Appeal from Thurston Superior Court. Docket No: 13-1-00140-7. Judge signing: Honorable Christine Schaller, Gary Tabor. Judgment or order under review. Date filed: 04/15/2013.
Manek R. Mistry and Jodi R. Backlund (of Backlund & Mistry ), for appellant.
Jon Tunheim, Prosecuting Attorney, and Carol L. La Verne, Deputy, for respondent.
Authored by Bradley A. Maxa. Concurring: Lisa Worswick, Linda Cj Lee.
Bradley A. Maxa,
[184 Wn.App. 143] [¶1] Ibrahim Hassan appeals his convictions for two counts of second degree theft and two counts of unlawful issuance of a bank check (UIBC), as well as the trial court's restitution order. He claims that (1) the information and to-convict instructions for second degree theft were inadequate because they did not identify aggregation of multiple theft incidents based on a common scheme or plan as an essential element of the crime, (2)
the to-convict instructions for UIBC omitted the essential element that the check be drawn on a bank or other depository for the payment of money, and (3) the sentencing court miscalculated his restitution and trial counsel's failure to challenge the restitution amount denied him his right to effective assistance of counsel.
[¶2] We hold that the information and to-convict instructions for second degree theft were not required to reference aggregation because the amounts Hassan obtained control over when he deposited the checks satisfied the $750 threshold value, and that any defect in the UIBC to-convict instruction was harmless. We also hold that Hassan failed to preserve his challenge to the restitution award, but that defense counsel deprived him of effective assistance of counsel during the restitution hearing by not arguing that the victim did not lose the full amount of the check Hassan gave her. Accordingly, we affirm Hassan's convictions but remand for correction of the restitution order.
[¶3] Hassan had both personal and business accounts with Navy Federal Credit Union (NFCU). NFCU apparently notified Hassan that he did not qualify to be a member and needed to close his accounts. On November 15, 2012, Hassan came into the Bremerton branch, closed his accounts, and withdrew all the funds that had been in those accounts. Hassan subsequently opened business and personal checking and savings accounts at OBee Credit Union.
[184 Wn.App. 144] [¶4] On December 29, Hassan deposited a $2,450 check payable to himself drawn on a closed NFCU account into his OBee personal checking account. OBee allowed $1,000 of that amount to be immediately available for Hassan's use based on the assumption that it would clear the account. Immediately after depositing the check Hassan made a $500 cash withdrawal. Also that same day he made a $302 ATM (automatic teller machine) withdrawal.
[¶5] On December 31, Hassan deposited a $955 check payable to himself drawn on a closed NFCU account into his OBee personal checking account. OBee allowed the entire amount to be immediately available for Hassan's use. That same day, Hassan made a $600 ATM withdrawal and a $160 debit card withdrawal. Both the December 29 and December 31 NFCU checks were returned to OBee unpaid because the NFCU account was closed.
[¶6] On January 4, 2013, Hassan gave an $875 check drawn on a closed NFCU account to Rene Cavallo, the on-site manager of the Capitol Club Apartments, for his January rent. The check did not clear because it was written on a closed account.
[¶7] On January 12, Hassan told his friend Tiffany Gilpin that he would loan her $1,000 to help repair her car. On January 14, Hassan gave her a $2,400 check drawn on the closed NFCU account. He asked her to deposit the check in her account and then immediately withdraw $1,400 to give to him because it was an easier way for him to get cash than to go to his bank. As requested, Gilpin deposited the check in her account, withdrew $1,400, and gave that money to Hassan. Hassan's check did not clear.
[¶8] The State charged Hassan with two counts of second degree theft for the two checks deposited in his OBee account, and with two counts of UIBC for the checks written to Capitol Club Apartments and Gilpin. A jury convicted Hassan on all counts. At the sentencing hearing, Hassan objected to the State's request for $2,400 in restitution to Gilpin, claiming only that Hassan had repaid $400 to her. [184 Wn.App. 145] The trial court ordered Hassan to pay the full $2,400. Hassan appeals.
A. Adequacy of Second Degree Theft Information and Instructions
[¶9] Hassan argues that the information charging the two second degree thefts was inadequate because it did not identify aggregation of multiple theft incidents based on a common scheme or plan as an essential ...