Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41658-1-II

                             Respondent,
                                                           UNPUBLISHED OPINION
       v.

LAWRENCE F. SHERMAN,

                             Appellant.

       Armstrong, P.J.  --  Lawrence Sherman challenges the sufficiency of the evidence in his 

first degree theft conviction.  Viewed in the light most favorable to the State, the evidence 

presented leads to a reasonable inference that Sherman knew he was receiving salary from the 

United States Postal Service for a period while he also was collecting unemployment benefits 

from the State.  We affirm.

                                            FACTS

       Sherman worked as a general clerk at the Postal Service's Bulk Mail Center in Federal 

Way when he received notice of his proposed termination from his supervisor on November 2, 

2006.  The supervisor read to and provided Sherman with written information about his appeal 

rights, including back pay procedures if his appeal was granted.  The Postal Service placed 

Sherman on administrative leave with pay pending review of the decision.  The plant manager 

upheld Sherman's termination on November 30; the termination was effective December 8.

       Sherman filed a grievance with the American Postal Workers Union contesting his 

termination.  The Postal Service changed Sherman's status to leave without pay pending the 

grievance.  The union arbitrated the grievance, and Sherman's termination was reduced to a 14- 

No.  41658-1-II

day suspension on May 9, 2007.  The decision entitled Sherman to receive back pay from 

December 25, 2006 through his "return to work."  Ex. 7.  A union representative sent Sherman a 

copy of a letter regarding the decision.  The Postal Service reinstated Sherman immediately, but 

placed him on administrative leave with pay.  Due to a prior workplace injury, Sherman was a 

modified status employee.  The Postal Service requested that Sherman update a medical report on 

March 21, which required a doctor to specify what tasks Sherman was capable of doing.  Without 

the report, the Postal Service could not place Sherman back in a job position.

       The Postal Service twice sent Sherman the request by mail and waited several months for 

Sherman to return the report.  During that time, Sherman remained on administrative leave and 

was paid his salary every two weeks, beginning March 21.  The money was deposited directly into 

a credit union account that Sherman maintained.  The Postal Service mailed earnings statements 

every two weeks to Sherman's home.  The credit union, meanwhile, mailed monthly statements 

detailing account transactions to a post office box that Sherman kept.  None of the statements 

were returned to sender. 

       Sherman initially applied for unemployment benefits December 10, 2006, following his 

termination.  The Employment Security Department originally denied Sherman benefits in 

December, but reversed its decision in March after Sherman appealed.  The Department awarded 

Sherman a lump sum payment of $4,103 on March 5, 2007 for the benefits he should have 

received between December and March.  Sherman received the second weekly benefit on March 

12.  The Department requires recipients of unemployment benefits to report all work and income 

earned each week.  The Department mailed Sherman an information booklet explaining his rights 

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No.  41658-1-II

and responsibilities while collecting unemployment.  The Department also required Sherman to 

report any back pay or lump sum settlements.  If Sherman had questions about any issue 

concerning wages, he was required to check with the Department.  The Department also required 

Sherman to report any veterans' benefits he received.

       As part of his weekly reporting, the Department required Sherman to call in and answer by 

touch tone whether he was receiving compensation from any other source.  Sherman answered 

"no" every week.  Report of  Proceedings (RP) at 382, 389; Ex. 26.  The Department paid 

Sherman $5,810 in unemployment benefits over 14 weeks from March 12 until June 17, 2007.  

The checks were sent to the same post office box as Sherman's credit union statements.  Sherman 

cashed all the unemployment checks he received.    Sherman also received veterans' benefits that 

were deposited into his credit union account throughout this time.

       Sherman never returned to work during the time he received benefits from the 

Department.  On July 12, 2007, he applied for back pay from the Postal Service for the period 

from November 2, 2006 to April 1, 2007.  In April 2008, the Department ordered Sherman to 

repay the unemployment benefits he was not entitled to have received.  During a June 20, 2008 

appeal hearing for the repayment order, Sherman acknowledged that he learned May 7, 2007 from 

the union that he was back on the Postal Service payroll.  When the administrative law judge 

asked why he continued to apply for unemployment benefits after that time, Sherman answered, 

"Because I was angry, Your Honor." RP at 270-71.  Sherman claimed that he did not receive any 

earnings statements because the Postal Service stopped sending them and did not have his 

address.

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No.  41658-1-II

       The State charged Sherman in February 2009 with one count of first degree theft under 

RCW 9A.56.020(1)(b) and .030(1)(a) for the period between March 12 and June 29, 2007.  At 

trial, Sherman testified that he believed he was receiving back pay after the Postal Service 

reinstated him and placed him on administrative leave with pay.  Believing the money he received 

was back pay, Sherman thought he was not supposed to report it as income to the Department 

because he did not earn it that week.  He testified that nobody from the Postal Service told him he 

was on administrative leave after he was reinstated.  Sherman asserted that he did not know that 

he needed to apply for back pay or that it was paid as a lump sum.  Sherman testified that he had 

no contact with anyone from the Postal Service about his employment status for months after he 

was reinstated.  As for the earnings statements, Sherman testified that he never received them 

because his family was evicted after his termination.  The earnings statements never were 

forwarded to his post office box.  Although he received the credit union statements, Sherman said 

he did not review them monthly.

       Sherman also testified concerning his statements to the administrative law judge.  He 

asserted that he learned in May that the grievance had settled, but he did not find out until a July 6 

meeting that he was back on the payroll.  At that time, Sherman was advised to file for back pay.  

Sherman acknowledged that he told the judge he kept collecting unemployment into June because 

he was angry, but he suggested that he was upset because his supervisor never told him he had his 

old job back and failed to explain the situation. Sherman maintained that he was not trying to 

steal from or deceive anyone and believed he was getting back pay.   Sherman drew a distinction 

between knowing he had been reinstated in March 2007 and actually returning to work.

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No.  41658-1-II

       A jury found Sherman guilty of first degree theft.     The trial court denied Sherman's 

motion to substitute counsel prior to sentencing.  The trial court sentenced Sherman to 30 days in 

jail, converted to 240 hours of community service.  Sherman appeals.

                             I.  Sufficiency of the Evidence -- Theft

       In his appeal, Sherman challenges the sufficiency of the evidence supporting his first 

degree theft conviction.  Specifically, Sherman argues that the State failed to prove he knew he 

was making false representations about the income he was receiving from the Postal Service and 

knew that he was not entitled to receive unemployment benefits.  The State points to Sherman's 

statements to the administrative law judge, as well as the credit union and earnings statements 

mailed to him, as supporting a reasonable inference that Sherman was aware he was earning salary 

from the Postal Service and did not report it to the Department.

       The standard of review in a sufficiency of the evidence challenge requires this court to 

view the evidence in the light most favorable to the State and ask whether a rational trier of fact 

could have found the elements of the crime beyond a reasonable doubt.  State v. Salinas, 119 

Wn.2d 192, 201, 829 P.2d 1068 (1992).  A claim of insufficiency admits the truth of the State's 

evidence and all reasonable inferences that can be drawn as a result.  Salinas, 119 Wn.2d at 201.  

Circumstantial as well as direct evidence carries equal weight.  State v. Delmarter, 94 Wn.2d 634, 

638, 618 P.2d 99 (1980).  This court defers to the trier of fact on issues of conflicting testimony, 

credibility of witnesses, and persuasiveness of the evidence.  State v. Raleigh, 157 Wn. App. 728, 

736-37, 238 P.3d 1211 (2010), review denied, 170 Wn.2d 1029 (2011).

       Under RCW 9A.56.020(1)(b), the State must prove that Sherman obtained control over 

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No.  41658-1-II

the property or services of another by color or aid of deception with intent to deprive him or her 

of such property or services.  The former RCW 9A.56.030(1)(a) (2005), which applies here, 

requires the State to prove that the property or services exceeded $1,500 in value.  The trial court 

instructed the jury that "deception" occurs when a person knowingly creates or confirms 

another's false impression which the person knows to be false, or fails to correct another's 

impression that the person previously has created or confirmed.  Clerk's Papers at 43; RCW 

9A.56.010(5).

       This court emphasized the importance of proving a defendant's knowledge of the 

requirements for receiving aid in reversing a conviction for first degree theft by welfare fraud.  

State v. LaRue, 74 Wn. App. 757, 762, 875 P.2d 701 (1994).1       The defendant's wife pleaded 

guilty after submitting false monthly reports about the family's circumstances.  LaRue, 74 Wn. 

App. at 760.  But the State could not prove the defendant attended the original department

interview with his wife after she applied for public assistance.  LaRue, 74 Wn. App. at 758.  The 

1 A different statute, RCW 74.08.331, governs welfare fraud, but it incorporates the first degree 
theft statute, RCW 9A.56.030. RCW 74.08.331(1) reads:
       Any person who by means of a willfully false statement, or representation, or 
       impersonation, or a willful failure to reveal any material fact, condition, or 
       circumstance affecting eligibility or need for assistance, including medical care, 
       surplus commodities, and food stamps or food stamp benefits transferred 
       electronically, as required by law, or a willful failure to promptly notify the county 
       office in writing as required by law or any change in status in respect to resources, 
       or income, or need, or family composition, money contribution and other support, 
       from whatever source derived, including unemployment insurance, or any other 
       change in circumstances affecting the person's eligibility or need for assistance, or 
       other fraudulent device, obtains, or attempts to obtain, or aids or abets any person 
       to obtain any public assistance to which the person is not entitled or greater public 
       assistance than that to which he or she is justly entitled is guilty of theft in the first 
       degree under RCW 9A.56.030 and upon conviction thereof shall be punished by 
       imprisonment in a state correctional facility for not more than fifteen years.

                                               6 

No.  41658-1-II

defendant signed the application forms, but not a form informing him of his rights and 

responsibilities in receiving welfare.  LaRue, 74 Wn. App. at 758. The form would have told him 

of his duty to immediately report any income and residential changes.  LaRue, 74 Wn. App. at 

758.  The family received welfare benefits for an eight-month period, but the defendant lived apart 

from the family in his van during that time.  LaRue, 74 Wn. App. 758-59.   He worked two jobs 

while the family received benefits.  LaRue, 74 Wn. App. at 759.  This court explained that the 

State presented no evidence proving that the defendant knew of his responsibility to report the 

family's changed circumstances or that he saw the monthly reporting forms mailed to the family's 

house.  LaRue, 74 Wn. App. at 761.  As a result, the State failed to prove that the defendant 

willfully -- rather than inadvertently -- failed to inform the Department.    LaRue, 74 Wn. App. at 

761.2

       In this case, the State presented sufficient evidence supporting a reasonable inference that 

Sherman knew he was receiving salary, not back pay, from the Postal Service following his 

reinstatement.  The Postal Service mailed earnings statements every two weeks to Sherman's 

home detailing his weekly pay, including his leave accruals and deductions for social security, 

retirement, union dues, and more.  These earnings statements were noticeably more detailed than 

the statements Sherman received while he was in leave without pay status with his grievance 

2 Few cases have considered sufficiency of the evidence for theft involving the receipt of public 
assistance, whether welfare benefits, workers' compensation, or unemployment compensation. 
Other cases challenged amending an information with relation back to the original limitations 
period (State v. Eppens, 30 Wn. App. 119, 633 P.2d 92 (1981)); challenged whether the State had 
to specify the dollar amount as an essential element of welfare fraud (State v. Campbell, 125 
Wn.2d 797, 888 P.2d 1185 (1995)); and challenged whether a defendant could be charged with 
first degree theft when the same conduct was a violation of a different statute making it a 
misdemeanor to knowingly give false information related to unemployment benefits (In re Pers. 
Restraint of Taylor, 105 Wn.2d 67, 711 P.2d 345 (1985)).
                                               7 

No.  41658-1-II

pending.  Sherman testified that he did not receive the statements because they were mailed to his 

home and his family was evicted after his termination.  Sherman contended that the statements 

were not forwarded to his  post office box for some reason.  However, Sherman signed for 

certified letters mailed to his home on March 28 and April 23, related to the medical report the 

Postal Service requested he submit. 

       In addition, Sherman received monthly transaction statements mailed from the credit union 

to his post office box.  He acknowledged receiving them, but he testified that he did not review 

them monthly.   The statements show the Postal Service direct deposits into Sherman's account.  

The transaction description for these entries is "FED SALARY."    Ex. 19.  Even if Sherman was 

not reviewing his statements regularly, numerous ATM (automated teller machine) transactions 

were made with the account, which also was frequently overdrafted.  This supports an inference 

that Sherman was not oblivious as to what was happening with the account.  Sherman also had 

been placed on administrative leave with pay for the month after he was given notice of his 

proposed termination.  This was the same status to which he was returned after his reinstatement, 

suggesting that Sherman was familiar with its pay provisions.  Further, although Sherman believed 

he was receiving back pay, Sherman's supervisor provided him with information about back pay 

procedures when he notified him of his proposed termination in November.  The letter notes that 

documentation is necessary to support a back-pay claim, with specifics provided in the employee 

manual.  The pertinent sections of the manual were included with the notice.  Sherman 

additionally collected the salary he believed was back pay for three-and-a-half months, compared 

to the two-and-a-half months of back pay to which he was entitled.  Accordingly, the State 

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No.  41658-1-II

presented sufficient evidence supporting a reasonable inference that Sherman knew he was 

receiving salary.

       The State also presented sufficient evidence proving that Sherman knowingly deceived the 

Department by continuing to collect unemployment compensation while receiving salary from the 

Postal Service.  Sherman admitted to the administrative law judge that he knew on May 7, 2007 

that he was back on the Postal Service payroll, yet he continued to apply for unemployment 

benefits into June because he was "angry."    RP at 270-71.  Unlike the defendant in LaRue, 

Sherman had notice of his rights and responsibilities in receiving unemployment benefits.  This 

came through the information booklet the Department mailed to him.  The booklet spelled out the 

requirements for recipients to report all work and income as well as any back pay or lump sum 

settlements.  The booklet also advised recipients to contact the Department with any questions 

about what income would be considered remuneration.  The Department additionally required 

Sherman to call in weekly and answer questions related to his employment status.  Sherman 

acknowledged the fraud warning during each call and answered "no" to receiving any earnings.  

RP at 380, 384-92; Ex. 26.  Sherman also answered "no" as to whether he was receiving 

veterans' benefits, which he similarly was required to report.  RP at 383.  Sherman's answers 

contrast with the defendant's situation in LaRue, where the State could not prove he received the 

monthly update forms related to his welfare benefits since he was living apart from his family.  

Instead, Sherman was engaged with the Employment Security Department throughout the time he 

received benefits.

       The evidence, as well as the reporting requirements related to his unemployment 

                                               9 

No.  41658-1-II

compensation, allows for a reasonable inference that Sherman knew he received income and 

knowingly deceived the Department.  The State presented sufficient evidence supporting

Sherman's first degree theft conviction.

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No.  41658-1-II

                          II.  Statement of Additional Grounds (SAG)

       Sherman contends in his SAG that he was prosecuted as retaliation for bringing a 

discrimination suit against the Postal Service.  He claims that the State used improperly obtained 

information from an investigation by the Postal Service's Office of Inspector General in 

prosecuting him.  Sherman also asserts that he received ineffective assistance of counsel because 

he had an all-white jury.  In addition, Sherman asserts that his attorney called only one witness in 

his defense and failed to call the attorney representing him in his civil suit against the Postal 

Service.  Sherman also believes his attorney incorrectly informed him about his appeal rights after 

conviction.  In an amendment to his SAG, Sherman asks this court to take into consideration that 

the Postal Service offered in mediation to make the criminal case "go away" if he dropped his 

discrimination suit.  SAG at 29. 

       This court will not consider matters outside the trial record when a claim is brought on 

direct review.  State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).  If Sherman 

wishes to raise issues on appeal that require evidence of facts not in the record, the appropriate 

way of doing so is through a personal restraint petition.  McFarland, 127 Wn.2d at 335.

                             III.  Ineffective Assistance of Counsel

       This court reviews claims of ineffective assistance of counsel with the strong presumption 

that counsel was effective.  McFarland, 127 Wn.2d at 335.  This court will not hold that 

counsel's performance was deficient when the issues raised pertain to a legitimate trial strategy.  

State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).

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No.  41658-1-II

                                IV.  Racial Composition of Jury

       Without any record from voir dire, this court cannot consider Sherman's claim regarding 

the racial composition of his jury.  No evidence in the appeal record exists as to whether Sherman 

was subject to purposeful discrimination through a prosecutor's use of peremptory challenges to 

exclude jurors based on their race.  State v. Hicks, 163 Wn.2d 477, 489, 181 P.3d 831 (2008) 

(citing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)).  In addition, 

although defendants are not entitled to a jury of any particular composition, the jury selection 

process must not systematically exclude distinctive groups in the community and fail to be 

reasonably representative.  State v. Cienfuegos, 144 Wn.2d 222, 231, 25 P.3d 1011 (2001) (citing 

Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975)).  However, Sherman 

fails to offer any evidence that the jury venire did not reflect a fair and reasonable cross section of 

the population and that the alleged underrepresentation of African-Americans was due to 

systematic exclusion in the jury selection process.  Cienfuegos, 144 Wn.2d at 232 (citing Duren v. 

Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979)).  This is Sherman's burden to 

prove and he does not meet that burden.  Cienfuegos, 144 Wn.2d at 231-32.

                         V. Incorrect Information about Appeal Rights

       Sherman's claim of ineffective assistance related to the allegedly incorrect information his 

attorney provided regarding his appeal rights is outside the appeal record; thus, we cannot review 

this claim.  McFarland, 127 Wn.2d at 335.

                                               12 

No.  41658-1-II

                                  VI.  Failure to call Witnesses

       From the record on appeal, this court can consider Sherman's challenge to his attorney's 

failure to call witnesses.  

       During pretrial motions, Sherman's attorney agreed with the State's motion to exclude 

evidence of events underlying Sherman's termination from the Postal Service and his pending civil 

suit.  Sherman's attorney stated, "I think that it would make this trial a lot neater, a lot cleaner if 

we can avoid some of those tangential issues.  And I think that I am able to argue my theory of 

the case without those tangential issues." RP (Oct. 28, 2010) at 19.  Sherman's attorney added 

that those issues would "simply just muck up" the issues to be addressed at trial.  RP (Oct. 28, 

2010) at 21.  Sherman acknowledges that his attorney explained to him that he did not want the 

case to "blow up" by calling Sherman's civil attorney to testify.     SAG  at  13.  In denying 

Sherman's motion to substitute counsel prior to sentencing, the trial court found that "the 

decision with regard to witnesses was within trial strategy and therefore would not come up for 

criticism by this court of [the attorney's] decisions in that regard." RP at 598.  The trial court 

also found that Sherman's attorney did not commit any errors to support general allegations of 

ineffective assistance of counsel.

       We agree with the trial court that the decisions made by Sherman's attorney, in not calling 

witnesses related to Sherman's civil suit, amounted to a legitimate trial strategy.  There was not 

deficient representation in this respect.

                                       VII.  Other Issues

       With respect to the other issues Sherman raises, a court could consider his malicious 

                                               13 

No.  41658-1-II

prosecution claim if brought as a separate civil suit.  See Clark v. Baines, 150 Wn.2d 905, 84 

P.3d 245 (2004).  However, our Supreme Court has held that probable cause to prosecute is 

established by the defendant's conviction, even if an appellate court later overturns that 

conviction.  Hanson v. City of Snohomish, 121 Wn.2d 552, 560, 852 P.2d 295 (1993).  "A 

conviction is strong evidence that there was enough of a case to persuade a jury of guilt beyond a 

reasonable doubt, and thus is evidence that there was, at the very least, probable cause to 

prosecute."  Hanson, 121 Wn.2d at 559.  The Court concluded that probable cause is a complete 

defense to an action for malicious prosecution, unless the conviction was obtained by fraud, 

perjury, or other corrupt practices.  Hanson, 121 Wn.2d at 560.

       Sherman also contends that the State built its case around evidence that it improperly 

obtained from his interview with Isaac Mertes, who worked as a special agent with the Postal 

Service's Office of Inspector General.  Mertes interviewed Sherman in March 2008 as part of an 

internal investigation.  The trial court granted Sherman's CrR 3.5 motion to suppress Mertes's

testimony related to the interview.  Although Mertes did not testify at trial, Carl Determeyer -- a 

fraud investigator with the Employment Security Department who was present for Mertes's

interview -- did testify.  However, Determeyer did not testify in any respect about Sherman's 

interview with Mertes.  His testimony exclusively addressed the process of applying for and 

receiving unemployment benefits.  Determeyer also testified about the amount of benefits 

Sherman received from the Department and the answers Sherman provided in reporting each 

week to the Department through its phone system.  Any other issues Sherman raises regarding 

improperly obtained evidence are outside the record on appeal and cannot be reviewed on direct 

                                               14 

No.  41658-1-II

appeal. McFarland, 127 Wn.2d at 335.  

                                               15 

No.  41658-1-II

       We affirm.

       A  majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                 Armstrong, P.J.
We concur:

Hunt, J.

Johanson, J.

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