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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II

STATE OF WASHINGTON,


                                  Respondent,                               No. 43672 -8 -II
                                                                           Consolidated with
                                                                            No. 44032 -6 -II


          V.




TODD CHRISTOPHER GRANGE,                                               UNPUBLISHED OPINION


                                  Appellant.




          MAXA, J. — Todd Christopher Grange appeals his conviction for first degree theft. He


challenges the sufficiency of the evidence and claims that the trial court impermissibly

commented on the evidence in its special verdict instructions and special verdict form. We

affirm.



                                                     FACTS


          On March 28, 2007, Anton Rehling, the owner of Olympic Transcore, a truck brokerage

business, entered into a written contract with Grange to make Rehling' s website application

 legal" and to train Rehling' s disabled son to administer it. Report of Proceedings ( RP) at 44.

Grange had     presented   himself to   Rehling   as a   database   programmer who   had   worked    for   several
No. 43672 -8 -II, consolidated with No. 44032 -6 -II


large corporations, had retired from Microsoft, and was a friend of Bill Gates and Paul Allen.


Rehling gave Grange a $ 2, 080 retainer, which Grange cashed shortly thereafter at a check-

cashing company.


          On April 3, Grange came to Olympic Transcore and spent about 15 to 20 minutes with


Rehling and his son. He told Rehling that the software he needed to make the site legal would

cost a   little   over $ 12,   000, but because he had a Microsoft account he could get it for one -half the


price. Rehling then wrote Grange a check for $6,284. Grange said that it would take no more

than a week or two to get the needed software. Grange cashed this check at the same check-


cashing company.


          While Rehling was waiting for the software to arrive and for Grange to install it, Grange

called him and said that he ran a business where Grange would buy computer equipment at

auctions and then resell it for large profits. Grange told Rehling that he was going to let him in

on the deal so Rehling could double or triple his money. He asked Rehling to invest $ 18, 000.

When     Rehling      said no,   Grange   asked   for $ 10, 000, but   Rehling   again said no.   Over the following

days, Grangeagain tried to get Rehling to invest in his -
                  -                                     auctions.

          Rehling began asking Grange why the software had not been installed. Grange gave

multiple reasons for why the software had not arrived, always promising that it would be the next

day. On April 19, 2007, Grange did not appear at a meeting as promised. Rehling left him voice

mail messages, and then went to the address Grange had provided as a residence. Rehling

discovered that Grange was not living there.

           Grange finally responded when Rehling sent an e -mail asking for his money back and

informing Grange that he had rescinded Grange' s access to Olympic Transcore' s servers.



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No. 43672 -8 -II, consolidated with No. 44032 -6 -II


Grange said that because he was busy with other customers, he was refunding Rehling' s money,

that he   would   bill   Rehling   after work   was   finished   and   that "[ t]here are no charges to date. All


previous work      is done   at no charge."     RP at 70. Grange never returned the money, provided

Rehling the software, or finished the project.

          The State charged Grange with first degree theft committed by color or aid of deception.

It also alleged aggravating sentencing factors. The matter proceeded to a jury trial in which

Rehling testified to the events noted above. Additionally, Steve Larsen, an investigator for the

Oregon State Division of Finances and Corporate Securities, testified that he contacted Grange as


part of an investigation. He testified that Grange told him that Rehling had given him $6, 600 to

 6, 700 to build a website for his business, but when he learned that Rehling did not own the

software he changed his mind and was going to return the money.

          Grange   presented       Shawn Swanner      as a witness.     Swanner had developed the website that


Rehling    asked   Grange to    make   legal. Swanner testified that the site was legitimate as it was built


on open -source software. He explained that he worked with Rehling for over two years. Toward

the end, the trust relationship deteriorated and Rehling had falsely accused him of using pirate

software and falsely accused Swanner' s brother of stealing software.

          Grange testified on his own behalf. He acknowledged signing the written contract with

Rehling. He testified that the contract called for 32 hours of labor and he had worked 43 hours,

and that he also worked an additional 86. 3 hours outside of the contract. As a result, Rehling

owed him $9, 914. 13 plus $ 2, 075 for e -mail server software. Grange acknowledged that the




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No. 43672 -8 -II, consolidated with No. 44032 -6 -II


 6, 284 check was for software and that he never delivered the software as promised. But he


explained that while he agreed to return the money to Rehling, he said that he would only do so

after Rehling paid him for his labor.

          During cross -examination, the State introduced evidence that Grange had entered into " an

assurance of voluntary compliance" order in an Oregon civil lawsuit, stipulating to pay $ 8, 284 in .

restitution to Rehling within 30 days of that order. RP at 155. Grange admitted to never making

that payment and having a judgment against him for that amount. Grange also admitted that

none of the e -mails evidenced his claim that Rehling owed him money as a precondition to

repayment. He also did not recall speaking with Larsen so had no explanation for Larsen' s

testimony.

          The jury found Grange guilty as charged and found by special allegation that he " use[ d]

his position of trust, confidence, or fiduciary responsibility to facilitate the commission of the

crime."    Clerk' s Papers ( CP) at 44. Relying on this finding and its own finding that the omission

of Grange' s prior offenses resulted in a presumptive sentence that was clearly too lenient, the

court impose an-exceptional sentence of nine months in jail. Grange appeals the conviction.


                                              ANALYSIS


A.        SUFFICIENCY OF THE EVIDENCE


          Grange first argues that the State failed to prove that he engaged in deception at the time


Rehling gave money to Grange, which is an element of first degree theft by color or aid of

deception. Grange argues that his subsequent failure to fulfill the terms of his contract was


insufficient to establish first degree theft. We disagree.


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



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No. 43672 -8 -II, consolidated with No. 44032 -6 -II


reasonable inferences from it in the light most favorable to the State, a rational trier of fact could


find   each element of   the   crime proved   beyond   a reasonable   doubt." State v. Homan, 172 Wn.


App.   488, 490 -91, 290 P. 3d 1041 ( 2012),    review granted,   177 Wn.2d 1022 ( 2013). We defer to


the trier of fact on issues of conflicting testimony, witness credibility, and persuasiveness of the

evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004).


         The trial court instructed the jury that in order to convict Grange, it needed to find the

following:

          1) That, on or between March 28, 2007 and April 3, 2007, the defendant by color
             or aid of deception, obtained control over property of another;
          2) That the property    exceeded $   1, 500 in value;
          3) That the defendant intended to deprive the other person of the property; and
          4) That the acts occurred in the State of Washington, County of Cowlitz.

CP at 40. The trial court also defined " deception" as:


             Deception occurs when an actor knowingly creates or confirms another' s false
         impression that the actor knows to be false or fails to correct another' s impression
         that the actor previously created or confirmed or promises performance that the
         actor does not intend to perform or knows will not be performed.

CP at 38 ( emphasis added).


         The only issue Grange raises in this appeal is whether the State proved that he never

intended to perform his contract with Rehling. Taking the evidence in a light most favorable to

the State, it was sufficient to meet this definition. Grange took two checks from Rehling totaling

 8364, well over the statutory minimum, yet provided no software and did not satisfy the terms

of their written contract. Further, the evidence showed that Grange repeatedly provided excuses

for the delays and stopped communicating with Rehling once Rehling demanded that Grange pay

the money back. Rehling also testified that Grange repeatedly tried to induce him to give more

money to invest in Grange' s computer auction business. Finally, Grange gave a false residence


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No. 43672 -8 -II, consolidated with No. 44032 -6 -II



address when he first met with Rehling. This was sufficient evidence for the jury to assess

Grange' s credibility and to reasonably infer that he wrongfully obtained Rehling' s money

through deception with no intention of satisfying his promises. Accordingly, Grange' s

sufficiency of the evidence claim fails.

B.      SPECIAL VERDICT AS COMMENT ON THE EVIDENCE


        Grange next argues that the special verdict instruction and special verdict form involved


an improper comment on the evidence. The trial court instructed the jury:

        For purposes of the special verdict form, the State has the burden of proving
        beyond a reasonable     doubt that the defendant used his position of trust,
        confidence, or fiduciary responsibility to facilitate the commission of the crime.

CP at 42. Then, in the special verdict form, the trial court asked the jury:

        QUESTION:       Did the defendant use his position of trust, confidence, or fiduciary
        responsibility to facilitate the commission of the crime?

CP at 44.


        Grange argues that the instruction and special verdict form presumed that he was in a


position of trust, confidence, or fiduciary responsibility when this should have been a

preliminary jury question. He asserts that only after answering a preliminary question

affirmatively, could'the jury answer the question about whether he used that position of trust to

facilitate his offense.


        However, Grange did not object to this instruction at trial. Under RAP 2. 5( a), we


generally will not consider issues not raised below unless one of the exceptions listed in RAP

2. 5( a) applies. Grange has not argued that an exception applies and therefore we need not


address this issue.




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No. 43672 -8 -II, consolidated with No. 44032 -6 -II


          We affirm the conviction.


          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.




                                                                                 I


                                                      MAxA, J.
We concur:




PEA




LEE, J.
