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    IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                             DIVISION II

STATE OF WASHINGTON,                                                         No. 44807 -6 -II


                                   Respondent,


          v.
                                                                       PUBLISHED OPINION
IBRAHIM HASSAN,


                                   Appellant.




        MAXA, J. —      Ibrahim Hassan appeals his convictions for two counts of second degree

theft and two   counts of unlawful   issuance   of a   bank   check ( UIBC),   as well as the trial court' s


restitution order. He claims that ( 1) the information and to- convict instructions for second

degree theft were inadequate because they did not identify aggregation of multiple theft incidents

based   on a common scheme or plan as an essential element of          the   crime, ( 2)   the to- convict


instructions for UIBC omitted the essential element that the check be drawn on a bank or other

depository for the payment of money, and ( 3) the sentencing court miscalculated his restitution
and trial counsel' s failure to challenge the restitution amount denied him his right to effective

assistance of counsel.



          We hold that the information and to- convict instructions for second degree theft were not

required to reference aggregation because the amounts Hassan obtained control over when he

deposited the checks satisfied the $ 750 threshold value, and that any defect in the UIBC to-

convict   instruction   was   harmless. We   also   hold that Hassan failed to   preserve    his   challenge    to
44807 -6 -II



the restitution award, but that defense counsel deprived him of effective assistance of counsel

during the restitution hearing by not arguing that the victim did not lose the full amount of the
check Hassan gave her. Accordingly, we affirm Hassan' s convictions but remand for correction

of the restitution order.


                                                   FACTS


        Hassan had both personal and business accounts with the Navy Federal Credit Union

 NFCU).    NFCU apparently notified Hassan that he did not qualify to be a member and needed

to close his accounts. On November 15, 2012, Hassan came into the Bremerton branch, closed

his accounts, and withdrew all the funds that had been in those accounts. Hassan subsequently

opened business and personal checking and savings accounts at O' Bee Credit Union.

        On December 29, Hassan deposited a $ 2, 450 check payable to himself drawn on a closed

NFCU    account   into his O' Bee   personal   checking   account.   O' Bee   allowed $   1, 000 of that amount


to be immediately available for Hassan' s use based on the assumption that it would clear the

account. Immediately after depositing the check Hassan made a $ 500 cash withdrawal. Also

that same day he made a $ 302 ATM (automatic teller machine) withdrawal.

         On December 31, Hassan deposited a $ 955 check payable to himself drawn on a closed

NFCU account into his O' Bee personal checking account. O' Bee allowed the entire amount to

be immediately available for Hassan' s use. That same day, Hassan made a $ 600 ATM
withdrawal and a $    160 debit card withdrawal. Both the December 29 and December 31 NFCU

 checks were returned to O' Bee unpaid because the NFCU account was closed.




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        On January 4, 2013, Hassan gave an $ 875 check drawn on a closed NFCU account to

Rene Cavallo, the on -site manager of the Capitol Club Apartments, for his January rent. The

check did not clear because it was written on a closed account.

        On     January   12, Hassan told his friend     Tiffany   Gilpin that he   would   loan her $ 1, 000 to


help repair her car. On January 14, Hassan gave her a $ 2,400 check drawn on the closed NFCU
account. He asked her to deposit the check in her account, and then immediately withdraw

 1, 400 to give to him because it was an easier way for him to get cash than to go to his bank. As

requested,     Gilpin deposited the   check   in her   account, withdrew $   1, 400, and gave that money to

Hassan. Hassan' s check did not clear.


        The State charged Hassan with two counts of second degree theft for the two checks

deposited in his O' Bee account, and with two counts of UIBC for the checks written to Capitol

Club Apartments and Gilpin. A jury convicted Hassan on all counts. At the sentencing hearing,

Hassan objected to the State' s request for $2, 400 in restitution to Gilpin, claiming only that

Hassan had repaid $400 to her. The trial court ordered Hassan to pay the full $2, 400. Hassan

appeals.



                                                       ANALYSIS


A.       ADEQUACY OF SECOND DEGREE THEFT INFORMATION AND INSTRUCTIONS


         Hassan argues that the information charging the two second degree thefts was inadequate

because it did not identify aggregation of multiple theft incidents based on a common scheme or




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plan as an essential element of            the crime.'    He claims that the State had to aggregate the amounts


from multiple transactions to reach the $ 750 value for second degree theft, and therefore it had to

identify aggregation as an element of the crime in the information. Similarly, Hassan argues that
the trial court' s to- convict instructions for the second degree theft charges were inadequate

because they did not impose on the State the burden of showing the aggregation of multiple

transactions as part of a common scheme or plan.2 We hold that the amount of money under

Hassan' s control after he deposited the checks, and not the amount of money he withdrew,

determines whether he reached the $ 750 value threshold for second degree theft.

          Former RCW 9A. 56. 040( 1)(           a) (   2012) 3 provides that second degree theft constitutes the


theft of property or services exceeding $ 750 in value but not exceeding $ 5, 000 in value. Under
RCW 9A.56. 010( 21)(           c),   the State can aggregate a series of transactions that constitute theft in

one count and use the aggregate value of the transactions in determining the degree of theft.

However, aggregation is permitted only if the State can show that the transactions are part of a

criminal episode or a common scheme or plan.                    RCW 9A.56. 010( 21)(     c).      If the State aggregates


value to reach a statutory value threshold, a common scheme or plan is an essential element of a



 1 The information for both second degree theft counts stated that Hassan " did by color or aid of
deception, obtained [ sic] control over the property or services of another or the value thereof,
with intent to deprive him or her of such property or services, the value of which exceeds seven
hundred and fifty dollars ($ 750. 00)." Clerk' s Papers ( CP) at 2 -3

 2
     The to- convict instructions for both         second    degree theft    counts stated   in   part: "(   1) That ...   the

 defendant by color or aid of deception, obtained control over property of another or the value
 thereof; and ( 2) That the property           exceeded $ 750 in    value; [ and] (   3) That the defendant intended
 to deprive the    other person of        the property."     CP at 36 -37.


 3 RCW 9A.56. 040 was amended in 2013, but this amendment did not affect the subsection cited.
 LAws     OF   2013,   ch.   322, § 3.



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crime that must be included in the information and in the to- convict instruction. See State v.

Rivas, 168 Wn.      App.     882 -90, 278 P. 3d 686 ( 2012), review denied, 176 Wn.2d 1007 ( 2013)


 applying rule to second degree malicious mischief charge).

        Hassan argues that the only way the State could meet the $ 750 threshold for second

degree theft was to aggregate the $ 500 and $ 302 withdrawals based on the first deposit and the

 600 and $ 160     withdrawals, based on the second deposit. In contrast, the State argues that it did

not need to aggregate Hassan' s withdrawals in order to reach the $750 value threshold because

Hassan had the ability to       immediately   withdraw   up to $ 1, 000 based on his deposit of the first


check and      up to $ 955   based on his deposit of the second check.4 The issue is when the defendant

fraudulently deposits a bad check in his own bank account, whether the value of the transaction

is based on the amount immediately available for withdrawal or on the amount the defendant

actually withdraws.


         The State    charged    Hassan   with second   degree theft   under   RCW 9A. 56. 020( 1)( b),   which




defines theft as:


         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 or her of such property or services.

 Emphasis      added).   RCW 9A.56. 010( 10)( a) defines " obtain control over" as " to bring about a

transfer or purported transfer to the obtainer or another of a legally recognized interest in the

property."




4 The State made this argument at trial, and it did not argue that the jury needed to aggregate the
individual withdrawals to reach the $750 threshold for second degree theft. However, the trial
court did give an aggregation instruction. The record does not explain why the trial court gave
this instruction.


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             In interpreting statutory language, we give effect to the plain meaning of that language.

State   v.   Ervin, 169 Wn. 2d 815, 820,      239 P. 3d 354 ( 2010). Based on the plain language of RCW

9A.56. 020( 1)( b) and RCW 9A.56. 010( 10)( a), we hold that the amount immediately available to

the defendant after depositing a bad check into his bank account determines the value of the theft

transaction. Here, by depositing the checks in his bank accounts Hassan obtained immediate

 control"      over $ 1, 000 for   the first deposit   and $ 955   for the   second   deposit —the funds were


 transferred" to his account and he was free to withdraw those full amounts. His deposits of

these checks and his acceptance of this control knowing that he did not have money to cover the

amounts were the criminal acts. That Hassan actually withdrew lesser amounts does not affect

the fact that he had control over more.

             The   amount under    Hassan'   s control was $   1, 000 after depositing the first check and $ 955

after depositing the second check. Accordingly, because the State did not need to use

aggregation to reach the $ 750 threshold, the information and the to- convict instructions for the

second degree theft charges did not need to reference aggregation based on a common scheme or

plan. As a result, we hold that the information was not deficient and the to- convict instructions

did not fail to state an essential element of the crime.


B.           ADEQUACY OF THE UIBC To- CONVICT INSTRUCTIONS


             Hassan argues that the trial court' s to- convict instructions for the two UIBC charges

omitted an essential element of the offense: that the check be drawn on a bank or other

depository for the payment of money. He also claims that the to- convict instructions and the

instruction defining the crime irreconcilably conflict because the definitional instruction does




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contain the language omitted from the to- convict instructions. We hold that any error in the to-

convict instructions was harmless, and disagree that the instructions conflict.

        We     review    the adequacy      of   jury   instructions de   novo.   Gregoire v. City of Oak Harbor,

170 Wn.2d 628, 635, 244 P. 3d 924 ( 2010).                  A trial court' s failure to instruct the jury as to every

element of     the   charged crime violates          due   process.   Rivas, 168 Wn.   App.    at    891.   Such a failing

constitutes reversible error.          State   v.   Mills, 154 Wn. 2d 1, 6 -7, 109 P. 3d 415 ( 2005). Hassan did


not object to the instructions at trial, but challenges to instructions that omit an element of the

crime charged can        be   raised   for the first time     on appeal under    RAP 2. 5(   a)(   3).   See State v.


O' Hara, 167 Wn.2d 91, 101, 217 P. 3d 756 ( 2009).

        Hassan first argues that the trial court' s to- convict instructions for the two UIBC charges

omitted an essential element of the offense: that the check be drawn on a bank or other

depository for the payment of money. RCW 9A.56. 060( 1) provides:

         Any person who shall with intent to defraud, make, or draw, or utter, or deliver to
         another person any check, or draft, on a bank or other depository for the payment
         ofmoney, knowing at the time of such drawing, or delivery, that he or she has not
         sufficient funds in, or credit with the bank or other depository, to meet the check
         or draft, in full upon its presentation, is guilty of unlawful issuance of bank check.

 Emphasis      added).    The trial court omitted the first italicized portion but included the second

italicized portion from the to- convict instructions, both of which provided:

                1) That   on or about [ date],        the defendant, acting with intent to defraud, made or
         delivered a check or draft to another person;
             2) That said check or draft was in,an amount greater than $750;
                3) That at the time of such making or delivery the defendant knew that he did
         not have sufficient funds in or credit with the bank or depository to meet the check
         or draft in full upon its presentation; and
                4) That any of these acts occurred in the State of Washington.




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Clerk' s Papers ( CP) at 34, 35. These instructions followed WPIC 73. 02, which does not include

the statutory phrase " on a bank or other depository for the payment of money" in the first
element.   11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

73. 02, at 115 -116 ( 3d ed. 2008 and Supp. 2011).

        We need not determine whether the to- convict instructions omitted an essential element

of UIBC because even assuming that the instructions were defective, the error was harmless.

Where a to- convict instruction omits an essential element of a crime, it is constitutionally

defective unless the State can demonstrate that the omission was harmless beyond a reasonable

doubt. State   v.   Brown, 147 Wn.2d 330, 339 -41, 58 P. 3d 889 ( 2002).   In this context, the error is


harmless if uncontroverted evidence supports the omitted element. Brown, 147 Wn.2d at 341.

        Here, the uncontroverted evidence showed that the checks Hassan delivered to the

apartment manager and Gilpin were drawn on a bank or other depository for the payment of

money. Hassan did not contest this fact. Further, the third element of the to- convict instructions
required the State to prove that Hassan delivered the checks knowing that he did not have

sufficient funds or credit with the bank or depository to meet the checks or drafts in full upon

presentation. The jury would have understood from this provision that the checks had to be

drawn on a bank or other depository.

         Second, Hassan claims that the to- convict instructions and the definitional instruction

irreconcilably conflict because the definitional instruction contains the language omitted from
the.first element of the to- convict instructions. We disagree that the to- convict instructions

 conflicted with the instruction defining the crime. Instruction 9 stated:




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           A person commits the crime of unlawful issuance of a bank check when, with intent to
           defraud, he or she makes or delivers to another person any check or draft in an amount
           greater than $750 on a bank or other depository for the payment of money, and the person
           knows at the time of such making or delivery that he or she does not have sufficient funds
           in, or credit with, the bank or other depository, to meet the check or draft, in full, upon its
           presentation.




CP   at   35 (   emphasis added).     This instruction included the statutory language omitted from the to-

convict instructions.


           When the trial court provides inconsistent instructions to the jury, we review them to

determine whether the inconsistency results in a clear misstatement of the law and, if so, we

presume the instructions misled the jury and prejudiced the defendant. State v. Walden, 131

Wn.2d 469, 478, 932 P. 2d 1237 ( 1997).            But here there was no inconsistency. Although the

phrase " on a bank or other depository for the payment of money" was omitted from the first

element listed in the to- convict instructions, it was included in the third element. And nothing in

those instructions conflicted with the phrase " on a bank or other depository for the payment of

money" in instruction 9,

           We reject Hassan' s arguments that the trial court' s UIBC jury instructions require a new

trial.


C.          RESTITUTION


            Hassan argues that the trial court erred in setting the amount of restitution to Gilpin at

  2, 400 because Gilpin' s only loss        was   the $   1, 400 she gave to him, and that amount should have


been further reduced because he repaid her $400. He also claims that trial counsel' s failure to

 object    to the   additional $   1, 000 in restitution denied him his right to effective assistance of


 counsel. We do not directly address the amount of restitution other than the disputed $400



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because Hassan did not object below, but hold that his defense counsel was ineffective for not

objecting to the     additional $      1, 000 in restitution based on Hassan' s loan to Gilpin.

           1.    Restitution Amount


           We review a sentencing court' s restitution award for an abuse of discretion. State v.,

Griffith, 164 Wn.2d 960, 965, 195 P. 3d 506 ( 2008).                A court abuses its discretion when its

decision is manifestly unreasonable or based on untenable grounds. State v. Sisouvanh, 175

Wn.2d 607, 623, 290 P. 3d 942 ( 2012).

           The   evidence at   trial   showed    that Gilpin   suffered a   loss   of at   least $ 1, 400, the amount in


cash she gave Hassan after she deposited his $2, 400 check. Gilpin testified that she asked

Hassan for her money back but he did not give the money back to her. Hassan claims that he
repaid $400, and Gilpin testified that Hassan did give her $400 at some unstated time. But the

trial court reasonably could have interpreted Gilpin' s testimony as stating that the $ 400 payment

occurred before the incident.


           With   regard    to the   additional $   1, 000 in restitution the trial court ordered, Hassan did not


object at the time of sentencing and therefore did not preserve this issue for appeal. Accordingly,

     do                              the   amount of restitution on appeal under           RAP 2. 5(   a).   However, we
we        not   directly   address



do address this issue below under Hassan' s ineffective assistance of counsel claim.

           2.     Ineffective Assistance of Counsel


           A defendant has the right to counsel at a restitution hearing. State v. Milton, 160 Wn.

App.      656, 657, 252 P. 3d 380 ( 2011).          Hassan argues that his counsel' s failure to challenge the


  2, 400 restitution award at trial denied him his right to effective assistance of counsel. We

 agree.




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        To prevail on an ineffective assistance of counsel claim, the defendant must show both

that ( 1) defense counsel' s representation was deficient, and ( 2) the deficient representation

prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011).

Representation is deficient if after considering all the circumstances, it falls below an objective

standard of reasonableness.      Grier, 171 Wn.2d at 34. Prejudice exists if there is a reasonable


probability that except for counsel' s errors, the result of the proceeding would have differed.
Grier, 171 Wn.2d at 34.


         Unless a defendant agrees to the restitution amount, the State must prove the losses by a

preponderance of the evidence. State v. Tobin, 161 Wn.2d 517, 524, 166 P. 3d 1167 ( 2007).

Here, the State proved that Gilpin suffered a loss of $1, 400. But there is nothing in the record

supporting the trial    court' s conclusion   that Gilpin   suffered a   loss relating to the $ 1, 000 she


deposited in her account and did not pay to Hassan in cash. Gilpin admitted that this amount was

a loan, not money that Hassan owed to her. And there is no evidence that Gilpin suffered any

loss due to the $ 1,   000 loan she thought she was receiving not materializing. Therefore, the State

failed to                                     the              that Gilpin incurred   more   than   a $   1, 400 loss.
            prove   by a preponderance   of         evidence




         Because there was no evidence to support a $ 2, 400 restitution award, counsel should


have objected to that award. And there was no conceivable tactical reason not to object.

Accordingly, defense counsel was deficient in this respect. Further, defense counsel' s failure to
object prejudiced Hassan because if counsel had pointed out the State' s failure to sustain its

burden   of proving an additional $    1, 000 loss, the trial court would have declined to include that

 amount in its restitution award.. Accordingly, we hold that defense counsel' s representation was

 ineffective regarding the restitution award.



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        The record shows that the trial court abused its discretion in awarding $2,400 in

restitution rather   than $ 1,   400. Therefore, We remand for correction of the restitution order to


reduce the amount of restitution by $1, 000.

        We affirm Hassan' s convictions but remand for correction of the restitution order.




 We concur:




 W    ZSWICK, P. J.




 LEE, J.




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