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### IN THE COURT OF APPEALS OF THE STATE OF WASHING DIVISION II ji r -+ 1_ 1 E' A

STATE OF WASHINGTON,

v. IBRAHIM HASSAN, Respondent,

Appellant. No. 44807 - 6 -II

PUBLISHED OPINION

MAXA, J. — 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 theftwere inadequate because they did not identify aggregation ofmultiple 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 forthe payment ofmoney, 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. 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 toconvict instruction was harmless. We also hold that Hassan failed to preserve his challenge to44807 - 6 -II the restitution award, but that defense counsel deprived him ofeffective assistance of counsel 

## duringthe restitution hearing bynot arguingthatthevictim did not losethe full amount ofthe check Hassan gave her. Accordingly,we affirm Hassan's convictions but remand for correction of the restitution order. FACTS 

### Hassan had both personal and business accounts with the Navy Federal Credit Union NFCU). 

### NFCU apparently notified Hassan that he did not qualifyto 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 O' Bee Credit Union. On December 29, Hassan deposited a $2,450 check payable to himself drawn on a closed NFCU account into his O' Bee personal checking account. O' Bee allowed $ 1, 000 of that amount 

### to be immediately available for Hassan' s use based on the assumption that itwould 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. On December 31, Hassan deposited a $955 check payable to himselfdrawn on a closed 

### NFCU account into his O' Bee personal checking account. O' Bee 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 O' Bee unpaid because the NFCU account was closed.

244807 - 6 -I1 

### On January 4, 2013, Hassan gave an $875 check drawn on a closed NFCU accountto Rene Cavallo, the on -

site manager ofthe Capitol Club Apartments, for his January rent. The check did not clear because it was written on aclosed account.

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 checkdrawn onthe 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. The State charged Hassan with two counts of second degree theft for the two checks deposited in his O' Bee account, and with two counts ofUIBC for the checks written to Capitol 

### Club Apartments and Gilpin. Ajury convicted Hassan on all counts. Atthe 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. The trial court ordered Hassan to pay the full $ 2,400. Hassan appeals. ANALYSIS A. ADEQUACY OF SECOND DEGREE THEFT INFORMATION AND INSTRUCTIONS 

### Hassan argues that the information charging the two second degree thefts was inadequate 

### because it did not identify aggregation ofmultiple theft incidents based on a common scheme or

344807 - 6 -II

plan as an essential element of the crime.' He claims that the State had to aggregate the amounts 

### from multiple transactions to reach the $750 value for second degree theft, and therefore it had to 

### identify aggregation as an element ofthe crime in the information. Similarly, Hassan arguesthat the trial court' s to-convict instructions forthe second degree theft charges were inadequate 

### because they did not impose on the State the burden ofshowing the aggregation ofmultiple transactions as part ofa common scheme or plan.2 We hold that the amount ofmoney under Hassan' s control after he deposited the checks, and not the amount ofmoney he withdrew, determines whether he reached the $750 value threshold for second degree theft.

Former RCW 9A.56. 040( 1)( a) (2012)3 provides that second degree theft constitutes the 

### theft ofproperty or services exceeding $750 in value but not exceeding $5,000 in value. Under RCW 9A.56.010(21)( c), the State can aggregate a series oftransactions that constitute theft in 

### one count and use the aggregate value ofthe transactions in determining the degree oftheft. However, aggregation is permitted only ifthe State can show that the transactions are part ofa
criminal episode or a common scheme or plan. RCW 9A.56. 010(21)( c). Ifthe State aggregates 

### value to reach a statutoryvalue threshold, a common scheme or plan is an essential element ofa 1 The information for both second degree theft counts stated that Hassan " did by color or aid of deception, obtained [sic] control over the property or services ofanother or the value thereof, with intent to deprive him or her ofsuch property or services, the value ofwhich exceeds seven hundred and 

### fifty dollars ($750. 00)." Clerk' s Papers (CP) at 2 -3
2 The to- convict instructions for both second degree theft counts stated in part: "( 1) That ... the 

### defendant by color or aid ofdeception, obtained control over property ofanother orthevalue thereof; and (2) That the property exceeded $750 in value; [ and] ( 3) That the defendant intended to deprive the other person of the property." CP at 36 - 37. 3 RCW 9A.56. 040 was amended in 2013, but this amendment did not affect the subsection cited. LAws OF 2013, ch. 322, § 3. 444807 - 6 -I1 crime that must be included in the information and in the to-convict instruction. See State v. Rivas, 168 Wn.App. 882 -90, 278 P.3d 686 (2012), review denied, 176 Wn.2d 1007 (2013) 

### applying rule to second degree malicious mischief charge). 

### Hassan argues that the only waythe State could meetthe $750 threshold for second degree theft was to aggregate the $500 and $302 withdrawals based on the first deposit and the 600 and $ 160 withdrawals,based on the second deposit. In contrast,the State argues that it did not need to aggregate Hassan' s withdrawals in order to reach the $750 value threshold because Hassan had the ability to immediately withdraw up to $ 1, 000 based on his deposit ofthe first
check and up to $

### 955 based on his deposit ofthe second check.4 The issue is when the defendant 

### fraudulently deposits a bad check in his own bank account, whetherthe value ofthe transaction 

### is based on the amount immediately available for withdrawal or on the amountthe defendant actually withdraws.

The State charged Hassan with second degree theft under RCW 9A.56. 020( 1)( b), which defines theft as: By color or aid ofdeception to obtain control over the property or services ofanother or the value thereof,with intent to deprive him or her of such property or services. Emphasis added). RCW 9A.56.010( 10)( a) defines " obtain control over" as " to bring about a 

### transfer or purported transfer to the obtainer or another ofa legally recognized interest in the property."

4 The State made this argument at trial, and it did not argue that thejury needed to aggregate the individual withdrawals to reach the $750 threshold for second degree theft. However, the trial court did give an aggregation instruction. The record does not explain why the trial court gave this instruction. 544807 - 6 -II 

### In interpreting statutory language,we give effect to the plain meaning ofthat language. State v. Ervin, 169 Wn.2d 815, 820, 239 P. 3d 354 (2010). Based on the plain language of RCW 

### 9A.56.020( 1)( b) and RCW 9A.56.010( 10)( a), we hold thatthe amount immediately available to 

### the defendant after depositing a bad check into his bank account determines the value ofthe theft 

### transaction. Here, by depositing the checks in his bankaccounts Hassan obtained immediate
control" over $ 1, 000 for the first deposit and $955 for the second deposit — the funds were transferred" to his account and he was free to withdraw those full amounts. His deposits of 

### these checks and his acceptance ofthis control knowing that he did not have money to cover the 

### amounts were the criminal acts. That Hassan actually withdrew lesser amounts does not affect the fact that he had control over more.

The amount under Hassan' s control was $ 

### 1, 000 after depositing the first check and $955 

### after depositing the second check. Accordingly, because the State did not need to use aggregation to reach the $750 threshold,the information and the to-convict instructions for the second degree theft charges did not need to reference aggregation based on a common scheme or plan. As a result, we hold that the information was not deficient and the to-convict instructions did not fail to state an essential element ofthe crime. B. ADEQUACY OF THE UIBC To-CONVICT INSTRUCTIONS Hassan argues that the trial court' s to-convict instructions for the two UIBC charges omitted an essential element of the offense: that the check be drawn on a bank or other 

### depository forthe payment ofmoney. He also claims that the to-convict instructions and the instruction defining the crime irreconcilably conflict because the definitional instruction does

644807 - 6 -I1 contain the language omitted from the to-convict instructions. We hold that any error in the toconvict instructions was harmless, and disagree that the instructions conflict.

We review the adequacy ofjury instructions de novo. 

### Gregoire v. City ofOakHarbor, 170 Wn.2d 628, 635, 244 P. 3d 924 (2010). A trial court's failure to instruct thejury as to every
element of the charged crime violates due process. Rivas, 168 Wn. App. at 891. Such a failing
constitutes reversible error. State v. Mills, 154 Wn.2d 1, 6 -7, 109 P. 3d 415 ( 2005). Hassan did not object to the instructions at trial, but challenges to instructions that omit an element ofthe
crime charged can be raised for the first time on appeal under RAP 2. 5( a)( 3). See State v. O' Hara, 167 Wn.2d 91, 101, 217 P. 3d 756 (2009). Hassan first argues that the trial court' s to-convict instructions for the two UIBC charges omitted an essential element ofthe offense: that the check be drawn on a bank or other 

### depository forthe payment ofmoney. RCW 9A.56.060(1) provides: 

### Any person who shall with intent to defraud, make, or draw,or utter, or deliverto another person any check, or draft, on a bankor other depositoryfor thepayment 

### ofmoney, knowing atthe time ofsuch drawing, or delivery,that he or she has not sufficient funds in, or credit with the bank or other depository, to meet the check 

### or draft, in full upon its presentation, is guilty ofunlawful issuance ofbank check. Emphasis added). The trial court omitted the first italicized portion but included the second italicized portion from the to-convict instructions, both ofwhich provided:

1) That on or about [date], 

### the defendant, acting with intentto defraud, made or delivered a check or draft to another person; 2) That said check or draft was in,an amount greater than $750; 

### 3) That at the time ofsuch making or delivery the defendant knew that he did not have sufficient funds in or credit with the bank or depository to meetthe check or draft in full upon its presentation; and 

### 4) That any ofthese acts occurred in the State ofWashington.

744807 - 6 -II Clerk' s Papers (CP) at 34, 35. These instructions followed WPIC 73. 02, which does not include 

### the statutory phrase " on a bank or other depository forthe payment ofmoney" inthe first
element. 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 73. 02, at 115 -116 (3d ed. 2008 and Supp. 2011). We need not determine whether the to-convict instructions omitted an essential element 

### ofUIBC because even assuming that the instructions were defective,the errorwas harmless. Where a to-convict instruction omits an essential element ofa crime, it is constitutionally defective unless the State can demonstrate that the omission was harmless beyond a reasonable doubt. State v. Brown, 147 Wn.2d 330, 339 - 41, 58 P. 3d 889 ( 2002). In this context, the error is harmless ifuncontroverted evidence supports the omitted element. Brown, 147 Wn.2d at 341. Here, the uncontroverted evidence showed that the checks Hassan delivered to the apartment manager and Gilpin were drawn on a bank or other depository for the payment of 

### money. Hassan did not contestthis fact. Further,the third element ofthe to-convict instructions required the State to prove that Hassan delivered the checks knowing that he did not have 

### sufficient funds or credit with the bank or depository to meetthe checks or drafts in full upon 

### presentation. Thejurywould have understoodfrom this provision thatthe checks had to be drawn on a bank or other depository. Second, Hassan claims that the to-convict instructions and the definitional instruction 

### irreconcilably conflict because the definitional instruction contains the language omitted from the.first element ofthe to-convict instructions. We disagree thatthe to-convict instructions 

### conflicted with the instruction defining the crime. Instruction 9 stated:

844807 - 6 -II A person commits the crime ofunlawful issuance of a bank check when, with intent to 

### defraud, he or she makes or delivers to another person any check or draft in an amount greater than $750 on a bank or other depositoryfor the payment ofmoney, and the person 

### knows at the time ofsuch making or deliverythat he or she does not have sufficient funds in, or credit with,the bank or other depository,to meetthe check or draft, in full, upon its presentation. CP at 35 ( emphasis added). 

### This instruction included the statutory language omitted from the toconvict instructions. When the trial court provides inconsistent instructions to thejury,we reviewthem to 

### determine whetherthe inconsistency results in a clear misstatement ofthe law and, ifso, we presume the instructions misled thejury and prejudiced the defendant. State v. Walden, 131 Wn.2d 469, 478, 932 P. 2d 1237 ( 1997). But here there was no inconsistency. Although the 

### phrase " on a bank or other depository forthe payment ofmoney" was omitted from the first element listed in the to-convict instructions, it was included in the third element. And nothing in 

### those instructions conflicted with the phrase " on a bank or other depository forthe payment of money" in instruction 9, We reject Hassan' s arguments that the trial court' s UIBCjury instructions require a new trial. C. RESTITUTION 

### Hassan argues thatthe trial court erred in setting the amount ofrestitution to Gilpin at 2,400 because Gilpin' s only loss was the $ 1, 400 she gave to him, and that amount should have been further reduced because he repaid her $400. He also claims that trial counsel' s failure to object to the additional $ 1, 000 in restitution denied him his right to effective assistance of 

### counsel. We do not directly address the amount ofrestitution otherthan the disputed $400

944807 - 6 -II 

### because Hassan did not object below, but hold that his defense counsel was ineffective for not objecting to the additional $1, 000 in restitution based on Hassan' s loan to Gilpin.

1. Restitution Amount 

### We review a sentencing court's restitution award for an abuse ofdiscretion. State v., Griffith, 164 Wn.2d 960, 965, 195 P. 3d 506 (2008). A court abuses its discretion when its 

### decision is manifestly unreasonable orbased on untenable grounds. State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012).

The evidence at trial showed that Gilpin suffered a loss of at least $ 1, 400, the amount in cash she gave Hassan after she deposited his $2,400 check. Gilpin testified that she asked 

### Hassan for her money backbut he did not give the moneybackto her. Hassan claims thathe repaid $400, and Gilpin testified that Hassan did give her $400 at some unstated time. Butthe 

### trial court reasonably could have interpreted Gilpin'stestimony as stating thatthe $400 payment occurred before the incident.

With regard to the additional $1, 000 in restitution the trial court ordered, Hassan did not 

### object atthetime ofsentencing and therefore did not preserve this issue for appeal. Accordingly,

we do not directly address the amount of restitution on appeal under RAP 2. 5( a). However, we do address this issue below under Hassan' s ineffective assistance of counsel claim.

2. Ineffective Assistance of Counsel 

### A defendant has the right to counsel at a restitution hearing. State v. Milton, 160 Wn. App. 656, 657, 252 P. 3d 380 ( 2011). Hassan argues that his counsel' s failure to challenge the 2,400 restitution award at trial denied him his right to effective assistance of counsel. We
agree.
1044807 - 6 -II To prevail on an ineffective assistance ofcounsel claim, the defendant must show both that (1) defense counsel' s representation was deficient, and (2) the deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 - 33, 246 P.3d 1260 (2011). 

### Representation is deficient if after considering all the circumstances, it falls below an objective
standard of reasonableness. Grier, 171 Wn.2d at 34. Prejudice exists ifthere is a reasonable 

### probability that exceptfor counsel' s errors, the result ofthe proceeding would havediffered. Grier, 171 Wn.2d at 34. 

### Unless a defendant agrees to the restitution amount, the State must prove the losses by a preponderance ofthe evidence. State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007). 

### Here, the State proved that Gilpin suffered a loss of $1, 400. But there is nothing in the record supporting the trial court' s conclusion that Gilpin suffered a loss relating to the $ 1, 000 she 

### deposited in her account and did not payto Hassan in cash. Gilpin admitted that this amount was 

### a loan, not money that Hassan owed to her. And there is no evidence that Gilpin suffered any loss due to the $

### 1, 000 loan she thought she was receiving not materializing. Therefore, the State failed to prove by a preponderance of the evidence that Gilpin incurred more than a $ 1, 400 loss. Because there was no evidence to support a $2,400 restitution award, counsel should have objected to that award. And there was no conceivable tactical reason not to object. 

### Accordingly, defense counsel was deficient in this respect. Further, defense counsel' s failure to object prejudiced Hassan because ifcounsel had pointed out the State' s failure to sustain its burden of proving an additional $1, 000 loss, the trial court would have declined to include that 

### amount in its restitution award.. Accordingly, we hold that defense counsel' s representation was ineffective regarding the restitution award.
1144807 - 6 -II 

### The record shows that the trial court abused its discretion in awarding $2,400 in
restitution rather than $1, 400. Therefore, We remand for correction ofthe restitution order to 

### reduce the amount ofrestitution by $1, 000. We affirm Hassan' s convictions but remand for correction ofthe restitution order.

We concur:

W ZSWICK, P. J.

LEE, J.

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