                                                                          FILED
                                                                       MARCH 21, 2017
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION THREE


STATE OF WASHINGTON,                           )
                                               )         No. 34035-0-111
                     Respondent,               )
                                               )
       V.                                      )
                                               )         UNPUBLISHED OPINION
CARRIE LEE AENK,                               )
                                               )
                     Appellant.                )


       FEARING, C.J. -    Carrie Aenk appeals convictions for attempted second degree

theft and third degree theft. She argues that the trial court denied her the constitutional

right to present a defense when the court excluded hearsay testimony. She also argues

the State presented insufficient evidence on which to convict her. We disagree and

affirm the convictions.

                                          FACTS

       Carrie and Allan Aenk, wife and husband, operate Shepherd's Way Animal
No. 34035-0-111
State v. Aenk


Rescue (Shepherd's Way), a dog and horse rescue ranch in Springdale. On July 6, 2013,

Elle Hatfield, of Post Falls, Idaho, called Shepherd's Way to discuss an advertisement for

the adoption of a rescue horse. Hatfield's husband, Dustin, then labored in Afghanistan.

Hatfield spoke with Carrie Aenk, owner and manager of Shepherd's Way. Hatfield

mentioned that she desired a horse for her autistic daughter to ride. Aenk responded that

she works with autistic children on her ranch and the advertised horse, Duke, suited

Hatfield's needs. Aenk also volunteered that other potential buyers had showed interest

in Duke and that Aenk would sell to the first acceptable offeror.

      The day following the phone call, Elle Hatfield and her daughter visited

Shepherd's Way, where Hatfield examined Duke. The daughter fell in love with Duke.

Because of other potential buyers, Hatfield signed a contract on July 7 for Duke's

adoption. The contract required a $500.00 nonrefundable adoption fee. Hatfield

tendered a check for $520.00, $500.00 for the adoption fee and $20.00 for a book written

by Carrie Aenk. On August 9, 2013, Carrie Aenk cashed the $520.00 check at Global

Credit Union in Spokane.

      Elle and Dustin Hatfield recently had purchased a home with acreage, and the

property lacked a fence for a horse. On July 7, Elle Hatfield mentioned to Carrie Aenk

that Hatfield must board Duke until she erected a fence on her property. Aenk agreed to

board Duke temporarily. Aenk also insisted on teaching the Hatfield daughter in riding


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State v. Aenk


Duke before the Hatfields took Duke home. During the visit to Shepherd's Way, Elle

Hatfield inquired about other adoptable horses.

       During this first visit, Elle Hatfield asked Carrie Aenk for a copy of the signed

Duke purchase agreement. Because the two stood in the field, Aenk stated she would

later e-mail Hatfield a copy. Hatfield never received a copy.

       A week later, Elle Hatfield and her daughter returned to Shepherd's Way so that

the teenager could ride Duke. Carrie Aenk instructed the daughter on riding Duke.

       During this second visit, Elle Hatfield again expressed interest in adopting other

horses. Aenk mentioned Quinn and Baron as her only adoption horses, yet claimed they

were her favorite horses. · Still, Aenk asserted that she would not sell either horse for less

than $5,000. Hatfield assumed that Aenk joked about a price since Aenk earlier stated

she would not sell either equine. Hatfield jested that she would not pay $5,000 for a

horse. Aenk then grew friendlier and talkier. Hatfield remarked that she would pay

$2,500. Aenk replied: "Yeah, a piece." Report of Proceedings (RP) at 139. Hatfield

exclaimed that her husband would not approve of paying $2,500 per horse, after which

Aenk labeled Hatfield a "trophy wife." RP at 139. Carrie Aenk then escorted Elle

Hatfield to the location of Quinn and Baron. Hatfield adored the loveable Tennessee

Walkers, stated she wanted the two horses, but repeated that she would not pay Aenk's

pnce. Carrie Aenk stated she would speak to her husband about a sale of the horses, and


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State v. Aenk


the conversation and visit ended.

       At some unidentified time, Elle Hatfield called Carrie Aenk to schedule a time for

Hatfield's daughter to again ride Duke. Hatfield asked Aenk if Aenk had spoken to her

husband about the sale of Quinn and Baron. According to Hatfield, Aenk responded that

she had spoken to her husband, the two were reluctant to sell the two horses for $2,500,

but, since no one else rode the horses, they would sell the Tennessee Walkers for $2,500.

Hatfield ended the conversation by stating she wanted her husband to see the horses.

       Upon Dustin Hatfield's return from Afghanistan, Dustin, Elle, and their daughter

traveled to Shepherd's Way to see Quinn and Baron. During this August 18, 2013 visit,

the daughter rode Duke. Elle Hatfield met Carrie Aenk's husband, Allan, and Dustin

Hatfield met both Aenks. Carrie showed the Hatfields Quinn and Baron. Dustin Hatfield

sought to reaffirm that the total price for the two horses was $2,500, and, according to

Dustin, Carrie Aenk expressed agreement to the figure.

       Elle Hatfield commenced to complete one form contract for the purchase of Quinn

and Baron. Carrie Aenk interrupted Elle, presented Elle with a second contract, and

directed Elle to complete a contract for each horse. Hatfield then crossed out Baron's

name from the first contract. Elle asked her husband for the answer to $2,500 divided by

two. Dustin Hatfield responded $1,250, but then checked his head math with his

cellphone's calculator. According to Elle Hatfield, she then completed both contracts by


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State v. Aenk


inserting $1,250 as the nonrefundable adoption fee for the respective horses. Dustin

Hatfield wrote a check to Carrie Aenk for $2,500. Dustin postdated the check to August

24, 2013.

          On August 18, the Hatfields left Shepherd's Way without a copy of the two

contracts. Carrie Aenk told the couple she would later e-mail them copies. Aenk added

that she and her husband held the right to inspect the Hatfields' property at any time to

determine the property's suitability to house a horse. The Aenks kept possession of

Quinn and Baron until the Hatfields erected a suitable fence to keep the horses.

          Carrie Aenk claims Elle and Dustin Hatfield agreed, on August 18, to pay $2,500

per horse. Copies of each contract later in the possession of Carrie Aenk state the

purchase price for each horse to be $2,500. Nevertheless, the copies show some

doctoring of the nonrefundable price. According to Allan Aenk, Elle Hatfield wrote a

check for $2,500. The Hatfields would pay the remaining $2,500 on delivery of the

horses.

          Between August 18 and 24, 2013, Carrie and Allan Aenk visited the Hatfields'

property at least three times. On the first visit, the Aenks told the Hatfields that the

Hatfields needed to purchase other fence posts and alter the configuration of the fence.

The Hatfields obeyed. The alterations cost $1,000. On the second visit, the Aenks

demanded one more change in the fence.


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 No. 34035-0-III
·State v. Aenk


       On Saturday, August 24, 2013, Carrie Aenk telephoned Elle Hatfield. Aenk

reported that the Hatfields' postdated check would not clear the banking system. Hatfield

called her bank, which informed her that her account held sufficient funds to pay the

check. Hatfield called Aenk and informed Aenk that she should encounter no difficulty

in cashing the check. The two then dialogued:

              [AENK:] "Well, I need the money or you guys can't get the horses
       delivered."
              [HATFIELD:] "Okay, well, you know, we can meet you at the
       bank."
              [AENK:] "No, I just need cash."
              [HATFIELD:] "Okay, if you bring us the check, we'll get you
       cash."
              [AENK:] "Okay, well, Allan and I are already in town; so we can
       just meet you at the property."

RP at 154-55.

       The Hatfields went to their bank and withdrew $2,500 in cash. The Hatfields and

the Aenks then met at the Hatfields' property. According to Elle Hatfield, her husband

exited the family car and handed the cash to one of the Aenks, who remained in their

vehicle. The Aenks did not return the $2,500 check and did not provide Dustin Hatfield a

receipt for the cash.

       According to Allan Aenk, he discussed with Elle and Dustin Hatfield, during the

August 24 visit, a time for the delivery of the horses and access to water for the horses at

the Hatfields' land. The record does not show Carrie Aenk to be present during the


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State v. Aenk


discussion. Allan Aenk insisted that the Hatfields had yet to prepare the property to care

for horses. He also stated that he and his wife agreed to delivery of the horses on

Monday, August 26.

       Upon Dustin Hatfield's return to the car, Elle Hatfield learned that Dustin received

no receipt nor the $2,500 check. From the car, Elle Hatfield called Carrie Aenk, and the

two conversed by speaker phone:

               [HATFIELD:] "So, Carrie, um, you forgot to bring us the check."
               [AENK:] "Yeah. Oh, darn it. It's at my house."
               [HATFIELD:] "Yeah, and you were going to bring that receipt,
       too."
               [AENK:] "Yeah, I'll bring it when I bring the horses."

RP at 155.

      Elle and Dustin Hatfield anticipated delivery of Quinn and Baron on August 25,

2013, the day following the tender of the $2,500 in cash. The Aenks appeared on August

25 without the horses. The Aenks announced that, because of other commitments, they

were unable to deliver the Tennessee Walkers for another two weeks. The Aenks also

had yet to deliver Duke to the dismay of the Hatfield daughter.

      On August 26, 2013, Elle Hatfield texted Carrie Aenk and wrote that, if the Aenks

did not deliver Quinn and Baron by August 27, the Hatfields would cancel the contract to

purchase the two horses. Elle Hatfield volunteered to retrieve the horses from Shepherd's

Way. Carrie Aenk responded that the Aenks already had a commitment and would not


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No. 34035-0-III
State v. Aenk


engage in two commitments at one time. Eventually Aenk texted Hatfield:

              If the unreasonableness continues, I will abide by the contract and
       determine that the horses will be unsafe in that environment and cancel all
       three contracts.

Ex. 13. Elle Hatfield reminded Carrie Aenk that Aenk had never mailed a copy of the

contracts to Hatfield. Aenk ended the texting with a threat and a prophecy:

              If you come to the ranch, you will be trespassing. See you in court.

Ex. P-15.

       During the morning of August 27, 2013, Dustin Hatfield and Carrie Aenk spoke

by phone. Aenk stated that the Board of Directors of Shepherd's Way voted to preclude

the Hatfields from adopting the three horses because of a hostile environment at the

Hatfields' property. Aenk declared, however, that Shepherd's Way would refund the

Hatfields the purchase prices.

       Later on August 27, 2013, Carrie Aenk visited ACE check cashing service and

attempted to cash the $2,500 check. ACE called Dustin Hatfield. Dustin directed ACE

not to cash the check. Aenk later claimed that she was just trying to see if the check

remained valid. She also declared that she was entitled to the check. Dustin Hatfield

called his bank and placed a stop payment order on the check. He then called Crime

Check and reported the conduct of Elle Hatfield.




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No. 34035-0-111
State v. Aenk


       The Hatfields still pursued obtaining possession of the horses. The couple rented a

trailer to ferry the horses from Shepherd's Way to the Hatfields' land. Carrie Aenk

responded that she would shoot the Hatfields if the couple came near her ranch. The

Aenks never delivered any of the three horses to the Hatfields.

                                       PROCEDURE

       The State of Washington charged Carrie Aenk with attempted second degree theft

and third degree theft. The attempted second degree theft charge arose from the receipt

of at least $2,500 for the purchase of Quinn and Baron without an intention to deliver the

horses to the Hatfields. The third degree theft charge stems from the receipt of $500 for

the acquisition of Duke without an intent to deliver the horse to the Hatfields.

       During trial, Elle Hatfield testified that she eventually concluded that the Aenks

would not deliver any of the three horses. Dustin Hatfield testified that Carrie Aenk stole

$3,000, that he concluded that the Hatfields would never see the horses again, and that

the Hatfields would lack recourse to rectify the theft.

       During Allan Aenk' s testimony, defense counsel asked Allan questions about

comments made by Elle and Dustin Hatfield to him and discussions between the three, on

August 24, as to the date of delivery of the horses. The State repeatedly objected to the

questions on hearsay grounds. The crux of the questioning follows:




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No. 34035-0-111
State v. Aenk


               Q .... On that Saturday [August 24, 2013], did you have
       discussions with either Mr. or Mrs. Hatfield about when the horses could be
       delivered?
               A. Yes.
               Q. Okay. And what was the substance of those discussions?
               MS. ZAPPONE: Objection, hearsay.
               THE COURT: So Counsel, he can testify to what he said; but if
       you're asking for the substance of the discussions, you're asking him to
       testify to what other people said.
               MR. WALL [Defense Counsel]: Well, Your Honor, I don't know
       how the jury can understand what happened if he can't testify as to what
       was talked about in terms of when the horses would be delivered.

RP at 374-75.

       After excusing the jury, Allan Aenk and the trial court discoursed:

             [ALLAN AENK]: So ifl base my actions and my language or my
      discussion with Elle and Dustin, if I base that off of what they've told me, I
      can't say that they told me this and that's why I did this. Is that what
      you're saying?
             THE COURT: I'm telling you you can't testify to what they told
      you. I will let you testify to what you did. You just can't say, "They told
      me this." It's hearsay.

RP at 377-78.

      Defense counsel argued that he did not offer Allan Aenk's testimony for the truth

of the matter asserted. Counsel asserted that he would use the testimony to explain Elle

Hatfield's state of mind concerning the horse transactions. Counsel also argued that the

comments made by the Hatfields to Allan Aenk helped to establish the agreement

reached between the parties as to the timing of delivery of the horses. Nevertheless,



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No. 34035-0-111
State v. Aenk


Carrie Aenk presented no offer of proof that Allan Aenk later told Carrie Aenk what the

Hatfields said such that Carrie Aenk relied on the Hatfields' statements when reflecting

on the agreed time for delivery. Carrie Aenk presented no testimony that she was present

and overheard the conversation between her husband and the Hatfields. Her counsel

never asked her if she had a conversation with the Hatfields concerning timing of

delivery.

       Carrie Aenk testified to the following:

              Q. Okay. We talked about these contracts, okay, and that each of
       them says $2,500 for Quinn and [Baron], correct?
              A. Correct.
              Q. Was that what was written on those contracts when you first
       received them?
              A. Yes.
              Q. Okay. Did you alter that in any way?
              A. No.
              Q. Did you ever scratch out a different number and replace it?
              A. No.
              Q. Was it your understanding that the Hatfields had agreed to pay a
       $2,500 adoption fee for each of the horses Quinn and [Baron]?
              A. Correct.
              Q. Okay. And did you receive payment for Quinn?
              A. Yes.
              Q. Okay. And did you have an understanding that you were
       supposed to wait any period of time before negotiating that check?
              A. Yes.

RP at 451.

             Q. Okay. Were you anticipating when you got to the property that
       you were going to collect cash from Mr.-
             A. Yes.

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No. 34035-0-III
State v. Aenk


                Q.   -Hatfield? Okay. And did you collect cash?
                A.   Yes.
                Q.   And how much?
                A.   $2,600.
                Q.   And what was your understanding of what that money was for?
                A.   It was for Quinn's adoption fee.

RP at 455.

             Q. And did you ultimately end up keeping the check?
             A. Yes.
             Q. Okay. What was your understanding of why you were keeping
      the check?
             A. Because we were-I can't give hearsay.
             Q. No. I'm just asking you what your understanding was.
             A. My understanding of being allowed to keep the check was for the
      second payment for [Baron].
             Q. Okay. And did you then intend at some point to negotiate that
      check for the contract for [Baron]?
             A. We didn't try to negotiate it.
             Q. No, no. Did you intend at some time to cash that check? Not on
      that day.
             A. Not on that day. We went to verify it, but we did not try to cash
      it.
             Q. I'm asking if you intended to cash that check at some point.
             A. At some point.
             Q. Okay. And at what point did you intend to actually cash the
      check?
             A. When we delivered [Baron].

RP at 458-59.

                Q .... Did Mrs. Hatfield ask you something in that phone call?
                A. Yes.
                Q. What did she ask you?
                A. Why haven't we cashed the check yet?
                Q. Okay. And what did you tell her?


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State v. Aenk


                A. I told her because we weren't supposed to cash it until after
          [Baron] was delivered.

RP at 460. Carrie Aenk did not testify that her husband mentioned to her statements

made by Elle and Dustin Hatfield about an agreed time for delivery of any of the three

horses.

          The jury found Carrie Aenk guilty of both attempted second degree theft and third

degree theft. Aenk filed a motion for a new trial based on the trial court's decision to

sustain the hearsay objections during Allan Aenk's testimony. The trial court denied the

motion.

                                    LAW AND ANALYSIS

          Issue 1: Whether the proposed testimony ofAllan Aenk constituted

inadmissible hearsay?

       Answer 1: Yes.

          Carrie Aenk argues that the trial court erred when sustaining a series of hearsay

objections during Allan Aenk's testimony. The objections followed questioning of Allan

Aenk concerning statements made by Elle and Dustin Hatfield to Allan on August 24,

2013, at the Hatfields' property.

          This court reviews evidentiary rulings for manifest abuse of discretion. State v.

Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994). Discretion is abused only when no



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 No. 34035-0-III
 State v. Aenk


 reasonable person would have decided the issue as the trial court did. State v. Rice, 110

 Wn.2d 577,600, 757 P.2d 889 (1988).

        Hearsay is defined as an out of court statement "offered in evidence to prove the

 truth of the matter asserted." ER 801(c). A statement is not hearsay if it is used only to

 show the effect on the listener without regard to the truth of the statement. State v.

 Gonzalez-Gonzalez, 193 Wn. App. 683,690,370 P.3d 989 (2016); State v. Edwards, 131

 Wn. App. 611,614, 128 P.3d 631 (2006).

        According to Carrie Aenk, statements uttered by the Hatfields to Allan Aenk

helped to establish Carrie Aenk's belief as to the agreement between the parties,

particularly concerning a date for delivery of the horses. Carrie Aenk may also argue that

the trial court should have admitted Allan Aenk's testimony concerning purported

 comments of the Hatfields in order to show the impact of the statements on Allan.

Nevertheless, the effect on Allan is not directly relevant to criminal charges against

Carrie Aenk. Also, Carrie Aenk presented no testimony that her husband relayed to her

· any comments uttered to him by the Hatfields. Thus, the Hatfield comments would lack

any impact on Carrie Aenk's understanding of any agreement. The trial court did not

abuse its discretion in excluding the testimony.

        Carrie Aenk contends that the trial court also precluded her from testifying as to

comments uttered by the Hatfields to Carrie about the timing of delivery of the horses.


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State v. Aenk


The only citation to the record given by Aenk for this purported preclusion is a section of

a brief in support of a motion for reconsideration. The brief, in tum, contains no citation

to the transcript. Therefore, we conclude the trial court precluded no such testimony

from Carrie Aenk. RAP 10.3(a)(6) requires an appellant to cite to the relevant portions of

the record in the argument section of her brief. A party must cite to the record for

assigned error. Glazer v. Adams, 64 Wn.2d 144, 149, 391 P.2d 195 (1964).

       Carrie Aenk further assigns error to the trial court's purported refusal to allow her

to testify that Dustin Hatfield directed her to keep the $2,500 check as the second

payment for the adoption of Quinn and Baron. Again, the only citation in the brief to this

alleged error is the brief in support of the motion for reconsideration. The motion for

reconsideration lacks any citation to the trial record.

       Issue 2: Whether the trial court precluded Carrie Aenkfrom presenting a

defense when the court sustained a series of hearsay objections during Allan

Aenk's testimony.

       Answer 2: No.

       Carrie Aenk contends the hearsay rulings also violated her right, under the

Sixth Amendment to the United States Constitution, to present a defense. We

discern no error.




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State v. Aenk


       When addressing her constitutional argument, Carrie Aenk argues that the

standard of review for evidentiary rulings is de novo. The State responds that this

reviewing court should employ an abuse of discretion criterion, the familiar review

for evidentiary issues.

       The standard of review under these circumstances is unclear. In State v.

Jones, the Washington Supreme Court wrote: "[s]ince Jones argues that his Sixth

Amendment right to present a defense has been violated, we review his claim de

novo." 168 Wn.2d 713,719,230 P.3d 576 (2010). However, in State v. Aguirre,

the state high court declared:

              Although Aguirre does have a constitutional right to present a
       defense, the scope of that right does not extend to the introduction of
       otherwise inadmissible evidence. The admissibility of evidence under the
       rape shield statute, in tum, "is within the sound discretion of the trial
       court." State v. Hudlow, 99 Wn.2d 1, 17,659 P.2d 514 (1983).

168 Wn.2d 350, 362-63, 229 P.3d 669 (2010) (internal citations omitted). We do not

need to resolve this conflict because under either standard we affirm the trial court.

       The right of an accused in a criminal trial to due process is, in essence, the right to

a fair opportunity to defend against the State's accusations. Chambers v. Mississippi, 410

U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). A defendant's right to an

opportunity to be heard in his defense, including the right to examine witnesses against

him and to offer testimony, is basic in our system of jurisprudence. Chambers v.


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No. 34035-0-111
State v. Aenk


Mississippi, 410 U.S. at 294. Nevertheless, an accused does not have a right to offer

incompetent, privileged, or otherwise inadmissible evidence under standard rules of

evidence. Taylor v. Illinois, 484 U.S. 400,410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988);

State v. Lizarraga, 191 Wn. App. 530, 553, 364 P.3d 810 (2015), review denied, 185

Wn.2d 1022, 369 P.3d 501 (2016).

       We previously held that the proffered testimony did not violate evidentiary rules.

Therefore, the trial court committed no constitutional error.

       Issue 3: Whether sufficient evidence supports the element of "deception" for

Carrie Aenk 's theft in the third degree conviction.

       Answer 3: Yes.

       Carrie Aenk argues that the State failed to produce evidence that she deceived the

Hatfields when she accepted payment of the $500 nonrefundable adoption fee for Duke.

We disagree.

       Evidence is sufficient if a rational trier of fact could find each element of the crime

beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980)

(plurality opinion). Both direct and indirect evidence may support the jury's verdict.

State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986). This court draws all

reasonable inferences in favor of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567

P.2d 1136 (1977). In claiming insufficient evidence, the defendant necessarily admits the


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State v. Aenk


truth of the State's evidence and all reasonable inferences that can be drawn from it.

State v. Homan, 181 Wn.2d 102,106,330 P.3d 182 (2014). Only the trier of fact weighs

the evidence and judges the credibility of witnesses. State v. Carver, 113 Wn.2d 591,

604, 781 P.2d 1308, 789 P.2d 306 (1989).

         The statute governing theft in the third degree provides:

                A person is guilty of theft in the third degree if he or she commits
         theft of property or services which (a) does not exceed seven hundred fifty
         dollars in value.

RCW 9A.56.050(1 ). In this context, "theft" means:

                [b ]y 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.

RCW 9A.56.020(1)(b) (emphasis added). RCW 9A.56.010 defines additional

terms:

                (4) "By color or aid of deception" means that the deception operated
         to bring about the obtaining of the property or services; it is not necessary
         that deception be the sole means of obtaining the property or services;
                (5) "Deception" occurs when an actor knowingly:

               ( e) Promises performance which the actor does not intend to perform
         or knows will not be performed.

         In her briefing, Carrie Aenk emphasizes her testimony regarding a lack of intent to

deceive. She focuses on her and her husband's testimony that the Hatfields had never

adequately prepared the Hatfields' property to care for horses and that the Aenks never


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abridged an agreement to deliver the horses. Nevertheless, we determine sufficiency of

evidence by construing the evidence in favor of the State. The State presented evidence,

which the jury found credible, that Aenk never intended to deliver Duke, valued at $500,

to the Hatfields. Exhibits showed alterations by Carrie Aenk of the contract price for the

horses. Text messages showed hostile threats from Carrie Aenk to prevent the Hatfields

from gaining access to the horses. Elle Hatfield testified to the delays and false promises

of the Aenks. Dustin Hatfield testified to Carrie Aenk's attempt to cash a check despite a

promise to the contrary. Both Hatfields averred concerning the constant delays in

delivering the horses. Under the contract, the Hatfields paid a $500 nonrefundable price.

The jury could have concluded that Carrie Aenk proffered illegitimate excuses to deliver

Duke so that she could pocket the $500 without forgoing possession of Duke.

       Issue 4: Whether this court should award appellate costs in favor of the State?

      Answer 4: No.

       Carrie Aenk asks this court to deny the State an award of costs on appeal in the

event the State prevails. Generally "the party that substantially prevails on review" will

be awarded appellate costs, unless the court directs otherwise in its decision terminating

review. RAP 14.2. An appellate court's authority to award costs is "permissive," and a

court may, pursuant to RAP 14.2, decline to award costs at all. State v. Nolan, 141

Wn.2d 620, 628, 8 P.3d 300 (2000). An appellate court has discretion to require a


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convicted defendant to pay appellate costs to the State. RCW 10.73.160(1); RAP 14.2.

         Carrie Aenk submitted a report of continued indigency that shows her persisting

penury. Therefore, we deny the State appellate costs.

                       STATEMENT OF ADDITIONAL GROUNDS

         Carrie Aenk lists seven arguments in her statement of additional grounds. Each

fails.

         A criminal defendant can submit a pro se statement of additional grounds for

review "to identify and discuss those matters related to the decision under review that the

defendant believes have not been adequately addressed by the brief filed by the

defendant's counsel." RAP 10.lO(a). The rule additionally provides in part:

                Reference to the record and citation to authorities are not necessary
         or required, but the appellate court will not consider a defendant's
         statement of additional grounds for review if it does not inform the court of
         the nature and occurrence of alleged errors. Except as required in cases in
         which counsel files a motion to withdraw as set forth in rule 18.3(a)(2), the
         appellate court is not obligated to search the record in support of claims
         made in a defendant's statement of additional grounds for review. Only
         documents that are contained in the record on review should be attached or
         referred to in the statement.

RAP 10.lO(c); see also State v. Alvarado, 164 Wn.2d 556,569, 192 P.3d 345 (2008).

         Carrie Aenk's statements 1, 6, and 7 reference information beyond the trial court

record. Statements 2, 3, 4, and 5 rely on documents attached to Aenk's statement but




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outside the trial court record. Therefore, we decline to address the merits of the

statements of additional grounds.

                                        CONCLUSION

       We affirm Carrie Aenk's convictions for attempted second degree theft and third

degree theft. We deny the State costs on appeal.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                          Fearing, C .J.

WE CONCUR:




Lawrence-Berrey, J.
                                    j




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