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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON,
Respondent, No. 43672 -8 -II Consolidated with No. 44032 -6 -II
V.
TODD CHRISTOPHER GRANGE, UNPUBLISHED OPINION
Appellant.
MAXA, J. — Todd Christopher Grange appeals his conviction for first degree theft. He
challenges the sufficiency of the evidence and claims that the trial court impermissibly
commented on the evidence in its special verdict instructions and special verdict form. We
affirm.
FACTS
On March 28, 2007, Anton Rehling, the owner of Olympic Transcore, a truck brokerage
business, entered into a written contract with Grange to make Rehling' s website application
legal" and to train Rehling' s disabled son to administer it. Report of Proceedings ( RP) at 44.
Grange had presented himself to Rehling as a database programmer who had worked for several No. 43672 -8 -II, consolidated with No. 44032 -6 -II
large corporations, had retired from Microsoft, and was a friend of Bill Gates and Paul Allen.
Rehling gave Grange a $ 2, 080 retainer, which Grange cashed shortly thereafter at a check-
cashing company.
On April 3, Grange came to Olympic Transcore and spent about 15 to 20 minutes with
Rehling and his son. He told Rehling that the software he needed to make the site legal would
cost a little over $ 12, 000, but because he had a Microsoft account he could get it for one -half the
price. Rehling then wrote Grange a check for $6,284. Grange said that it would take no more
than a week or two to get the needed software. Grange cashed this check at the same check-
While Rehling was waiting for the software to arrive and for Grange to install it, Grange
called him and said that he ran a business where Grange would buy computer equipment at
auctions and then resell it for large profits. Grange told Rehling that he was going to let him in
on the deal so Rehling could double or triple his money. He asked Rehling to invest $ 18, 000.
When Rehling said no, Grange asked for $ 10, 000, but Rehling again said no. Over the following
days, Grangeagain tried to get Rehling to invest in his - - auctions.
Rehling began asking Grange why the software had not been installed. Grange gave
multiple reasons for why the software had not arrived, always promising that it would be the next
day. On April 19, 2007, Grange did not appear at a meeting as promised. Rehling left him voice
mail messages, and then went to the address Grange had provided as a residence. Rehling
discovered that Grange was not living there.
Grange finally responded when Rehling sent an e -mail asking for his money back and
informing Grange that he had rescinded Grange' s access to Olympic Transcore' s servers.
2 No. 43672 -8 -II, consolidated with No. 44032 -6 -II
Grange said that because he was busy with other customers, he was refunding Rehling' s money,
that he would bill Rehling after work was finished and that "[ t]here are no charges to date. All
previous work is done at no charge." RP at 70. Grange never returned the money, provided
Rehling the software, or finished the project.
The State charged Grange with first degree theft committed by color or aid of deception.
It also alleged aggravating sentencing factors. The matter proceeded to a jury trial in which
Rehling testified to the events noted above. Additionally, Steve Larsen, an investigator for the
Oregon State Division of Finances and Corporate Securities, testified that he contacted Grange as
part of an investigation. He testified that Grange told him that Rehling had given him $6, 600 to
6, 700 to build a website for his business, but when he learned that Rehling did not own the
software he changed his mind and was going to return the money.
Grange presented Shawn Swanner as a witness. Swanner had developed the website that
Rehling asked Grange to make legal. Swanner testified that the site was legitimate as it was built
on open -source software. He explained that he worked with Rehling for over two years. Toward
the end, the trust relationship deteriorated and Rehling had falsely accused him of using pirate
software and falsely accused Swanner' s brother of stealing software.
Grange testified on his own behalf. He acknowledged signing the written contract with
Rehling. He testified that the contract called for 32 hours of labor and he had worked 43 hours,
and that he also worked an additional 86. 3 hours outside of the contract. As a result, Rehling
owed him $9, 914. 13 plus $ 2, 075 for e -mail server software. Grange acknowledged that the
3 No. 43672 -8 -II, consolidated with No. 44032 -6 -II
6, 284 check was for software and that he never delivered the software as promised. But he
explained that while he agreed to return the money to Rehling, he said that he would only do so
after Rehling paid him for his labor.
During cross -examination, the State introduced evidence that Grange had entered into " an
assurance of voluntary compliance" order in an Oregon civil lawsuit, stipulating to pay $ 8, 284 in .
restitution to Rehling within 30 days of that order. RP at 155. Grange admitted to never making
that payment and having a judgment against him for that amount. Grange also admitted that
none of the e -mails evidenced his claim that Rehling owed him money as a precondition to
repayment. He also did not recall speaking with Larsen so had no explanation for Larsen' s
testimony.
The jury found Grange guilty as charged and found by special allegation that he " use[ d]
his position of trust, confidence, or fiduciary responsibility to facilitate the commission of the
crime." Clerk' s Papers ( CP) at 44. Relying on this finding and its own finding that the omission
of Grange' s prior offenses resulted in a presumptive sentence that was clearly too lenient, the
court impose an-exceptional sentence of nine months in jail. Grange appeals the conviction.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Grange first argues that the State failed to prove that he engaged in deception at the time
Rehling gave money to Grange, which is an element of first degree theft by color or aid of
deception. Grange argues that his subsequent failure to fulfill the terms of his contract was
insufficient to establish first degree theft. We disagree.
Evidence is sufficient to support a conviction if "after viewing the evidence and all .
M No. 43672 -8 -II, consolidated with No. 44032 -6 -II
reasonable inferences from it in the light most favorable to the State, a rational trier of fact could
find each element of the crime proved beyond a reasonable doubt." State v. Homan, 172 Wn.
App. 488, 490 -91, 290 P. 3d 1041 ( 2012), review granted, 177 Wn.2d 1022 ( 2013). We defer to
the trier of fact on issues of conflicting testimony, witness credibility, and persuasiveness of the
evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004).
The trial court instructed the jury that in order to convict Grange, it needed to find the
following:
Free access — add to your briefcase to read the full text and ask questions with AI
171LED 30LI cT OE APPEA S ily' ll —Ik MIN
201It FEB 20 All 9= 38
ST,kFE 0FNA BN1G T "'
Pb I1
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON,
Respondent, No. 43672 -8 -II Consolidated with No. 44032 -6 -II
V.
TODD CHRISTOPHER GRANGE, UNPUBLISHED OPINION
Appellant.
MAXA, J. — Todd Christopher Grange appeals his conviction for first degree theft. He
challenges the sufficiency of the evidence and claims that the trial court impermissibly
commented on the evidence in its special verdict instructions and special verdict form. We
affirm.
FACTS
On March 28, 2007, Anton Rehling, the owner of Olympic Transcore, a truck brokerage
business, entered into a written contract with Grange to make Rehling' s website application
legal" and to train Rehling' s disabled son to administer it. Report of Proceedings ( RP) at 44.
Grange had presented himself to Rehling as a database programmer who had worked for several No. 43672 -8 -II, consolidated with No. 44032 -6 -II
large corporations, had retired from Microsoft, and was a friend of Bill Gates and Paul Allen.
Rehling gave Grange a $ 2, 080 retainer, which Grange cashed shortly thereafter at a check-
cashing company.
On April 3, Grange came to Olympic Transcore and spent about 15 to 20 minutes with
Rehling and his son. He told Rehling that the software he needed to make the site legal would
cost a little over $ 12, 000, but because he had a Microsoft account he could get it for one -half the
price. Rehling then wrote Grange a check for $6,284. Grange said that it would take no more
than a week or two to get the needed software. Grange cashed this check at the same check-
While Rehling was waiting for the software to arrive and for Grange to install it, Grange
called him and said that he ran a business where Grange would buy computer equipment at
auctions and then resell it for large profits. Grange told Rehling that he was going to let him in
on the deal so Rehling could double or triple his money. He asked Rehling to invest $ 18, 000.
When Rehling said no, Grange asked for $ 10, 000, but Rehling again said no. Over the following
days, Grangeagain tried to get Rehling to invest in his - - auctions.
Rehling began asking Grange why the software had not been installed. Grange gave
multiple reasons for why the software had not arrived, always promising that it would be the next
day. On April 19, 2007, Grange did not appear at a meeting as promised. Rehling left him voice
mail messages, and then went to the address Grange had provided as a residence. Rehling
discovered that Grange was not living there.
Grange finally responded when Rehling sent an e -mail asking for his money back and
informing Grange that he had rescinded Grange' s access to Olympic Transcore' s servers.
2 No. 43672 -8 -II, consolidated with No. 44032 -6 -II
Grange said that because he was busy with other customers, he was refunding Rehling' s money,
that he would bill Rehling after work was finished and that "[ t]here are no charges to date. All
previous work is done at no charge." RP at 70. Grange never returned the money, provided
Rehling the software, or finished the project.
The State charged Grange with first degree theft committed by color or aid of deception.
It also alleged aggravating sentencing factors. The matter proceeded to a jury trial in which
Rehling testified to the events noted above. Additionally, Steve Larsen, an investigator for the
Oregon State Division of Finances and Corporate Securities, testified that he contacted Grange as
part of an investigation. He testified that Grange told him that Rehling had given him $6, 600 to
6, 700 to build a website for his business, but when he learned that Rehling did not own the
software he changed his mind and was going to return the money.
Grange presented Shawn Swanner as a witness. Swanner had developed the website that
Rehling asked Grange to make legal. Swanner testified that the site was legitimate as it was built
on open -source software. He explained that he worked with Rehling for over two years. Toward
the end, the trust relationship deteriorated and Rehling had falsely accused him of using pirate
software and falsely accused Swanner' s brother of stealing software.
Grange testified on his own behalf. He acknowledged signing the written contract with
Rehling. He testified that the contract called for 32 hours of labor and he had worked 43 hours,
and that he also worked an additional 86. 3 hours outside of the contract. As a result, Rehling
owed him $9, 914. 13 plus $ 2, 075 for e -mail server software. Grange acknowledged that the
3 No. 43672 -8 -II, consolidated with No. 44032 -6 -II
6, 284 check was for software and that he never delivered the software as promised. But he
explained that while he agreed to return the money to Rehling, he said that he would only do so
after Rehling paid him for his labor.
During cross -examination, the State introduced evidence that Grange had entered into " an
assurance of voluntary compliance" order in an Oregon civil lawsuit, stipulating to pay $ 8, 284 in .
restitution to Rehling within 30 days of that order. RP at 155. Grange admitted to never making
that payment and having a judgment against him for that amount. Grange also admitted that
none of the e -mails evidenced his claim that Rehling owed him money as a precondition to
repayment. He also did not recall speaking with Larsen so had no explanation for Larsen' s
testimony.
The jury found Grange guilty as charged and found by special allegation that he " use[ d]
his position of trust, confidence, or fiduciary responsibility to facilitate the commission of the
crime." Clerk' s Papers ( CP) at 44. Relying on this finding and its own finding that the omission
of Grange' s prior offenses resulted in a presumptive sentence that was clearly too lenient, the
court impose an-exceptional sentence of nine months in jail. Grange appeals the conviction.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Grange first argues that the State failed to prove that he engaged in deception at the time
Rehling gave money to Grange, which is an element of first degree theft by color or aid of
deception. Grange argues that his subsequent failure to fulfill the terms of his contract was
insufficient to establish first degree theft. We disagree.
Evidence is sufficient to support a conviction if "after viewing the evidence and all .
M No. 43672 -8 -II, consolidated with No. 44032 -6 -II
reasonable inferences from it in the light most favorable to the State, a rational trier of fact could
find each element of the crime proved beyond a reasonable doubt." State v. Homan, 172 Wn.
App. 488, 490 -91, 290 P. 3d 1041 ( 2012), review granted, 177 Wn.2d 1022 ( 2013). We defer to
the trier of fact on issues of conflicting testimony, witness credibility, and persuasiveness of the
evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004).
The trial court instructed the jury that in order to convict Grange, it needed to find the
following:
1) That, on or between March 28, 2007 and April 3, 2007, the defendant by color or aid of deception, obtained control over property of another; 2) That the property exceeded $ 1, 500 in value; 3) That the defendant intended to deprive the other person of the property; and 4) That the acts occurred in the State of Washington, County of Cowlitz.
CP at 40. The trial court also defined " deception" as:
Deception occurs when an actor knowingly creates or confirms another' s false impression that the actor knows to be false or fails to correct another' s impression that the actor previously created or confirmed or promises performance that the actor does not intend to perform or knows will not be performed.
CP at 38 ( emphasis added).
The only issue Grange raises in this appeal is whether the State proved that he never
intended to perform his contract with Rehling. Taking the evidence in a light most favorable to
the State, it was sufficient to meet this definition. Grange took two checks from Rehling totaling
8364, well over the statutory minimum, yet provided no software and did not satisfy the terms
of their written contract. Further, the evidence showed that Grange repeatedly provided excuses
for the delays and stopped communicating with Rehling once Rehling demanded that Grange pay
the money back. Rehling also testified that Grange repeatedly tried to induce him to give more
money to invest in Grange' s computer auction business. Finally, Grange gave a false residence
5 No. 43672 -8 -II, consolidated with No. 44032 -6 -II
address when he first met with Rehling. This was sufficient evidence for the jury to assess
Grange' s credibility and to reasonably infer that he wrongfully obtained Rehling' s money
through deception with no intention of satisfying his promises. Accordingly, Grange' s
sufficiency of the evidence claim fails.
B. SPECIAL VERDICT AS COMMENT ON THE EVIDENCE
Grange next argues that the special verdict instruction and special verdict form involved
an improper comment on the evidence. The trial court instructed the jury:
For purposes of the special verdict form, the State has the burden of proving beyond a reasonable doubt that the defendant used his position of trust, confidence, or fiduciary responsibility to facilitate the commission of the crime.
CP at 42. Then, in the special verdict form, the trial court asked the jury:
QUESTION: Did the defendant use his position of trust, confidence, or fiduciary responsibility to facilitate the commission of the crime?
CP at 44.
Grange argues that the instruction and special verdict form presumed that he was in a
position of trust, confidence, or fiduciary responsibility when this should have been a
preliminary jury question. He asserts that only after answering a preliminary question
affirmatively, could'the jury answer the question about whether he used that position of trust to
facilitate his offense.
However, Grange did not object to this instruction at trial. Under RAP 2. 5( a), we
generally will not consider issues not raised below unless one of the exceptions listed in RAP
2. 5( a) applies. Grange has not argued that an exception applies and therefore we need not
address this issue.
We affirm the conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
I
MAxA, J. We concur:
PEA
LEE, J.