                                                                                             FiLEO
                                                                                   COURT OF APPEALS
                                                                                          O! VISION 11
                                                                                 20 I R. 1I1t Y 13        AI', 9: 15

                                                                                  STATE              A"     N' 7i;,




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

STATE OF WASHINGTON,                                                No. 44054 - -II
                                                                              7


                               Respondent,


       v.



DENETTE LYNN GOE,                                             UNPUBLISHED OPINION


                               Appellant.




       MAXA, J. — Denette   L. Goe appeals her convictions on two counts of forgery and one

count of first degree theft arising from her deposit into her bank account of two forged checks

and a.forged money order. She challenges the sufficiency of the evidence supporting these

convictions, claims the information and the to convict instruction omitted an essential element of


first degree theft, and claims that the accomplice liability statute is unconstitutionally overbroad.

We affirm.


                                               FACTS


       In January 2011, Goe responded to an on -line job offer for a stay -at -home job so she

could care for her one -year -old daughter and ease her family' s financial situation. Shortly after

accepting the job offer, Goe received two checks and a money order in the mail with instructions

that she was to cash them, return 90 percent of the money to the sender, and keep 10 percent as a

commission.
44054 -7 -II



          The first check was for $2, 500 and was drawn on Chase Bank. On February 1, 2011,

Goe' s husband, Brook Moorehouse, deposited the check at the Longview branch U. S. Bank

automated      teller   machine ( ATM),     using Goe' s bank card. On February 3, 2011, there were three

withdrawals      from Goe'    s account — teller   transactions of $1, 500 and $ 93 and an ATM


withdrawal of $500. On February 4, 2011, Goe made on -line web payments from her account of

 407. 60 and $ 12.


          The   second    item   was a   United States Postal Service money      order   for $970.   On February

5, 2011, Goe cashed this-money order at the same U.S. Bank. According to the teller, Goe

explained that her husband was in Iraq, he did not have his family allotment established yet, and

he sent her the money order to pay her rent.

          The third item was a check drawn on BancFirst for $2, 800. Moorehouse deposited this


check on February 8, 2011, through an ATM. He withdrew $100. The next day, there was a

teller withdrawal of $1, 200 and an ATM withdrawal of $500.


          On February 8, 2011, the Postal Service returned the $ 970 money order to U.S. Bank
                                    1
unpaid    marked "      non =
                            rnicr. "     Report of Proceedings (RP) at 76 -77 On February 9, 2011, the

 2, 500   check was returned       to U. S. Bank   unpaid, marked "   Refer to   maker."    RP at 69 -70. And on


February 14, 2011, the $2, 800 check was returned to U.S. Bank unpaid.
          After Goe failed to reimburse the bank for the overages these unpaid checks created, the


State charged Goe with three counts of forgery and one count of first degree theft. The matter

proceeded to a jury trial.




 Mier is a magnetic ink used to encode account numbers on the bottom of a check or money
order.

                                                          2
44054 -7 -II



            Frank Najar, a criminal investigator for U. S. Bank, testified at trial as to the bank records

and surveillance tapes evidencing Goe' s deposits and withdrawals. He stated that ( 1) the Chase

Bank    and   BancFirst   checks were unpaid   because   they   were worthless; (   2) the maker and the


bank on the BancFirst check had the same address, which indicated a counterfeiter' s mistake;

and ( 3) both checks looked identical even though they were drawn on different banks. He also

testified that the total amount from these three deposits was $ 6, 270, that the bank was able to

seize the $ 773. 06 balance, and that its unrecovered loss was $ 5, 496. 94.

            Kristen Miller, a federal agent with the U. S. Postal Inspection Service, testified about the


money       order.   She testified that the money order had an invalid serial number, an invalid issuing

address, and was copied from an original, valid money order. She described it as an unauthentic

copy.


            Longview Police Detective Kyle Sahim testified that he interviewed Goe as part of his

investigation. When Goe told him that she had cashed all three checks, he told her that the

surveillance tapes showed that Moorehouse had deposited the checks through the ATM. She

then   admitted that Moorehouse deposited them but stated that " he had         nothing    to do with it." RP


at   141.    She reiterated to Detective Sahim that Moorehouse had nothing to do with " the

forgeries." RP at 143.


            When Detective Sahim asked to see Goe' s e -mail correspondence between her and the

on -
   line employer, Goe said that she no longer had that e -mail account. On June 3, 2011,

however, Detective Sahim found a compact disk that had been left at the police station for him. It

contained the text from several e -mails purporting to be correspondence between Goe and a

company called CSB International. He noted that the e -mails Goe received had misspelled


                                                         3
44054 -7 -II



words, odd wording, and misplaced periods and commas. He also explained that because Goe

had provided only the text of the e -mails and not the actual messages, he could not examine the

e -mail headers to verify their source.

        After the State rested, the trial court dismissed the forgery charge involving the Chase

Bank check (count I) because the State had not presented evidence that it was a forgery. Goe

then testified that when hired, she thought she had obtained the on -line job as a secret shopper

and did not know that it was not a real job. She explained that she asked the teller if the money

order was real and assumed it was because the teller cashed it. She denied saying that her

husband was in Iraq. She also explained that she did not ask her husband to deposit the other

two checks or withdraw money from the bank and she did not give him permission to use her

ATM card. She testified that she only found out after the fact when he told her. She said that

she was shocked when the bank manager contacted her and, while she wanted to reimburse the


bank, she did not have the money to pay it back for the losses. She also denied telling Detective

Sahim that she cashed all the checks and denied describing the checks as forgeries.

        The jury found Goe guilty of two counts offorgery and One count offirst degree theft.

She appeals.


                                            ANALYSIS


A.       SUFFICIENCY OF THE EVIDENCE


         Goe first challenges the sufficiency of the evidence as to all of her convictions, claiming

that the State failed to prove all necessary elements of the offenses. We disagree.




                                                  4
44054 -7 -II



         1.     Standard of Review


          Evidence is sufficient to support a conviction if after viewing the evidence and all

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).


         2.     First Degree Theft


         An element of first degree theft is that the defendant wrongfully obtained property

exceeding $ 5, 000 in value. RCW 9A. 56. 030. The State argues that it can aggregate the amounts


of the two checks and the money order to establish the value of the theft. We agree.

         Goe    argues   that former RCW 9A. 56. 010( 18)(           c) (   2011) allows the aggregation of only

third degree thefts, not thefts of greater value. Former RCW 9A.56. 010( 18)( c) provides:

         Except as   provided     in RCW 9A.56. 340( 4)            and   9A.56. 350( 4), whenever any series
         of    transactions     which   constitute        theft,   would,      when   considered   separately,
         constitute theft in the third degree because of value, and said series of transactions
         are a part of a criminal episode or a common scheme or plan, then the transactions

         may be aggregated in one count and the sum of the value of all said transactions
         shall be the value considered in determining the degree of theft involved.

Because each of the alleged thefts exceeded the seven hundred fifty dollar maximum for third

degree theft, Goe claims that the State could not aggregate the amounts. RCW 9A.56. 050.

         However, the State does        not   rely   on   former RCW 9. 56. 010( 18)(     c).   Instead, a common


law rule allows such aggregation of related thefts. In State v .Barton, 28 Wn. App. 690, 694 -95,

626 P. 2d 509 ( 1981),     Division One of this court addressed a claim nearly identical to the one that

Goe presents here. Barton argued that the aggregation statute allowed only the aggregation of

                                                              5
44054 -7 -II



third degree thefts and therefore the State could not aggregate his five bank withdrawals to reach

the required amount for first degree theft. Barton, 28 Wn. App. at 694. The court disagreed,

explaining:


        The        defendant          was   not   charged     under   the   aggregation   statute,   RCW
        9A. 56. 010( 12) (but under the theft in the first degree statute, RCW 9A. 56. 030.
                                  c),

        The State was permitted to charge theft in the first degree for the five transactions
        under the well established common law rule that property stolen from the same
        owner and from the same place by a series of acts constitutes one crime if each
        taking is the result of a single continuing criminal impulse or intent pursuant to a
        general larcenous scheme or plan. State v. Vining, 2 Wn. App. 802, 808, 472 P. 2d
        564, 53 A.L.R.3d 390 ( 1970); Annot., 53 A.L.R.3d 398 ( 1973).


Barton, 28 Wn. App. at 694; see also State v. Atterton, 81 Wn. App. 470, 472, 915 P. 2d 535

 1996) ( " Aggregation of individual transactions to meet the threshold for a particular degree of


theft is allowed by common law and by statute. ").

        Here, the aggregation of the three acts of theft into a single count of first degree theft was


proper under the common law. As the evidence demonstrated, such aggregation exceeded the


 5, 000 threshold for first degree theft. Accordingly, we affirm Goe' s first degree theft
               2
conviction.



        3.         Forgery

        In order to prove that Goe committed forgery, the State had to prove that the instruments

were   forged      and   that   she   knew they   were   forged. RCW 9A. 60. 020( 1).   Goe contends that the


State failed to prove that the BancFirst check ( count III) was forged and failed to prove that she


knew that the money order ( count II) and the BancFirst check were forgeries. We find that there

was sufficient evidence to support these elements.




2 Goe makes no claim that the State failed in its burden of proof as to the remaining elements nor
does she challenge the circumstances allowing common law aggregation. Accordingly, we need
not address these issues.
                                                               6
44054 -7 -II



        As to whether the BancFirst check was a forgery, Goe argues that the State relied on two

inadequate facts: that the maker and bank had the same address and that the check was returned


unpaid. But Najar, the U. S. Bank investigator, testified that the two businesses having the same

address indicated that the counterfeiter had made a mistake. He also testified that the similarity

between the two checks suggested they were forgeries. And he testified that the check was

worthless. The jury also could consider as highly suspect Goe' s explanation for how she

obtained the checks. This was sufficient evidence for a jury to find that the BancFirst check was

a forgery.

        The evidence also was sufficient to show that Goe knew that the BancFirst check and the


money order were forgeries. First, Detective Sahim testified that Goe used the word " forgeries"

in describing the instruments. Second, Goe first told the detective that she cashed all the checks

but then changed her story when the detective confronted her with the surveillance tape. Third,

the teller testified that Goe said she received the money order from her husband, who was then in

Iraq. Fourth, Goe admitted keeping all the money and not sending 90 percent of it back to her

 employer" even though she was grateful to have a stay -at -home job so she couldcare for her

child. And fifth, the rapid withdrawals of the funds suggested that Goe wanted to withdraw the


funds before the bank discovered that the checks and money order were worthless. There was

sufficient evidence for a jury to find that Goe knew that the check and money order were

forgeries.


B.      ADEQUACY OF THE INFORMATION


         Goes argues that the charging document failed to provide her with adequate notice that

the State was aggregating the three thefts into one count of first degree theft. Specifically, she


                                                  7
44054 -7 -II



argues that the information was legally deficient because it failed to charge that she committed

multiple transactions as part of a common scheme or plan. We disagree that the State was

required to reference a common scheme or plan in the information.

           An information must include all essential elements of the offense charged. State v.

Brown, 169 Wn.2d 195, 197, 234 P. 3d 212 ( 2010). Essential elements are those the State must


necessarily prove to establish the criminal act charged. State v. Ward, 148 Wn.2d 803, 811, 64
P. 3d 640 ( 2003). " ` It is sufficient to charge in the language of the statute if it defines the offense


with   certainty.' "   State   v.   Lindsey,   177 Wn.   App.   233,   245, 311 P. 3d 61 ( 2013) ( quoting State v.

Elliott, 114 Wn.2d 6, 13, 785 P. 2d 440 ( 1990), petition for review filed, No. 89555 -4 ( Wash.

Nov. 20, 2013)).       The primary goal of the " essential elements" rule is to give notice to an

accused of the nature of the crime that he must be prepared to defend against. State v. Kjorsvik,

117 Wn.2d 93, 101, 812 P. 2d 86 ( 1991) ( citing 2 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE


  19. 2,   at   446 ( 1984); 1 C. WRIGHT, FEDERAL PRACTICE § 125,                 at   365 ( 2d   ed.   1982)).   All


essential elements of the crime charged, including nonstatutory elements, must be included in the

charging document so that a defense can be properly prepared. Kjorsvik 117 Wn.2d at 101 -02

           When the adequacy of the information is challenged for the first time after verdict or on

appeal, we ask      two   questions: (   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 he was nonetheless actually prejudiced by the inartful language that caused a lack of notice.

Kjorsvik, 117 Wn.2d at 105 -06.


           RCW 9A.56. 030( 1)( a) and RCW 9A.56. 020( 1)( a) collectively require the State to prove

that the defendant obtained or exerted unauthorized control over someone else' s property,



                                                            8
44054 -741



exceeding a value of $5, 000, with the intent of depriving that person of such property. The

information charged Goe with first degree theft as follows:


         The defendant, in the County of Cowlitz, State of Washington, on, about, or
         between February 01, 2011, and February 08, 2011, did wrongfully obtain or
         exert    unauthorized    control      over    property      belonging    to   another,   of   a    value

         exceeding $ 5, 000, to -wit: U.S. currency, with intent to deprive U.S. Bank of such
         property,    contrary    to    RCW 9A.56. 030( 1)(         a)   and   RCW 9A.56. 020( 1)(         a)   and


         against the peace and dignity of the State of Washington.

Clerk' s Papers at 2. This statement contains all of the statutory elements.

         Goe provides no authority requiring the State to allege that the theft involved multiple

transactions as part of a common scheme or plan. As noted above, at common law the State can

aggregate multiple thefts into one charge, which is what occurred.here. Further, because Goe is

making this claim for the first time on appeal, we apply the post -
                                                                  verdict, two -part Kjorsvik test.

We are satisfied that the State' s use of a range of dates, which here encompassed the passing of

the checks and money order, was factually adequate to put Goe on notice and allow her to

prepare a defense. Further, and equally important, Goe fails to show any resulting prejudice.

We hold that the information was sufficient.


C.       ADEQUACY OF THE To CONVICT INSTRUCTION


         Goe argues that the trial court' s to convict instruction for first degree theft was

inadequate because it omitted an essential element of the crime. Specifically, she argues that the

to   convict   instruction   omitted   the State' s   burden   of   showing that the theft involved        multiple
44054 -7 -I1



transactions as part of a common scheme or plan. We disagree that the instruction was

               3
inadequate.


          As noted in discussing the adequacy of the charging document, the State' s reliance on

aggregation to prove the threshold value does not make it an element of the offense. Here, the to

convict instruction included all elements of the offense as is necessary for the jury to measure the

evidence and        determine   guilt.   State   v.   Mills,   154 Wn.2d 1, 6 -7, 109 P. 3d 415 ( 2005). No legal


basis supports Goe' s claim. 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 and need not be defined in the


jury   instructions).     We hold that the trial court did not err in giving the to convict instruction.

D.        ACCOMPLICE LIABILITY STATUTE


          The State alleged that Goe and her husband were accomplices in the forgeries and theft,


and the trial court instructed the jury on accomplice liability. Goe argues that Washington' s

accomplice liability statute, RCW 9A.08. 020, is unconstitutionally overbroad because it

criminalizes speech protected
                                         by   the First Amendment.4        We disagree.

           We presume that statutes are constitutional and - eview challenges to them de novo. State
                                                           r

v.   Lanciloti, 165 Wn.2d 661, 667, 201 P. 3d 323 ( 2009). Under RCW 9A. 08. 020( 3)(                  a),   a person




is guilty   as an accomplice      if "[ ith knowledge that it will promote or facilitate the commission
                                      w]

of [a] crime," she "[      s] olicits, commands, encourages, or requests [ another] person to commit [ the


crime]"     or "[   a] ids or agrees to aid such other person in planning or committing [ the crime]."


3
     The State counters that Goe failed to object to the instruction below and therefore cannot raise
this issue for the first time on appeal. It further argues that Goe cannot demonstrate a manifest
constitutional error under RAP 2. 5( a)( 3) and therefore this court should not review the
instruction. We need not address this issue because our analysis above shows there is no error.

4 U.S. CONST.
                                                                  10
44054 -7 -I1



Goe argues that Washington' s accomplice liability statute does not meet the standard set forth in

Brandenburg v. Ohio,           395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed . 2d 430 ( 1969), in which the


United States Supreme Court held that the First Amendment protects speech advocating criminal

activity unless it "is directed to inciting or producing imminent lawless action and is likely to

incite   or produce such action."              Because " aid" is not defined in the statute, Goe argues that the


statute criminalizes speech other                than that " `   directed to inciting or producing imminent lawless

action.' "    Br. of Appellant at 27 ( quoting Brandenburg, 395 U.S. at 447).

           We    rejected   this    same challenge       in State   v.   Ferguson.   164 Wn. App. 370, 375 -76, 264

P. 3d 575 ( 2011) ( citing State          v.   Coleman, 155 Wn.          App.   951, 960 -61, 231 P. 3d 212 ( 2010)). In


Coleman, Division One of this court held that:


            t] he   accomplice       liability   statute ...    requires the criminal mens rea to aid or agree
           to aid the commission of a specific crime with knowledge that the aid will further
           the   crime.      Therefore, by the statute' s text, its sweep avoids protected speech
           activities that are not performed in aid of a crime and that only consequentially
           further the crime.


155 Wn.      App.    at   960 -61.    In Ferguson, we adopted the reasoning in Coleman and addressed the

Brandenburg standard, holding that "[ b] ecause the statute' s language forbids advocacy directed

at and likely to incite or produce imminent lawless action, it does not forbid the mere advocacy

of   law   violation   that   is   protected under      the    holding   of   Brandenburg." 164 Wn. App. at 376.

We adhere to our decision and analysis in Ferguson and hold that Goe' s challenge to the


accomplice liability statute fails.




                                                                    11
44054 -7 -II


          We affirm.


          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.




We concur:




LEE, J.




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