                                                                                      COURT
                                                                                              FILEDD
                                                                                              OF APP -
                                                                                                     ALS

                                                                                     2013 JUL 23   mi   a• i e


                                                                                     S7

                                                                                     BY



    IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                          DIVISION II

STATE OF WASHINGTON,                                                No. 42901 2 II
                                                                              - -


                               Respondent,

          V.




DOANH QUOC NGUYEN,                                           UNPUBLISHED OPINION




          HUNT, P. . —
                 J    Doanh Quoc Nguyen appeals his jury trial convictions for one count of

first degree identity theft, four counts of first degree theft, five counts of forgery, and one count

of second degree theft. He argues that ( the trial court erred when it admitted an "affidavit of
                                       1)

fraud,"
      which constituted improper opinion evidence of his guilt; and (2) received ineffective
                                                                       he

assistance when his counsel failed to object to this exhibit as improper opinion evidence. We

affirm.


                                              FACTS


                                      I. THEFT AND FORGERY


          From spring 2006 through January 2007, Doanh Quoc Nguyen worked as an in home
                                                                                   -

caregiver for an elderly couple, Frances and Robert Clay Griffin.' Mrs. Griffin regularly paid


1 Mr. Griffin suffered from Parkinson's disease and diabetes; he required more physical care than
Mrs. Griffin was able to provide alone.
No. 42901 2 II
          - -




Nguyen his wages with checks drawn on one of her Columbia Bank checking accounts. In early

January 2007, Nguyen told the Griffins that he was going to visit family in Wyoming; but he

actually returned to his native Vietnam.

         On January 20, shortly after Nguyen's departure, Mrs. Griffin discovered that four checks

payable to Nguyen, which she had not written, had cleared one of her Columbia Bank checking

accounts. These four checks had been made out in the amounts of 9300, 5, 4, and
                                                                $ , $ 700, $ 000,

2,
 600. With her banker's assistance, Mrs. Griffin completed an affidavit of fraud, in which she

swore that she did not write these checks and stated her "belie[
                                                               f] Doanh Nguyen [was]
                                                                 that

responsible   for the fraud ";   she signed the affidavit of fraud "
                                                                   under penalty of perjury."Ex. 11.

At some point, a fifth check that Mrs. Griffin had not written was discovered; this check, also

payable to Nguyen, was drawn on another Griffin checking account for $ 00. 1. All five checks
                                                                     5 4

had been deposited into Nguyen's Bank of America account.

         After Mrs. Griffin's daughter Annette Ilene Fender, reported the possible fraud,
Lakewood Police Officer Andrew Hall investigated, met with Mrs. Griffin at her home, and

spoke    to her   about the checks.    Hall compared the writing on the questioned checks to Mrs.

Griffin's handwriting and noticed they were different. Observing that the questioned checks had

been deposited into a Bank of America account, Hall obtained a search warrant for the related

bank records. He then unsuccessfully attempted to contact Nguyen. A warrant was issued for

Nguyen's arrest.




2
    Fender was Mr. Griffin's stepdaughter. Fender lived in Florida.




                                                    2
No. 42901 2 II
          - -



         A year later, in January 2008, Mr. Griffin passed away. Two years after Mr. Griffin's

death, in December 2009, Mrs. Griffin suffered      a "massive   stroke."   1 Verbatim Report of

Proceedings (VRP)at 62. Nguyen returned to the United States in May or June 2010; officers

arrested him when he arrived at SeaTac International Airport. A year later, Mrs. Griffin passed
                                   -

away, in May 2011.

                                         II. PROCEDURE


         The State charged Nguyen with one count of identity theft, five counts of forgery, four

counts of first degree theft, and one count of second degree theft. The case proceeded to a jury
trial.


                                       A. State's Evidence


         At trial, the State presented testimony from Fender, employees from the Griffins' bank

and Nguyen's bank, a handwriting specialist, and the police officer who investigated the crimes.

                                            1. Fender


         Fender testified about her parents' conditions, their hiring and employment of Nguyen,

and her mother's discovering the forged checks after Nguyen had departed. Fender also testified

that when the Griffins had employed Nguyen, her mother (Mrs. Griffin) was in charge of the

couple's financial affairs and she (Mrs. Griffin)had been unwilling to allow Fender to take over

this responsibility, despite Fender's concerns about her mother's ability to manage her finances

properly. Soon after Nguyen left, Mrs. Griffin had called Fender in hysterics, told Fender "that

3
 The State also alleged two aggravating factors for each offense: (1)     that Nguyen had used a
position of trust to facilitate the offenses, and (2)that the victims were particularly vulnerable.
Nguyen raises no issues on appeal related to these aggravating factors.




                                                3
No. 42901 2 II
          - -



she [( rs. Griffin)] missing money," asked Fender if she knew " nything about it."
     M             was             and                        a                  1

VRP at 51. Fender told Mrs. Griffin to go to her bank " nd just stop everything on her account ";
                                                      a

about a week later, Fender flew out to assist her mother. 1 VRP at 52.

       Upon Fender's arrival, she noticed that her mother had not balanced her checking

accounts for some time,which was not unusual. Fender took her mother to her bank, where they

                                             didn't
discovered" several checks that Mrs. Griffin "           or   couldn't remember   writing ";   at this


time, Mrs. Griffin's memory was "[ retty good." VRP at 53. All of the questionable checks
                                p]            1

had been written to Nguyen; but they did not appear to be his paychecks and the signature on the

checks did not appear to be in Mrs. Griffin's handwriting. Examining State's exhibits 2 through

6, the non -paychecks made out to Nguyen for $
                                             00, $ 00, $
                                             4, 2, 5, 9, and
                                               000. 00, $ 00,
                                                     600. 700. 300.

500. 1, respectively, Fender testified that each check was made payable to Nguyen but that
   4

none of the signatures were in her mother's handwriting.

                                    2. Other State witnesses


       During Hall's testimony, the following exchange occurred:

       STATE] And did [Mrs.Griffin] — at some point, did you develop a suspect in
                                  or
       the case?
       HALL] I did.
       STATE] And who was that?
       HALL] That's the defendant. I believe it' Doanh Nguyen.
                                               s

2 VRP at 164. Nguyen did not object to this testimony.

       Jennifer Vitzthum, a Columbia Bank fraud investigator, testified that ( ) only people
                                                                             1 the

authorized to sign on any of the Griffins' bank account checks were Mrs. Griffin, Mr. Griffin,




                                                Ll
No. 42901 2 II
          - -



and Fender; 2) five checks in question had been "cleared"or " aid"by Columbia Bank,and
            ( all                                           p
3)Mrs. Griffin had identified the first four of these checks as "fraudulent " in her affidavit of
fraud.' 1 VRP at 96 97.
                    -

         Kimberly Clanton, a Columbia Bank customer service representative, testified that she

regularly assisted Mrs. Griffin and that she was the person Mrs. Griffin had contacted when she

discovered the fraudulent checks.     Clanton had helped Mrs. Griffin complete the affidavit of

fraud, which Clanton characterized as "something that a customer fills out at the bank, and

they're making a statement saying that they didn't write these checks."2 VRP at 149. Clanton

identified exhibit 11 as the affidavit of fraud she had helped Mrs. Griffin complete. Nguyen did

not object to the trial court's admission of this exhibit.

         Brett Bishop, a Washington State Patrol Crime Lab forensic scientist and "[
                                                                                  h] andwriting

expert[ ]," testified that after examining about 300 checks written on the Griffins' bank accounts,

Bishop concluded that (1) "
                         Frances Griffin probably did not write [any of the five] questioned

checks and [they] are probably simulations," ( ) appeared that someone had been trying to
                                           and 2 it

copy her    writing.   1 VRP at 116 (emphasis    added). Having compared the writing on these

checks to Nguyen's writing, Bishop testified that the person writing the checks had been

4
 Columbia Bank, however, did receive from Nguyen's bank a $19
                                                           5, partial reimbursement
                                                            831.
on the $
       00 check. Bank of America returned these funds without Nguyen's involvement
       9,  300.
when received Columbia Bank's notification that the $
                                                    00
                                                    9, check was fraudulent.
                                                      300.

    The fifth check, for $ 00. 1,had been drawn on a different Columbia Bank checking account.
                         5 4
6
 Because of the poor quality of the check copies available for his review, Bishop could not say,
however, that it was "highly probable"that Mrs. Griffin had not written these checks. 1 VRP at
130 (emphasis added).




                                                   5
No. 42901 2 II
          - -



attempting to sign someone else's,
                                 signature, and "the writing characteristics in themselves

were] disguised "; thus, he    could neither   identify   nor   exclude   Nguyen   as   the writer. 1 VRP at


119.


                                            B. Defense Case


       Nguyen    was   the   only   defense witness.   He admitted to having forged the $ 700 and
                                                                                         5,

9, checks, asserting that he had needed the. oney to help his pregnant wife in Vietnam and
 000                                       m

that he had intended to repay the Griffins. But he denied having written the other three checks.

Instead, he testified that the $ 000 check had been a loan to him from the Griffins and that the
                               4,

2, check covered a week's salary of $ 000 and a $1, repayment for his having
 600                                1,            600

purchased a computer for Mrs. Griffin to give to her grandson. Nguyen, however, produced no
documentation to show that he had          purchased   this computer.       Nor could he explain another

4, check that Mrs. Griffin had written to him 15 days after the $4, check at issue.
 000                                                              000

Similarly,Nguyen did not attempt to explain the $ 00. 1 check.
                                                5 4

               C. Closing Argument, Jury Instruction, Jury Question, and Verdict

       In closing, the State argued that Nguyen had admitted his guilt as to (1) first degree
                                                                                the

identity theft charge; 2) first degree theft charges related to the $ 300 and $ 700 checks;
                       ( the                                        9,        5,

and (3) forgery charges related to the $ 300 and $ , checks. In discussing the remaining
      the                              9,        5700

charges, the State argued:




7 Fender testified that her mother had given her " reat grandchild"Isaiah Griffin a computer that
                                                 g
Christmas 2006.
No. 42901 2 II
          - -



                First of all, Mrs.Griffin] herself, obviously is not here. [She] is not in the
                              [
       courtroom to testify; however, she did fill out an affidavit of forgery, and this is
       the affidavit of forgery that she filled out with Kim Clanton, her banker, and as
       Kim Clanton said this affidavit of forgery does not get filled out unless the
       customer is absolutely positive that these checks have.not been written or drawn
       by them with their permission. They being Robert and Frances Griffin. So in this
       case, Frances Griffin does get to speak and she does get to speak through this
       business record. You' l see her signature on the back, and again, with Kim
                                l
       Clanton's testimony, this is the very few words that Frances Griffin will at least
       be able to say in this courtroom that I did not do this. She also says in here that
       she believes Mr. Nguyen did it.

3 VRP at 280 81 (
             - emphasis added).Nguyen did not object to this argument.

       The trial court instructed the jury, You are the sole judges of the credibility of each
                                            "

witness."Clerk's Papers (CP)at 26 (Jury Instruction 1).
                                                      During its deliberations, the jury sent

the trial court the following question: "Can we have the Affidavit of Fraud for [the $ 41]
                                                                                     500.

check, ... ? If not, is there   a reason     this   was   not   completed by   Francis ?"   Suppl, CP at 148. The

trial court responded: "You have all of the exhibits that were admitted. The testimony will not

be repeated."
            Suppl. CP at 148.

        The jury found Nguyen guilty of one count of identity theft, four counts of first degree

theft, five   counts   of   forgery,   and   one     count of      second degree theft.       It also found both


aggravating factors for each offense. Nguyen appeals his convictions.

                                                     ANALYSIS


        Nguyen argues that (1) trial court erred in admitting Mrs. Griffin's affidavit of fraud
                              the

because this document was improper opinion testimony about his guilt; and (2)alternatively, if

we hold that he failed to preserve this error, his counsel's failure to object to the trial court's

admission of the affidavit of fraud was ineffective assistance. Even presuming, but not deciding,




                                                            7
No. 42901 2 II
          - -



that this is a constitutional issue, we do not reach this argument because Nguyen fails to show

that the alleged error was manifest, as required for the RAP 2. (
                                                             a)( exception to the
                                                              3)
                                                              5

preservation requirement.

         We agree with Nguyen that a witness may not give an opinion or state a personal belief

that the defendant is guilty. State v. Montgomery, 163 Wn. d 577, 591, 183 P. d 267 (2008).
                                                         2                  3

But here, even assuming without agreeing that Mrs. Griffin's affidavit of fraud was the

equivalent of unconstitutional impermissible opinion testimony about Nguyen's guilt, Nguyen

fails to show that any potential error "caused actual prejudice or practical and identifiable

consequences." Montgomery, 163 Wn. d at 595 (citing State v. Kirkman, 159 Wn. d 918, 928,
                                 2                                          2

155 P. d 125 (2007)).
     3             Furthermore, other strong evidence and the jury's verdict—
                                                                            that Nguyen
was also guilty of charges not related to the checks .isted in Mrs. Griffin's affidavitshow that
                                                     l                                 —

the affidavit of fraud was not the determinative factor here.


         In addition to Mrs. Griffin's affidavit of fraud, the investigating officer presented live

testimony about his own conclusion that.Nguyen had forged the questionable checks; and

Nguyen did not challenge this testimony. Each of the five questionable checks had been made


8"
  Impermissible opinion testimony regarding the defendant's guilt may be reversible error
because such evidence violates the defendant's constitutional right to a jury trial, which includes
the independent determination of the facts by the jury." State v. Kirkman, 159 Wn. d 918, 927,
                                                                                      2
155 P. d 125 (2007)citing State v. Demery, 144 Wn. d 753, 759, 30 P. d 1278 (2001);
     3              (                            2                 3              State v.
Black, 109 Wn. d 336, 348, 745 P. d 12 (1987)).
             2                  2
9
  Relying on Montgomery, 163 Wn. d at 596, n. ,Nguyen argues that the jury's question to the
                                      2           9
trial court during the jury deliberations demonstrates that the jury relied on the affidavit of fraud
in   finding   him   guilty.   Br. of   Appellant   at 10.   Here however, unlike Montgomery, the jury
question does not show that the jury's verdict was dependent on Mrs. Griffin's specific
accusatory     statement in her affidavit of fraud.
No. 42901 2 II
          - -



payable to Nguyen and deposited into his bank account; and Nguyen admitted having forged the

two larger checks. And Fender, the investigating officer, and the handwriting expert all testified

that it did not appear that Mrs. Griffin had written any of the five checks at issue because the

handwriting did not look like hers; instead, it looked like someone was trying to copy her

handwriting. Furthermore, the trial court instructed the jury that it was solely responsible for

determining Nguyen's guilt. We presume that the jury followed the trial court's instructions.

Kirkman, 159 Wn. d at 937. Given the evidence and the jury instructions, we hold that Nguyen
               2

has failed to establish the trial court's admission of the affidavit caused actual prejudice or any

other practical and identifiable consequences. Montgomery, 163 Wn. d at 595. Accordingly, we
                                                                 2

decline to reach Nguyen's improper opinion argument.

       Nguyen also argues that his trial counsel provided ineffective assistance in failing to

object to the admission of Mrs. Griffin's affidavit of fraud. To establish ineffective assistance of

counsel, Nguyen   must show both deficient     performance   and   prejudice. State v. Grier, 171

Wn. d 17, 32 33, 249 P. d 1260 (2011). Based on the facts we discuss above, we hold that
  2          -        3

Nguyen fails to show that the affidavit's admission was prejudicial. Accordingly,his ineffective




                                                 7
No. 42901 2 II
          - -



assistance argument also fails.

       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

040,
2.6.it is so ordered.
 0
                                                                         3
                                                     P. .
                                                      J




                                              10
