Opinion
No. 37698-9-II.
Filed: September 3, 2009.
Appeal from the Superior Court, Thurston County, No. 07-1-00878-4, Gary R. Tabor, J., entered May 1, 2008.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Bridgewater and Penoyar, JJ.
Unpublished Opinion
Jim George Grove argues that insufficient evidence supported his convictions for second degree theft and bail jumping. He also argues that the trial court abused its discretion by refusing to instruct the jury on voluntary intoxication and that his counsel was ineffective. We affirm.
RCW 9A.56.020(1)(a); former RCW 9A.56.040(1)(a) (1995).
FACTS
I. Crime and Investigation
On the afternoon of May 6, 2007, Sandra Armstrong was gambling at the Red Wind Casino near Olympia, Washington. While playing a slot machine, she needed additional money and went to an automatic teller machine (ATM) located roughly eight to ten feet away. Worried about losing her place at the slot machine, she paced between it and the ATM while waiting for it to dispense $500. The ATM was located against the wall in a highly trafficked area. When she was approximately six feet from the ATM, she saw a man pass between her and the ATM and noticed his hand move toward his pocket. When she returned to the ATM, the $500 was missing. She took her receipt and reported the loss to casino personnel. She did not clearly see the man who walked away from the ATM.
Robin Pelekai, a Nisqually Tribal Gaming Agent at the casino, conducted the initial investigation. She immediately reviewed security camera videotapes, including the one recording activity at that particular ATM. The videotape showed a man taking money from the ATM and walking away. After seeing the videotape, Pelekai identified the man as Grove, who was gambling on the casino floor. Another security videotape showed Grove inserting one or more $100 bills into a cash exchange terminal (CET), a machine that trades currency for vouchers that operate the slot machines. Grove later made a second visit to the CET to get more vouchers.
Pelekai and other security personnel escorted Grove to the front security office. She left the office briefly to photocopy his identification. Videotapes from security cameras inside the office showed that, once alone, Grove removed money from his pants pocket and stuffed it into his sock.
When Pelekai returned, she questioned Grove about the theft. He denied taking any money and claimed that he and his wife had withdrawn currency from the ATM, even though the videotape showed otherwise. Grove did not smell of alcohol or exhibit signs of medical distress.
Grove later admitted that he was not married but in a long-term relationship.
He appeared to understand and answered Pelekai's questions. Pelekai requested assistance from the Nisqually Police Department. Because Grove was not a tribal member, Nisqually police officers contacted the Thurston County Sheriff's Office.
Deputy Sheriff Lester Klene responded to the casino and watched the security videotapes. Klene then advised Grove of his Miranda rights and questioned him. Again, Grove denied stealing anything. When asked about the item transferred from his pocket to his sock, Grove did not respond. Klene searched Grove and found $154, including a $100 bill. Grove also had a slot machine voucher worth $80. Grove asked if he could return what was left of Armstrong's money and write her a check for the remainder, but she rejected his offer. Klene also noted that Grove was coherent, answered questions without confusion, and "seemed to be normal." Report of Proceedings (RP) at 57.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
All references to the report of proceedings relate to the single transcript of April 23 and 24, 2008.
The State charged Grove with second degree theft. The trial court set an omnibus hearing for December 19, 2007; a status conference for January 23, 2008; and a trial to begin on January 28, 2008. Grove signed the order setting the dates for his return to court. When Grove failed to appear for the status conference, the trial court issued a bench warrant for his arrest. Deputy sheriffs arrested him on February 7, 2008. The State filed an amended information charging Grove with both second degree theft and bail jumping.
II. Trial
At trial, Grove testified that he arrived at the casino on May 6, 2007, between 11:00 am and 1:00 pm. Later in his testimony, he said that he had been at the casino since 9:00 am. He brought between $300 and $400 with him and withdrew more money from the ATM. He won $300 and cashed in his winning ticket. He thought his girl friend was with him, but he was actually alone. According to Grove, he had taken a 300 or 500 milligram Percocet tablet about 3:00 am, one half of a 500 milligram Vicodin tablet about 7:30 am, and another Percocet tablet just before the incident between 2:30 pm and 3:30 pm.
Grove said that he had gone to the restroom and was walking past the ATM on his way back to his slot machine. He saw the $500 at the ATM, took it, and returned directly to his slot machine, intending to give the money to the rightful owner. He put the money in his pocket but did not contact security. At the time, he thought that a security officer would pass by his machine and he could tell that officer about finding the money, but he did not see any security officers until they took him to the office. Grove claimed that, on the way to the security office, he told them that he had been looking for someone from security because he wanted to return the money. But he did not tell Pelekai because she did not ask him about it "right off the bat." RP at 104. He did not know how much money he had taken from the ATM and only later realized that he had inadvertently spent some while purchasing vouchers.
Grove then explained that, while he was alone in the security office, he transferred a coin that his grandfather had given him when he was eight or nine from his pocket to his sock. At the time he received the coin, Grove had promised his grandfather that he would never steal. Once security personnel accused him of theft, he took the coin from his pocket and put it into his sock.
According to Grove, he did not know about his court date on January 23, 2008; the paperwork had burned in a house fire on December 22, 2007. He did not remember signing the order setting the return dates and blamed his lack of awareness on a series of medical problems and medications. He claimed that his medications had affected his memory and perceptions on the day of his arrest but that he always intended to return the money to its rightful owner.
Grove testified that he had three heart attacks, requiring two surgeries, in May 2007, November 2007, and January 2008.
Grove unsuccessfully requested that the trial court give a voluntary intoxication instruction. The jury convicted Grove on both charges. He appeals.
ANALYSIS
I. Sufficiency of Evidence
Grove claims that the evidence was insufficient to support his two convictions. We disagree.
A. Standard of Review
When reviewing a challenge to the sufficiency of the evidence, we determine whether any rational fact finder could have found the essential elements of the charged crime beyond a reasonable doubt, viewing the trial evidence in the light most favorable to the State. State v. Brockob, 159 Wn.2d 311, 336, 150 P.3d 59 (2006). An insufficiency claim "admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We treat direct and circumstantial evidence as equally reliable, and we "defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
B. Second Degree Theft
Grove contends that the evidence was insufficient to support his second degree theft conviction because he testified that he intended to return the money.
To prove second degree theft, the State had to prove that Grove stole property whose value exceeded $250, but which was not worth more than $1,500, and that he intended to deprive another person of the property. See RCW 9A.56.020(1)(a); former RCW 9A.56.040(1)(a) (1995); 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 70.06, at 52 (3d ed. 2008) (WPIC). A trier of fact may infer a defendant's specific criminal intent from "`conduct where it is plainly indicated as a matter of logical probability.'" State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004) (quoting State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)).
Here, notwithstanding Grove's testimony to the contrary, the jury was permitted to infer his intent to deprive Armstrong of her property based on his conduct. After losing "a lot of money" that day, Grove admitted that he took the money at the ATM. RP at 101. He admitted that he pocketed the money and returned to his slot machine. He even admitted to gambling with the money — accidentally, he said. After casino personnel caught him, a security videotape showed his attempt to hide money in his sock. The jury considered Grove's testimony and passed judgment on his credibility. Viewed in the light most favorable to the State, taking a stranger's money and immediately gambling with it, plainly indicated Grove's intent as a matter of logical probability. See Goodman, 150 Wn.2d at 781. Thus, we hold that sufficient evidence supported his second degree theft conviction.
Grove's testimony is unclear, but after 16 minutes he apparently gambled half of Armstrong's $500.
C. Bail Jumping
Grove next argues that the evidence was insufficient to support his bail jumping conviction because he testified that medications made him forget about his court date.
RCW 9A.76.170(1) provides:
Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state, or of the requirement to report to a correctional facility for service of sentence, and who fails to appear or who fails to surrender for service of sentence as required is guilty of bail jumping.
This offense requires that the State prove five elements beyond a reasonable doubt: (1) the State charged Grove with second degree theft; (2) the State released him by court order with the requirement to return on January 23, 2008; (3) he failed to appear on that date; (4) he knew he was required to attend the hearing; and (5) the acts occurred in Washington. See 11A WPIC: Criminal 120.41, at 517. Despite Grove's claim that "[t]he State must prove beyond a reasonable doubt that the person was aware of/knew of the date and duty to appear," the State need only prove that Grove had notice of the hearing to prove that he had knowledge of it. Br. of Appellant at 11 (emphasis omitted); see State v. Fredrick, 123 Wn. App. 347, 353, 97 P.3d 47 (2004).
At trial, the State presented ample evidence, largely documentary, to prove these five elements beyond a reasonable doubt. Regardless of the medications Grove may have taken, he signed three orders stating: "The defendant must appear for trial and for all scheduled hearings. Failure to appear may result in issuance of an arrest warrant, forfeiture of bail, and criminal prosecution for bail jumping." Ex. 7, 8, 9 (emphasis omitted). One of these three orders required him to appear for the status conference on January 23, 2008, and he did not do so.
This evidence is sufficient for any reasonable juror to believe, beyond a reasonable doubt, that Grove had notice of the requirement to appear for these hearings. Accordingly, viewed in the light most favorable to the State, we hold that sufficient evidence supported his bail jumping conviction.
II. Voluntary Intoxication
Grove also argues that the trial court abused its discretion by refusing to give the jury a voluntary intoxication instruction for the second degree theft charge because he presented sufficient evidence to warrant this instruction. We disagree.
Grove contends that this was legal error but we analyze this issue under the correct standard of review — abuse of discretion. State v. Winings, 126 Wn. App. 75, 86, 107 P.3d 141 (2005).
Grove also claims that "the court improperly weighed the evidence" to determine whether Grove met the three part test for giving a voluntary intoxication instruction and thus usurped the jury's role. Br. of Appellant at 6. But the trial court must make the determination about whether the evidence supports giving the instruction. See State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P.3d 294 (2002).
A. Standard of Review
We review a trial court's decision to reject a proposed jury instruction for an abuse of discretion. State v. Winings, 126 Wn. App. 75, 86, 107 P.3d 141 (2005).
B. Jury Instructions
Jury instructions are sufficient if they permit each party to argue his or her case theory, are not misleading, and, when read as a whole, properly inform the jury of the applicable law. State v. Teal, 152 Wn.2d 333, 339, 96 P.3d 974 (2004). To warrant a voluntary intoxication instruction, Grove had to show: (1) the crime charged had a particular mental state as an element; (2) substantial evidence existed of the defendant's drug consumption; and (3) the drug consumption affected his "ability to possess the requisite mental state." State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003); State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P.3d 294 (2002). "[T]he trial court must interpret the evidence most strongly in favor of the defendant." State v. Ginn, 128 Wn. App. 872, 879, 117 P.3d 1155 (2005).
"No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of intoxication may be considered in determining whether the defendant [acted] [or] [failed to act] with (fill in the requisite mental state)." 11 WPIC: Criminal 18.10, at 282 (3d ed. 2008).
Because "[a] person can be intoxicated and still able to form the requisite intent," the evidence must reasonably and logically connect Grove's intoxication with his alleged inability to form the intent to deprive Armstrong of her cash. State v. Thomas, 123 Wn. App. 771, 780-81, 98 P.3d 1258 (2004). See State v. Finley, 97 Wn. App. 129, 135, 982 P.2d 681 (1999); RCW 9A.56.020(1)(a). After all, "[m]any criminal acts follow the use of alcohol or drugs." Finley, 97 Wn. App. at 135.
In Finley, a bartender, who knew Finley and did not believe he was intoxicated, ejected him from a tavern after he loudly argued with his girl friend and other patrons. When Finley returned five minutes later, the bartender called the police and had them escort Finley outside. Finley entered the tavern again and police arrested him. Finley, 97 Wn. App. at 131-32. Appealing third degree assault and second degree criminal trespass convictions, Finley argued that he was entitled to a voluntary intoxication instruction. Finley, 97 Wn. App. at 133-34. Division Three disagreed, holding that the evidence did not show an inability to form mens rea where (1) the bartender did not think Finley was intoxicated, (2) Finley complied with police requests to leave but continued to return, (3) Finley told police that he understood that he could not reenter the bar and would wait across the street for his girl friend, (4) Finley denied reentering the bar, and (5) Finley knew he was under arrest and asked why. Finley, 97 Wn. App. at 135-36.
Grove argues that his prescription drug regimen left him confused when he took the money and points to his testimony that he mistakenly believed that his girl friend accompanied him to the casino. But aside from self-serving testimony, no evidence supports his claim that he was intoxicated. The evidence of Grove's inability to form the requisite mental state is weaker than the evidence in Finley. As in Finley, neither security officer believed that Grove was intoxicated, instead, they found him coherent and that he answered questions without confusion. Grove also denied committing any crime but asked to repay Armstrong. And Grove tried to deceive law enforcement by hiding evidence in his sock.
In addition, security videotapes permitted the jury to watch Grove's behavior for signs of intoxication before and after he took the money. Grove testified repeatedly that he intended to return the money, intended to find a security officer, intended to segregate Armstrong's money from his own, and intended to tell Pelekai about finding the $500. His alleged intoxicated state did not hinder his ability to form these intentions and, thus, did not hinder his ability to form the requisite mens rea. The trial court did not abuse its discretion by refusing to give the voluntary intoxication instruction.
III. Ineffective Assistance of Counsel
Grove lastly contends that his trial counsel was ineffective in failing to propose a voluntary intoxication instruction for the bail jumping charge. We disagree.
A. Standard of Review
"Because claims of ineffective assistance of counsel present mixed questions of law and fact, we review them de novo." In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001).
B. Failure to Propose Instruction
To establish ineffective assistance of counsel, Grove must show that his counsel's performance was deficient and resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). "To show deficient representation, the defendant must show that it fell below an objective standard of reasonableness based on all the circumstances." State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). To demonstrate prejudice, Grove must establish "a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different." Nichols, 161 Wn.2d at 8. We need not "address both prongs of the test if the defendant makes an insufficient showing on one prong." State v. Thompson, 69 Wn. App. 436, 440, 848 P.2d 1317 (1993).
Defense counsel is not ineffective for failing to present a defense that the facts do not support. State v. Lottie, 31 Wn. App. 651, 655, 644 P.2d 707 (1982). Bail jumping requires the mental state of "knowledge." RCW 9A.76.170(1). "[T]he knowledge requirement is met when the State proves that the defendant has been given notice of the required court dates." Fredrick, 123 Wn. App. at 353. And, as explained above, voluntary intoxication instructions require substantial evidence that the drugs affected either the defendant's mind or body. State v. Gabryschak, 83 Wn. App. 249, 253, 921 P.2d 549 (1996).
Here, besides self-serving testimony that he did not remember signing the court order setting return dates, he presented no evidence that drugs affected his mind the day he signed this order. See Fredrick, 123 Wn. App. at 353. "`I forgot' is not a defense to the crime of bail jumping." State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004). By analogy, "I was too medicated to remember" is equally inadequate absent evidence that drugs affected Grove's ability to understand what he was signing. Without this evidence, the trial court would not have given an intoxication instruction, so he cannot show prejudice. As such, his claim of ineffective assistance of counsel 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 pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and PENOYAR, J., concur.