No. 28230-5-II.The Court of Appeals of Washington, Division Two.
Filed: December 20, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Kitsap County Docket No: 01-1-00935-2 Judgment or order under review Date filed: 12/10/2001.
Counsel for Appellant(s), Michelle Bacon Adams, Attorney at Law, 623 Dwight St, Port Orchard, WA 98366-4619.
Counsel for Respondent(s), Robert Lee Naon, Kitsap County Prosecutor’s Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
ELAINE MARIE HOUGHTON, J.
Zeincia Nicole Harmon appeals her forgery conviction.
A jury convicted her of attempting to deposit a forged check into her savings account. On appeal, she asserts (1) the trial court erred in admitting a second check drawn on a different account that she attempted to deposit at the same time, and (2) there was insufficient evidence to support the conviction. We conclude that the trial court did not abuse its discretion in admitting the second check and that the evidence supports the conviction. Accordingly, we affirm.
Facts
The State charged Harmon, as a principal or an accomplice, with one count of forgery in violation of RCW 9A.60.020 after she attempted to deposit a forged check drawn on the account of Dean Cordy into her savings account. She pleaded not guilty and the case went to a jury trial. At trial, Harmon contended that she was not guilty because she deposited the check as a favor to a friend, Pete, who told her that the checks were from his father and that he had his father’s permission to sign the checks.
Prior to trial, Harmon moved in limine to exclude “all references to `prior bad acts’ including misdemeanor convictions of the defendant.” Clerk’s Papers (CP) at 10. Harmon also moved to exclude any evidence related to the other check she had attempted to deposit, which was drawn on the account of Jack Miller.
Harmon argued that evidence related to the Miller check was inadmissible because it was not relevant to whether the Cordy check was forged and there was no evidence that it too was forged. She also argued that the Miller check was unduly prejudicial because (1) it would allow the State to suggest that Harmon had to have known that the Cordy check was forged because she observed Pete sign both checks using two different names; and (2) the amount of the check, more than $9,000, would suggest to the jury that she was “involved in a much more serious set of circumstances than she actually was.” I Report of Proceedings (RP) at 6. She further argued that the Miller check was inadmissible because it was evidence of a separate uncharged crime presented in order to “bootstrap” the charged crime. RP at 7.
At the hearing on the motion, the State agreed to exclude all references to any prior bad acts. The State then argued that the Miller check was relevant to show that a reasonable person would have known that the Cordy check was forged because Harmon had observed Pete, who purported to have only his father’s permission, sign both checks even though they were drawn on accounts owned by two different people.
After finding that it was relevant to the issue of Harmon’s knowledge, the trial court denied Harmon’s motion to exclude evidence related to the Miller check. But the trial court also ordered the State to redact the amount on the check and to not mention the amount at trial. The case then proceeded to trial.
At the start of the trial, Cordy testified that he did not write the check Harmon tried to deposit and that the check came from a box of checks someone had stolen from his mailbox. But he admitted he did not know who stole or forged the check.
Chad Harrison, the bank teller who had waited on Harmon, also testified. Harrison identified the Cordy and Miller checks as the ones Harmon attempted to deposit, and the trial court admitted the checks into evidence. Harrison then described the transaction.
He testified that he became suspicious about the deposit because he noticed that Harmon’s savings account was “on a restraint,” the account had no money in it, the checks were large, and one of the checks had a notation in the memo area that appeared strange. RP at 42-44. Harrison discovered that the bank had placed the account “on a restraint” because someone using Harmon’s ATM card had recently deposited an empty deposit envelope purporting to contain $200 and then had immediately withdrawn the $200 that had supposedly been deposited.
Harrison then investigated further and, when he discovered that Cordy had reported the check as stolen, he called the police. In order to keep Harmon in the bank until the police arrived, Harrison told her that her account had gone inactive and asked her to wait while he reactivated it.
After approximately 10 to 15 minutes, Harrison observed a man and a little girl enter the bank and talk to Harmon, who was several months pregnant. After speaking to Harmon, the man asked Harrison what was going on, and Harrison told him that he was in the process of reactivating the account and getting authorization to deposit the checks. Harrison testified that it took the police approximately 30 to 45 minutes to respond and that during that time Harmon and the man appeared nervous and kept asking about the deposit.
Just before the police arrived, Harmon and the man told him that they were going next door to get something to eat. As they left the bank, Harrison saw the police arrive. Harrison observed the man pick up the child, run to a white car parked next to the bank, and speed away.
Officer Duane Mattson, the first officer to respond to Harrison’s call, also testified. He testified that when he arrived at the bank, a teller identified Harmon, who was walking away from the bank. Mattson approached Harmon; identified himself; asked her for identification; and, after she gave him her driver’s license, informed her that he was detaining her for attempting to cash a stolen check and advised her of her Miranda[1] rights.
After Harmon acknowledged that she understood her rights, she told Mattson that she was depositing the checks for her friend Pete and that he had told her the checks were for his father. Harmon also told Mattson that when Pete gave her the checks, she thought they “looked a little funny,” but that she tried to cash them anyway. RP at 24.
Officer Karen Pierson, the second officer to respond to Harrison’s call, testified about the conversation she had with Harmon while transporting her to jail. Pierson stated that Harmon described watching Pete fill out six blank checks, including the two he gave to her. She indicated that she had known Pete for about a month, that she only knew him as “Pete” and did not know his last name, that he did not have a job, and that he was a fugitive out of California who used several aliases and carried a variety of identification in different names. Harmon also told Pierson “she should have known something was up because of [Pete’s] background.” RP at 31. But Pierson also testified that Harmon never specifically told her that she knew the checks were forged.
Pierson further testified that Harmon told her she had attempted to deposit the checks for Pete because her boyfriend did not have proper identification and, because her boyfriend had a criminal record, she would get in less trouble if she were caught. Harmon also said that she did not tell Mattson about her boyfriend going into the bank with her because he was violating a restraining order by being with her.
After the State rested, Harmon testified in her own defense. She testified that she had planned to deposit the checks as a favor for Pete because he did not have his identification and that she had intended to give him her ATM card so he could access the money. She stated that she had known Pete for approximately one to three months; that she did not know Pete’s last name; and that others had told her “he was a criminal,” used fake names, and carried fake identifications, but she did not believe them. RP at 60.
Harmon testified that Pete told her the checks were his father’s and that he had permission to write the checks. She confirmed that she observed him fill out approximately six blank checks and that she later wrote down the amounts of the two checks he gave her on a deposit slip. But she asserted that she did not notice that the checks, which were apparently two different colors, were drawn on different accounts because she was not wearing her glasses and she “didn’t look” at the checks. RP at 68. The State later established that Harmon’s driver’s license did not indicate that she needed corrective lenses.
Harmon further testified that while she was in the bank, her boyfriend had been at the restaurant next door with her daughter but that he had come into the bank to check on her because she was pregnant. She stated she got hungry while they were waiting and that when they left the bank to get something to eat, Pete was gone and they saw the police arriving. Her boyfriend jumped into the maroon car of a female friend of hers who happened to be waiting at a nearby traffic signal. She also testified that Pete was driving his father’s white Lincoln Town Car when he brought them to the bank.
Harmon stated that after the police told her she was under arrest, she told them that she had not done anything wrong. She did not recall whether she told the officers that she felt funny about the checks, and she stated that she did not know the checks were forged and that, if she had, she would not have put herself or her daughter at risk by trying to deposit them. Additionally, she testified that she did not know anything about the empty ATM deposit envelope Harrison referred to, but she suggested that her boyfriend’s cousin, who was “known for taking people’s things and committing fraud with” them, may have made the fake deposit and subsequent withdrawal. RP at 63.
After the parties rested, the trial court provided the jury with the following to convict instruction:
To convict the defendant of the crime of Forgery as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt — (1) That on or about June 25, 2001, the defendant or an accomplice, knowing that the instrument had been falsely made, completed or altered, either possessed or offered or disposed of or put off as true a written instrument, a check on the account of Dean Cordy, which had been falsely made, completed or altered; and (2) That the defendant acted with intent to defraud; and (3) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be our duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 40. The jury found Harmon guilty as charged. She appeals.
Analysis
I. Evidentiary Ruling
Harmon first asserts that the trial court erred when it denied her motion in limine to exclude evidence related to the Miller check.
A. Standard of Review
We review a trial court’s evidentiary rulings for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Abuse of discretion occurs when the trial court decision is manifestly unreasonable or based on untenable grounds. Stenson, 132 Wn.2d at 701. An error in admitting evidence that does not result in prejudice to the defendant is not grounds for reversal. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). An error in the admission of evidence is not prejudicial “`unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.'” Bourgeois, 133 Wn.2d at 403
(quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)).
B. Relevancy and Undue Prejudice
As she did below, Harmon argues that the Miller check was not relevant to the crime charged and was unduly prejudicial. Harmon also argues that the trial court erred because it failed to balance the probative and prejudicial value of this evidence on the record.
1. Relevance
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” and if a logical nexus exists between the evidence and the fact to be established. ER 401. Under the to convict instructions in this case, one of the elements the State had to prove was that Harmon or an accomplice knew that the check had been “falsely made, completed or altered.” CP at 40. The Miller check, although admittedly not direct evidence that the Cordy check was forged, was clearly relevant to the issue of whether Harmon knew Pete lacked the authority to sign the check and, therefore, whether she knew the Cordy check to be falsely made.
The Miller check was physically distinct from the Cordy check and drawn on an account owned by a different person. Because the checks were distinct and were drawn on accounts held under different names and because the testimony showed that Harmon examined the checks closely enough to complete a deposit slip, the jury could have inferred that she knew Pete had signed checks using two different names and that she did not reasonably believe he was authorized to do so. From this, the jury could have concluded that Harmon knew that the Cordy check was falsely made or completed, an element of the crime. Thus, the trial court did not abuse its discretion when it ruled that the Miller check was relevant to the knowledge element.
2. Undue Prejudice
“All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute, by [the rules of evidence], or by other rules or regulations applicable in the courts of this state.” ER 402. The trial court presumes that relevant evidence is admissible unless the party seeking to exclude the evidence shows that the danger of unfair prejudice substantially outweighed its probative value by presenting a danger of unfair prejudice, confusion of the issues, or misleading the jury. ER 402; ER 403; State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987). When balancing the probative and prejudicial value, the trial court must consider both the potential relevance and the potential prejudice of the evidence. Rice, 48 Wn. App. at 13.
Analogizing to State v. Trickler, 106 Wn. App. 727, 25 P.3d 445
(2001), Harmon asserts that introducing the Miller check was unduly prejudicial because the jury could conclude that she was attempting to commit two crimes, rather than the one charged crime. We disagree.
In Trickler, the State charged the Trickler with possession of a stolen credit card and being a felon in possession of a firearm. Trickler, 106 Wn. App. at 729. In addition to the evidence showing that Trickler possessed the stolen credit card, the trial court admitted evidence indicating that at the time of his arrest Trickler possessed several additional items that had been stolen from various people. Trickler, 106 Wn. App. at 732-33.
Trickler apparently objected to this evidence under ER 404(b) as evidence of other bad acts. Trickler, 106 Wn. App. at 732. The State claimed that the evidence was admissible under a res gestae theory because its discovery was so connected in time, place, and circumstances to the discovery of the stolen credit card that it was necessary for the jury to hear this evidence in order to understand how the police discovered the stolen credit card. Trickler, 106 Wn. App. at 733.
The appellate court reversed the conviction after determining that the trial court had failed to conduct the required balancing analysis on the record and concluding that the evidence was unduly prejudicial because it was only “somewhat probative” while linking Trickler to several uncharged crimes. Trickler, 106 Wn. App. at 733-34. The appellate court concluded that although the State may have sought to admit the evidence to give the jury a complete picture of the events leading up to the discovery of the credit card, it had not shown that the evidence was an inseparable part of the charged crime and that it was, instead, probably more suggestive of Trickler’s criminal propensities than anything else. Trickler, 106 Wn. App. at 734. Thus, “[u]nder the specific facts of [the] case,” the court concluded that the trial court had abused its discretion when it admitted this evidence at trial. Trickler, 106 Wn. App. at 734.
Unlike the situation in Trickler, where the State presented the evidence only to show the circumstances under which the credit card was discovered and the evidence clearly indicated that Trickler had committed numerous other crimes, the Miller check was relevant to an element of the charged crime and there was no evidence presented regarding whether the Miller check was also forged. At most, the Miller check suggested that Harmon might have been involved in a single additional illegal act.
Because the evidence here was highly relevant to an element of the crime and the potential for prejudice was relatively minor, we cannot say that the trial court abused its discretion in admitting this evidence.
3. Balancing on the Record
Harmon next argues that the trial court erred by failing to conduct its ER 403 balancing analysis on the record.
The record shows that the trial court specifically found that the Miller check was relevant to show Harmon’s knowledge but that the State could not disclose to the jury the amount of the Miller check because the large amount of the check would be unduly prejudicial. This is sufficient to show that the trial court considered both the relevancy and the potential prejudice of this evidence on the record. Accordingly, this argument fails.
C. ER 404(b)
Harmon next contends that the Miller check was inadmissible under ER 404(b).[2]
Although Harmon addressed ER 404(b) in relation to any prior misdemeanor convictions, she did not directly challenge the admission of the Miller check on this basis below. A party may only assign error on appeal based on the specific ground of the evidentiary objection at trial. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). Further, an objection to the admission of evidence at trial based on relevance fails to preserve the issue for appellate review based on ER 404(b) grounds. State v. Jordan, 39 Wn. App. 530, 539, 694 P.2d 47 (1985), review denied, 106 Wn.2d 1011
(1986), cert. denied, 479 U.S. 1039 (1987). Accordingly, Harmon has failed to preserve this issue for review. Guloy, 104 Wn.2d at 422. But even if Harmon had objected on ER 404(b) grounds, this argument would fail.
ER 404(b) provides that evidence of other wrongs or acts is not permissible to “prove the character of a person in order to show action in conformity therewith.” But the same evidence may be admissible for other purposes, such as to establish knowledge. ER 404(b).
Here, the State did not offer this evidence to show “action in conformity therewith.” Instead, the State offered this evidence to show knowledge. As discussed above, the evidence was relevant to the issue of knowledge and not unduly prejudicial. Thus, even if Harmon had objected to this evidence under ER 404(b), the trial court would not have erred in admitting the evidence.
II. Sufficiency of the Evidence
Harmon next argues that there was insufficient evidence to support the verdict.
A. Standard of Review
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable and we defer to the trier of fact on issues of conflicting testimony, the credibility of witnesses, and the weight of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157, review denied, 130 Wn.2d 1008 (1996). “In determining whether the necessary quantum of proof exists, [we] need not be convinced of the defendant’s guilt beyond a reasonable doubt, but only that substantial evidence supports the State’s case.” State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107, review denied, 141 Wn.2d 1023
(2000). “Substantial evidence is evidence that `would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed.'” State v. Prestegard, 108 Wn. App. 14, 23, 28 P.3d 817 (2001) (quoting State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 (1972)).
B. Elements
Under the to convict instruction in this case, the State had to prove beyond a reasonable doubt that the check was “falsely made, completed or altered”; and that Harmon or an accomplice (1) acted with intent to defraud; (2) knew that the check was falsely made, completed, or altered; and (3) either possessed, offered, disposed of, or put the check off as true. CP at 40. Harmon asserts that there was insufficient evidence to show that she (1) knew the Cordy check was forged, or (2) intended to injure or defraud the Bank or Cordy.[3]
1. Knowledge
Harmon admits that she possessed a forged instrument, but she contends possession alone was insufficient to demonstrate that she knew it was forged.
The trial court instructed the jury that “[i]f a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.” CP at 38. It also instructed the jury that “[p]ossession of a forged instrument alone is not sufficient to prove guilty knowledge[, but that p]ossession together with slight corroborating evidence of knowledge may be sufficient.” CP at 39. Under these instructions, the evidence was sufficient to support the conclusion that Harmon knew the Cordy check was forged.
Although Harmon testified that she believed that Pete’s father had given him permission to sign the check, the evidence taken in the light most favorable to the State demonstrated that Harmon observed Pete sign at least two checks with two different names. Based on that evidence, taken in conjunction with the evidence indicating that (1) she thought the checks looked funny; (2) she knew Pete to be of questionable character; (3) she took it upon herself to deposit the checks because her boyfriend had a criminal record and would be punished more severely than she would if caught; (4) she appeared to be nervous while she was waiting for the transaction to be approved; and (5) her boyfriend quickly fled the scene when he saw the police, the jury could have reasonably concluded that Harmon knew Pete was not authorized to sign the Cordy check, that the check was in fact forged, and that by depositing the check and giving Pete access to the funds she was committing a crime. Although Harmon’s testimony either contradicted or offered alternative explanations for much of this evidence, her contradictory or exculpatory testimony alone is not enough to overcome our conclusion because the issue of whether the jury chose to believe her over the other witnesses involves credibility determinations, which we will not review on appeal. Camarillo, 115 Wn.2d at 71; Lubers, 81 Wn. App. at 619.
2. Intent to Defraud
Harmon next asserts that there was no evidence that she intended to injure or defraud either the bank or Cordy.[4]
The court’s jury instructions defined “intent to defraud” as “an intent to induce another by means of trick, device or false representations to part with money or other property.” CP at 37. Again, taking the evidence in the light most favorable to the State, a reasonable jury could easily conclude that if Harmon knew or suspected the Cordy check to be forged and still went forward with her plan to deposit the check and then allow Pete to withdraw the funds, that she intended to defraud either the bank or Cordy by presenting the check for deposit into her account as if it were a valid check and then giving Pete access to funds that were not rightfully his. Thus, Harmon’s insufficient evidence claim fails.
Affirmed.
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.
We concur: MORGAN, J., BRIDGEWATER, J.
(1966).