No. 48266-1-IThe Court of Appeals of Washington, Division One.
Filed: May 13, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 001074146, Hon. Bruce Hilyer, March 22, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Stephen W. Kim, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Stephen P. Hobbs, King County Courthouse, 516 3rd Ave 5th Fl, Seattle, WA 98104.
KENNEDY, J.
Willie Walls was charged and convicted of one count of offering a forged check for cash, pursuant to RCW 9A.60.020(1)(b). Walls contends that his case must be dismissed because his right to a speedy trial was violated when the prosecutor became available for trial before the extended speedy trial deadline expired. Walls also challenges his conviction on the grounds that the trial court erred in denying his request for an attempted forgery instruction. Finding no error, we affirm.
FACTS
On April 22, 2000, James Kennedy wrote a personal check at the Turf restaurant in downtown Seattle. Sometime during the transaction the checkbook was either lost or stolen. However, Kennedy did not realize it was missing, and he returned home. Later that night, during the early morning hours of April 23, Willie Walls entered a “Money Mart” check cashing business located in Seattle, less than two miles from the Turf restaurant. That morning, David Gilbert was working as a teller at the Money Mart. Walls handed Gilbert one of James Kennedy’s checks, made out to Willie Walls in the amount of $90, with the name James Kennedy in the signature line. The check had not yet been endorsed. Gilbert asked for identification, and Walls gave him his driver’s license. Gilbert asked Walls what the check was for, and Walls said it was “owed to him.” Based on the low check number and the even dollar amount, Gilbert was concerned about the validity of the check. Gilbert told Walls that he would have to “run the check through the system” in the back of the Money Mart store. Once in the back room, Gilbert called James Kennedy and asked him if he had written a personal check to Willie Walls. Kennedy told Gilbert that he had not written the check, and that he did not think his checkbook was missing. But when Kennedy looked for his checkbook, he discovered that it was gone. Pursuant to Money Market company policy, Gilbert asked Kennedy to call the police. Wanting to keep Walls in the store until the police arrived, Gilbert told Walls that the bank was holding things up. The police officer who subsequently arrived spoke with Gilbert, contacted Kennedy by telephone, examined the check and Walls’ identification, and then arrested Walls. Walls was charged with a single count of forgery pursuant to RCW 9A.60.020(1)(b). Under that subsection, “[a] person is guilty of forgery if, with intent to injure or defraud: . . . He possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged.” The State elected to proceed under the alternative means of “offering” the check. During direct examination at trial, Walls testified that he had received the check from a trusted friend. Walls said that he had sold something to the friend, who had given him $60 cash and a $90 check in return. Walls stated that he had no idea the check was stolen, and that he did not steal or sign the check. Walls said that he was concerned whether there was sufficient money in the account to cover the check, so when he presented the check he asked the teller “if the check was any good,” meaning “was there $90 in the account to cover the check.” Walls further asserted that he had not attempted to cash the check because he had not endorsed it. However, when asked what his intent was in asking whether the check was good, Walls said:
I wasn’t trying to cash the check. I was trying to find out if the check was any good at that time. If the check would have been good, then he’d brought it back to me, asked me to sign it and compare my ID signature with the signature I’d put on the check, and then he’ll give me the money[.]
2 Report of Proceedings at 84.
On cross-examination, Walls said that the friend who had given him the check was named Demetrius, although he did not know Demetrius’ full name, address, or phone number. Walls said that he had met Demetrius for the first time on April 22, 2000, at the home of a mutual acquaintance, Leo Victoria. Walls said that he sold Demetrius a watch for $150, and was paid with $60 cash and a $90 check. Walls admitted that he saw Demetrius sign the check using Kennedy’s name, and accepted the check from Demetrius. However, Walls stated that he believed Demetrius had authorization to sign Kennedy’s name to the check because the check was in Demetrius’ possession, Demetrius never said it was stolen, and Leo Victoria told him that Demetrius could be trusted.
The trial court declined to give Walls’ proposed jury instruction on attempted forgery. The jury found Walls guilty of forgery, and sentenced him within the standard range. Walls appeals.
DISCUSSION Speedy Trial
Walls first argues that his case must be dismissed because his right to a speedy trial was violated. Walls was arraigned on August 3, 2000 and was incarcerated until his trial. On Friday September 28, 2000, the originally scheduled trial date, the presiding court held the case over until October 2. The reason for this extension is not in the record. Starting on October 2, the presiding court granted a series of short extensions of the speedy trial deadline pursuant to CrR 3.3(d)(8) because the prosecutor was in trial on another matter. The first was from October 2 to October 3. The second was from October 3 to October 5. On Thursday, October 5, the prosecutor was still in trial. The parties in that matter informed the presiding court that there would be rebuttal testimony on the morning of October 5, and closing argument would commence some time in the afternoon of that day. The presiding court responded by ordering another extension of the speedy trial deadline until Monday, October 9.
The prosecutor’s other trial finished unexpectedly early on Thursday, October 5, when the trial judge in that matter decided to work through lunch in order to keep other commitments he had scheduled for that afternoon. This meant that the prosecutor became available at approximately 3 p.m. on Thursday, October 5. On Friday, October 6, the prosecutor had omnibus hearings and other matters scheduled in the morning and a sentencing hearing in the afternoon. Therefore, the prosecutor would not have been available to commence Walls’ trial until after 3 p.m. on Friday. Aware that the speedy trial deadline had been extended until Monday, October 9, the prosecutor made no attempt to bring Walls to trial prior to the extended deadline. Walls’ trial commenced on Monday, October 9. Walls immediately raised the speedy trial issue, arguing that the presiding court should have sent the case out to trial either late Thursday or late Friday, as soon as the prosecutor became available. Before ruling on the motion, the trial court consulted with the presiding court to better understand how it handled CrR 3.3(d)(8) extensions. The presiding court explained that it extended the speedy trial deadline until Monday, October 9 because it understood that the prosecutor’s other trial would potentially continue through Friday, October 6. It was the presiding court’s position that “the ascertainment of unavailability administratively must occur at one fixed point in time.” 2 Report of Proceedings at 21. Therefore, once a speedy trial deadline had been extended pursuant to CrR 3.3(d)(8), the presiding court does not continuously update the status of each case on a daily basis to determine whether the attorney has unexpectedly become available. Based on this information, the trial court ruled that trial was properly extended to October 9, 2000, and denied Walls’ motion to dismiss. As a preliminary matter, we observe that Walls has assigned error to the presiding court’s extension of the speedy trial deadline from Thursday, October 5 to Monday, October 9. However, Walls presents no argument in his briefs for this assignment of error. Therefore, this assignment of error is waived and we need not address it. RAP 10.3(a)(5); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
In any case, we see no problem with the extension granted here. CrR 3.3 imposes specific time limitations which must be followed to ensure that criminal defendants are brought to trial in a speedy manner. State v. Greenwood, 120 Wn.2d 585, 588, 845 P.2d 971 (1993). However, CrR 3.3(d)(8) provides that five-day extensions of the speedy trial period are allowed if there are “unavoidable or unforeseeable circumstances beyond the control of the court or the parties” and the defendant will not be “substantially prejudiced in his or her defense.” It is well established that the unavailability of counsel who are in trial on a different matter constitutes an “unavoidable circumstance” justifying a five-day extension pursuant to CrR 3.3(d)(8). State v. Carson, 128 Wn.2d 805, 814-15, 912 P.2d 1016 (1996). The granting of an extension under CrR 3.3(d)(8) will not be reversed absent an abuse of discretion Id. at 814. Here, the presiding court understood that the prosecutor’s other trial could continue until Friday, October 6. This was a clear justification for extending the deadline until Monday, October 9. Walls acknowledges, as he must, that he was brought to trial within the extended speedy trial deadline. The crux of Walls’ argument is that where the presiding court grants an extension of the speedy trial deadline specifically to permit the prosecutor to complete another trial, the defendant has a right to be tried before the extended speedy trial expiration date should the prosecutor unexpectedly become available. Walls contends that the prosecutor failed to act with good faith or due diligence by neglecting to notify the presiding court that his other trial had concluded. We disagree. This proposed new standard is unjustified and unworkable. “The trial court is ultimately responsible for ensuring compliance with CrR 3.3, but as between the State and a criminal defendant, the State is responsible for bringing the defendant to trial within the speedy trial period.” State v. Wilks, 85 Wn. App. 303, 309, 932 P.2d 687 (1997). Prosecutors have “a duty of good faith and due diligence” to bring a defendant to trial within the speedy trial period. State v. Ross, 98 Wn. App. 1, 4-5, 981 P.2d 888, 990 P.2d 962 (1999), review denied, 140 Wn.2d 1022 (2000). Here, the defendant was brought to trial within the properly extended speedy trial deadline. The criminal rules and applicable case law require nothing more. Had the drafters of the rule wished to impose a requirement that the presiding court monitor counsel availability on a continuous basis and reschedule its calendar accordingly, they could have done so. They did not, nor should they have. Such a requirement would be extremely impractical. CrR 3.3(d) allows the presiding court a reasonable amount of discretion in managing an overloaded, complex criminal calendar, while still ensuring that defendants’ speedy trial rights are preserved.
The presiding court must take into account matters such as courtroom availability, previously scheduled omnibus hearings, and the like in planning the calendar. Requiring the prosecutor to bring the defendant to trial at a moment’s notice could throw this system into disarray. Once the presiding court properly determines that an extension is justified due to unavailability of counsel, prosecutors are entitled to rely upon established procedures and calendars traditionally used to notify the presiding court of availability for trial. The prosecutor did not breach his duty of good faith where, as here, the defendant was brought to trial before the expiration of the properly extended speedy trial deadline. Jury Instructions Walls also contends that reversal is required because the trial court erred in refusing to instruct the jury on the lesser included offense of attempted forgery.[1] A criminal defendant is entitled to a lesser included offense jury instruction on a crime that “is necessarily included within that with which [the defendant] is charged in the indictment or information.” RCW 10.61.006; State v. Berlin, 133 Wn.2d 541, 546, 947 P.2d 700 (1997). The commission of one crime is necessarily included in another crime when both prongs of a two-prong test are satisfied. First, each element of the lesser-included offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser-included crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382
(1978). These two requirements are respectively known as the “legal prong” and the “factual prong” of the lesser-included offense test. State v. Walden, 67 Wn. App. 891, 893, 841 P.2d 81 (1992).
The parties correctly agree that the legal prong of the Workman test was satisfied. “A person is guilty of an attempt to commit crime if, with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime.” RCW 9A.28.020. In order to commit forgery, Walls must have made some “substantial step” toward doing so. Therefore, the sole question to be resolved is whether the factual prong of the test has been met.
The factual prong of the Workman test is satisfied “when substantial evidence in the record supports a rational inference that the defendant committed only the lesser included or inferior degree offense to the exclusion of the greater offense.” State v. Fernandez-Medina, 141 Wn.2d 448, 461, 6 P.3d 1150 (2000). The purpose of the rule is to ensure that there is evidence to support the requested instruction. Id. at 455. The supporting evidence must be viewed in the light most favorable to the party requesting the instruction. Id. at 455-56. Under RCW 9A.60.020(1)(b), “[a] person is guilty of forgery if, with intent to injure or defraud: . . . He possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged.” Here, the State elected to pursue the sole alternative means of “offering” the check. “Offer’ means “to present for acceptance or rejection.” State v. Sullivan, 28 Wn. App. 29, 31, 621 P.2d 212 (1980), citing Mirriam-Webster’s Third International Dictionary (1976). Walls argues that this was not a completed forgery because he did not actually “offer” the check for acceptance or rejection. Rather, he testified that he merely gave the check to the Money Mart clerk and asked the clerk to find out whether there were funds behind the check. According to Walls, because the jury might have believed that Walls only asked the clerk for information, it might have concluded that he completed a substantial step toward making the offer, without actually completing it.
Even viewing the evidence in the light most favorable to Walls, we conclude that Walls has not met the factual prong of the Workman test. If the jury believed the State’s testimony in its entirety, there would be no evidence suggesting an attempted forgery, because Walls unconditionally offered the check to be cashed. David Gilbert testified that Walls simply gave him the check and told him it was money owed to him. According to Gilbert, “nothing more was said.” On the other hand, if the jury believed all of Walls’ testimony and rejected the State’s evidence, Walls would be acquitted, because he asserted that he believed Demetrius had authority to sign the check.
The evidence is uncontroverted that Walls handed the check over to the Money Mart cashier. Therefore, to support an attempted forgery instruction, the jury would have to conclude that Walls knew the check was forged, while at the same time believing that Walls tendered the check conditionally. Even if we assume that Walls asked if there were funds in the account, we agree with the trial court that this would not constitute a conditional offer. Walls did not condition his tender of the check on verifying the signature, or on determining Kennedy’s authorization to use his signature. Instead, Walls testified that if the check was good, he would have cashed it. That does not lead to an inference that he conditioned his offer in such a manner that it was only a substantial step.
The question of whether there was money in the account to cover the check is entirely irrelevant for the purposes of deciding whether Walls “offered” the check for acceptance or rejection. Accordingly, we hold that there is not substantial evidence supporting the inference that Walls only intended to commit the crime of attempted forgery. Affirm.
BAKER and COX, JJ., concur.