that there is no evidence Ms. Osborne knew Mr. Trubnikov and came into the WECU to cash the checks in her own name, the Court finds that there is evidence to overcome any reasonable doubt that Ms. Osborne intended to defraud Mr. Trubnikov and knew each of the checks to be forged.
The court found Osborne guilty as charged. Osborne appeals.
ANALYSIS
Osborne challenges her convictions, contending the State failed to present
sufficient evidence to support the court’s conclusion that she had the intent to
defraud Trubnikov or deprive him of his property. Because the stipulated
evidence, including circumstantial evidence, and reasonable inferences
therefrom support her convictions, we disagree.
“To determine whether sufficient evidence supports a conviction, we view
the evidence in the light most favorable to the State, and determine whether any
rational fact finder could have found the elements of the crime beyond a
reasonable doubt.” State v. Stewart, 12 Wn. App. 2d 236, 239, 457 P.3d 1213
(2020). In challenging the sufficiency of the evidence, the defendant “admit[s]
the truth of the State’s evidence and all reasonable inferences that can be drawn
4 No. 80687-4-I/5
from it.” Stewart, 12 Wn. App. 2d at 240.
“‘[F]ollowing a bench trial, appellate review is limited to determining
whether substantial evidence supports the findings of fact and, if so, whether the
findings support the conclusions of law.’” Stewart, 12 Wn. App. 2d at 240
(alteration in original) (quoting State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d
182 (2014)). “Substantial evidence is evidence sufficient to persuade a fair-
minded, rational person of the finding’s truth.” Stewart, 12 Wn. App. 2d at 240.
“We consider unchallenged findings of fact verities on appeal, and we review
conclusions of law de novo.” Stewart, 12 Wn. App. 2d at 240.
As an initial matter, Osborne challenges findings of fact 8 and 10. In
finding of fact 8, the court found that Trubnikov told police that he did not give the
checks to Osborne, that he did not know her, and that the checks were stolen
from his mailbox.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON No. 80687-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CANDACE MAE OSBORNE,
Appellant.
SMITH, J. — Over an eight-day period, Candace Mae Osborne cashed five
of Paul Trubnikov’s business checks, totaling over $4,700. Osborne contended
that she did not know the checks belonged to Trubnikov but that she believed the
checks belonged to her boyfriend. Following a stipulated bench trial, the court
found Osborne guilty of one count of second degree theft and five counts of
forgery.
On appeal, Osborne contends that the evidence was insufficient for the
court to find that she had the intent to deprive Trubnikov of his property or to
defraud him, which the State was required to prove. Because the stipulated
evidence, direct and circumstantial, provides for reasonable inferences that
support the trial court’s findings and conclusions, we disagree. Accordingly, we
affirm Osborne’s convictions.
FACTS
Trubnikov ordered checks for his business, Pacific Granite Inc., to be
delivered through the mail to his home in Ferndale, Washington. However,
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80687-4-I/2
Trubnikov never received the checks.
Between February 8 and February 16, 2018, Osborne cashed five of the
missing checks at Whatcom Educational Credit Union (WECU): February 8 for
$850.00; February 9 for $920.00; February 13 for $986.22; February 14 for
$984.54; and February 16 for $983.54. WECU provided photographs of the
individual who deposited or cashed the checks, and the woman in the
photographs appeared to be the same woman in Osborne’s driver’s license
photograph. The total amount of attempted fraud was $4,724.30. The checks
show various signatures, with the last check more clearly signed “Paul.”
Around February 18, 2018, Trubnikov’s wife was notified that Clinton
Berry had cashed one of the missing checks in another jurisdiction, while
carrying additional missing checks. Skagit County Sheriff’s Department
apprehended Berry, who was identified as Osborne’s boyfriend, and Osborne.
Deputy Steven Gonzales found checks on Osborne as well.
On February 22, 2018, Trubnikov reported to the Ferndale Police
Department that his blank checks had been stolen from his residence mailbox.
Trubnikov signed an affidavit of forgery for each cashed check, acknowledging
that the checks were paid to Osborne. He stated that his signature was
“subscribed/altered” by someone other than himself without his knowledge or
permission. Police Officer Frank Spane investigated the fraud and confirmed
with WECU that Osborne cashed four of Trubnikov’s checks at the credit union’s
Ferndale branch and one check at the Birchwood branch in Bellingham. At the
time, Skagit County Sheriff Deputy Gonzales notified Ferndale Police
2 No. 80687-4-I/3
Department that he was charging Berry with possession of stolen property in the
second degree.
On March 9, 2018, the State charged Osborne with five counts of forgery
and one count of theft in the second degree.
On May 8, 2019, Osborne submitted a drug court petition, wherein she
agreed to complete treatment evaluation and the evaluation’s recommended
substance abuse treatment program. She waived her right to a jury trial and
stipulated that, if she was terminated from drug court,
the law enforcement/investigative agency reports or declarations, witness statements, field test results, lab test results, or other expert testing or examinations such as fingerprint or handwriting comparisons, are admissible in the trial to the court and may be considered by the court in its determination of defendant’s guilt in regards to each and every element of the charged offense(s).
The court granted Osborne’s petition for drug court.
On May 23, 2019, Osborne was sanctioned for violation of the terms and
conditions of drug court and committed to the Whatcom County Jail. On
September 12, 2019, the court terminated Osborne from drug court due to
noncompliance.
At the stipulated bench trial, the court concluded “beyond a reasonable
doubt that Ms. Osborne knew that those were not checks that were written to her,
and chose to deposit them knowing that they were not -- that those checks were
not checks that Mr. Trubnikov or anyone else had provided to her for any
reason.”
Following the bench trial, the court entered, among other findings, the
following findings of fact:
3 No. 80687-4-I/4
6. Ms. Osborne argued that she did not know the checks were forged and argued that her boyfriend at the time, Clinton Berry, had given the checks to her and she did not have any way to know that the checks were fraudulent. 7. When Mr. Berry was contacted by the police in Skagit County, he was found to be in possession of some of the checks stolen from Mr. Trubnikov. He was with Ms. Osborne. 8. Mr. Trubnikov told police he did not give the checks to Ms. Osborne and that he did not know her. He also told police that the checks were stolen from his mailbox. .... 10. Ms. Paige argued on behalf of Ms. Osborne that the State failed to prove that Ms. Osborne knew the checks to be forged; however, given that there is no evidence Ms. Osborne knew Mr. Trubnikov and came into the WECU to cash the checks in her own name, the Court finds that there is evidence to overcome any reasonable doubt that Ms. Osborne intended to defraud Mr. Trubnikov and knew each of the checks to be forged.
The court found Osborne guilty as charged. Osborne appeals.
ANALYSIS
Osborne challenges her convictions, contending the State failed to present
sufficient evidence to support the court’s conclusion that she had the intent to
defraud Trubnikov or deprive him of his property. Because the stipulated
evidence, including circumstantial evidence, and reasonable inferences
therefrom support her convictions, we disagree.
“To determine whether sufficient evidence supports a conviction, we view
the evidence in the light most favorable to the State, and determine whether any
rational fact finder could have found the elements of the crime beyond a
reasonable doubt.” State v. Stewart, 12 Wn. App. 2d 236, 239, 457 P.3d 1213
(2020). In challenging the sufficiency of the evidence, the defendant “admit[s]
the truth of the State’s evidence and all reasonable inferences that can be drawn
4 No. 80687-4-I/5
from it.” Stewart, 12 Wn. App. 2d at 240.
“‘[F]ollowing a bench trial, appellate review is limited to determining
whether substantial evidence supports the findings of fact and, if so, whether the
findings support the conclusions of law.’” Stewart, 12 Wn. App. 2d at 240
(alteration in original) (quoting State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d
182 (2014)). “Substantial evidence is evidence sufficient to persuade a fair-
minded, rational person of the finding’s truth.” Stewart, 12 Wn. App. 2d at 240.
“We consider unchallenged findings of fact verities on appeal, and we review
conclusions of law de novo.” Stewart, 12 Wn. App. 2d at 240.
As an initial matter, Osborne challenges findings of fact 8 and 10. In
finding of fact 8, the court found that Trubnikov told police that he did not give the
checks to Osborne, that he did not know her, and that the checks were stolen
from his mailbox. The evidence supports the court’s finding. Specifically,
Trubnikov told Office Spane that, despite ordering checks to be delivered to his
mailbox, he never received them, and Trubnikov reported the checks stolen.
Trubnikov also signed an affidavit of forgery, contending that the checks to
Osborne were cashed without his permission. The court reasonably inferred
from these facts that Trubnikov did not know Osborne, that he did not give her
the checks, and that the checks were stolen from his mailbox. And Osborne
presented no evidence to support a different conclusion. Therefore, we conclude
that finding of fact 8 was supported by sufficient evidence to persuade a fair-
minded, rational juror of its truth.
Finding of fact 10 is a mixed finding of fact and conclusion of law. There,
5 No. 80687-4-I/6
the court determined that “there is evidence to overcome any reasonable doubt
that Ms. Osborne intended to defraud Mr. Trubnikov and knew each of the
checks to be forged.” The last sentence states the court’s conclusion of law
regarding the intent element of forgery charges, i.e., that the State presented
evidence beyond a reasonable doubt that Osborne intended to defraud
Trubnikov. But “[w]here a conclusion of law is erroneously labeled as a finding of
fact, we review it de novo as a conclusion of law.” State v. Z.U.E., 178 Wn. App.
769, 779 n.2, 315 P.3d 1158 (2014), aff’d, 183 Wn.2d 610, 352 P.3d 796 (2015).
Therefore, we review finding of fact 10 de novo, assessing whether the findings
of fact support the conclusion that Osborne had the intent required to be
convicted of theft in the second degree and forgery.
An individual is guilty of theft in the second degree, if they commit theft of
“[p]roperty or services which exceed(s) seven hundred fifty dollars in value but
does not exceed five thousand dollars in value.” RCW 9A.56.040(1)(a). And
“‘[t]heft’ means: (a) To wrongfully obtain or exert unauthorized control over the
property or services of another or the value thereof, with intent to deprive [them]
of such property of services.” RCW 9A.56.020(1). Under RCW 9A.60.020, “[a]
person is guilty of forgery if, with intent to injure or defraud: . . . [they] falsely
make[ ], complete[ ], or alter[ ] a written instrument or; . . . [they] possess[ ], utter[
], offer[ ], dispose[ ] of, or put[ ] off as true a written instrument which [they]
know[ ] to be forged.” RCW 9A.60.020.
“When intent is an element of the crime, ‘intent to commit a crime may be
inferred if the defendant’s conduct and surrounding facts and circumstances
6 No. 80687-4-I/7
plainly indicate such an intent as a matter of logical probability.’” State v.
Vasquez, 178 Wn.2d 1, 8, 309 P.3d 318 (2013) (quoting State v. Woods, 63 Wn.
App. 588, 591, 821 P.2d 1235 (1991)). Although “[p]ossession alone is not
sufficient to infer intent to injure or defraud in forgery cases, . . . possession
together with ‘slight corroborating evidence’ might be.” Vasquez, 178 Wn.2d at 8
(quoting State v. Esquivel, 71 Wn. App. 868, 870, 863 P.2d 113 (1993)).
There was sufficient evidence, both direct and circumstantial, and
reasonable inferences that could be draw therefrom, for the court to conclude
beyond a reasonable doubt that Osborne had the intent both to deprive
Trubnikov of his property, as required by RCW 9A.56.020(1)(a), and to defraud
him, as required by RCW 9A.60.020. The checks clearly state that they belong
to Pacific Granite, which supports the inference that Osborne knew the checks
did not belong to Berry. Additionally, this fact and other evidence support the
inference that she knew she was not authorized to deposit the checks.
Specifically, there was no evidence that Osborne knew anyone at Pacific Granite,
and Trubnikov did not know her and did not sign the deposited checks. No one
from Pacific Granite wrote the checks to her, and she had rendered no service to
Pacific Granite that required payment. Thus, the reasonable inference is that she
knew she was using the property without permission and that she used the
checks as if they were a true written instrument, despite knowing that neither she
nor Berry had authority to sign the checks. These reasonable inferences, taken
from the stipulated evidence of Osborne’s conduct and the surrounding facts and
circumstances, plainly indicate, as a matter of logical probability, that Osborne
7 No. 80687-4-I/8
had the intent to defraud Trubnikov and the intent to deprive him of his property.
Therefore, we conclude that the trial court did not err when it concluded that the
State presented evidence sufficient to prove beyond a reasonable doubt that
Osborne had the requisite intent for each crime.1
Osborne relies extensively on Vasquez for its proposition that intent may
not be inferred based on “naked possession.” See 178 Wn.2d at 8. In Vasquez,
the State charged Vianney Vasquez with forgery after he was found in
possession of forged social security cards. 178 Wn.2d at 4. After trial, a jury
found Vasquez guilty, and on appeal, the court concluded that the State provided
sufficient evidence of Vasquez’s intent because “[w]hy else would Mr. Vasquez
have” the forged cards. Vasquez, 178 Wn.2d at 6; State v. Vasquez, 166 Wn.
App. 50, 53, 269 P.3d 370 (2012), rev’d, 178 Wn.2d 1. Our Supreme Court
concluded that the evidence, including Vasquez’s interaction with a security
guard following a shoplifting incident, was insufficient to find that Vasquez had
the requisite intent because the court cannot “draw inferences of intent based on
mere possession.” Vasquez, 178 Wn.2d at 8, 15-16. The court reversed the
Court of Appeal’s decision and vacated Vasquez’s conviction. Vasquez, 178
Wn.2d at 18. Here, Osborne not only possessed the checks but cashed them,
receiving the payment therefrom and using the money without the knowledge or
permission of Pacific Granite or Trubnikov. Accordingly, Osborne’s assertion that
1 Because we conclude that there was sufficient evidence for the court to find that Osborne had the requisite intent to defraud Trubnikov and to deprive him of his property, we do not address Osborne’s contention that the trial court erred in concluding that she had conceded to the second degree theft charge.
8 No. 80687-4-I/9
Vasquez controls the outcome here is not persuasive.
We affirm.
WE CONCUR: