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 UNPUBLISHED CI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 ofthe necessary elements oftheft by deception. Accordingly, we reverse his conviction. In 2006, the Maplevine Condominium Homeowners Association hired McKinnon to provide accounting and bookkeeping services. As part ofthese services, McKinnon would receive the association's dues and other income and pay the association's bills. McKinnon was authorized to pay himselffor 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 ofthe funds with interest. McKinnon provided the association with yearly spreadsheets listing the association's funds. Inthese spreadsheets, McKinnon would list the funds he misappropriated as being in non-existent accounts. Forexample, in 2007 McKinnon provided a spreadsheetto 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. McKinnonthen 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. InSeptember 2011, McKinnon paid the association $23,000 to repay the last ofthe 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 CountyNo. 74008-3-1/3 Prosecutor. In a voluntary interview with a police officer, McKinnon admitted to the facts described earlier. InAugust 2014, the police department referred the
case to the Snohomish County Prosecutorfor charging review. InJanuary 2015, the State charged McKinnon with first-degree theft, alleging that he obtained control ofthe association's funds "bycolor or aid of deception." Atthis 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 ofthe 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 oftheft by deception. McKinnon moved to arrestjudgment, arguing that while the evidence established embezzlement, it did not establish theft by deception. The trial court denied the motion. McKinnon appeals. THEFT 

### McKinnonargues thatthere is insufficientevidence of theft bydeception in this case. We agree. RCW 9A.56.020 sets out different means by which a person may commit the crime oftheft. 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 Adifferent means, known as theft by deception, is "[b]ycolor or 

### aid of deception to obtaincontrol over the property orservices ofanother."4 Although these are alternate means of committing the same crime, a 

### three-year statute of limitationsapplies to embezzlement, while a six-year statute 

### applies to theft by deception.5 These crimes are not "mutually repugnant"—under some circumstances, a 

### defendant maycommitboth theft by deception andembezzlement.6 Proving
one means does not necessarily disprove the other.7 McKinnonraises a variety ofchallenges on appeal. He challenges the court's denial of his Knapstad motion, its determination that sufficient evidence 

### supportedfinding him guilty of theft by deception, and itsruling that the statute of limitations for embezzlement did not bar prosecuting McKinnon. 

### Buta single question resolves all ofMcKinnon's claims: do the facts of this case provide sufficientevidence thatMcKinnon committed theft by deception?

3 State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993). 4RCW9A.56.020(1)(b). 5RCW 9A.04.080(1)(d)(iv), (1)(h). 6State v. Pettit, 74 Wash. 510, 519, 133 P. 1014 (1913) (analyzing former 

### larceny statute). RCW 9A.56.020 is a recodificationof the former larceny statute—the elements oftheft 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 Sufficiencyofthe Evidence 

### McKinnon argues that insufficient evidence supports his conviction for theft by deception. We agree. Evidence is sufficientwhen any rational trier offact could find beyond a reasonable doubtthe essential elements ofthe crime.8 When considering a 

### sufficiencychallenge, we defer to the fact finder's determination as to the evidence's weight and credibility.9 "In claiming insufficientevidence, the defendant necessarily admits the truth of the State's evidence and allreasonable inferences that can be drawn from it."10 Whether evidence is sufficient is a 

### question ofconstitutional lawthat wereview de novo.11 Here, the crucialinquiry iswhetherthere is sufficientevidence that McKinnon obtained control ofthe association's funds by color or aid ofdeception, 

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

### "common meaning," aswell as otherdefinitions thatdonotapply inthis case.13

8 State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). 9State 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, 184Wn.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]osucceed ingaining possession ofas the result of 

### planning orendeavor; acquire."14 Here, McKinnon's deception involved misrepresenting the location ofthe funds he removed from the association's accounts. In its oral ruling, the court found: the deception that Isaw inthis case had to do with essentially the hiding ofthe assets. The assets were not couched as a loan to Mr. McKinnon inthis case. They were described as being securely 

### invested; that isthe 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 overthe funds. McKinnon used deception to hide the fact that he was misappropriating the association's funds. But this is insufficientto establish theft by deception. 

### The statute's plainlanguage requires that the defendant use deception to "obtain control over" the property.16 Here, McKinnon did not use deception to obtain

14TheAmerican Heritage Dictionary (5th ed. 2016) https://ahdictionary.com/word/search.html?q=obtain. 15 Report ofProceedings (July 8, 2015) at4. 16RCW9A.56.020(1)(b).No. 74008-3-1/7 control ofthe funds. Rather, he already had control ofthe funds and used deception to retain control. A leading treatise supports this interpretation: "The difference between theft by deception and embezzlement lies inwhetherthe defendant had lawful 

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

### possession before the theft, then he cannotbe guilty of theft bydeception.18 Here, McKinnon initiallyhad lawful possession ofthe 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. InState v. Smith, the supreme 

### court interpreted a previous version of the theft statute, then known as larceny.19 That statute, likethe presenttheft statute, had embezzlement and theft by 

### deception as alternate means ofcommitting the same offense.20 The elements ofthe 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.). 18jd, 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 ofthe company, including the bank deposits" and was the only person authorized to write checks from the company's accounts.23 He used funds inthe company's accountto 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 companyin the company's cash box.26 The State charged Smith with larceny, but not underthe means of embezzlement.27 

### The supreme court distinguished embezzlementfromothermeans of committing theft: 

### "Inembezzlement, the property comes lawfully into the possession 

### ofthe taker and is fraudulently or unlawfully appropriated by him; in 

### [othermeans oftheft], there is a trespass in the unlawful taking of the property. Embezzlementcontains no ingredients oftrespass, which is essential to constitute the [other means of theft]. 

### Moreover, embezzlementdoes 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 18Am. Jur.. Embezzlement, § 3. p. 572).
8No. 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 ofanother means oftheft.30 Accordingly, the court reversed his conviction.31 

### Similarly, inState v. Renhard, the supreme court reversed Marcus 

### Renhard's conviction for larceny by deception.32 Renhard was the presidentof 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 againstforgery—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

29jd, 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 thatthe State failed to prove that Renhard's deception was necessary to obtain the funds. The court also held that Renhard "had lawful control ofthe funds ofthe corporation, and these checks 

### were, in effect, drawn by him."39 Thus, larceny byembezzlementwas "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 Inthat case, Johnson's codefendantwas an insurance adjuster.42 The adjusterwould create false claim 

### files and authorize paymentfor 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 possessedthefunds.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.
10No. 74008-3-1/11 

### The supreme court held thatthe insurance adjuster had the authority "only 

### to orderthe paymentof the company's funds."47 This authority was not the equivalentto possessing the funds. Otheremployees possessed the funds, and the adjusterdid not possess them untilthe otheremployees executed the 

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

### properly convicted of larceny bydeception.49 Here, McKinnon's case is analogous to Smith and Renhard. As the association's accountant, McKinnon had lawful possession ofthe 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 onlythe crime ofembezzlement. The evidence does not support a conviction for theft by deception. 

### McKinnon's case is also distinguishable fromJohnson. InJohnson, the 

### insurance agentdid not have possession of the funds. He obtained the funds by falsifying insurancefiles to get his coworkers to execute payments. Thus, itwas clearthatthe 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 afterfalsely claiming that an unexpected cost arose, 47 id, at 705. 48 id, 49 Id.
11No. 74008-3-1/12 he would have been guilty oftheft by deception. Similarly, ifMcKinnon had falsely informed the association's members thattheir dues had increased and obtained additional funds, he would have been guilty oftheft 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 ofthe 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 ofWoodinville as its 

### informationtechnology manager.51 Hisresponsibilities included purchasing the 

### city's computerequipment.52 When purchasing equipment, Mehrabian was required to obtain three bids forthe equipment and presentthe lowest bid to his 

### supervisors for approval.53 

### Mehrabian also owned a computerequipmentbusiness.54 The city 

### prohibited its employees from engaging in business with the city.55 Despite this prohibition, Mehrabian sold equipmentto the city, using a third party vendorto

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,

12No. 74008-3-1/13 invoice his sales.56 Mehrabian sold the equipmentto the city at substantial 

### markups and often delivered equipmentthatwas 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 thethird partyvendor, charging the citywithoutdelivering anyequipment.59 The State charged Mehrabian with theft bydeception after the city 

### discovered the discrepancies in its computer equipmentinventory.60 On appeal, Mehrabian argued that insufficientevidence supported his 

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

### relied on his misrepresentations whenitpurchased 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] knewMehrabianwas enriching himselfthrough 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 propertyhimself, invoicedthe City

56 id.

57 id.

58 id.

59 Id,

60 14
61 14 at 699.
62 Id.
13No. 74008-3-1/14 through [the third party vendor] at a substantial markup, invented price quotes, forged invoices, delivered an inferior product or failed altogetherto deliverthe 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 ofcomputer products. Thatfalse impression caused the City to engage in business itwould not otherwise have undertaken.[63] Mehrabian is not analogous to McKinnon's case. In Mehrabian, itwas clearthat Mehrabian was "obtaining control" overthe funds through deception. 

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

### equipment would be purchased with his supervisor's creditcard.64 Priorto the deception, he did not have control overthe city's funds. Thus, he used deception
to obtain the funds. 

### The onlyquestion on appeal was whether Mehrabian obtained these funds because the city relied on his deception orwhetherthe city would have 

### purchased these items regardless of hisdeception.65 The court determined that there was sufficientevidence that the city relied on hisdeception.66 Thus, McKinnon's case is distinguishable. As explained earlier, the State failed to show that McKinnon used deception to obtain control overthe 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.
14No. 74008-3-1/15 The State also argues that McKinnon obtained control overthe association's funds underthe definition found in RCW 9A.56.010(10). That statute provides: "'Obtain control over' in addition to its common meaning,
means: (a) Inrelation to property, to bring about a transfer or purported transfer 

### to the obtaineroranotherof 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 orequitable claim to or right in property <right, title, and interest^"69 When McKinnontransferred the funds to his personal 

### account, he did not create any legal orequitable right inthe funds. Rather, he 

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

### authority for itsargumentthat 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 ofRespondent at 19. 69 Black's Law Dictionary 934 (10th ed. 2014).
15No. 74008-3-1/16 The State also argues that McKinnon failed to assign errorto 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