FILEDD COURT OF APP -ALS

S7

BY

IN THE COURT OF APPEALS OF THE STATE OF WASHIN

DIVISION II

STATE OF WASHINGTON, No. 42901 -2 -II

Respondent,

V.

DOANH QUOC NGUYEN, UNPUBLISHED OPINION

HUNT, P.J. — Doanh Quoc Nguyen appeals his jury trial convictions for one count of

first degree identity theft, four counts of first degree theft, five counts of forgery, and one count

of second degree theft. He argues that (1) the trial court erred when it admitted an "affidavit of

fraud," which constituted improper opinion evidence of his guilt; and (2) he received ineffective

assistance when his counsel failed to object to this exhibit as improper opinion evidence. We

affirm.

FACTS

I. THEFT AND FORGERY

From spring 2006 through January 2007, Doanh Quoc Nguyen worked as an in -home

caregiver for an elderly couple, Frances and Robert Clay Griffin.' Mrs. Griffin regularly paid

1 Mr. Griffin suffered from Parkinson'sdisease and diabetes; he required more physical care than

Mrs. Griffin was able to provide alone.

2013 JUL 23 mi a• i e
No. 42901 -2 -II

Nguyen his wages with checks drawn on one of her Columbia Bank checking accounts. In early

January 2007, Nguyen told the Griffins that he was going to visit family in Wyoming; but he

actually returned to his native Vietnam.

On January 20, shortly after Nguyen's departure, Mrs. Griffin discovered that four checks

payable to Nguyen, which she had not written, had cleared one of her Columbia Bank checking

accounts. These four checks had been made out in the amounts of $9,300, $5,700, $4,000, and

2,600. With her banker's assistance, Mrs. Griffin completed an affidavit of fraud, in which she

swore that she did not write these checks and stated her "belie[f] that Doanh Nguyen [was]

responsible for the fraud "; she signed the affidavit of fraud "under penalty of perjury." Ex. 11.

At some point, a fifth check that Mrs. Griffin had not written was discovered; this check, also

payable to Nguyen, was drawn on another Griffin checking account for $500.41. All five checks

had been deposited into Nguyen'sBank of America account.

After Mrs. Griffin's daughter Annette Ilene Fender, reported the possible fraud,

Lakewood Police Officer Andrew Hall investigated, met with Mrs. Griffin at her home, and

spoke to her about the checks. Hall compared the writing on the questioned checks to Mrs.

Griffin's handwriting and noticed they were different. Observing that the questioned checks had

been deposited into a Bank of America account, Hall obtained a search warrant for the related

bank records. He then unsuccessfully attempted to contact Nguyen. A warrant was issued for

Nguyen'sarrest.

2

Fender was Mr. Griffin'sstepdaughter. Fender lived in Florida.

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A year later, in January 2008, Mr. Griffin passed away. Two years after Mr. Griffin's

death, in December 2009, Mrs. Griffin suffered a "massive stroke." 1 Verbatim Report of

Proceedings (VRP) at 62. Nguyen returned to the United States in May or June 2010; officers

arrested him when he arrived at Sea -Tac International Airport. A year later, Mrs. Griffin passed

away, in May 2011.

II. PROCEDURE

The State charged Nguyen with one count of identity theft, five counts of forgery, four

counts of first degree theft, and one count of second degree theft. The case proceeded to a jury

trial.

A. State'sEvidence

At trial, the State presented testimony from Fender, employees from the Griffins' bank

and Nguyen'sbank, a handwriting specialist, and the police officer who investigated the crimes.

1. Fender

Fender testified about her parents' conditions, their hiring and employment of Nguyen,

and her mother's discovering the forged checks after Nguyen had departed. Fender also testified

that when the Griffins had employed Nguyen, her mother (Mrs. Griffin) was in charge of the

couple'sfinancial affairs and she (Mrs. Griffin) had been unwilling to allow Fender to take over

this responsibility, despite Fender'sconcerns about her mother's ability to manage her finances

properly. Soon after Nguyen left, Mrs. Griffin had called Fender in hysterics, told Fender "that

3

The State also alleged two aggravating factors for each offense: (1) that Nguyen had used a

position of trust to facilitate the offenses, and (2) that the victims were particularly vulnerable.

Nguyen raises no issues on appeal related to these aggravating factors.

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she [(Mrs. Griffin)] was missing money," and asked Fender if she knew "anything about it." 1

VRP at 51. Fender told Mrs. Griffin to go to her bank "and just stop everything on her account ";

about a week later, Fender flew out to assist her mother. 1 VRP at 52.

Upon Fender's arrival, she noticed that her mother had not balanced her checking

accounts for some time, which was not unusual. Fender took her mother to her bank, where they

discovered" several checks that Mrs. Griffin "didn't or couldn'tremember writing "; at this

time, Mrs. Griffin's memory was "[p]retty good." 1 VRP at 53. All of the questionable checks

had been written to Nguyen; but they did not appear to be his paychecks and the signature on the

checks did not appear to be in Mrs. Griffin's handwriting. Examining State's exhibits 2 through

6, the non - paychecks made out to Nguyen for $4, 00, $00.2, 00, $ 600.5, 00, $ 700.9, 00, 300.and

500.41, respectively, Fender testified that each check was made payable to Nguyen but that

none of the signatures were in her mother'shandwriting.

2. Other State witnesses

During Hall'stestimony, the following exchange occurred:

STATE] And did [Mrs. Griffin] —or at some point, did you develop a suspect in

the case?

HALL] I did.

STATE] And who was that?

HALL] That'sthe defendant. I believe it's Doanh Nguyen.

2 VRP at 164. Nguyen did not object to this testimony.

Jennifer Vitzthum, a Columbia Bank fraud investigator, testified that (1) the only people

authorized to sign on any of the Griffins' bank account checks were Mrs. Griffin, Mr. Griffin,

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and Fender; (2) all five checks in question had been "cleared" or "paid" by Columbia Bank, and

3) Mrs. Griffin had identified the first four of these checks as "fraudulent " in her affidavit of

fraud.' 1 VRP at 96 -97.

Kimberly Clanton, a Columbia Bank customer service representative, testified that she

regularly assisted Mrs. Griffin and that she was the person Mrs. Griffin had contacted when she

discovered the fraudulent checks. Clanton had helped Mrs. Griffin complete the affidavit of

fraud, which Clanton characterized as "something that a customer fills out at the bank, and

they're making a statement saying that they didn'twrite these checks." 2 VRP at 149. Clanton

identified exhibit 11 as the affidavit of fraud she had helped Mrs. Griffin complete. Nguyen did

not object to the trial court's admission ofthis exhibit.

Brett Bishop, a Washington State Patrol Crime Lab forensic scientist and "[h]andwriting

expert[ ]," testified that after examining about 300 checks written on the Griffins' bank accounts,

Bishop concluded that (1) "Frances Griffin probably did not write [any of the five] questioned

checks and [they] are probably simulations," and (2) it appeared that someone had been trying to

copy her writing. 1 VRP at 116 (emphasis added). Having compared the writing on these

checks to Nguyen's writing, Bishop testified that the person writing the checks had been

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Columbia Bank, however, did receive from Nguyen's bank a $5, 19831.partial reimbursement

on the $9, 00300. check. Bank of America returned these funds without Nguyen'sinvolvement

when received Columbia Bank's notification that the $9, 00300.check was fraudulent.

The fifth check, for $500.41, had been drawn on a different Columbia Bank checking account.

6

Because of the poor quality of the check copies available for his review, Bishop could not say,

however, that it was "highly probable" that Mrs. Griffin had not written these checks. 1 VRP at

130 (emphasis added).

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attempting to sign someone else's, signature, and "the writing characteristics in themselves

were] disguised "; thus, he could neither identify nor exclude Nguyen as the writer. 1 VRP at

119.

B. Defense Case

Nguyen was the only defense witness. He admitted to having forged the $5,700 and

9,000 checks, asserting that he had needed the.money to help his pregnant wife in Vietnam and

that he had intended to repay the Griffins. But he denied having written the other three checks.

Instead, he testified that the $4,000 check had been a loan to him from the Griffins and that the

2,600 check covered a week's salary of $1,000 and a $1,600 repayment for his having

purchased a computer for Mrs. Griffin to give to her grandson. Nguyen, however, produced no

documentation to show that he had purchased this computer. Nor could he explain another

4,000 check that Mrs. Griffin had written to him 15 days after the $4,000 check at issue.

Similarly, Nguyen did not attempt to explain the $500.41 check.

C. Closing Argument, Jury Instruction, Jury Question, and Verdict

In closing, the State argued that Nguyen had admitted his guilt as to (1) the first degree

identity theft charge; (2) the first degree theft charges related to the $9,300 and $5,700 checks;

and (3) the forgery charges related to the $9,300 and $5,700 checks. In discussing the remaining

charges, the State argued:

7 Fender testified that her mother had given her "great grandchild" Isaiah Griffin a computer that

Christmas 2006.
No. 42901 -2 -II

First of all, [Mrs. Griffin] herself, obviously is not here. [She] is not in the

courtroom to testify; however, she did fill out an affidavit of forgery, and this is

the affidavit of forgery that she filled out with Kim Clanton, her banker, and as

Kim Clanton said this affidavit of forgery does not get filled out unless the

customer is absolutely positive that these checks have. not been written or drawn

by them with their permission. They being Robert and Frances Griffin. So in this

case, Frances Griffin does get to speak and she does get to speak through this

business record. You'll see her signature on the back, and again, with Kim

Clanton'stestimony, this is the very few words that Frances Griffin will at least

be able to say in this courtroom that I did not do this. She also says in here that

she believes Mr. Nguyen did it.

3 VRP at 280 -81 (emphasis added). Nguyen did not object to this argument.

The trial court instructed the jury, "You are the sole judges of the credibility of each

witness." Clerk's Papers (CP) at 26 (Jury Instruction 1). During its deliberations, the jury sent

the trial court the following question: "Can we have the Affidavit of Fraud for [the $500.41]

check, ... ? Ifnot, is there a reason this was not completed by Francis ?" Suppl, CP at 148. The

trial court responded: "You have all of the exhibits that were admitted. The testimony will not

be repeated." Suppl. CP at 148.

The jury found Nguyen guilty of one count of identity theft, four counts of first degree

theft, five counts of forgery, and one count of second degree theft. It also found both

aggravating factors for each offense. Nguyen appeals his convictions.

ANALYSIS

Nguyen argues that (1) the trial court erred in admitting Mrs. Griffin's affidavit of fraud

because this document was improper opinion testimony about his guilt; and (2) alternatively, if

we hold that he failed to preserve this error, his counsel'sfailure to object to the trial court's

admission of the affidavit offraud was ineffective assistance. Even presuming, but not deciding,

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that this is a constitutional issue, we do not reach this argument because Nguyen fails to show

that the alleged error was manifest, as required for the RAP 2. a)(5( 3) exception to the

preservation requirement.

We agree with Nguyen that a witness may not give an opinion or state a personal belief

that the defendant is guilty. State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008).

But here, even assuming without agreeing that Mrs. Griffin's affidavit of fraud was the

equivalent of unconstitutional impermissible opinion testimony about Nguyen's guilt, Nguyen

fails to show that any potential error "caused actual prejudice or practical and identifiable

consequences." Montgomery, 163 Wn.2d at 595 (citing State v. Kirkman, 159 Wn.2d 918, 928,

155 P.3d 125 (2007)). Furthermore, other strong evidence and the jury's verdict—that Nguyen

was also guilty of charges not related to the checks .listed in Mrs. Griffin's affidavit —show that

the affidavit of fraud was not the determinative factor here.

In addition to Mrs. Griffin's affidavit of fraud, the investigating officer presented live

testimony about his own conclusion that. Nguyen had forged the questionable checks; and

Nguyen did not challenge this testimony. Each of the five questionable checks had been made

8 " Impermissible opinion testimony regarding the defendant's guilt may be reversible error

because such evidence violates the defendant'sconstitutional right to a jury trial, which includes

the independent determination of the facts by the jury." State v. Kirkman, 159 Wn.2d 918, 927,

155 P.3d 125 (2007) (citing State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001); State v.

Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987)).

9

Relying on Montgomery, 163 Wn.2d at 596, n.9, Nguyen argues that the jury's question to the

trial court during the jury deliberations demonstrates that the jury relied on the affidavit of fraud

in finding him guilty. Br. of Appellant at 10. Here however, unlike Montgomery, the jury

question does not show that the jury's verdict was dependent on Mrs. Griffin's specific

accusatory statement in her affidavit of fraud.
No. 42901 -2 -II

payable to Nguyen and deposited into his bank account; and Nguyen admitted having forged the

two larger checks. And Fender, the investigating officer, and the handwriting expert all testified

that it did not appear that Mrs. Griffin had written any of the five checks at issue because the

handwriting did not look like hers; instead, it looked like someone was trying to copy her

handwriting. Furthermore, the trial court instructed the jury that it was solely responsible for

determining Nguyen's guilt. We presume that the jury followed the trial court's instructions.

Kirkman, 159 Wn.2d at 937. Given the evidence and the jury instructions, we hold that Nguyen

has failed to establish the trial court's admission of the affidavit caused actual prejudice or any

other practical and identifiable consequences. Montgomery, 163 Wn.2d at 595. Accordingly, we

decline to reach Nguyen'simproper opinion argument.

Nguyen also argues that his trial counsel provided ineffective assistance in failing to

object to the admission of Mrs. Griffin's affidavit of fraud. To establish ineffective assistance of

counsel, Nguyen must show both deficient performance and prejudice. State v. Grier, 171

Wn.2d 17, 32 -33, 249 P.3d 1260 (2011). Based on the facts we discuss above, we hold that

Nguyen fails to show that the affidavit's admission was prejudicial. Accordingly, his ineffective

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assistance argument also 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 in accordance with RCW

2. 040, 06.it is so ordered.

3

P.J.

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