Court of Appeals Division I 

State of Washington
Opinion Information Sheet


Docket Number: 64409-2
Title of Case: State Of Washington, Resp. vs. Tyrone D. Dash, App.
File Date: 08/08/2011


SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
Docket No: 08-1-02675-9
Judgment or order under review
Date filed: 11/03/2009
Judge signing: Honorable Michael J Fox


JUDGES
------
Authored by Stephen J. Dwyer
Concurring: J. Robert Leach
Linda Lau


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Suite 701
Seattle, WA, 98101


Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104


Ivan Orton
King County Prosecutor's Office
W554 King County Courthouse
516 3rd Ave
Seattle, WA, 98104-2385





IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) DIVISION ONE
Respondent, )
) No. 64409-2-I
v. )
) PUBLISHED OPINION
TYRONE D. DASH, )
)
Appellant. ) FILED: August 8, 2011
________________________________)

Dwyer, C.J. -- Reversal is required where the "to-convict" instruction

permits the jury to convict the defendant based solely upon acts committed

beyond the statutory limitation period. The "to-convict" jury instruction given in

Tyrone Dash's trial permitted the jury to convict Dash without finding that he had

committed any criminal act within the statutory limitation period. Accordingly, we

reverse Dash's conviction and remand for a new trial.

I

Frances Taylor was 88 years old when she met Dash in early 2000. At

that time, she owned two apartment buildings and her own home. She had

investment accounts worth $300,000, a life insurance policy worth $120,000,

No. 64409-2-I/2

and a stamp collection worth $72,000. Taylor had no debt at the time. By March

2005, Taylor's apartment buildings and stamp collection had been sold. Her

investment accounts and her life insurance policy had been cashed out. She

had $40,000 in credit card debt and multiple mortgages on her home. She was

facing eviction in 10 days.

Taylor met Dash through Abel Cordova, a contractor who was performing

repairs on Taylor's apartment buildings. At the time, Dash worked for Cordova,

performing accounting services. Shortly after meeting Taylor, Dash began to

work for her. He initially managed the disbursement of a loan for her apartment

building repairs and ensured that the contractors were paid. Dash's involvement

in Taylor's affairs gradually evolved into managing her apartment buildings and

assisting her with her personal finances. By 2001, Dash was seeing Taylor on

an almost daily basis.

Dash was involved with Taylor's business and personal affairs until late in

March 2005, when Taylor's friend, Robert Forgrave, learned that Taylor's home

was in foreclosure and that Taylor seemed not to know or understand her

financial situation. Forgrave found in Taylor's home evidence of at least eight

bank accounts, three mortgages, and multiple credit cards owned jointly by

Taylor and Dash. Forgrave suspected that Dash had been stealing money from

Taylor, and, thus, Forgrave filed a police report. On May 16, 2005, Forgrave

brought Taylor to be interviewed at the Seattle Police Department, where Taylor

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was interviewed by a Seattle police detective and a prosecuting attorney. The

interview was video recorded.

On March 20, 2008, more than three years later, the State charged Dash

with one count of theft in the first degree, a violation of RCW 9A.56.030(1)(a)

and RCW 9A.56.020(1)(a)and (b), alleging that Dash,

during a period of time intervening between January 1, 2000 and
March 31, 2005, with intent to deprive another of property . . . did
wrongfully obtain by color or aid of deception and did exert
unauthorized control over such property . . . belonging to Frances
Taylor, through a series of transactions that were pursuant to a
common scheme or plan, as part of a continuing criminal impulse
and a continuing course of criminal conduct.

Clerk's Papers (CP) at 1. The State additionally alleged two aggravating

factors -- that Dash knew or should have known that Taylor was a particularly

vulnerable victim, RCW 9.94A.535(3)(b), and that Dash's crime was a major

economic offense, RCW 9.94A.535(3)(d)(i), (ii), (iii), and (iv).

Prior to its deliberations, the jury was instructed that, in order to convict

Dash, it must find that he committed the crime of theft in the first degree "during

a period of time intervening between January 1, 2000 and March 31, 2005" and

that Dash's acts were "part of a common scheme or plan, a continuing course of

criminal conduct, and a continuing criminal impulse." CP at 233 (Instruction No.

7).

The jury convicted Dash as charged and answered the special verdicts in

the affirmative, determining that Dash had committed a major economic offense

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No. 64409-2-I/4

against a particularly vulnerable victim.

Dash appeals.

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No. 64409-2-I/5

II

Dash contends that reversal of his conviction is required because the "to-

convict" instruction given herein permitted the jury to convict him without finding

that he had committed any criminal act within the statutory limitation period. We

agree.

"A criminal statute of limitations presents a jurisdictional bar to

prosecution. It is not merely a limitation upon the remedy, but a 'limitation upon

the power of the sovereign to act against the accused.'" State v. N.S., 98 Wn.

App. 910, 914-15, 991 P.2d 133 (2000) (footnote omitted) (quoting State v.

Glover, 25 Wn. App. 58, 61, 604 P.2d 1015 (1979)). Because the criminal

statute of limitations creates an absolute bar to prosecution, whether the State

was barred by the statute of limitations from prosecuting a crime is an issue that

may be raised for the first time on appeal. State v. Novotny, 76 Wn. App. 343,

345 n.1, 884 P.2d 1336 (1994).

The State charged Dash with theft in the first degree by information filed

on March 20, 2008. In the information, the State alleged that Dash, "during a

period of time intervening between January 1, 2000 and March 31, 2005,"

wrongfully obtained and exerted unauthorized control over Taylor's property

"through a series of transactions that were pursuant to a common scheme or

plan, as part of a continuing criminal impulse and a continuing course of criminal

conduct." CP at 1. Similarly, the jury was instructed:

To convict the defendant of the crime of theft in the first

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No. 64409-2-I/6

degree, each of the following elements of the crime must be proved
beyond a reasonable doubt:
(1) That during a period of time intervening between January
1, 2000 and March 31, 2005, the defendant:
a. wrongfully obtained or exerted unauthorized control over
property of another or the value thereof; or
b. by color or aid of deception, obtained control over
property of another or the value thereof; and
(2) That the property exceeded $1500 in value;
(3) That the defendant intended to deprive the other person
of the property;
(4) That the defendant's acts were part of a common
scheme or plan, a continuing course of criminal conduct, and a
continuing criminal impulse; and
(5) That the acts occurred in the State of Washington.

CP at 233 (Instruction No. 7) (emphasis added).

Where "successive takings are the result of a single, continuing criminal

impulse or intent and are pursuant to the execution of a general larcenous

scheme or plan, such successive takings constitute a single larceny regardless

of the time which may elapse between each taking." State v. Vining, 2 Wn. App.

802, 808-09, 472 P.2d 564 (1970). Because a continuing crime is not completed

until the criminal impulse is terminated, the statutory limitation period does not

commence until that time. State v. Reid, 74 Wn. App. 281, 290, 872 P.2d 1135

(1994). "Whether a criminal impulse continues into the statute of limitations

period is a question of fact for the jury." State v. Mermis, 105 Wn. App. 738,

746, 20 P.3d 1044 (2001). See also Goodman v. Goodman, 128 Wn.2d 366,

373, 907 P.2d 290 (1995) ("Whether the statute of limitations bars a suit is a

legal question, but the jury must decide the underlying factual questions unless

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No. 64409-2-I/7

the facts are susceptible [to] but one reasonable interpretation.").

In Mermis, the State charged John Mermis with theft of a Dodge Viper

automobile by two alternative means -- obtaining control by deception and

exerting unauthorized control. 105 Wn. App. at 743. On appeal from his

conviction, Mermis contended that, if the jury found that he had obtained control

of the Viper by deception, such deception occurred more than three years prior

to the date on which he was charged, and, thus, prosecution was barred.

Mermis, 105 Wn. App. at 744. Mermis had first obtained possession of the car

on September 6, 1995, when Mermis told the owner of the car, Terry Johnson,

that he would purchase it. Mermis, 105 Wn. App. at 741-42. Later, on

September 26, 1995, Mermis told Johnson that he needed the title to the Viper in

order to obtain license plates. Mermis, 105 Wn. App. at 742. Johnson gave

Mermis the title, but Mermis never paid Johnson for the car. Mermis, 105 Wn.

App. at 742.

On September 18, 1998, the State filed an information charging Mermis

with theft in the first degree. Mermis, 105 Wn. App. at 742. Thus, due to the

three-year statute of limitations for theft, the prosecution would have been

barred had the crime been completed on September 6, 1995, when Mermis first

obtained possession of the car. Mermis, 105 Wn. App. at 744. However, the

State argued on appeal that, pursuant to the doctrine of continuing criminal

impulse, the crime was not completed until September 26, 1995, when Mermis

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No. 64409-2-I/8

obtained the title to the car and, thus, when his criminal impulse terminated.

Mermis, 105 Wn. App. at 744. At trial, though, the jury had not been asked to

determine whether the crime was committed within the statutory limitation period.

Mermis, 105 Wn. App. at 741. Because the jury did not make a factual finding

regarding when the crime was completed, one of the two alternative means of

theft -- theft by deception -- may have been barred by the statute of limitations.

Mermis, 105 Wn. App. at 744-46. Thus, this court reversed Mermis's conviction

and ordered a new trial. Mermis, 105 Wn. App. at 741.

Similarly, here, because the statute of limitations for charging a person

with theft is three years, RCW 9A.04.080(h), the State is barred from

prosecuting Dash for the conduct herein alleged unless his "criminal impulse"

continued until at least March 20, 2005, three years prior to the date on which he

was charged. See Troxell v. Rainier Pub. Sch. Dist. No. 307, 154 Wn.2d 345,

349 n.2, 111 P.3d 1173 (2005) (stating that the last day of the three-year

statutory limitation period relevant therein occurred on the same date three

years after the relevant event); see also RCW 1.12.040. The jury was instructed

that, in order to convict Dash, it must find that he committed theft "during a

period of time intervening between January 1, 2000 and March 31, 2005." CP at

233 (Instruction No. 7) (emphasis added). However, the jury was not instructed

that the State must prove beyond a reasonable doubt that Dash committed the

crime during that entire period of time. Nor was the jury instructed that, in order

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No. 64409-2-I/9

to convict Dash, it must find that the continuing criminal impulse extended until

at least March 20, 2005. Moreover, in closing argument, the State advised the

jury that it could convict Dash, regardless of the specific time during which Dash

committed the crime, so long as it found that he had committed the theft

sometime between January 1, 2000 and March 31, 2005:

[T]o convict the defendant you have to find that this happened
during a period of time between January 1st, 2000, and March
31st, 2005. And this doesn't say that you have to find that the
entire time the crime was taking place. What it says is whatever
crime you find had to have occurred within that time period. . . .
You don't have to find the entire time period. All you have to find is
within that time period.

Report of Proceedings (Sept. 29, 2009) at 126 (emphasis added).

Although the jury was instructed that it must find that Dash's acts "were

part of a common scheme or plan, a continuing course of criminal conduct, and a

continuing criminal impulse," CP at 233 (Instruction No. 7), this instruction does

not cure the defect. Rather, the instruction directed the jury to convict Dash if it

found that he had committed the crime pursuant to a continuing criminal impulse,

even if that criminal impulse terminated prior to March 20, 2005. Because the

jury did not make a finding regarding when the alleged continuing criminal

impulse terminated, it cannot be determined whether the jury convicted Dash

based solely upon acts committed outside of the statutory limitation period. See
Mermis, 105 Wn. App. at 744-46.1

1 The State contends that this case is distinguishable from Mermis because, here, the
jury was instructed that it must find that Dash's acts were a part of a continuing criminal impulse.
Even so, due to the inexact language of the instruction as a whole, it is uncertain whether the
jury found that any such continuing criminal impulse extended until at least March 20, 2005, such

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No. 64409-2-I/10

Because we cannot determine whether the jury convicted Dash based

upon a continuing criminal impulse that extended into the statutory limitation

period -- that is, until at least March 20, 2005 -- we reverse Dash's conviction and
remand for a new trial.2

III

Because we reverse Dash's conviction based upon the instructional error,

we need not resolve the other issues raised on appeal. However, because some

of these issues may arise on remand, we briefly address these remaining claims

of error in order to assist the trial court.

Dash contends that his Sixth Amendment right to confront the witnesses

against him was violated by the introduction at trial of a videotaped interview of

Taylor, who was subject to cross-examination neither during the interview nor at

trial. We first note that a general objection to the interview in its entirety may not

be sufficient to properly apprise the trial court as to the particular statements to

which Dash is objecting. Relatedly, such a general objection may not be

that the prosecution would not be barred by the statute of limitations.
2 The State contends that this instructional error was harmless because Taylor's
incompetence after March 15, 2005 was uncontroverted and because Dash admitted to takings
made on March 25, 28, and 29, 2005. However, even if evidence of these facts had been
produced at trial, the jury did not necessarily rely upon such evidence in convicting Dash.
Rather, the jury was instructed that it could convict Dash if he either (1) wrongfully obtained or
exerted unauthorized control over Taylor's property or (2) obtained control of that property by
deception. Thus, the jury here may only have found that Dash committed theft by deception. If
the jury convicted Dash on this basis alone, the State's assertion that the jury necessarily
convicted him based in part on the late March 2005 ATM withdrawals is undermined -- given
Taylor's alleged incompetence at that time, the property taken at that time would not have been
taken by deception but, rather, by exerting unauthorized control. Moreover, the vast majority of
the takings alleged by the State occurred prior to 2005, suggesting that the jury may not have
based its decision on the few late March 2005 takings. See Ex. 7 (ATM cash withdrawals); Ex. 8
(credit card charges and payments); Ex. 10 (cash advances on credit cards).

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No. 64409-2-I/11

sufficient to preserve the claim of error for appeal. See Melendez-Diaz v.

Massachusetts, __ U.S. __, 129 S. Ct. 2527, 2534 n.3, 174 L. Ed. 2d 314 (2009)

("The right to confrontation may, of course, be waived, including by failure to

object to the offending evidence; and States may adopt procedural rules

governing the exercise of such objections."); accord Bullcoming v. New Mexico,

___ U.S. ___, 131 S. Ct. 2705, 2718, ___ L. Ed. 2d ___ (2011) (defendant may

"forfeit by silence" confrontation right by noncompliance with state notice-and-

demand procedure).

We also note that the State's position regarding the implications of

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004), may be inaccurate as a result of more recent United States Supreme

Court decisions. In Crawford, the Court broadly stated that the confrontation

clause "does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted." 541 U.S. at 59 n.9. However, the

Court has more recently suggested that the proper focus is not on whether the

statement is hearsay but, rather, whether the statement is offered "against" the

defendant to establish or prove a past event relevant to the criminal prosecution.

Bullcoming, 131 S. Ct. at 2714 n.6 (citing Davis v. Washington, 547 U.S. 813,

822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)); see also Michigan v. Bryant,

____ U.S. ___, 131 S. Ct. 1143, 1155, ___ L. Ed. 2d ___ (2011).

Five years after Crawford, the Supreme Court explained that:

The Sixth Amendment guarantees a defendant the right "to

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No. 64409-2-I/12

be confronted with the witnesses against him." (Emphasis added.)
To the extent the analysts were witnesses (a question resolved
above), they certainly provided testimony against petitioner,
proving one fact necessary for his conviction -- that the substance
he possessed was cocaine. The contrast between the text of the
Confrontation Clause and the text of the adjacent Compulsory
Process Clause confirms this analysis. While the Confrontation
Clause guarantees a defendant the right to be confronted with the
witnesses "against him," the Compulsory Process Clause
guarantees a defendant the right to call witnesses "in his favor."
U.S. Const., Amend. 6. The text of the Amendment contemplates
two classes of witnesses -- those against the defendant and those
in his favor. The prosecution must produce the former; the
defendant may call the latter. Contrary to respondent's assertion,
there is not a third category of witnesses, helpful to the
prosecution, but somehow immune from confrontation.

Melendez-Diaz, 129 S. Ct. at 2533-34 (footnote omitted). A witness need not

directly accuse the defendant of wrongdoing in order to be a witness subject to

cross-examination for purposes of the confrontation clause. Melendez-Diaz, 129

S. Ct. at 2533. Here, several of Taylor's utterances, whether directly accusatory

or not, were being offered by the State to "prov[e] one fact necessary for his

conviction." Melendez-Diaz, 129 S. Ct. at 2533.

This is a fast-evolving area of the law. Whether Bullcoming, Bryant, and

Melendez-Diaz signal a departure from the blanket assertion in Crawford's

footnote 9 (that if a statement is not offered to prove the truth of the matter

asserted it is not hearsay and, thus, is not subject to confrontation) is not yet

clear. Numerous cases from the lower courts and several commentators,

including one of America's foremost military lawyer-jurists, have pondered the

question and its implications. See generally Hon. Jack Nevin, Conviction,

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No. 64409-2-I/13

Confrontation, and Crawford: Gang Expert Testimony as Testimonial Hearsay,

34 Seattle U. L. Rev. 857 (2011). We are certain that the parties will more

completely litigate these issues, for the benefit of the trial court, on remand.

Dash also contends that the trial court erroneously instructed the jury that

it must be unanimous in order to find that the State had failed to prove the

charged aggravating factors. Our Supreme Court's decision in State v. Bashaw,

169 Wn.2d 133, 234 P.3d 195 (2010), is controlling. We are confident that the
trial court will properly instruct the jury on remand.3

3 We need not further evaluate the merits of Dash's remaining claims. The wording of
appropriate jury instructions on remand is best left to the discretion of the judge presiding over
that trial, based upon the evidence presented and the arguments of counsel at that time.
The State moved to supplement the record on appeal. Because the proffered
supplements are unnecessary to resolve this appeal, we deny the State's motion.

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No. 64409-2-I/14

Reversed and remanded for a new trial.

We concur:

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