State v. Perez
State v. Perez
Opinion of the Court
¶1
— Silvino Perez, Jr., appeals his conviction for second degree theft, arguing that the trial court instructed on an uncharged alternative means.
ANALYSIS
¶2 An accused must be informed of the criminal charges against him and he cannot be tried for an offense not charged. State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988). For that reason, the court may not instruct on an uncharged alternative means of committing a crime. State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988). Such an error is presumed prejudicial unless it affirmatively appears that the error was harmless. Bray, 52 Wn. App. at 34-35; see also State v. Severns, 13 Wn.2d 542, 549, 125 P.2d 659 (1942) (error may be harmless if in “subsequent instructions the crime charged was clearly and specifically defined to the jury”).
¶3 RCW 9A.56.020 reads in relevant part:
(1) “Theft” means:
(a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services.
The definitions of “to wrongfully obtain” and “exert unauthorized control” are the same and are set out at RCW 9A-.56.010(19).
¶5 This changed in 2002 when the Washington Supreme Court issued its opinion in Linehan, 147 Wn.2d 638. Before Linehan, it was the law of this State that there were four alternative means for committing theft: (1) by taking, (2) by embezzlement,
use of any person other than the true owner or person entitled thereto, where the use is unauthorized by the partnership agreement.
¶7 As previously stated, theft by wrongful obtainment and theft by exertion of unauthorized control share the same statutory definition, RCW 9A.56.010(19). As such, the two means are legally indistinguishable. See Linehan, 147 Wn.2d at 651 (“What we find persuasive are the cases that have defined the alternative means of ‘wrongfully obtains’ and ‘exerts unauthorized control’ as a unit.”). If the jury found that Perez committed the theft by exertion of unauthorized control, the uncharged means, it necessarily found that Perez committed the theft by wrongful obtainment, the charged means. Thus, as a matter of law, Perez was not prejudiced and he is not entitled to reversal of his second degree theft conviction.
¶8 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, J., concurs.
Morgan, J. Pro Tem., concurs in the result only.
Review denied at 157 Wn.2d 1018 (2006).
Perez also appeals a conviction for third degree malicious mischief. We address the issues pertaining to that conviction, as well as several additional issues pertaining to Perez’s theft conviction, in the unpublished portion of this opinion.
RCW 9A.56.010(19) provides:
‘Wrongfully obtains” or “exerts unauthorized control” means:
(a) To take the property or services of another;
(b) Having any property or services in one’s possession, custody or control as bailee, factor, lessee, pledgee, renter, servant, attorney, agent, employee, trustee, executor, administrator, guardian, or officer of any person, estate, association, or corporation, or as a public officer, or person authorized by agreement or competent authority to take or hold such possession, custody, or control, to secrete, withhold, or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto; or
(c) Having any property or services in one’s possession, custody, or control as partner, to secrete, withhold, or appropriate the same to his or her use or to the
Theft by embezzlement derived from a joint reading of RCW 9A.56.020(1)(a) and former RCW 9A.56.010(7) (1998), recodified as RCW 9A.56.010(19)(b). See Vargas, 37 Wn. App. at 781-82.
RCW 9A.56.020(1)(b).
RCW 9A.56.020(1)(c).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.