No. 64424-6-I.The Court of Appeals of Washington, Division One.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-1-04101-4, Christopher A. Washington, J., entered October 30, 2009.
Affirmed by unpublished opinion per Lau, J., concurred in by Dwyer, C.J., and Appelwick, J.
LAU, J.
In order to convict Tanya Radcliffe of making or uttering a forged prescription, the State was required to prove that she acted with knowledge that the prescription was forged or altered. Viewed in their entirety, the instructions sufficiently conveyed this requirement to the jury and did not relieve the State of its burden to prove all elements of the offense beyond a reasonable doubt. The sentencing court also credited Radcliffe with all available presentence jail confinement. Accordingly, we affirm Radcliffe’s conviction and sentence.
FACTS
The State charged Tanya Radcliffe with one count of making or uttering a forged prescription. RCW 69.50.403(1)(c). At trial, the State presented evidence that Radcliffe visited the SeaMar Clinic on January 29, 2008, to obtain a refill for her medications. Dr. Miguel Jimenez provided Radcliffe with a refill prescription for 12 tablets of Ativan, a medication for anxiety disorder. Later that day, Radcliffe brought the prescription to the pharmacy counter at a Bartell Drugs in White Center and handed it to a pharmacy assistant. Melissa Goslin, the pharmacist, recognized Radcliffe as a regular customer.
Goslin became suspicious when she noticed that the prescription called for 120 tablets and that the “0” was written in a different ink than the “12.” She then contacted a nurse in Dr. Jiminez’s office, who confirmed that the prescription was originally written for 12 tablets.
Several hours after Radcliffe dropped off the prescription, another woman attempted to pick it up. Goslin recognized the woman as someone who had accompanied Radcliffe to the pharmacy on prior occasions. Goslin told her that Radcliffe would have to pick up the prescription herself. When Radcliffe telephoned Goslin later that day, Goslin told her that she would have to pick up the prescription in person. Goslin was not aware that Radcliffe ever picked up the prescription.
Azaria, Radcliffe’s daughter, testified that when her mother came home from the doctor, she offered to fill the prescription for her. Azaria then asked Mary, their landlord, to drive her to the pharmacy. Azaria accompanied Mary to the pharmacy and waited in the car while Mary went inside. A short time later, Mary returned and said the pharmacy would not fill the prescription, but she refused to return the prescription to Azaria. When Azaria told her mother what had happened, Radcliffe retrieved the prescription from Mary and went to the pharmacy herself. Radcliffe stipulated that she submitted the prescription at the pharmacy.
The jury found Radcliffe guilty as charged, and the court imposed a one-day sentence with credit for one day served.
DECISION
For the first time on appeal, Radcliffe contends that the jury instructions violated her due process rights by relieving the State of its burden to prove that she knew the prescription she presented was forged. Generally, the failure to object to jury instructions at trial precludes appellate review. See
RAP 2.5(a). But an instruction that relieves the State of its burden to prove every element of an offense is a constitutional error that may be raised for the first time on appeal. SeeState v. Hanna, 123 Wn.2d 704, 709-10, 871 P.2d 135 (1994); RAP 2.5(a)(3).
“Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law.” State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). Whether a jury instruction correctly states the relevant law is a question of law that we review de novo. State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002).
RCW 69.50.403(1)(e) provides that it is unlawful “for any person knowingly or intentionally [t]o make or utter any false or forged prescription. . . .” Relying on instruction 8, which required the jury to find that she “intentionally did make or utter a false or forged prescription,” and instruction 12, which defined “to utter” as “to put off as true a written prescription,” Radcliffe contends that the instructions impermissibly permitted the jury to convict her by finding that she intentionally uttered the prescription merely by presenting it at the pharmacy, without knowledge that the prescription had been altered. But Radcliffe parses the instructions in isolation, without considering them in context.
When assessing the effect of specific language in a jury instruction, an appellate court considers the jury instructions as a whole and analyzes the challenged portions in the context of all the instructions. See State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). Radcliffe’s arguments fail to consider instruction 11, which provided that a person acts with intent or intentionally “when acting with the objective or purpose to accomplish a result that constitutes a crime.” Instruction 11 tracked the language of RCW 9A.08.010(1)(a) and 11 Washington Pattern Jury Instructions: Criminal 10.10.
Contrary to Radcliffe’s assertion, the instructions do not suggest the jury could find her guilty merely for the intentional act of handing the pharmacist a prescription that later turned out to be forged or altered. Rather, the instructions expressly required the State to prove that Radcliffe acted with the objective or purpose of uttering a forged prescription. By acting with the objective or purpose to utter a forged prescription, Radcliffe necessarily acted with knowledge that the prescription was forged. SeeState v. Woolworth, 30 Wn. App. 901, 906, 639 P.2d 216
(1981) (proof that defendant acted purposely or intentionally necessarily established that he acted knowingly); seealso RCW 9A.08.010(2) (“When acting knowingly suffices to establish an element, such element also is established if a person acts intentionally.”). We note that this was precisely how defense counsel construed the instructions during closing argument:
The only way, members of the jury, you can find my client guilty of those charges is if you find that Tanya has intentionally forged that prescription. [INAUDIBLE]. Both of those prongs do require you to believe beyond a reasonable doubt that she was fully aware that the prescription was forged. Not only was she fully aware that the prescription was forged, she was intending to commit the crime of a forged prescription by submitting that prescription to the pharmacist.
Report of Proceedings (Sept. 28, 2009) at 164.
Viewed in context, the instructions in this case made the relevant legal standard “manifestly apparent” to the average juror. State v. Borsheim, 140 Wn. App. 357, 366, 165 P.3d 417 (2007). We find no reasonable possibility that the instructions relieved the State of its burden to prove all elements of the offense beyond a reasonable doubt
Radcliffe next contends the trial court failed to credit her for all nine days that she spent in jail prior to sentencing. See RCW 9.94A.505(6) (sentencing court shall credit defendant for all presentence jail time served solely in regard to the offense for which the offender is sentenced). But the sentencing court imposed a one-day term of confinement and fully credited Radcliffe for that sentence. Because the court gave Radcliffe all available credit, she has failed to demonstrate any error.
Affirmed.
WE CONCUR: