IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86853-5-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION JUSTIN JAMES DANIELS,
Appellant.
SMITH, C.J. — Justin Daniels rented a mobile home from Gloria Breed on
a wooded lot. In August 2021, Breed notified Daniels that she wanted to sell the
property and he needed to vacate by the end of 2021. That September, a
neighbor notified Breed that Daniels was cutting down trees on the property.
Breed hired a lumber appraiser, who estimated $2,700 in timber was missing.
The State charged Daniels with one count of first degree theft. At trial, the
jury was presented with instructions for first degree theft, as well as the lesser
included charges of second degree and third degree theft. The jury convicted
Daniels of theft in the second degree and he was ordered to pay restitution to
Breed. Daniels appeals.
Finding no error, we affirm but remand to correct the scrivener’s error in
the restitution order. No. 86853-5-I/2
FACTS
Background
In August 2020, Justin Daniels began renting a mobile home from Gloria
Breed. The mobile home was located on Breed’s property, which was
approximately two-and-a-half acres and mostly wooded. The rental agreement
between Daniels and Breed specified that nothing was to be taken from the
property. Breed also told Daniels that “no live trees were to be cut at any time.”
In 2021, Breed decided she wanted to sell the property. Breed contacted
a lawyer to draft a termination of tenancy, which was given to Daniels in August
2021. The following month, a neighbor informed Breed that he had “heard a lot
of chainsaw activity” on her property. Breed went to the property and saw that
trees had been cut down. Breed tried to contact Daniels for several days, but
was unsuccessful.
In October, Breed contacted a lumber appraiser, Steven Garner, who
accompanied her to the property to evaluate the damage. While Garner was at
the property, Daniels admitted to him that he had cut down the trees to sell for
firewood. Garner concluded that 34 trees, ranging in age, species, and size, had
been cut down. Garner noted that everything but the slash1 from the cut trees
had been removed from the property. Garner calculated the net market value of
1 “Slash” is a term used to describe the treetops, limbs, and other woody material left behind after a tree is harvested. Amy Grotta, Don’t Want to Burn? Other Options for Treating Slash after a Timber Harvest, TreeTopics (Oct. 16, 2019), https://blogs.oregonstate.edu/treetopics/2019/10/16/dont-want-to-burn- other-options-for-treating-slash-after-a-timber-harvest/# [https://perma.cc/QT48- 2A6H].
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the missing timber at $2,618.10. This estimate was based on the cost of felling,
bucking, yarding,2 and delivering the trees to a mill. Garner noted that the limbs
and slash of the trees were not included in the total market value. Garner also
calculated the replacement cost of the trees at $474,000.
Daniels moved off the property in February 2022.3 In March, the State
charged Daniels with theft in the first degree. At trial, the instructions to the jury
included the two lesser included offenses of second and third degree theft. The
jury instructions did not include common scheme or plan as an essential element.
A jury convicted Daniels of second degree theft. Daniels did not object to the
restitution order for $2,618.10. Daniels appeals.
ANALYSIS
The Information
Daniels asserts the information was constitutionally insufficient because it
failed to include the “common scheme or plan” element and the conviction must
be reversed. Because the information contained the necessary facts to apprise
Daniels of the crime charged, the information was sufficient.
This court reviews challenges to the sufficiency of a charging document de
novo. State v. Rivas, 168 Wn. App. 882, 887, 278 P.3d 686 (2012). When the
charging document is challenged for the first time on appeal, the court adopts a
more liberal standard of review: “Charging documents which are not challenged
until after the verdict will be more liberally construed in favor of validity than those
2 Felling is cutting down trees, bucking is cutting felled trees into logs, and yarding is moving the logs to a central storage place. 3 Breed sold the property in June 2022.
3 No. 86853-5-I/4
challenged before or during trial.” State v. Kjorsvik, 117 Wn.2d 93, 103, 812 P.2d
86 (1991). A two-pronged test is used to resolve challenges to the sufficiency of
the charging document: “(1) do the necessary facts appear in any form, or by fair
construction can they be found, in the charging document; and, if so, (2) can the
defendant show that [they were] nonetheless actually prejudiced by the inartful
language which caused a lack of notice?” Kjorsvik, 117 Wn.2d at 105-06. If the
charging document, when read “as a whole and in a common sense manner,”
informs the defendant of the charges against them, it is sufficient even if it does
not include an essential element. Kjorsvik, 117 Wn.2d at 110-11 (holding that
even though “intent” was an essential element of the crime and not included in
the charging document, it was sufficient that the charging document included
“unlawfully,” “with force,” and “against the [victim’s] will”). If a court reaches the
second prong of the test, it may look to the statement of probable cause to
determine whether the inartful language caused prejudice. State v. Pry, 194
Wn.2d 745, 753, 452 P.3d 536 (2019).
An accused person has a constitutional right to be informed of the charges
against them. Rivas, 168 Wn. App. at 887. Accordingly, a charging document
must include all essential elements of a crime to “give notice to an accused of the
nature of the crime that [they] must be prepared to defend against.” Kjorsvik, 117
Wn.2d at 101.
1. Common Scheme or Plan
Under RCW 9A.56.040, “a person is guilty of theft in the second degree if
he or she commits theft of . . . [p]roperty or services which exceed(s) seven
4 No. 86853-5-I/5
hundred fifty dollars in value but does not exceed five thousand dollars in value.”
The State may aggregate multiple, smaller theft transactions to reach a statutory
value threshold. RCW 9A.56.010(21)(c). While there is conflicting case law,
Washington courts have largely held, “If the State aggregates value to reach a
statutory value threshold, a common scheme or plan[4] is an essential element of
a crime that must be included in the information.” State v. Hassan, 184 Wn. App.
140, 146, 336 P.3d 99 (2014); see also State v. Farnworth, 199 Wn. App 185,
217, 398 P.3d 1172 (2017). But see State v. Reid, 74 Wn. App. 281, 292, 872
P.2d 1135 (1994) (“Common scheme or plan is not an element of first degree
theft.”).5 Notably, in Farnworth, the court commented that its decision in Reid
“relied on shaky grounds” for the proposition that common scheme or plan was
not an element of first degree theft and declined to follow that holding. 199 Wn.
App. at 219.
Here, even if common scheme or plan was a required element, the
information, when read in a commonsense manner and as a whole, was
sufficient to apprise Daniels of the crime committed and he suffered no prejudice.
4 “A defendant acts pursuant to a common scheme or plan when [they]
(1) commit[] several crimes, each of which constitutes a part of [their] larger plan or (2) [they] develop[] a plan and carr[y] it out multiple times to achieve distinct, but substantively similar, crimes.” Rivas, 168 Wn. App. at 889. 5 The State also cites to State v. Goe for the proposition that common
scheme or plan is not an element of first degree theft for purposes of the charging document, but this case is unpublished and only persuasive. No. 44054-7-II, (Wash. Ct. App. May 13, 2014) (unpublished), https:// www.courts.wa.gov/opinions/pdf/D2%2044054-7-II%20%20Unpublished %20Opinion.pdf.
5 No. 86853-5-I/6
Daniels did not challenge the sufficiency of the charging document at trial;
therefore, the rule of liberal construction is appropriate on appeal.
Addressing the first prong of the two-part test, the information included the
necessary facts to inform Daniels of the nature of the crime being charged. The
information stated, in relevant part: On or between January 1, 2021 and February 14, 2022, in the County of Kitsap, State of Washington, the above-named Defendant did wrongfully obtain or exert unauthorized control over the property or services of another, to-wit: GLORIA ANN BREED, or the value thereof, with intent to deprive said person of such property or services, such property or services being in excess of five thousand dollars ($5,000.00) in value; contrary to the Revised Code of Washington 9A.56.020(1)(a) and RCW 9A.56.030(1)(a).
Therefore, the information fairly implies that Daniels’s charge of first
degree theft is for the sum of the trees chopped down on Breed’s property. The
charging language, featuring a date range of over a year, put Daniels on notice
that the charge included the value of all the property obtained from Breed’s land.
Moving to the second prong, Daniels cannot show, nor does he even
argue, that he was prejudiced by the inartful language of the information. When
a court reaches the second prong, it can consider the statement of probable
cause. Here, the statement of probable cause further describes that the charge
involved multiple actions. It references Daniels cutting down trees on Breed’s
property on multiple occasions6 and it includes Garner’s estimate for the total
value of the timber.
6 “[Breed] advised after she called in September she told [Daniels] to stop cutting down the trees. [Daniels] told her he was having hard times with his job so he was selling the timber. He continued selling timber after [Breed] told him not too [sic].”
6 No. 86853-5-I/7
Because the information put Daniels on notice of the crime charged and
he was not prejudiced by the inartful language, the information was sufficient.
2. Continuing Course of Conduct
When an individual commits multiple, smaller thefts, the State does not
need to aggregate the value of the crimes to reach the statutory threshold if the
transactions are considered a continuing course of conduct. See State v.
Carosa, 83 Wn. App. 380, 382-83, 921 P.2d 593 (1996) (noting that when the
defendant stole money multiple times in one day from the same party, it was a
continuing course of conduct and the values did not need to be aggregated);
State v. Vining, 2 Wn. App. 802, 808-09, 472 P.2d 564 (1970) (“[W]here the
successive takings are the result of a single, continuing criminal impulse or intent
and are pursuant to the execution of a general larcenous scheme or plan, such
successive takings constitute a single larceny regardless of the time which may
elapse between each taking.”).
To determine whether an act is several distinct acts or a continuing course
of conduct, “the facts must be evaluated in a commonsense manner.” State v.
Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). Courts will consider factors
such as the location, timing, subject, and intent of the act to determine whether it
is a single continuous act or several distinct acts. See State v. Lee, 12 Wn. App.
2d 378, 393, 460 P.3d 701 (2020); Handran, 113 Wn.2d at 17. Where the
evidence shows conduct occurring at one location, within a brief period of time,
towards a single victim, and with intent to accomplish a single objective, the
conduct is a continuous course of conduct. Lee, 12 Wn. App. 2d at 394. A “brief
7 No. 86853-5-I/8
period of time” can include action over the course of a few weeks or even a year.
State v. Craven, 69 Wn. App. 581, 849 P.2d 681 (1993) (finding repeated
assaults during a three-week period constituted a continuing course of conduct);
State v. Elliott, 114 Wn.2d 6, 14, 785 P.2d 440 (1990) (noting that acts of
prostitution committed over the course of a year constituted a continuing
offense).
Here, Daniels’s behavior constituted a continuous course of conduct. Per
his rental agreement, Daniels had a continuing duty to not take timber from the
property. Yet, over the course of 13 months, Daniels cut down 34 trees on
Breed’s property with the objective of removing the trees from the property and
using them for firewood. Daniels did not have a different intent for every tree he
cut—it was all part of a single, continuous enterprise. Because the thefts were a
continuous course of conduct and his theft charge was not based on a theory of
aggregation, common scheme or plan was not an essential element.
Sufficiency of the Evidence
Daniels asserts the evidence presented at his trial was not sufficient to
support his conviction for second degree theft. We disagree. The State
presented substantial evidence that Daniels wrongfully obtained more than $750
worth of timber from Breed’s property; therefore, the evidence was sufficient to
support Daniels’s conviction.
This court reviews the sufficiency of evidence under the substantial
evidence standard. Dolan v. King County, 172 Wn.2d 299, 310-11, 258 P.3d 20
(2011). To determine whether substantial evidence was presented, the court
8 No. 86853-5-I/9
must view the evidence in the “light most favorable to the state” and determine
whether “any rational trier of fact could have found guilt beyond a reasonable
doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). This
standard of review is highly deferential to the jury’s decision. In re Pers.
Restraint of Arnsten, 2 Wn.3d 716, 724, 543 P.3d 821 (2024).
To prove theft in the second degree, the State must show that Daniels
“wrongfully obtain[ed] or exert[ed] control over the property or services of another
or the value thereof, with intent to deprive him or her of such property or
services.” RCW 9A.56.020(1)(a). “Wrongfully obtain[]” means to take wrongfully
the property or services of another. RCW 9A.56.010(23)(a). The State must
also establish that the value of the property is more than $750 and less than
$5,000. RCW 9A.56.040(1)(a).
Here, sufficient evidence in the record shows that Daniels wrongfully
obtained more than $750 worth of timber from Breed’s property. First, Breed
testified that the rental agreement signed by her and Daniels included a clause
stating nothing was to be removed from the property. Breed also had a
conversation with Daniels about not cutting any live trees. Therefore, any trees
cut and removed from the property were wrongfully obtained.
Daniels does not deny that he wrongfully obtained “the trees he cut down,
cut into smaller pieces, and then used as firewood.” What Daniels disagrees with
is the amount of timber that was removed from the property versus what was left.
Daniels states that most of the wood from the 34 trees he cut was left on the
property and, because most of the timber was left on the property, it cannot be
9 No. 86853-5-I/10
shown he “wrongfully obtained” more than $750 worth of timber. Additionally,
Daniels claims the market value Garner ascribed to the trees ($2,618.10)
included all the felled trees, not just the trees he wrongfully obtained. But this
argument ignores Garner’s testimony.
First, Garner testified that everything but the limbs and slash of the 34
trees cut down was removed from the property. Garner noted the trees cut down
ranged in diameter from five inches to 34 inches and, given the types of trees
felled, an enormous amount of debris (slash) would be left behind. He testified if
all the limbs and slash left on the property were piled up, “there would be a
minimum of three piles probably the size of a small motor home.” Garner also
clarified that his market value calculation for the felled trees did not include either
the limbs or slash. Therefore, the market value of the trees wrongfully obtained
was more than $750. Daniels also tries to rely on Breed’s seemingly conflicting
testimony—where she states that “a lot of the big stuff” was left on the ground—
to show that he did not take all the trees. But what Daniels leaves out is when
Breed stated “stuff that was suitable for firewood was gone.”
The State presented substantial evidence to support the jury’s verdict that
Daniels committed theft in the second degree.
To-Convict Instructions
Daniels argues the to-convict instructions were defective for failing to
include the element of common scheme or plan. We disagree. The invited error
doctrine applies here, and even if there was not invited error, the error was
harmless.
10 No. 86853-5-I/11
We review alleged errors in to-convict instructions de novo. State v.
Weaver, 198 Wn.2d 459, 464, 496 P.3d 1183 (2021).
Instructions to the jury are “foundational in our criminal proceedings” and
must inform the jury on every element of the offense charged. Weaver, 198
Wn.2d at 465. When an essential element is omitted from the to-convict
instructions, the instructions are constitutionally defective and require reversal
unless (1) the invited error doctrine applies, State v. Henderson, 114 Wn.2d 867,
871, 792 P.2d 514 (1990), or (2) the omission was harmless, Hassan, 184 Wn.
App. at 149.
1. Invited Error Doctrine
The invited error doctrine “prohibits a party from setting up an error at trial
and then challenging that error on appeal.” State v. Kelly, 25 Wn. App. 2d 879,
885, 526 P.3d 39, aff’d, No. 102002-3 (Wash. Dec. 19, 2024), https://www.courts.
wa.gov/opinions/pdf/1020023.pdf. The doctrine applies even when constitutional
issues are involved. Henderson, 114 Wash. 2d at 871. “To determine whether
the invited error doctrine applies, [the court] consider[s] whether the defendant
‘affirmatively assented to the error, materially contributed to it, or benefited from
it.’ ” Kelly, 25 Wn. App. 2d at 885 (quoting State v. Momah, 167 Wn.2d 140, 154,
217 P.3d 321 (2009)). The party merely failing to object is not enough, Kelly, 25
Wn. App. 2d at 885; the defendant must take “knowing and voluntary actions to
set up the error.” In re Pers. Restraint of Call, 144 Wn.2d 315, 328, 28 P.3d 709
(2001). When a defendant proposes or agrees to a jury instruction, they are
precluded from raising a challenge to the instruction on appeal. State v. Winings,
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126 Wn. App. 75, 89, 107 P.3d 141 (2005); see also State v. Gaff, 90 Wn. App.
834, 845, 954 P.2d 943 (1998) (holding the invited error doctrine precluded
review because all parties agreed to the wording of the jury instructions).
Here, Daniels did not propose the jury instructions, but he explicitly agreed
to them and, therefore, the invited error doctrine applies. When the court asked
Daniels if he took “exception or objection to any of the instructions the Court
intends on giving,” Daniels clearly stated, “No objections, Your Honor.” Daniels’s
argument focuses only on who proposed the jury instructions, but by agreeing to
the jury instructions, Daniels took affirmative actions in setting up the error.
Daniels cites to State v. Simms, No. 71863-1-I (Wash. Ct. App. Sept. 14, 2015)
(unpublished),7 and State v. LeFaber, 128 Wn.2d 896, 904 n.1, 913 P.2d 369
(1996) (Alexander, J., dissenting), for the proposition that where the record is
unclear as to who proposed the instruction, the invited error doctrine does not
apply. But these cases are distinguishable.
First, Simms is an unpublished opinion and does not serve as binding
precedent. Second, even if the case was controlling, no evidence revealed that
the defendant agreed to the jury instructions, only that he did not object. Here,
Daniels explicitly agreed to the proposed instructions. Daniels also cites to
LeFaber, but that case is equally unpersuasive, as the Court declined to address
the invited error doctrine because “the record [was] somewhat unclear as to
whether defense counsel merely failed to except to the giving of the instruction,
or whether [they] affirmatively assented to the instruction or proposed one with
7 https://www.courts.wa.gov/opinions/pdf/718631.pdf
12 No. 86853-5-I/13
similar language.” 128 Wn.2d at 907 n.1. Because Daniels explicitly agreed to
the jury instructions, he cannot now challenge them on appeal.
2. Harmless Error
When to-convict instructions omit an essential element of the crime, the
instructions are “constitutionally defective unless the State can demonstrate that
the omission was harmless beyond a reasonable doubt.” Hassan, 184 Wn. App.
at 149. An error is harmless if the court can “ ‘conclude beyond a reasonable
doubt that the jury verdict would have been the same absent the error.’ ” State v.
Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v. United
States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). When an
essential element has been omitted from the to-convict instructions, the error is
harmless if “uncontroverted evidence supports the omitted element.” Hassan,
184 Wn. App. at 149 (citing Brown, 147 Wn.2d at 341).
Here, even if common scheme or plan was an essential element, its
absence in the jury instructions is harmless error. The evidence is clear that
Daniels was the person who felled the trees and his actions were part of a plan to
use the timber as firewood. First, Daniels never denies that he cut down the
trees or used the timber for anything other than firewood; he only challenges the
value of the trees taken. But Garner clearly testified the total value of the timber
removed from the property—not including any of the slash or limbs left on the
ground—was $2,618.10. Because the evidence clearly supports the proposition
that Daniels cut down multiple trees as part of a plan to use the timber as
13 No. 86853-5-I/14
firewood, the omission of common scheme or plan from the to-convict
instructions was harmless.
Restitution
Daniels claims the restitution amount is not causally related to the precise
acts of his second degree theft conviction. The State contends this claim is
unpreserved and without merit. We agree with the State.
This court reviews a sentencing court’s determination of restitution for
abuse of discretion. Hassan, 184 Wn. App. at 151. A court’s decision is an
abuse of discretion when it is “manifestly unreasonable or based on untenable
grounds.” Hassan, 184 Wn. App. at 151. Absent an abuse of discretion, a trial
court’s order of restitution will not be disturbed on appeal. State v. Tobin, 161
Wn.2d 517, 523, 166 P.3d 1167 (2007). Additionally, if an error is raised for the
first time on appeal, the appellate court may refuse to hear the claim. RAP
2.5(a).
The authority of a court to order restitution is derived entirely from statute.
Tobin, 161 Wn.2d at 523. The amount of restitution “shall be based on easily
ascertainable damages for injury to or loss of property.” RCW 9.94A.753(3).
The amount of restitution must be causally related to the offense charged and the
victim’s loss. State v. Johnson, 69 Wn. App. 189, 191, 847 P.2d 960 (1993).
At trial, Daniels, through counsel, agreed the restitution amount was
proper. When the court asked Daniels’s attorney whether he was disputing the
restitution request, he said, “No, I think that’s exactly what the jury found.”
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Because Daniels first raises this issue on appeal, the court has discretion to deny
review.
Even if the claim were preserved for review, the amount of restitution was
not in error. As discussed in the previous section, sufficient evidence was
provided for the jury to find the market value of the trees was $2,618.10.
Therefore, the amount of restitution was causally connected to theft and the trial
court did not err.
Because Daniels agreed to the amount of restitution and the amount was
causally connected to the crime, the trial court did not abuse its discretion.
Scrivener’s Error
Daniels contends remand is required to correct a scrivener’s error in the
written restitution order. The State agrees. The record reflects there is in fact an
error; therefore, we remand to the trial court with instructions to correct the
scrivener’s error.
“A ‘scrivener’s error’ is a clerical mistake that, when amended, would
correctly convey the trial court’s intention based on other evidence.” State v.
Wemhoff, 24 Wn. App. 2d 198, 202, 519 P.3d 297 (2022). The remedy for a
scrivener’s error is to remand the judgment to the trial court for correction. State
v. Sullivan, 3 Wn. App. 2d 376, 381, 415 P.3d 1261 (2018).
Here, during sentencing, the trial court expressly stated the restitution
order was in the amount of $2,618.10 and indicated as much when it corrected
the order of restitution, which originally said $4,896.60. However, the second
page of the order still stated $4,896.60 as a total amount of restitution. This is
15 No. 86853-5-I/16
clearly a scrivener’s error and the matter should be remanded with instructions to
correct the scrivener’s error in the restitution order.
We affirm but remand to correct the scrivener’s error in the restitution
order.
WE CONCUR: