Opinion
No. 29829-5-II.
Filed: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County. Docket No: 02-1-00442-8. Judgment or order under review. Date filed: 12/03/2002. Judge signing: Hon. H John Hall.
Counsel for Appellant(s), Peter B. Tiller, Rock Pine, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Therese M Murphy, Attorney at Law, Msc Pr001, 360 NW North St, Chehalis, WA 98532-1925.
Dennis J. Campi appeals his jury convictions of first degree trafficking in stolen property and second degree theft, arguing that the trial court erred in denying his CrR 7.4 motion to arrest judgment based on insufficient evidence to convict. In his statement of additional grounds, he argues trial court instructional error.
FACTS
On May 28, 2002, employees of Pace Edwards Company in Centralia returned to work at the company plant after a three-day weekend to find that extruded aluminum sticks were missing from an area behind the plant, out of view of the road. Pace Edwards uses these aluminum pieces to manufacture roll-top covers and other accessories for pickup trucks. Although Pace Edwards does not manufacture the aluminum pieces, the materials are unique because only Pace Edwards uses them. Pace Edwards planned to send these particular pieces back to the manufacturer because the metal was flawed; as Ronald Melius testified, 'You typically get a certain percentage of the metal that's bad, send it back to [the manufacturer] and have new material made.' I Report of Proceedings (RP) at 33.
Pace Edwards employee Ronald Melius testified that '[a]luminum extrusion is . . . when aluminum is in a billet and they take that billet and they heat it up and they press it through a mold so it comes out in long sticks. Those sticks are of a certain profile whatever that might be.' I Report of Proceedings at 16.
Melius testified: '[The covers] roll up similar to a rolltop desk made of wood, they cover the box or bed of a truck. We have three different models that we sell or build there at the plant.' I Report of Proceedings at 15.
James Mielitz, Pace Edwards' maintenance supervisor, testified that on May 28, one of his employees told him that the aluminum was missing. Another Pace Edwards employee called the Lewis County Sheriff's Office, and Mielitz called several local recyclers attempting to locate the missing materials — he believed the aluminum would be easily identifiable. Mielitz soon received a call that the Pace Edwards aluminum was at South Sound Steel and Recycling (South Sound) in Tumwater and he went there to identify the material.
Earlier that day, South Sound had issued purchase receipts for the missing aluminum to Dennis Campi and Charles (Chuck) Widmer. Bryon Fraley, a South Sound employee, testified that he remembered Campi coming into South Sound before noon on May 28 and he remembered completing a receipt for Campi's material. In court, Fraley identified the stolen material as '663 extrusion.' II RP at 19. The five-item South Sound receipt actually lists two items as '6063 Ext.' with corresponding purchase amounts of '92.00' and '185.60.' Exhibit 3. In total, South Sound paid Campi $330.90 for the materials he brought in.
The receipt also lists amounts for '#1 copper,' '#2 copper,' and 'Sheet Alum,' which are not at issue here. See Exhibit 3.
Lewis County Sheriff's Deputy Bruce Kimsey was dispatched to the Pace Edwards plant the evening of May 28. He saw metal shavings in the area where the aluminum had been stored and took pictures of the shavings. He learned of Campi's and Widmer's involvement from the South Sound employees, and Kimsey went to Widmer's house in Centralia around one o'clock in the morning and arrested him. Kimsey also went to Campi's house at around 3:45 a.m. that morning, but Campi was not at home. Kimsey did see metal shavings that appeared to be aluminum in Campi's yard, however.
At Campi's jury trial, Widmer testified that while he was at Campi's house over the three-day weekend, Campi had asked him if he had seen his aluminum pile. Widmer, upon examining the pile, had asked Campi, 'how do I get some of that, that's number one shit.' I RP at 70. Campi told Widmer that 'he knew where there was tons of it . . . in a big dumpster thing.' I RP at 70.
Widmer testified that he recycled for a living.
Widmer testified that later he and Campi went to the Pace Edwards plant when there was no one around and filled Campi's truck with the aluminum. In response to the State's question, 'did you have permission to go on Pace Edwards' property . . . to take that aluminum,' Widmer testified, '[n]o.' I RP at 74. Widmer went back to Campi's residence the following night and got a load of aluminum. Widmer testified that he acted independently of Campi in going to South Sound to recycle the material, although he had offered to give Campi a percentage of the recycling proceeds in exchange for having told him about the aluminum.
On September 12, a jury convicted Campi of first degree trafficking in stolen property and second degree theft. Following the verdict, Campi's trial counsel filed a motion to arrest judgment under CrR 7.4, arguing that the State failed to prove that the aluminum was 'wrongfully obtained' and failed to prove its value. On December 3, the court denied the motion. Campi appeals.
ANALYSIS Standard of Review
CrR 7.4(a) provides that a defendant may bring a motion for arrest of judgment based on insufficient proof of a material element of a crime. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential 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 therefrom. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). First Degree Trafficking in Stolen property.
Campi first contends that the State failed to prove that he did not have permission to remove the aluminum from behind the Pace Edwards plant, thus failing to prove that he 'wrongfully obtained' the aluminum. Appellant's Brief at 9.
'A person who knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others, or who knowingly traffics in stolen property, is guilty of trafficking in stolen property in the first degree.' RCW 9A.82.050(2). By statute, 'theft' is defined as '[t]o wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services.' RCW 9A.56.020(1)(a). Under the statute, 'wrongfully obtain' means '[t]o take the property or services of another.' RCW 9A.56.010(19)(a).
Campi argues that the elements of the crime of trafficking in stolen property are not satisfied here because Pace Edwards employees Melius and Mielitz never testified that Campi did not have permission to take the aluminum. But there was substantial evidence for the jury to find that Campi 'wrongfully obtained' the material.
The Pace Edwards employees testified that they discovered that the aluminum was missing and then took steps to find it, including calling the sheriff. Such activities are inconsistent with Pace Edwards having granted permission to Campi or anyone else to take the aluminum. Moreover, Widmer, a participant in the removal of the aluminum, testified that he did not have permission to go onto Pace Edwards' property and take the aluminum; viewing his testimony in the light most favorable to the State, the jury could have easily drawn the inference that Campi also lacked permission. As such, the State presented evidence from which the jury could have reasonably inferred that Campi wrongfully obtained the material and this argument fails.
Second Degree Theft
Campi next claims that there was insufficient evidence to convict him of second degree theft, because the State failed to prove the aluminum's value.
Campi also contends that there was insufficient evidence to convict him of second degree theft under the same reasoning as above — the State failed to prove that Campi did not have permission to remove the aluminum. But the argument fails here for the same reasons.
A person is guilty of second degree theft if he or she commits theft of property or services with a value of more than $250, but not more than $1,500. RCW 9A.56.040. ''Value' means the market value of the property or services at the time and in the approximate area of the criminal act.' RCW 9A.56.010(18)(a); 'market value' is the price that a well-informed buyer would pay to a well-informed seller, where neither is obliged to enter into the transaction. Longshore, 141 Wn.2d at 429 (citing State v. Kleist, 126 Wn.2d 432, 435, 895 P.2d 398 (1995)).
Campi argues that the aluminum had no value whatsoever because the metal was flawed. However, a Pace Edwards employee testified that the company was going to return the aluminum to the manufacturer to have new pieces made. Thus, there was evidence that the material was of some value to Pace Edwards.
Campi also argues that the stolen material 'was not sold locally, but in Thurston County,' Appellant's Br. at 10, and therefore the State did not properly establish the value of the material. But the material was sold to a recycler in Tumwater, fewer than 20 miles from Centralia, and Campi cites no authority for the proposition that the 'approximate area of the criminal act' must be within the same county. Appellant's Br. at 10. By presenting evidence of the amount that South Sound paid for the aluminum, the State put forth ample circumstantial evidence of the value of the stolen aluminum.
Statement of Additional Grounds
Campi also filed pro se a statement of additional grounds for review, stating: 'When the jury was asked a second time to render the verdict, because the first time it was wrong the judge said.' Appellant's Statement of Additional Grounds. See RAP 10.10. When the jury returned from deliberation, it returned guilty verdicts on both first and second degree trafficking in stolen property, although these were alternative charges. Following argument by the parties, the judge sent the jury back with new verdict forms and directed them to fill out the forms according to the instructions. The jury then returned a guilty verdict on first degree trafficking in stolen property. Under CrR 6.16, it was within the authority of the trial court to send the jury back: 'When a special finding is inconsistent with another special finding or with the general verdict, the court may order the jury to retire for further consideration.' CrR 6.16(b). Accordingly, the trial court did not err.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, A.C.J., concur.