State v. Snyder

STATE OF WASHINGTON, Respondent, v. JOSHUA CALEB SNYDER, Defendant, SHANE SAYER MORGAN, Appellant.

No. 33987-4-III

Court of Appeals of Washington, Division 3

March 21, 2017

UNPUBLISHED OPINION

Lawrence-Berrey, J.

Shane Sayer Morgan appeals his convictions for second degree theft three counts of second degree identity theft, two counts of third degree theft, and two counts of attempted third degree theft. Mr. Morgan argues (1) the evidence was insufficient to convict him of any of the eight charges for which he was convicted, (2) the trial court erred when it instructed the jury on various uncharged alternate means for committing theft for counts 1, 3, 4, 6, and 8, (3) the trial court violated his constitutional right to a unanimous jury verdict by not giving a unanimity instruction for counts 1, 3, 4, 6 and 8, (4) the trial court violated his constitutional right to a unanimous jury verdict by not giving a unanimity instruction for count 2, (5) he was denied effective assistance of counsel when his attorney failed to object to the video of Josh Snyder's police interview, (6) the trial court erred at sentencing when it failed to treat counts 5 and 7 as the same criminal conduct, and (7) the trial court erred when it imposed a total term of confinement and community service that exceeds the statutory maximum. He also raises four separate arguments in his statement of additional grounds for review (SAG).

We agree with Mr. Morgan's second and seventh arguments conclude the third is moot, but otherwise affirm. We therefore reverse his convictions on counts 1, 3, 4, 6, and 8, and remand for retrial on those counts.

FACTS

Background facts

On June 11, 2014, Maureen Webb lent her Chase Bank credit card to her daughter so she could purchase gas for her car. Hours later Chase Bank fraud protection sent a text to Ms. Webb, asking if she made a recent purchase at Fred Meyer in Ellensburg. Ms. Webb then asked her daughter about the card. Her daughter said she did not make any purchases at Fred Meyer. She then looked for the card, and said she no longer had it. Ms. Webb called the police and reported her card was stolen.

The investigating officer obtained information from Chase Bank and learned the times of the Fred Meyer transactions. She then used those times and Fred Meyer video surveillance to determine that Mr. Morgan and Joshua Snyder had used Ms. Webb's missing credit card. The first video showed the men approaching a self-checkout kiosk with two drinks, Mr. Snyder scanning the drinks and the credit card, Mr. Morgan pushing buttons on the kiosk, Mr. Snyder retaining the credit card, and then each man walking away, each with one drink. The second video showed Mr. Snyder purchasing clothes and shoes at a check-out counter with the credit card, with Mr. Morgan standing close to the counter.

The investigating officer learned from Fred Meyer records that Ms. Webb's credit card was used at the store four times that day. The first time was the purchase of the two drinks for $4.61. The second time was the purchase of clothes and shoes for $539.23. The third time was an attempted purchase of an iPad for $538.92. The attempted purchase was declined. Twenty-two seconds after the card was first swiped, the card was again swiped in an attempt to purchase the same iPad. This second attempted purchase also was declined.

The investigation to obtain the previously described facts took several months. On March 1, 2015, the investigating officer interviewed Mr. Snyder and asked questions about his June 2014 purchases at Fred Meyer with Mr. Morgan. Mr. Snyder denied being friends with Mr. Morgan, and said he did not even like Mr. Morgan. Mr. Snyder denied purchasing over $500 of clothes at Fred Meyer. He said he wished he had nice clothes, but he only had rags. Mr. Snyder also denied attempting to purchase an iPad. When confronted with the fact that the investigating officer had video surveillance of him using a stolen card at Fred Meyer, Mr. Snyder denied it was him.

Charges and pretrial hearing

The State charged Mr. Morgan and Mr. Snyder with 16 counts as being a principal or an accomplice to a series of thefts involving Ms. Webb's credit card. Mr. Snyder eventually pleaded guilty to some or all of the charges. Mr. Morgan chose to go to trial.

On the morning of trial, the State gave notice it intended to admit the video of Mr. Snyder's police interview. Mr. Morgan's attorney objected. The prosecutor said he would talk with defense counsel later and try to resolve his concerns. The trial court did not rule on the objection.

Trial summary

At trial, Ms. Webb, her daughter, and the investigating officer testified to the facts stated above. A Fred Meyer loss prevention specialist also testified. He testified about the contents of the June 2014 surveillance videos as summarized above. He also testified the videos showed the two men walking together from one area of the store to another, and shopping together for men's apparel using one cart. He admitted Fred Meyer was paid by Ms. Webb's credit card company for the items purchased. In addition to these testimonies, the State played the video of Mr. Snyder's police interview. Mr. Morgan did not object.

The State also called Mr. Snyder, but as an adverse witness. Mr. Snyder said he found the credit card on top of a gas pump and took the card for his own use. He then drove his Jeep and picked up Mr. Morgan in Cle Elum, drove around, and just ended up approximately 30 miles away at Fred Meyer. He admitted he knew Mr. Morgan for approximately 10 years, and that they were friends and occasionally saw each other. He also testified that in those 10 years, he had never shopped with Mr. Morgan before. He explained Mr. Morgan probably pushed the buttons at the kiosk because he had a "brain fart" and probably could not remember how to use a self-service kiosk. Report of Proceedings at 199. He also testified that the clothes and shoes he purchased were for him and his brother. He said he did not recall using the card to try to purchase the iPad, and recalled he probably threw the card out the Jeep window later that night. He testified he pleaded guilty to various theft crimes involving Ms. Webb's card. When questioned by defense counsel, Mr. Snyder said Mr. Morgan did not know that the card was stolen.

After all the evidence was presented, the trial court held a jury instruction conference to discuss what instructions it should give the jury. During the conference, the State discussed amending the information to include all three of the statutory means for committing theft. Mr. Morgan objected on the basis that the State had only charged one of the three means in the information. The trial court overruled Mr. Morgan's objection, and instructed the jury on all three of the statutory means for committing theft.

The jury returned convictions on counts 1-8, and acquitted on counts 9-16. For ease of our analysis below, we set forth counts 1-8 below, and summarize in parentheticals their factual bases as noted in the final information:

Count 1: Second degree theft (stolen credit card)

Count 2: Second degree identity theft (unauthorized use of card)

Count 3: Third degree theft (purchase of drinks)

Count 4: Third degree theft (purchase of clothes)

Count 5: Second degree identity theft (unauthorized use of card for iPad)

Count 6: Attempted third degree theft (attempted purchase of iPad)

Count 7: Second degree identity theft (unauthorized use of card for iPad)

Count 8: Attempted third degree theft (attempted purchase of iPad)

Sentencing

At sentencing, Mr. Morgan argued the four felony convictions (counts 1, 2, 5 and 7) should be considered the same criminal conduct for purposes of calculating the current offense portion of his offender score. The trial court took the matter under advisement and later issued a memorandum decision stating that "each use of the credit card was a distinctive act that furthered a different, distinct criminal purpose." Clerk's Papers (CP) at 590. The trial court calculated the current offense portion of Mr. Morgan's offender score consistent with its memorandum decision, and calculated a total offender score of 11. The trial court imposed a sentence of 57 months of confinement and 12 months of community custody, with a note that the total period of confinement and community custody could not exceed the statutory maximum. The trial court also denied Mr. Morgan's request for a drug offender sentencing alternative (DOSA) sentence.

ANALYSIS

1. Sufficiency of the evidence

Mr. Morgan first contends the evidence was insufficient to convict him of the offenses for which he was convicted.

Evidence is sufficient to convict if it permits a rational trier of fact to find the essential elements of the crime proved beyond a reasonable doubt. State v. Munoz-Rivera, 190 Wn.App. 870, 882, 361 P.3d 182 (2015). This court "must draw all reasonable inferences from the evidence in favor of the State and interpret the evidence most strongly against the defendant." Id. Direct and circumstantial evidence carry the same weight. Id. Reviewing courts also must defer to the trier of fact "on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). An appellate court's role is not to reweigh the evidence and substitute its judgment for that of the jury. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).

a. Count 1: Theft of credit card

To find Mr. Morgan guilty of second degree theft, count 1, the jury had to find each of the following proved beyond a reasonable doubt:

(1) That on or about June 11, 2014 the defendant

(a) wrongfully obtained or exerted unauthorized control over

...