State v. Linehan

147 Wash. 2d 638
CourtWashington Supreme Court
DecidedOctober 24, 2002
DocketNo. 71676-5
StatusPublished
Cited by68 cases

This text of 147 Wash. 2d 638 (State v. Linehan) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Linehan, 147 Wash. 2d 638 (Wash. 2002).

Opinion

Ireland, J.

— Petitioner Timothy Linehan seeks review of the Court of Appeals decision affirming his jury conviction on one count of first degree theft. We hold that any error in defining one alternative means of committing first degree theft was harmless, as there was sufficient evidence for the jury to convict using other definitions for the alternative means set forth in RCW 9A.56.020 under which Linehan was charged.

FACTS

In March 1998, Timothy Linehan and his business partner received $130,061.51 after completing a real estate transaction. Because the check was made out to Linehan personally, instead of to the partnership, on March 30,1998 Linehan deposited the check in his personal account at Washington Mutual. He then wrote a check in the same amount from his Washington Mutual account and had his partner deposit it in the partnership account at Seafirst Bank on April 2, 1998. However, only $13,061.95 was deducted from Linehan’s personal account at Washington Mutual due to an encoding error when processing the check. Seafirst corrected this error on April 7, 1998 by withdrawing the $116,999 balance from Linehan’s Washington Mutual account. Washington Mutual did not detect [642]*642the error at that time. Hence, the improper $116,999 balance was left showing on Linehan’s account.

The error prompted Linehan to ask his attorney what his options were concerning the extra sum. Linehan was advised that he could not keep the money and that the bank could demand the entire amount plus up to 12 percent interest. At no time did Linehan bring the error to the attention of Washington Mutual. Rather, on April 15, 1998, Linehan withdrew $105,000 from his Washington Mutual account and deposited the sum, in the form of a cashier’s check, in his personal savings account at Continental Savings Bank on April 16, 1998. Between mid-April and July 1998, Linehan made 22 withdrawals from his Continental account.

Washington Mutual learned of the encoding error in June 1998 and fraud investigators contacted Linehan in July asking that the money be returned. The investigators explained that Washington Mutual would accept a promissory note for the outstanding sum if Linehan would secure it with collateral, which Linehan refused to do. After two unsuccessful attempts to recoup the money from Linehan, Washington Mutual contacted the police.

Linehan was charged by amended information with one count of first degree theft on September 13, 1999. The information charged that Linehan intentionally deprived Washington Mutual of property valued in excess of $1,500, and that he wrongfully obtained the money, exerted unauthorized control over the money, and that he obtained the money by color and aid of deception. The jury returned a guilty verdict on September 16, 1999.

Linehan appealed, contending in part that the trial court’s instructions were erroneous because there was insufficient evidence to support a conviction under two of the three alternative means instructed upon and that it was impossible to determine on which means the jury based the verdict. Linehan also contended that the trial court gave an incorrect definition of “exerts unauthorized control,” one of the alternative means charged. In its unpublished opinion, [643]*643the Court of Appeals did not address Linehan’s definitional concern, but affirmed the conviction, holding there was substantial evidence to support the verdict under each of the alternative means charged. State v. Linehan, noted at 107 Wn. App. 1016, 2001 WL 828640, at *4.

ANALYSIS

Standard of Review

Whether a jury instruction correctly states the applicable law is a question of law that we review de novo. See State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). Before addressing whether an instruction fairly allowed the parties to argue the case, the court must first determine whether the instruction accurately stated the law without misleading the jury. State v. Acosta, 101 Wn.2d 612, 619-20, 683 P.2d 1069 (1984). Jury instructions must be relevant to the evidence presented. State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986). Instructing a jury so as to relieve the State of its burden to prove all of the elements of the case is reversible error. State v. Scott, 110 Wn.2d 682, 690, 757 P.2d 492 (1988). A constitutional error is harmless only if we are convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996).

Issues

Whether, in an alternative means case, an instructional error that omits a required portion of a definition and is unsupported by the evidence can be harmless.

Whether the alternative means “exerts unauthorized control” is defined by former RCW 9A.56.010(7)(b) and (c), exclusively, thereby applying only to embezzlement cases.

Applicable Law

The theft statute reads in relevant part:

9A.56.030 Theft in the first degree—Other than a fire[644]*644arm. (1) A person is guilty of theft in the first degree if he or she commits theft of:
(a) Property or services which exceed(s) one thousand five hundred dollars in value other than a firearm as defined in RCW 9.41.010; or
(b) Property of any value other than a firearm as defined in RCW 9.41.010 taken from the person of another.
9A.56.020 Theft—Definition, defense. (1) “Theft” means:
(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; . . .

The terms “wrongfully obtain” and “exert unauthorized control” in RCW 9A.56.020(l)(a) are sometimes referred to together as theft by taking and subsection (l)(b) is sometimes referred to as theft by deception. See State v. Smith, 115 Wn.2d 434, 798 P.2d 1146 (1990).

The phrases “wrongfully obtain” and “exerts unauthorized control” are defined together in former RCW 9A-.56.010(7), which reads:

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Cite This Page — Counsel Stack

Bluebook (online)
147 Wash. 2d 638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-linehan-wash-2002.