State v. Gonzales

STATE OF WASHINGTON, Respondent, v. KELLI GONZALES, Appellant.

No. 80019-1-I

Court of Appeals of Washington, Division 1

October 26, 2020

UNPUBLISHED OPINION

Smith J.

A jury convicted Kelli Gonzales of 20 counts of identity theft for writing herself duplicate payroll checks as the office manager and bookkeeper for Bob Oates Sewer Rooter LLC (BOSR). She appeals her judgment and sentence, asserting that the trial court erred when it (1) failed to include the element that she unlawfully used another's financial information in the to-convict instruction, (2) admitted Bob Oates's testimony that he saw the QuickBooks screen summary of the checks she issued to herself, and (3) excluded testimony she contends showed evidence of Oates's dishonesty and bias.

Because the identity theft statute is unambiguous and does not include an element of unlawful use of another's information, the to-convict instruction was proper. Furthermore, because we review a trial court's decision to exclude or admit evidence for an abuse of discretion and any error by the trial court in admitting testimony and limiting cross examination was harmless, we affirm Gonzales's convictions.

Citations and pin cites are based on the Westlaw online version of the cited material.

FACTS

In 2006, Oates, the owner of BOSR, hired Gonzales to manage BOSR's office. Gonzales was responsible for, among other tasks, answering the phones, authorizing payroll, and keeping the company's books. Gonzales also kept track of advances that Oates allowed his employees to take from their paychecks. The employees could receive an advance payment of up to $500 from future earnings. After the employee took an advance, Oates would have Gonzales deduct $100 from every paycheck until the balance was repaid.

On November 11, 2013, Oates fired Gonzales. After his new bookkeeper, Ingrid Florian, reviewed QuickBooks, she showed Oates the QuickBooks reports documenting the checks that Gonzales had issued to herself. After he requested and received his bank statements and copies of the at-issue checks, Oates filed a police report, alleging that Gonzales had stolen over $200, 000 via over 250 unauthorized checks.

In January 2014, Detective Keith Salas began investigating Oates's allegations. After the investigation began, Oates amended his allegation, reducing the amount of unauthorized checks to approximately $85, 000. Detective Salas then obtained a warrant for Gonzales's bank records. Upon inspection, the records revealed that Gonzales had deposited checks that Oates alleged he did not authorize.

In December 2016, the State charged Gonzales with one count of first degree theft and 10 counts of second degree identity theft. However, in July 2018, the State amended the information to add 3 counts of second degree identity theft and 17 counts of first degree identity theft. In March 2019 the court dismissed the first degree theft charge because the statute of limitations had run. Thereafter, the State amended the information a second time removing the theft charge and charging Gonzales with 15 counts of first degree identity theft and 14 counts of second degree identity theft.

Prior to trial, Gonzales moved to admit evidence pursuant to ER 607, the Sixth Amendment, and ER 404(B). Specifically she sought to impeach Oates with evidence that (1) Oates "engaged in a tax fraud scheme of under-reporting business income," (2) he owed tax liabilities of over $100, 000, (3) he "sought to falsify his own business records so that an employee . . . would be covered by worker's compensation," and (4) Oates received an insurance payment for alleging that Gonzales stole from him. The trial court denied Gonzales's motions to admit the evidence, concluding that the proffered evidence was collateral to the issues at trial. Gonzales also moved to exclude QuickBooks reports or records because the physical QuickBooks records had not been preserved. Determining that no hearsay exception applied to the records, the court granted this motion.

At trial, Gonzales argued that she was authorized to issue herself the checks pursuant to Oates's policy allowing employees to take advances. Oates testified that he authorized only one check per pay period and that Gonzales requested an advance "[t]wo or three times." He also testified, however, that he did not keep a record of which checks he authorized. The State admitted evidence that on numerous occasions, Gonzales wrote herself several paychecks for the same pay period as well as checks with no assigned pay period attached. Specifically, the State's exhibits at trial included a copy of every check and a summary of all of the checks that Gonzales issued to herself. The exhibits showed that Gonzales issued herself sometimes four or more paychecks per pay period over 30 pay periods.

The jury found Gonzales guilty of 14 counts of first degree identity theft and 6 counts of second degree identity theft. The jury acquitted her of 1 count of first degree identity theft and 5 counts of second degree identity theft, while deadlocking on 3 counts of second degree identity theft. Gonzales appeals.

ANALYSIS

To-Convict Instruction

Gonzales contends that the to-convict instruction was constitutionally deficient because it omitted an essential element, i.e., that she had unlawfully used another's financial information. We disagree.

"'We review alleged errors of law in jury instructions de novo.'" State v. Nelson, 191 Wn.2d 61, 69 419 P.3d 410 (2018) (quoting State v. Boss, 167 Wn.2d 710, 716, 223 P.3d 506 (2009)). "A 'to convict' instruction must contain all the elements of the [charged] crime." Nelson, 191 Wn.2d at 74 (quoting State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997)). "The elements of a crime are those facts 'that the prosecution must prove to sustain a conviction.'" State v. Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005) (quoting Black's Law Dictionary 559 (8th ed. 2004)). "It is proper to first look to the statute to determine the elements of a crime." Miller, 156 Wn.2d at 27.

In Miller, a jury convicted Clay Jason Miller of violating a no-contact order. Miller, 156 Wn.2d at 26-27. At trial, Miller contended that the no-contact order's validity was an element of the crime and therefore a determination to be left to the jury. Miller, 156 Wn.2d at 24, 26. But the trial court refused to instruct the jury accordingly. Miller 156 Wn.2d at 26. On appeal, our Supreme Court concluded that because the criminal statute, by its plain language, does not include the no-contact order's validity as an element of the crime, it is not a necessary element and can be determined by the court. Miller, 156 Wn.2d at 31. Thus, it found no issue with to-convict instruction. Miller, 156 Wn.2d at 31.

Similarly in State v. Wu, a jury convicted Ken Wu of, among other crimes, felony driving under the influence (DUI), which required the jury to find that Wu had "within 10 years of his present arrest, four 'prior offenses.'" 194 Wn.2d 880, 882, 453 P.3d 975 (2019). The statute defined a prior offense as a conviction, including reckless driving resulting from a charge that was originally filed as a DUI physical control of a vehicle while under the influence, or an equivalent local ordinance. Wu, 194 Wn.2d at 884. Wu argued that the State was required-and failed-to prove beyond a reasonable doubt that his prior offenses for reckless driving involved alcohol. Wu, 194 Wn.2d at 883. Our Supreme Court concluded that the plain language of the statute required the State to prove only that the conviction was originally charged as a DUI or the equivalent. Wu, 194 Wn.2d at 891. The court held that because the statute did not include a requirement that the prior offenses involved alcohol, it was not a necessary element. Wu, 194 Wn.2d at 891.

Here, under RCW 9.35.020(1), "[n]o 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." Nowhere in the statute does the term "unlawfully" appear; that is, the statute does not require the State to prove that Gonzales unlawfully obtained, possessed, used, or transferred another's financial information. To add an unlawfulness element, the court would have to "add words or clauses to an unambiguous statute when the legislature has chosen not to include that language." State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003). We will not do so. See, e.g., State v. Dailey, 174 Wn.App. 810, 811, 818, 300 P.3d 834 (2013) (declining to find that the statute for vehicular assault by driving under the influence requires an implied knowledge element where the driver is alleged to be under the influence of prescription drugs). In short, where the defendant alleges an element that does not appear in the statute, "'[it] is not a statutory element of the crime'"^[1] and is not required in the to-convict instruction. Therefore, here, the to-convict instruction was proper.

Gonzales disagrees and relies on State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979), for the proposition that an element that is not included in the statute may nonetheless exist. In Boyer, a jury convicted Dennis Alan Boyer of delivery of a controlled substance. 91 Wn.2d at 342. The criminal statute provided, "'[I]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.'" Boyer, 91 Wn.2d at 344 (quoting RCW 69.50.401(a)). Boyer challenged the jury instruction, which allowed the jury to presume from Boyer's delivery of the substance itself that Boyer had the requisite intent to deliver the controlled substance. Boyer, 91 Wn.2d at 343. The court determined that "guilty knowledge, an...