                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         June 1, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 47207-4-II

                               Respondent,

        v.

 DOUGLAS MARK CORREA,                                        UNPUBLISHED OPINION

                               Appellant.

       JOHANSON, P.J. — Douglas Mark Correa appeals his motor vehicle theft jury conviction

and the imposition of legal financial obligations (LFOs). He argues that (1) the charging document

is constitutionally deficient, (2) the trial court abused its discretion by limiting his cross-

examination of the victim, and (3) the trial court improperly imposed LFOs for witness fees and

costs on appeal. Finding no error, we affirm his conviction and the trial LFOs, but decline to

impose appellate costs.

                                             FACTS

       Correa knew James Cushman through a mutual friend, Nikia Brown. On July 11, 2014,

Correa asked to borrow Cushman’s motorcycle. Cushman agreed, provided that Correa return the

motorcycle that evening. Correa did not return the motorcycle or answer Cushman’s calls over

the next two days. On July 13, Cushman reported the theft to police. Cushman also searched for

the motorcycle. When he saw a man driving it out of a trailer park, he called the police. The
No. 47207-4-II


police stopped the driver, Robert Stanfill, who said Correa had let him borrow the motorcycle.

The police arrested Correa.

         The State’s charging document read,

         COUNT 1 - THEFT OF MOTOR VEHICLE, RCW 9A.56.065(1), RCW
         9A.56.020(1)(a) - CLASS B FELONY:
         In that the defendant, DOUGLAS MARK CORREA, in the State of Washington,
         on or about July 11, 2014, did wrongfully obtain or exert unauthorized control over
         the motor vehicle of another, with intent to deprive said person of such motor
         vehicle.

Clerk’s Papers (CP) at 6. Correa did not challenge the charging document nor did he request a bill

of particulars. The State’s probable cause declaration, filed the day before the charging document,

stated that the stolen motorcycle was a Kawasaki ZX600 and that Cushman was the legal owner

who reported the theft on July 13 in Lacey, Washington.

         Cushman, Stanfill, and the arresting officer testified at trial. Cushman testified that Correa

asked to borrow the motorcycle to go to the grocery store and Cushman reluctantly agreed if Correa

would be back in 45 minutes. After calling Correa numerous times over the next two days,

Cushman realized that Correa may have stolen the motorcycle. Stanfill testified that Correa told

him he had borrowed the motorcycle for three days and allowed Stanfill to use the motorcycle.

The arresting officer testified that after she read Correa his Miranda1 rights, Correa said that

Cushman owed him money and he was just teaching Cushman a lesson, but planned to return the

motorcycle.

         On cross-examination, defense counsel asked Cushman if he borrowed money from Correa

in the past. The trial court sustained the State’s relevancy objection. Defense counsel argued that



1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 47207-4-II


Cushman’s borrowing and repaying Correa late was relevant to show that Correa did not intend to

steal the motorcycle, but intended to return the motorcycle late to show Cushman how it felt to be

deprived of something for longer than agreed. The State argued that Cushman’s testimony about

the money was irrelevant because the crime charged required only proof of intent to deprive

Cushman of the motorcycle rather than intent to permanently deprive. The trial court sustained

the objection, but also stated it would not prevent Correa from putting on his defense.

       Correa testified and called Brown as a witness. Brown testified that Correa loaned

Cushman money and though Cushman promised to repay that day, he did not do so for three or

four days. Correa testified that he knew Cushman expected him to bring the motorcycle “right

back,” but that he planned to keep the motorcycle for three days because that is how long Cushman

took to pay back the money. Correa explained that he wanted to teach Cushman a lesson and

planned to return the motorcycle on the night the police came.

       The jury found Correa guilty of motor vehicle theft. The trial court sentenced him to six

months incarceration and imposed $800.00 in mandatory LFOs. At sentencing, defense counsel

noted that Correa had worked sporadically for the past year, that his annual net income was about

$1,800 and that in light of his six-month sentence, Correa would need to move and to leave his

job. In addition, the judgment and sentence states, “An award of costs on appeal against the

defendant may be added to the total legal financial obligations. RCW 10.73.160.” CP at 66. The

trial court also signed a cost bill which certified the amount incurred in witness fees. These witness

costs were not included in the judgment and sentence. The trial court entered an order of indigency

on February 11, 2015, finding Correa unable to pay for the expense of appeal. Correa appeals.




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No. 47207-4-II


                                           ANALYSIS

                      I. CHARGING DOCUMENT IS CONSTITUTIONALLY SUFFICIENT

       Correa argues that the charging document is constitutionally deficient because it does not

identify the stolen vehicle’s owner, the vehicle type, or where in Washington the theft occurred.

He argues that without these facts, the charging document does not provide notice of the conduct

that is alleged to constitute a crime and does not protect his double jeopardy rights. We disagree.

       We review constitutional challenges to the sufficiency of a charging document de novo.

State v. Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007). A defendant has a right under our

state and federal constitutions to be informed of the criminal charge against him. State v. McCarty,

140 Wn.2d 420, 424-25, 998 P.2d 296 (2000). A charging document satisfies this constitutional

principle only if it states all of the essential elements of the crime charged, both statutory and

nonstatutory. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). The goals of this rule are

to give notice to the defendant of the nature of the crime he must defend against and to protect the

defendant’s double jeopardy rights by allowing them to plead the first judgment as a bar to a future

prosecution for the same offense. Kjorsvik, 117 Wn.2d at 101; State v. Leach, 113 Wn.2d 679,

698, 782 P.2d 552 (1989). In reviewing allegations of double jeopardy, a court may review the

entire record to establish what was before the court for a prior conviction. State v. Mutch, 171

Wn.2d 646, 664, 254 P.3d 803 (2011).

       Where the defendant challenges the charging document for the first time on appeal, we

liberally construe it in favor of validity. Kjorsvik, 117 Wn.2d at 105. The test under this liberal

construction rule is (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 or she was


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No. 47207-4-II


nonetheless actually prejudiced by the inartful language which caused a lack of notice? Kjorsvik,

117 Wn.2d at 105-06.

       It is sufficient to charge in the language of a statute if the statute defines the offense with

reasonable certainty. State v. Noltie, 116 Wn.2d 831, 840, 809 P.2d 190 (1991). A defendant is

not prejudiced if he received notice of the charge against him and could thus adequately prepare

his defense. Williams, 162 Wn.2d at 186. To evaluate prejudice, we may look outside the charging

document to see if other circumstances of the charging process reasonably informed the defendant

in a timely manner of the nature of the charges. Williams, 162 Wn.2d at 186.

       Theft of a motor vehicle is governed by RCW 9A.56.065 and states, “(1) A person is guilty

of theft of a motor vehicle if he or she commits theft of a motor vehicle.” Theft means “[t]o

wrongfully obtain or exert unauthorized 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)(a).

       Here, Correa did not challenge the charging document at trial. So we liberally construe the

charging document on its face in favor of validity. Kjorsvik, 117 Wn.2d at 106. The charging

document said that Correa, “in the State of Washington, on or about July 11, 2014, did wrongfully

obtain or exert unauthorized control over the motor vehicle of another, with intent to deprive said

person of such motor vehicle.” CP at 6. A comparison of the language of the charging document

with the language of the statute demonstrates that the charging document did charge all of the

elements of the crime of theft of a motor vehicle. RCW 9A.56.065, .020(1)(a).

       Although Correa argues that the charging document is deficient because it does not state

who owned the motor vehicle, the vehicle type, or where in Washington this occurred, none of the


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No. 47207-4-II


many cases Correa relies on say that these facts are essential elemental facts of the crime of motor

vehicle theft.2 Nor does there appear to be any common law authority for the proposition that

these details are essential factual elements for the crime of motor vehicle theft. Thus, the necessary

facts that Correa wrongfully exerted unauthorized control of a motor vehicle of another with intent

to deprive said person of the vehicle appears in the charging document. Kjorsvik, 117 Wn.2d at

105-06.

       Next, in order to evaluate whether Correa was nonetheless prejudiced, we look outside of

the charging document to see if other circumstances reasonably informed Correa of the nature of

the charge. Williams, 162 Wn.2d at 186. Here, the State’s declaration of probable cause, filed one

day before the charging document, said that the stolen vehicle was a Kawasaki ZX600 motorcycle,

Cushman owned it, and the theft occurred in Lacey, Washington. Thus, the probable cause

declaration reasonably informed Correa in a timely manner of the specific nature of the charges.

Williams, 162 Wn.2d at 186. Correa was not prejudiced by the inartful lack of specificity in the

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

       Finally, Correa’s argument that the charging document was deficient to protect his double

jeopardy right to be able to defend against future prosecutions for the same offense is without

merit. In reviewing allegations of double jeopardy, a court may review the entire record to

establish what was before the court for previous convictions. Mutch, 171 Wn.2d at 664. Thus, if

the State charged Correa with the same offense in the future, a reviewing court could consider the




2
 See City of Seattle v. Termain, 124 Wn. App. 798, 800, 805-06, 103 P.3d 209 (2004); State v.
Greathouse, 113 Wn. App. 889, 900, 56 P.3d 569 (2002); State v. Winings, 126 Wn. App. 75, 84,
107 P.3d 141 (2005); State v. Franks, 105 Wn. App. 950, 959, 22 P.3d 269 (2001).

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No. 47207-4-II


entire trial record, which would provide Correa with a complete double jeopardy defense. Thus,

because Correa was timely and reasonably notified of the nature of the crime charged and his

double jeopardy rights are protected, we hold that the charging document was not constitutionally

deficient.

                         II. CROSS-EXAMINATION WAS PROPERLY LIMITED

         Correa argues that he was denied his right to present a complete defense and his right to

confront witnesses when the court sustained a relevance objection, thereby limiting Cushman’s

cross-examination.3 Specifically, Correa argues that Cushman’s testimony was relevant to show

that Correa did not possess the required intent to deprive Cushman of the motorcycle because

Correa intended to keep the motorcycle for only a short duration. We disagree.

         Typically, we review a claim of a denial of the right to present a defense de novo. State v.

Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010). We review a trial court’s decision to limit cross-

examination for abuse of discretion. State v. Aguirre, 168 Wn.2d 350, 361-62, 229 P.3d 669

(2010). Because we conclude that the limit on cross-examination merely restricted the scope of

cross-examination rather than preventing Correa’s defense, we review the trial court’s decision to

limit Cushman’s cross-examination for abuse of discretion. Aguirre, 168 Wn.2d at 361-62. A trial

court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State

v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009).

         Cross-examination is limited by general considerations of relevance. See ER 401, 403;

State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). Relevant evidence is any evidence




3
    Correa makes no argument regarding his confrontation rights, thus we do not address this issue.

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No. 47207-4-II


having any tendency to make the existence of any fact that is of consequence to the determination

of an action more or less probable than it would be without the evidence. ER 401.

       Theft of a motor vehicle requires proof that a person wrongfully obtained or exerted control

over the property of another with intent to deprive him of such property. RCW 9A.56.065,

.020(1)(a). Wrongfully obtain or exert unauthorized control means to take the property or services

of another. RCW 9A.56.010(22)(a). Deprive means “‘to take away’” or “‘to take something away

from.’” State v. Cuthbert, 154 Wn. App. 318, 338, 225 P.3d 407 (2010) (quoting WEBSTER’S

THIRD INTERNATIONAL DICTIONARY 606 (2002)). Exceeding the scope of permission given to use

an item can be theft. See State v. Clark, 96 Wn.2d 686, 687-91, 638 P.2d 572 (1982) (holding that

where Clark had his friend’s permission to borrow his friend’s car for one day to run errands, but

instead took the car to another State where it was located a month later, the correct charge was not

taking a vehicle without permission—joy riding—under RCW 9A.56.070(1), but motor vehicle

theft under RCW 9A.56.020(1)(a)).

       First, Correa was not denied his right to present evidence that he did not intend to deprive

Cushman of the motorcycle, but that he actually intended to teach him a lesson following a late

loan repayment. Brown testified that Correa loaned Cushman $40 or $50 and though Cushman

promised to repay that day, he did not do so for three or four days. Correa himself testified that

he kept the motorcycle for three days because that is how long Cushman took to pay back the

money. And the arresting officer testified that Correa told her the same thing: that Cushman owed

Correa money and Correa was just teaching Cushman a lesson, but planned to return the

motorcycle.




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No. 47207-4-II


       Second, Cushman’s testimony about the past loan was not relevant and thus Correa’s cross-

examination on this point was properly limited. Correa cites to State v. Walker for the proposition

that duration of a taking is pertinent to the “‘intent to deprive’” element. 75 Wn. App. 101, 107-

08, 879 P.2d 957 (1994). But Walker does not support the conclusion that Cushman’s testimony

was relevant. Walker states that motor vehicle theft does not require proof of intent to permanently

deprive and also proscribes the continued unauthorized use of an automobile beyond an initial

unauthorized use. 75 Wn. App. at 107-08.

       Here, Cushman authorized Correa to use his motorcycle for only one evening and believed

Correa would be back in 45 minutes. Yet Correa told police that he intended to keep the

motorcycle for three days; he testified that he knew Cushman expected the motorcycle back the

same day it was borrowed; Correa allowed Stanfill to borrow it without Cushman’s permission;

Stanfill testified that Correa told him he borrowed the motorcycle for three days; and Correa did

not answer his phone when Cushman called to get the motorcycle back. This evidence showed

that Correa intended to engage in the continued unauthorized use of the motorcycle for at least

three days beyond the authorized use of one evening. Walker, 75 Wn. App. at 107-08; RCW

9A.56.010(22). Whether or not Correa’s intent was to teach Cushman a lesson and return the

motorcycle after three days is irrelevant because the statute requires only a showing of intent to

deprive for a continued period of unauthorized use. Walker, 75 Wn. App. at 107-08. Thus, we

hold that Correa was not denied his right to present a defense and that the trial court did not abuse

its discretion by limiting Cushman’s cross-examination.




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No. 47207-4-II


                       III. IMPOSITION OF LEGAL FINANCIAL OBLIGATIONS

       Correa argues that the trial court erroneously imposed appellate costs without making the

required inquiry into his ability to pay these LFOs.4 We disagree.

       Correa argues that because his judgment and sentence contains a statement that appellate

costs may be imposed, the trial court actually imposed appellate costs. We disagree because the

judgment and sentence merely advised Correa that appellate costs may be imposed, not that

appellate costs were imposed.

       However, we take this opportunity to address appellate costs. Former RCW 10.73.160(1)

(1995) vests the appellate court with discretion to award appellate costs. Under RAP 14.2, that

discretion may be exercised in a decision terminating review. We presume a party remains

indigent “throughout the review” unless the trial court finds otherwise. RAP 15.2(f).

       Here, at sentencing, defense counsel noted that Correa had worked sporadically, that his

annual net income was about $1,800, and that in light of his six-month sentence, Correa would

need to move and to leave his job. In addition, the trial court entered an order of indigency for this

appeal on February 11, 2015. In light of this evidence, we exercise our discretion and decline to

impose appellate costs.




4
  Correa also argues witness costs were improperly imposed, but in his reply brief, Correa concedes
that the witness costs were not actually imposed. Thus, we address the witness costs no further.
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No. 47207-4-II


        We affirm the conviction and sentence.

        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.



                                                      JOHANSON, P.J.
 We concur:



 LEE, J.




 SUTTON, J.




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