IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 74008-3-1

co<

DIVISION ONE

STATE OF WASHINGTON,

Respondent,

v.

MICHAEL C. McKINNON,

Appellant.

UNPUBLISHED

CI

up

en

Ct ••-'•

FILED: August 29. 2016

Cox, J. — Michael McKinnon appeals his judgment and sentence for theft

by deception, arguing that insufficient evidence supports his conviction. We hold

that the State failed to prove that he obtained control of property through aid or

color of deception, one of the necessary elements of theft by deception.

Accordingly, we reverse his conviction.

In 2006, the Maplevine Condominium Homeowners Association hired

McKinnon to provide accounting and bookkeeping services. As part of these

services, McKinnon would receive the association's dues and other income and

pay the association's bills. McKinnon was authorized to pay himself for his

services.
No. 74008-3-1/2

In 2007, McKinnon began taking funds from the association's accounts

without its authorization. He characterized this as "borrowing," and periodically

repaid some or all of the funds with interest.

McKinnon provided the association with yearly spreadsheets listing the

association's funds. In these spreadsheets, McKinnon would list the funds he

misappropriated as being in non-existent accounts. For example, in 2007

McKinnon provided a spreadsheet to the association that showed $10,616.98 in

a "Cascade Savings" account. McKinnon had actually misappropriated these

funds.

Between 2007 and 2011, McKinnon took approximately $134,000 from

the association's accounts without authorization. During this same period, he

repaid approximately $142,000 to the association, including $8,000 of interest.

In 2011, the association hired a management company and no longer

required McKinnon's services. McKinnon then disclosed that he had been taking

money from the association's accounts for his personal use. He stated that he

periodically withdrew money from the accounts, which he later repaid with

interest. In September 2011, McKinnon paid the association $23,000 to repay

the last of the funds he took. The association did not report McKinnon's actions

to authorities at that time.

The association later audited its financial records and confirmed that

McKinnon took funds without authorization and repaid them with interest.

In March 2014, the association reported McKinnon's unauthorized use of

funds to the Lynnwood Police Department and the Snohomish County
No. 74008-3-1/3

Prosecutor. In a voluntary interview with a police officer, McKinnon admitted to

the facts described earlier. In August 2014, the police department referred the

case to the Snohomish County Prosecutor for charging review.

In January 2015, the State charged McKinnon with first-degree theft,

alleging that he obtained control of the association's funds "by color or aid of

deception." At this time, the statute of limitations to charge McKinnon with

embezzlement had expired.

McKinnon moved to dismiss the case under State v. Knapstad1 for failure

to establish every element of the offense. The trial court denied the motion.

The parties agreed to a bench trial on stipulated documentary evidence.

The court determined that McKinnon was guilty of theft by deception.

McKinnon moved to arrest judgment, arguing that while the evidence

established embezzlement, it did not establish theft by deception. The trial court

denied the motion.

McKinnon appeals.

THEFT

McKinnon argues that there is insufficient evidence of theft by deception in

this case. We agree.

RCW 9A.56.020 sets out different means by which a person may commit

the crime of theft. One means is to wrongfully "exert unauthorized control over

the property or services of another."2 This means is commonly known as

1 107 Wn.2d 346, 729 P.2d 48 (1986).

2RCW9A.56.020(1)(a).
No. 74008-3-1/4

embezzlement.3 A different means, known as theft by deception, is "[b]y color or

aid of deception to obtain control over the property or services of another."4

Although these are alternate means of committing the same crime, a

three-year statute of limitations applies to embezzlement, while a six-year statute

applies to theft by deception.5

These crimes are not "mutually repugnant"—under some circumstances, a

defendant may commit both theft by deception and embezzlement.6 Proving

one means does not necessarily disprove the other.7

McKinnon raises a variety of challenges on appeal. He challenges the

court's denial of his Knapstad motion, its determination that sufficient evidence

supported finding him guilty of theft by deception, and its ruling that the statute of

limitations for embezzlement did not bar prosecuting McKinnon.

But a single question resolves all of McKinnon's claims: do the facts of this

case provide sufficient evidence that McKinnon committed theft by deception?

3 State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993).

4RCW9A.56.020(1)(b).

5 RCW 9A.04.080(1)(d)(iv), (1)(h).

6 State v. Pettit, 74 Wash. 510, 519, 133 P. 1014 (1913) (analyzing former

larceny statute). RCW 9A.56.020 is a recodification of the former larceny

statute—the elements of theft by deception and embezzlement have not

materially changed. State v. Southard, 49 Wn. App. 59, 62 n.2, 741 P.2d 78

(1987).

7 Id.
No. 74008-3-1/5

Sufficiency of the Evidence

McKinnon argues that insufficient evidence supports his conviction for

theft by deception. We agree.

Evidence is sufficient when any rational trier of fact could find beyond a

reasonable doubt the essential elements of the crime.8 When considering a

sufficiency challenge, we defer to the fact finder's determination as to the

evidence's weight and credibility.9 "In claiming insufficient evidence, the

defendant necessarily admits the truth of the State's evidence and all reasonable

inferences that can be drawn from it."10 Whether evidence is sufficient is a

question of constitutional law that we review de novo.11

Here, the crucial inquiry is whether there is sufficient evidence that

McKinnon obtained control of the association's funds by color or aid of deception,

as the theft by deception statute requires.12 "Obtain control over" has its

"common meaning," as well as other definitions thatdo not apply in this case.13

8 State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).

9 State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

10 State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014).

11 State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).

12RCW9A.56.020(1)(b).

13RCW9A.56.010(10).
No. 74008-3-1/6

We focus on the word "obtain." According to the American Heritage

Dictionary, "obtain" means "[t]o succeed in gaining possession of as the result of

planning or endeavor; acquire."14

Here, McKinnon's deception involved misrepresenting the location of the

funds he removed from the association's accounts. In its oral ruling, the court

found:

the deception that Isaw in this case had to do with essentially the

hiding of the assets. The assets were not couched as a loan to Mr.

McKinnon in this case. They were described as being securely

invested; that is the deception that Isee in this case.[15]

But there is no evidence that McKinnon used this deception to obtain

control over the association's funds.

The association hired McKinnon in 2006. He first deceived the

association in a report sent in December 2007. Thus, McKinnon had control over

the association's funds before he deceived them. Accordingly, he did not use

deception to obtain control over the funds.

McKinnon used deception to hide the fact that he was misappropriating

the association's funds. But this is insufficient to establish theft by deception.

The statute's plain language requires that the defendant use deception to "obtain

control over" the property.16 Here, McKinnon did not use deception to obtain

14 The American Heritage Dictionary (5th ed. 2016)

https://ahdictionary.com/word/search. html?q=obtain.

15 Report of Proceedings (July 8, 2015) at 4.

16RCW9A.56.020(1)(b).
No. 74008-3-1/7

control of the funds. Rather, he already had control of the funds and used

deception to retain control.

A leading treatise supports this interpretation: "The difference between

theft by deception and embezzlement lies in whether the defendant had lawful

possession of the property prior to the theft."17 Ifthe defendant had lawful

possession before the theft, then he cannot be guilty of theft by deception.18

Here, McKinnon initially had lawful possession of the association's funds.

Although he misappropriated the funds, and attempted to hide his

misappropriation, this deception did not convert his embezzlement into theft by

deception.

Case law also supports this conclusion. In State v. Smith, the supreme

court interpreted a previous version of the theft statute, then known as larceny.19

That statute, like the present theft statute, had embezzlement and theft by

deception as alternate means of committing the same offense.20 The elements

of the different means have not materially changed—RCW 9A.56.020 merely

rephrases and reorganizes the previous statute.21

1713B Seth A. Fine and Douglas J. Ende Washington Practice: Criminal

Law § 2608 at 137 (2015-2016 ed.).

18 jd,

192Wn.2d 118, 98 P.2d 647 (1939).

20 Southard, 49 Wn. App. at 62 n.2; Rem. Rev. Stat. § 2601.

21 Id.
No. 74008-3-1/8

In Smith, Bian Smith managed a business.22 In this role, "he had

complete control of all the business of the company, including the bank deposits"

and was the only person authorized to write checks from the company's

accounts.23 He used funds in the company's account to purchase various

personal investments.24 To do this, Smith wrote checks that his codefendant

cashed.25 To hide these transactions, Smith would place personal checks in his

codefendant's name payable to the company in the company's cash box.26

The State charged Smith with larceny, but not under the means of

embezzlement.27

The supreme court distinguished embezzlement from other means of

committing theft:

"In embezzlement, the property comes lawfully into the possession

of the taker and is fraudulently or unlawfully appropriated by him; in

[other means of theft], there is a trespass in the unlawful taking of

the property. Embezzlement contains no ingredients of trespass,

which is essential to constitute the [other means of theft].

Moreover, embezzlement does not imply a criminal intent at the

time of the original receipt of the property, whereas in [other means]

the criminal intent must exist at the time of the taking."t28'

22 Smith, 2Wn.2dat119.

23 Id, at 119-20.

24 Id, at 120.

25 Id

26 Id,

27 id, at 121.

28 ]d, (quoting 18 Am. Jur.. Embezzlement, § 3. p. 572).

8
No. 74008-3-1/9

The court determined that Smith had the funds lawfully in his possession

before he wrongfully appropriated them.29 Thus, he was guilty only of

embezzlement and not of another means of theft.30 Accordingly, the court

reversed his conviction.31

Similarly, in State v. Renhard, the supreme court reversed Marcus

Renhard's conviction for larceny by deception.32 Renhard was the president of a

corporation.33 He used two corporate checks for his personal use.34 Both

Renhard and a secretary had to sign the corporation's checks.35 Butthe

secretary's signature was only a precaution against forgery—the secretary had

no authorityto refuse to sign a check.36

The State's evidence showed that Renhard informed the secretary that the

checks were to purchase equipment for the corporation.37 But he instead used

them to purchase personal property.38

29 jd, at 122.

30 id,

31 id, at 127.

32 71 Wn.2d 670, 674, 430 P.2d 557 (1967).

33 id, at 670-71.

34 id, at 671.

35 id,

36 id,

37 id,

38 Id.
No. 74008-3-1/10

The court held that insufficient evidence supported Renhard's conviction

for larceny by deception. The court held that the State failed to prove that

Renhard's deception was necessary to obtain the funds. The court also held that

Renhard "had lawful control of the funds of the corporation, and these checks

were, in effect, drawn by him."39 Thus, larceny by embezzlement was "the only

section [ofthe larceny statute] applicable to the facts of this case."40

In contrast, in State v. Johnson, the supreme court upheld Francis

Johnson's conviction for larceny by deception.41 In that case, Johnson's

codefendant was an insurance adjuster.42 The adjuster would create false claim

files and authorize payment for the claims.43 Then Johnson would cash the

insurance checks and share the proceeds with his codefendant.44

On appeal, Johnson argued that he had committed only embezzlement,

not theft by deception, because his codefendant lawfully possessed the funds.45

The supreme court disagreed, distinguishing Smith.46

39 id, at 672.

40 id, at 673.

41 56 Wn.2d 700, 355 P.2d 13 (1960).

42 id, at 703.

43 id,

44 Id, at 704.

45 Id, at 705.

46 Id. at 704-05.

10
No. 74008-3-1/11

The supreme court held that the insurance adjuster had the authority "only

to order the payment of the company's funds."47 This authority was not the

equivalent to possessing the funds. Other employees possessed the funds, and

the adjuster did not possess them until the other employees executed the

payments he ordered.48 Thus, Smith was distinguishable, and Johnson was

properly convicted of larceny by deception.49

Here, McKinnon's case is analogous to Smith and Renhard. As the

association's accountant, McKinnon had lawful possession of the association's

funds. McKinnon would use the funds to pay the association's bills and had the

authority to pay himself. Although McKinnon misappropriated the funds to his

personal use, he had lawful possession when he did so. Thus, just as in Smith

and Renhard, McKinnon committed only the crime of embezzlement. The

evidence does not support a conviction for theft by deception.

McKinnon's case is also distinguishable from Johnson. In Johnson, the

insurance agent did not have possession of the funds. He obtained the funds by

falsifying insurance files to get his coworkers to execute payments. Thus, it was

clear that the insurance agent used deception to obtain the funds.

Here, the State failed to prove such a link between McKinnon's deception

and the association's funds. If McKinnon had requested and obtained additional

funds from the association after falsely claiming that an unexpected cost arose,

47 id, at 705.

48 id,

49 Id.

11
No. 74008-3-1/12

he would have been guilty of theft by deception. Similarly, if McKinnon had

falsely informed the association's members that their dues had increased and

obtained additional funds, he would have been guilty of theft by deception. But

here, the State failed to establish that McKinnon used deception to obtain control

over additional funds. Instead, the evidence shows only that McKinnon used

deception to hide his misuse of the funds that he already controlled.

The State relies on State v. Mehrabian50 to argue that sufficient evidence

supports McKinnon's conviction. But that case is distinguishable.

In Mehrabian, Sassan Mehrabian worked for the City of Woodinville as its

information technology manager.51 His responsibilities included purchasing the

city's computer equipment.52 When purchasing equipment, Mehrabian was

required to obtain three bids for the equipment and present the lowest bid to his

supervisors for approval.53

Mehrabian also owned a computer equipment business.54 The city

prohibited its employees from engaging in business with the city.55 Despite this

prohibition, Mehrabian sold equipment to the city, using a third party vendor to

50 175 Wn. App. 678, 308 P.3d 660 (2013).

51 id, at 683.

52 id, at 701.

53 id, at 684.

54 id,

55 id,

12
No. 74008-3-1/13

invoice his sales.56 Mehrabian sold the equipment to the city at substantial

markups and often delivered equipment that was inferior to the invoice his

supervisors approved.57 Mehrabian also forged price quotations to obtain his

supervisors' approval.58 And on some occasions, Mehrabian forged invoices

from the third party vendor, charging the city without delivering any equipment.59

The State charged Mehrabian with theft by deception after the city

discovered the discrepancies in its computer equipment inventory.60

On appeal, Mehrabian argued that insufficient evidence supported his

convictions.61 Specifically, he argued that the State had not proven that the city

relied on his misrepresentations when it purchased the equipment.62 This court

disagreed, noting:

Neither [of Mehrabian's supervisors] knew they were approving

business deals with Mehrabian, and both said they probably would

not have approved the deals had they known the true facts.

Neither [supervisor] knew Mehrabian was enriching himself through

these transactions, and both supervisors testified he did not have

permission to do so ... .

Mehrabian induced the City to pay out money by color or aid of

deception: He purchased property himself, invoiced the City

56 id.

57 id.

58 id.

59 Id,

60 14

61 14 at 699.

62 Id.

13
No. 74008-3-1/14

through [the third party vendor] at a substantial markup, invented

price quotes, forged invoices, delivered an inferior product or failed

altogether to deliver the purchased property, and enriched himself

through the transactions. He created the impression that he was

legitimately engaging in business with another company for the

purchase and delivery of computer products. That false impression

caused the City to engage in business it would not otherwise have

undertaken.[63]

Mehrabian is not analogous to McKinnon's case. In Mehrabian, it was

clear that Mehrabian was "obtaining control" over the funds through deception.

He would provide forged price quotations to his supervisors and then the

equipment would be purchased with his supervisor's credit card.64 Priorto the

deception, he did not have control over the city's funds. Thus, he used deception

to obtain the funds.

The only question on appeal was whether Mehrabian obtained these

funds because the city relied on his deception or whether the city would have

purchased these items regardless of his deception.65 The court determined that

there was sufficient evidence that the city relied on his deception.66

Thus, McKinnon's case is distinguishable. As explained earlier, the State

failed to show that McKinnon used deception to obtain control over the

association's funds. Accordingly, Mehrabian is not helpful.

63 id, at 707-08.

64 id, at 703-04.

65 id, at 699, 707-08.

66 Id. at 707.

14
No. 74008-3-1/15

The State also argues that McKinnon obtained control over the

association's funds under the definition found in RCW 9A.56.010(10). That

statute provides: "'Obtain control over' in addition to its common meaning,

means: (a) In relation to property, to bring about a transfer or purported transfer

to the obtainer or another of a legally recognized interest in the property."67

The State argues that McKinnon's "unauthorized transfer of [the

association's] reserve funds into his own personal account created a legally

recognized interest that he alone exclusively controlled."68 This argument is

untenable.

Black's Law Dictionary defines a legal interest as "[a] legal share in

something; all or part of a legal or equitable claim to or right in property <right,

title, and interest^"69 When McKinnon transferred the funds to his personal

account, he did not create any legal or equitable right in the funds. Rather, he

used the funds without any legal claim to them. The State also fails to cite any

authority for its argument that McKinnon created a legally recognized interest in

the funds by transferring them to his personal account. Thus, this argument is

unpersuasive.

67RCW9A.56.010(10).

68 Brief of Respondent at 19.

69 Black's Law Dictionary 934 (10th ed. 2014).

15
No. 74008-3-1/16

The State also argues that McKinnon failed to assign error to the court's

findings. Because his argument is clear, the failure to assign error does not

hinder our review.70

We reverse McKinnon's conviction for theft by deception.

(jDKtT^

WE CONCUR:

//stA;^/ facy

70 See State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995).

16