Opinion
No. 37268-1-II.
March 24, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-01312-5, Christine A. Pomeroy, J., entered January 17, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Houghton, J.
UNPUBLISHED OPINION
Lorn Anthony Dooley appeals his convictions for first degree possession of stolen property and first degree trafficking in stolen property. He argues that (1) the evidence was insufficient to support the first degree trafficking in stolen property conviction, and (2) the two convictions violate double jeopardy. We affirm.
The trial court imposed a sentence under the Drug Offender Sentencing Alternative, RCW 9.94A.660. We affirmed Dooley's sentence on accelerated review.
FACTS I. BNSF Thefts A. Signal Box
At approximately 5:15 am, on Sunday, June 18, 2007, Wallace Campbell, a laborer with Burlington Northern Sante Fe Railroad (BNSF), was working at a BNSF maintenance yard when he heard a vehicle in the area. About 10 to 15 minutes later, he saw a black El Camino truck drive away with a metal 4' x 4' x 8' electronic signal box in its bed. Campbell could not see how many people were in the black El Camino or who was driving it; nor did he get the El Camino's license plate number. Although it was still dark, the El Camino's lights were off; it was traveling about ten miles an hour.
The yard consisted of a small office surrounded by a cyclone fence. BNSF employees stored materials and trucks inside the fenced and gated area.
A short time later, Campbell drove around the outside of the fenced BNSF yard to the area where BNSF maintenance crews were storing the signal boxes; he noticed a white car parked there. Because people often abandon vehicles on railroad property, Campbell did not question the presence of the white car, and he returned to his daily routine. But as he returned to the front of the yard, the white car, with one person inside, pulled up alongside him. Campbell noted the white car's license plate number. Campbell was not sure whether the black El Camino he had seen earlier was related to the white car.
Campbell did not identify the make of the white car.
Officers later followed up on this license plate number and connected two individuals, Richard Stuberg and Bobby Grieder, to this vehicle. Neither the license plate nor the officers' subsequent investigation connected the white car to Dooley or to his codefendant.
Campbell later told another BNSF employee, Robert Kline, about the two cars he had seen on the premises. BNSF staff determined that two signal boxes were missing from the open storage area located just outside the fenced yard. The signal boxes were mostly aluminum; each box weighed approximately 800 pounds and each contained two $5,000 controller boxes, batteries, and a variety of other electronic equipment and wiring. When Kline examined the area where BNSF staff had stored the signal boxes, he found a piece of chrome with an El Camino logo on it.
B. Wire
A few days later, on June 21, shortly after 6:00 am, Kline arrived at the BNSF yard to discover that the gate's padlock was missing, the gate was open, and a wooden spool containing approximately 2,000 feet of black "seven-conductor, 14-gague" insulated Okanite wire was missing. Kline noticed marks on the ground indicating that someone had dragged the spool through the yard. Kline suspected that someone had taken the spool of wire after the staff had locked the yard at 5:00 pm the night before. Kline believed the spool of wire weighed over 750 pounds. The missing wire was worth approximately $6,000 to $8,000.
The spool was about three quarters full.
Kline called the Thurston County Sheriff's Office to report the burglary. Deputy Martin Bryant, responded to Kline's call. When Bryant arrived, Kline also reported that a signal box had been stolen the previous weekend. The next day, June 22, officers found an empty wooden spool bearing an Okanite label in a small parking area about a mile from the BNSF yard.
II. Police Investigation A. Suspicious Fire
Around 8:15 am, on the day of the wire theft, the Tumwater Fire Department asked Tumwater Police Department officers to assist them with what they considered to be a "suspicious fire." At the fire site, they found a 10 foot by 20 foot charred area containing "thousands of feet of wire, copper wire . . . with black sheathing around it." Report of Proceedings, Vol. I at 56. Noting that copper wire was often trafficked, the officers later testified that they had seen similar fires used to burn the casing or insulation off insulated wire because burning was faster than stripping the wire by hand.
Near the fire site, the officers found a well-defined, 1,200 to 1,500-foot long trail or road large enough to accommodate a vehicle. This road led from the fire site to Joseph Vladeff's residence. Along this road, the officers found a large yellow extension cord; a propane tank; and various vehicles, including a pickup truck with its hood up and a winch or "come-along" in its bed. Between the fire site and the truck, the officers found several four to six-foot long pieces of wire that appeared to be the same type of wire they had found in the fire. They found some plastic wire spools in the nearby bushes, but they did not find any large wooden spools like the one taken from the BNSF yard.
Although there were "offshoots" along the roadway, the only portion that appeared to go anywhere was the one that led to Vladeff's residence.
One of the officers ran the truck's tags to determine if it was stolen. The officer determined that the truck was not stolen, but he did not investigate who owned the truck.
B. Contact with Dooley
On his way to the fire site, a short time after the first officers had arrived, Lieutenant Bruce Brenna, saw a man he later identified as Dooley come out of the woods near the fire site. Dooley's clothes were dirty and his arms were covered with soot. Brenna initially continued toward the fire, but he changed his mind and returned to contact Dooley.
Brenna later returned to the fire site and examined the roadway that led from the fire site to Vladeff's residence. Brenna concluded that someone had recently used the roadway and that it appeared to be the same roadway on which Dooley had been walking before he emerged onto the main road.
On his way back to contact Dooley, Brenna saw a black El Camino with two people in it. Brenna stopped the El Camino as it pulled into a driveway; Vladeff was driving, and Dooley was in the passenger seat. Shortly after Brenna stopped the El Camino, Officer John Weiks arrived.
Brenna spoke to Vladeff while Weiks spoke to Dooley.
There is nothing in the record about what Vladeff told Brenna at this time.
Dooley, who had no identification, told Weiks his name, stated that he did not have a permanent address but had been staying with Vladeff "off and on," and admitted that he had been in the woods, but he denied having anything to do with the fire. Instead, Dooley claimed that someone had been stealing tools from Vladeff's property and that he (Dooley) had been in the woods trying to discover how this person was accessing Vladeff's property.
C. Vladeff's Interview
Although Brenna had been unaware of the BNSF thefts when he initially contacted Vladeff and Dooley, Brenna also interviewed Vladeff after he learned about these thefts. During this interview, Vladeff told Brenna that (1) he sometimes lent his El Camino to a friend who had been staying with him, (2) his friend paid him for the use of his vehicle with cash or a share of the money his friend received from any materials sold to the recycling center, and (3) this friend had used the El Camino to bring the BNSF signal box to his (Vladeff's) property. Vladeff admitted that he had taken some of the aluminum from the signal box to the recycling center, for which the recycling center had paid him $80 to $100.
Vladeff's statement to Brenna was redacted to remove references to a specific person in order to avoid Bruton issues. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
D. Search of Vladeff's Property and Identification of Stolen BNSF Property
The officers obtained a warrant to search Vladeff's property. During the search, they found a junk pile north of Vladeff's residence, bolt cutters, and a winch. They found Sue Ann Roberts and Timothy Burkhart on the property and took them into custody.
When the officers showed Kline some of the items they had found at the fire site and on Vladeff's property, Kline identified as stolen BNSF property some of the wire, some of the other materials in Vladeff's junk pile, and the "gutted remains" of the signal box. Kline also noticed that Vladeff's black El Camino was missing a chrome logo similar to the one he (Kline) had found outside the BNSF yard on June 18.
E. Recycling Center Purchases
Malcolm McClasky, the owner of South Sound Steel and Recycling, provided the State with documentation showing that the recycling center had purchased scrap metal from both Vladeff and Dooley. Between December 11, 2006, and June 19, 2007, the recycling center had purchased $11,521.18 of scrap metal from Vladeff. For the last purchase, dated June 19, the recycling center had paid Vladeff $218.60 for some stainless steel, yellow brass, number 2 copper, and sheet aluminum. The recycling center had purchased smaller amounts of metal from Dooley on four occasions: (1) twice on June 4, one purchase for $25 and the other for $8.10; (2) once on June 11 for $8.80; and (3) once on June 12 for $19.80. The metal Dooley had sold included number 2 copper, insulated copper wire, cast aluminum, yellow brass, and sheet aluminum.
Although the sales tickets contained general descriptions of the type of metal the recycling center purchased from Vladeff and Dooley, according to McClasky, these descriptions were not sufficient to allow him to determine the origin of these metals. Nor could McClasky tell from the State's photographs of the wire found at the fire site whether the stolen wire would have been number 1 or number 2 copper wire if it had been stripped.
III. Procedure A. Charges and Trial
The State charged Dooley and Vladeff with first degree possession of stolen property (count I) and first degree trafficking in stolen property (count II). In the information, the State alleged that (1) the first degree possession of stolen property offense occurred "on or about June 21, 2007," and (2) the first degree trafficking in stolen property offense occurred "on or between June 12, 2007 and June 21, 2007." The case went to a jury trial. Dooley and Vladeff were tried together. At trial, the State's witnesses testified as described above.
The State's opening statement was not transcribed; the defendants initially reserved their opening statements, but later waived them.
The only defense witness was a private detective who testified for Vladeff. The private detective testified that portions of the road that led from the fire site to Vladeff's property did not appear to be well used.
B. Closing Arguments
In closing, the State argued that the evidence showed Dooley was directly involved in the burning operation and that BNSF property had been "dumped" on Vladeff's property between June 18 and June 20 or 21. The State distinguished the time frames for the trafficking and possession charges, explaining that the trafficking charges related to the sales Vladeff and Dooley made to the recycling center between June 18 and June 21. He argued that the evidence of Vladeff's total sales to the recycling center was evidence of an ongoing trafficking operation.
In his closing argument, Vladeff's counsel focused on the knowledge element. He asserted that (1) there was no evidence that Vladeff was the person in the El Camino that Campbell had seen at the BNSF site; (2) there was no evidence that Vladeff was aware the items on his property or the items he had sold were stolen; (3) the wire had been stolen from BNSF after Vladeff's last sale to the recycling center; and (4) there was no evidence that the items Vladeff sold to the recycling center were BNSF property.
In his closing argument, Dooley's counsel argued the evidence showed that (1) the only sales Dooley had made to the recycling center occurred before the BNSF property was stolen; (2) therefore, there was no evidence Dooley had sold any stolen property; (3) although the evidence suggested Vladeff might have sold stolen property after June 18, there was no evidence that Dooley was involved in this sale; and (4) although there was evidence that a "friend" had transported what appeared to be the signal box to Vladeff's property, there was no evidence that this "friend" was Dooley.
In rebuttal, the State argued that (1) to find trafficking, the jury did not have to find that the sales to the recycling center, about which McClasky had testified, involved the stolen property; (2) the various sales to the recycling center were merely evidence that Vladeff was involved in an ongoing selling operation; and (3) there was evidence that Dooley had also sold things to the recycling center. After discussing the charging periods, the State tied Vladeff's trafficking charge to the stolen signal box, not to the stolen wire.
C. Verdict
The jury found both Dooley and Vladeff guilty on both counts. Dooley appeals his convictions.
Vladeff's convictions are not before us in this appeal.
ANALYSIS I. Sufficient Evidence of First Degree Trafficking
Dooley argues that the evidence was insufficient to support his conviction for first degree trafficking in stolen property because there was no evidence that the property he sold to the recycling center was stolen or that he was a participant in the sale of any stolen goods. We disagree.
Dooley does not similarly challenge the sufficiency of the evidence related to his possession of stolen property conviction.
A. Standard of Review
On a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether a rational trier of fact could find the elements of the offense beyond a reasonable doubt. State v. Gentry, 125 Wn.2d 570, 596-97, 888 P.2d 1105, cert. denied by Gentry v. Washington, 516 U.S. 843 (1995). Additionally, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). We treat circumstantial evidence as reliable as direct evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
B. Trafficking
Under the jury instructions here, the State was required to prove beyond a reasonable doubt that, on or between June 12, 2007, and June 21, 2007, Dooley or an accomplice knowingly trafficked in stolen property and that he, or the accomplice, did so knowing that the property was stolen. Jury instruction 19 defined "trafficking" as selling, transferring, distributing, dispensing, or otherwise disposing of property to another person.
Jury Instruction 8 defined accomplice:
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice. Clerk's Papers (CP) at 60.
Instruction 21 provided in part:
To convict the defendant, LORN A. DOOLEY, of the crime of Trafficking in Stolen Property in the First Degree, as charged in Count II, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or between June 12, 2007 and June 21, 2007, the defendant, or an accomplice, knowingly trafficked in stolen property;
(2) That the defendant knew the property was stolen; and
(3) That the acts occurred in the State of Washington.
CP at 73.
We recognize that RCW 9A.82.010(19) defines "traffic" as follows:
"Traffic" means to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person, or to buy, receive, possess, or obtain control of stolen property, with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to another person.
(Emphasis added).
Much of the State's sufficiency argument focuses on the italicized portion of this statutory definition. But the State fails to recognize that the trial court's instructions did not include this portion of the statute. Thus, even if the evidence was sufficient to show that Dooley received, possessed, or controlled property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to another person, rather than by actually selling, transferring, distributing, dispensing or otherwise disposing of the property to another person, the jury could not have found Dooley guilty of trafficking on this ground under the instructions in this case. We note that there was no evidence that anyone had actually sold, transferred, distributed, dispensed, or otherwise disposed of any of the wire to another person.
Under the instructions given here, the State had to prove that Dooley or an accomplice sold, transferred, distributed, dispensed or otherwise disposed of property "to another person." Taking the evidence in the light most favorable to the State, the evidence showed that (1) Vladeff or Vladeff's unnamed "friend" stole at least one signal box from the BNSF yard on June 18; (2) someone gutted the signal box and left its "remains" on Vladeff's property; (3) Dooley had been staying on Vladeff's property "off and on"; (3) around the time the signal boxes were stolen, Vladeff sold materials, which could have come from the signal box, to the recycling center; (4) Dooley also made various smaller sales to the recycling center just before the BNSF signal box thefts; and (5) three days after the someone stole the signal boxes and mere hours after BNSF staff reported the wire theft, Dooley had been on Vladeff's property burning the insulation off the stolen BNSF wire, as evidenced by him emerging from the woods near the fire site with soot covering his arms.
This evidence was sufficient to allow a jury to conclude that Vladeff engaged in trafficking based on the theft of the signal boxes and the sale of materials taken from the signal boxes. Although there was no direct evidence that Dooley sold any signal box materials himself, taking the evidence in the light most favorable to the State, a reasonable trier of fact could have concluded that Dooley was Vladeff's accomplice in the trafficking of stolen property. The following evidence supports this conclusion: (1) Dooley's presence at Vladeff's property and testimony that he had been staying there as Vladeff's "friend"; (2) Dooley's earlier sales to the recycling center; (3) Dooley's active participation in preparing the stolen wire for sale by burning off the insulation; (4) the presence of the remnants of the stolen signal boxes on Vladeff's property; (5) Vladeff's statements indicating that "a friend" who had been staying with him (Vladeff) had borrowed the El Camino and brought the signal box to Vladeff's property; and (6) Vladeff's statement that he regularly lent this "friend" his vehicle to transport materials to the recycling center, for which his friend paid him for the use of the vehicle with cash or a share of the money received from the sale of the materials sold. This evidence was circumstantial evidence of Dooley's active participation in an ongoing trafficking operation with Vladeff, which included the sale of materials stolen from the BNSF yard on June 18.
Accordingly, we hold that there was sufficient evidence to support Dooley's trafficking conviction.
II. No Double Jeopardy Violation
Dooley further argues that his possession of stolen property conviction should be dismissed because his convictions for both possession of stolen property and trafficking violate double jeopardy. Again, we disagree.
A. Standard of Review
The double jeopardy clauses of the Fifth Amendment and the Washington State Constitution, article I, section 9, protect against multiple punishments for the same offense. To constitute the same criminal offense for purposes of double jeopardy, the offenses must be the same in both law and fact. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). Offenses are not identical in fact if one crime is complete before the defendant commits another crime and if different evidence is used to prove the second crime. In the Matter of the Personal Restraint of Lord, 152 Wn.2d 182, 194, 94 P.3d 952 (2004) (citing State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991)). Additionally, factually separate acts charged as separate crimes do not constitute double jeopardy, even if they occur during a relatively short time period. See, e.g., In re Personal Restraint of Fletcher, 113 Wn.2d 42, 49, 776 P.2d 114 (1989) (assault did not take place until after robbery and kidnapping were complete).
B. Separate Acts
Even if we assume, without so holding, that the two offenses are the same in law, the record shows that the two charges are not the same in fact for double jeopardy purposes.
First, in the information, the State alleged that Dooley committed (1) the first degree possession of stolen property offense "on or about June 21, 2007," and (2) the first degree trafficking in stolen property "on or between June 12, 2007 and June 21, 2007." Although both charges include one date, June 21, 2007, this difference in charging periods is a clear indication that the State was not relying solely on Dooley's June 21 possession of the stolen wire to prove the trafficking charge, which possession actually spanned nine days.
Second, the jury instructions on the trafficking charge required the State to prove that Dooley had sold, transferred, distributed, dispensed, or otherwise disposed of property to another person. Although the statutory definition of "trafficking" is broader, see RCW 9A.82.010(19), the instructions here clearly required the State to prove that Dooley, or an accomplice, had disposed of the stolen property. In contrast, to prove the possession of stolen property charge, the State had to prove that Dooley, or an accomplice, actually possessed stolen property on June 21. This the State did when it proved that Dooley possessed the stolen wire at the fire site on June 21.
We note that Dooley's mere possession of stolen property on June 21, namely the stolen stripped wired, could have allowed the jury to conclude that Dooley was participating in an ongoing trafficking operation with Vladeff spanning the longer trafficking charging period. But Dooley's possession of the wire on June 21 alone could not support the trafficking charge.
Finally, the State's closing argument emphasized that the two offenses were factually distinct. The State (1) clearly distinguished the trafficking and possession charges in terms of their respective time frames; (2) indicated that the trafficking charges related to the sales Vladeff and Dooley had made to the recycling center between June 18 and June 21; and (3) argued that the trafficking charge related to the sale of signal box materials, not the stolen wire that was the basis for the possession count. The charging information, instructions, and the State's closing argument all demonstrate that the trafficking and possession charges were factually distinct. Accordingly, Dooley's double jeopardy argument fails.
We note that because the parties did not have the state's opening statement transcribed, we cannot evaluate that statement.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J., VAN DEREN, C.J., concur.