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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

STATE OF WASHINGTON,                        )       No. 66249-0-I
                                            )
              Respondent,                   )
                                            )
              v.                            )
                                            ) 
MASSIMO MURA,                               )       UNPUBLISHED OPINION
                                            )
              Appellant.                    )       FILED: April 16, 2012
                                            )

       Ellington, J.  --  Massimo Mura challenges the use of the words "utters" and 

"uttering" in the court's instructions to the jury on the crime of unlawful issuance of bank 

checks.  Because this challenge is raised for the first time on appeal and Mura fails to 

establish a manifest error affecting a constitutional right, we affirm his convictions.  

Mura also contends that the trial court exceeded its authority and violated his right to 

equal protection by imposing certain financial obligations at sentencing.  Because he 

fails to demonstrate error, we affirm the sentence.  

                                       BACKGROUND

       On July 30, 2010, after negotiations with sales representatives at Rairdon Dodge 

in Bellingham, Mura agreed to purchase a 2003 silver convertible Ford Mustang for 

$14,889.97.  Despite a manager's instructions to accept only cash or a cashier's check, 

a sales representative accepted a personal check as payment.  Shortly thereafter, the  

No. 66249-0-I/2

manager learned that the check had been returned for insufficient funds.  The manager 

and sales representative called Mura repeatedly and eventually found Mura at his 

house.  Mura explained that he had used the wrong account and offered another 

personal check.  The manager called the credit union and learned Mura's account had 

been closed.  The manager insisted on cash, a cashier's check, or the return of the car.  

On a pretext of leading them to the bank, Mura drove away in the Mustang, eluding 

them.  When the car was eventually recovered, it had been painted red and had license 

plates from a Honda registered to Mura.

       On July 31, 2010, Mura negotiated with a sales representative at DeWaard and 

Bode for the purchase of a large flat-screen television and accessories for $3,200.  

When his application for financing was declined, Mura said he would write a personal 

check.  The sales representative accepted the check and allowed Mura to take the 

television and accessories.  The credit union later returned the check for insufficient 

funds. 

       The State charge Mura with two counts of unlawful issuance of bank checks in 
violation of RCW 9A.56.060.1 At trial, a credit union employee testified that the checks 

presented by Rairdon Dodge and DeWaard and Bode were drawn on an account that 

had been opened in April 2009, closed in September 2009, and never held a balance 

       1 RCW 9A.56.060(1) provides in pertinent part:  "Any person who shall with 
intent to defraud, make, or draw, or utter, or deliver to another person any check, or 
draft, on a bank or other depository for the payment of money, knowing at the time of 
such 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 of unlawful issuance of [a] bank check."
       RCW 9A.56.060(4) provides:  "Unlawful issuance of a bank check in an amount 
greater than seven hundred fifty dollars is a class C felony."

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No. 66249-0-I/3

greater than $400.  Mura testified and admitted that at the time he wrote the checks to 

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No. 66249-0-I/4

Rairdon Dodge and DeWaard and Bode, he knew the account did not have sufficient 

funds to cover the checks.  He testified that he intended to pay the amounts with cash

or a wire transfer from overseas accounts, but he did not have sufficient cash in his 

possession at the time he wrote the checks.  Mura also testified that he earns 

approximately $10,000 per month as a professional songwriter with his own label, and 

as a professional gambler.

       The jury found Mura guilty as charged.  The court imposed a standard range 

sentence, ordered a total of $12,573 in agreed restitution, and imposed $2,250 in costs 

and fees.  The judgment and sentence states:  

       The court has considered the total amount owing, the defendant's past, 
       present and future ability to pay legal financial obligations, including the 
       defendant's financial resources and the likelihood that the defendant's 
       status will change.  The court finds that the defendant has the ability or 
       likely future ability to pay the legal financial obligations imposed herein.[2]

       Mura appeals.

                                        DISCUSSION

       Here, the court instructed the jury as follows:

              A person commits the crime of unlawful issuance of a bank check 
       when, with intent to defraud, he or she makes, draws, utters or delivers to 
       another person any check or draft in an amount greater than $750 on a 
       bank or other depository for the payment of money, and the person knows 
       at the time of such making, drawing, uttering or delivery that he or she 
       does not have sufficient funds in, or credit with, the bank or other 
       depository, to meet the check or draft, in full, upon its presentation.[3]

       2 Clerk's Papers at 14.

       3 Clerk's Papers at 28.

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No. 66249-0-I/5

       The to-convict instructions required proof beyond a reasonable doubt that Mura, 

"acting with intent to defraud, made, drew or delivered" the checks and that "at the time 

of such making, drawing, uttering or delivery," Mura knew that he did not have sufficient 
funds in the account to meet the check in full upon its presentation.4 Mura did not 

object to the court's instruction at trial and did not propose an instruction defining 

"utters" or "uttering."

       For the first time on appeal, Mura contends that the use of the words "utters" and 

"uttering," without any further definition, was so confusing to the jury as to misstate the 

State's burden of proof, mislead the jury, and prevent him from being acquitted under 

the defense theory that he had no "intent to defraud."

       An alleged instructional error may be raised for the first time on appeal only if it 
is "manifest error affecting a constitutional right."5  An error is manifest if it resulted in 

actual prejudice.6 To demonstrate actual prejudice, there must be a "'plausible showing 

by the [appellant] that the asserted error had practical and identifiable consequences in 
the trial of the case.'"7

       "To satisfy the constitutional demands of a fair trial, the jury instructions, when 

read as a whole, must correctly tell the jury of the applicable law, not be misleading, 
and permit the defendant to present his theory of the case."8 But our Supreme Court 

       4 Clerk's Papers at 29-30.

       5 RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686 -- 87, 757 P .2d 492 (1988).

       6 State v. O'Hara, 167 Wn.2d 91, 98 -- 99, 217 P.3d 756 (2009).

       7 Id. (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)) 
(alteration in original).

       8 O'Hara, 167 Wn.2d at 105.

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No. 66249-0-I/6

has found "nothing in the constitution, as interpreted in the cases of this or indeed any 

other court, requiring that the meanings of particular terms used in an instruction be 
specifically defined."9  Mura relies on the comment to Washington pattern jury 

instructions 73.01 and 73.02 which states:  "It is preferable not to select the legalistic 

word 'utter.' See discussion in the Note on Use and Comment to WPIC 130.01, 
Forgery--Definition.  If it is used, it should be defined."10

       But Mura offers no reasonable explanation to support his claim of prejudice.  

Although the average juror may not have immediately recognized the term "utter" or 

"uttering" in reference to writing a check, the surrounding terms in the instructions, 

"makes," "draws," "delivers," "making," "drawing," and "delivery" provide sufficient clarity 

such that the instructions, when read as a whole, correctly inform the jury of the 

applicable law.  And nothing in the record suggests that the use of "utters" or "uttering"

could have affected the jury's understanding of the State's burden of proof or prevented 

Mura from arguing his theory of the case.  Mura admitted at trial that he wrote the 

checks knowing he did not have sufficient funds to cover them.  The only element Mura 

contested at trial was whether he intended to defraud the car dealer and the appliance 

store. Defense counsel presented that argument in closing.

       Mura does not explain how this or any other defense theory was prevented by 

the words "utters" or "uttering" in the jury instructions.  Mura fails to identify a manifest 
error affecting a constitutional right, and we will not review his claim.11

       9 Scott, 110 Wn.2d at 691.

       10 11A Washington Practice: Washington Pattern Jury Instructions: Criminal
73.01, at 113 & 116 (3rd ed. 2008).

       11 RAP 2.5(a).

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No. 66249-0-I/7

       Mura also contends that the trial court exceeded its statutory authority and 

violated his right to equal protection by assessing nonmandatory court costs of $450 

and attorney fees of $1,200.  He claims the trial court's finding on the judgment and 

sentence that he had the ability to pay is clearly erroneous in light of the evidence that 

he was indigent, that is, that his trial attorney was court-appointed, that the trial court 

later granted an order of indigency for his appeal, and that there was no money in the 

accounts at issue at trial.  Mura also claims that the sentencing court failed to exercise 

its discretion to consider waiving the nonmandatory costs and fees.

       Under RCW 10.01.160(3), a court may order the defendant to pay costs incurred 

by the State in its prosecution if the defendant "is or will be able to pay them." But the 

sentencing court is not required to enter formal, specific findings regarding a 
defendant's ability to pay.12 Inquiry into the offender's ability to pay comes not at 

sentencing, but at "the point of collection and when sanctions are sought for 
nonpayment."13 Mura's arguments regarding his ability to pay are therefore 

premature.14 Moreover, Mura did not ask the sentencing court to consider waiving the 

nonmandatory fees and costs.  And the record supports the court's finding that Mura 
has the "ability or likely future ability to pay" the $1,650.15 Mura testified at trial that he 

       12 State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992).

       13 State v. Blank, 131 Wn.2d 230, 242, 930 P.2d 1213 (1997); State v. Smits, 
152 Wn. App. 514, 523-24, 216 P.3d 1097 (2009) (determination of whether defendant 
has or will have ability to pay is "clearly somewhat 'speculative'").

       14 See State v. Valencia, 169 Wn.2d 782, 789, 239 P.3d 1059 (2010); see also
State v. Phillips, 65 Wn. App. 239, 243-44, 828 P.2d 42 (1992) (constitutional 
challenge to imposition of costs was not ripe for review; it is at point of enforcement of 
financial obligations that indigent may assert constitutional objection to payment).

       15 Clerk's Papers at 14.

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No. 66249-0-I/8

made approximately $10,000 per month as a professional songwriter and gambler and 

indicated that he and his family have access to sufficient funds overseas to cover the 

two checks at issue in the charged crimes.  Despite his claim on appeal that his felony 

convictions for financial crimes "will stigmatize him in the job market and quash any 
ability he may have had to remedy his present indigency,"16 nothing in the record 

precludes a determination that Mura may obtain employment or earn money from his 

stated professions upon his release.  In sum, Mura fails to establish grounds to reverse 

the imposition of his nonmandatory financial obligations.

       Affirmed.

WE CONCUR:

       16 Brief of Appellant at 12.

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