Opinion
66174-4-I
06-11-2012
STATE OF WASHINGTON, Respondent, v. HUONG TAN VAN, Appellant.
UNPUBLISHED OPINION
Appelwick, J.
Van appeals his conviction for theft in the first degree, arguing there was insufficient evidence that he took the property from Phan's person. We affirm.
FACTS
Huong Van and four friends were hanging out when they decided to steal some pizzas from Dominos. They ordered over one hundred dollars worth of food including pizzas, chicken wings, and soda, to be delivered to an apartment building they knew had a security entrance. Van and another accomplice went out of the building to the gate to meet the delivery driver, Hieu Phan. Some of the accomplices waited inside the building to let the others back in. Van and his friend told Phan they wanted to check the pizzas to make sure the order was correct. According to Van, Phan handed the pizzas to Van's friend, who checked each one. By contrast, Phan testified the boys grabbed the pizzas from him. He also testified he did not agree to let them check the pizzas, because it was Dominoes' policy that customers must pay before receiving their food. When Van and his accomplices had the food in their possession, they ran back inside without paying, closing the door before Phan could follow. They ran through the building and out the other side to a waiting car, left the scene, and ate the pizza. Afterwards, they drove past the Dominoes they had ordered from, dropping off an empty box with "thank you" written on it.
Phan also testified that after the boys ran with the pizzas, two suspects came up behind him and told him to leave his money, cell phone, and wallet on the ground. He believed one suspect appeared to be holding a gun at his side. Phan left his belongings, including about $20 cash, and ran. He returned shortly thereafter and recovered his phone and wallet, but his money was gone. He called his manager and then called 911.
The apartment complex where the theft took place has surveillance cameras at the gates, in the stairwells, and in the parking garage. Cheryl Collins, an employee in the building, reviewed footage from that night and was able to observe part of the incident. Video of the gated entrance shows two people at the gate at 10:37 p.m. Video in the garage captured a group of people running through at 10:40 p.m. And, a camera at the entrance on the other side of the building shows a group of people leaving the building. The manager provided that footage to police.
The State charged Van with two separate counts. One was for theft in the first degree, for taking food and money from Phan's person. The jury found him guilty of that count. The other count was for robbery in the first degree. The jury acquitted Van of robbery in the first degree, instead finding him guilty of the lesser included offense of theft in the third degree on that count. After the State dismissed the theft in the third degree conviction, the trial court imposed a standard range sentence for only theft in the first degree. Van moved to vacate the theft in the first degree charge, and the trial court denied his motion. He timely appeals.
DISCUSSION
Van argues there was insufficient evidence to support his conviction for theft in the first degree, specifically contending the State's evidence did not support the conclusion that he had taken property from the person of another. In a challenge to the sufficiency of the evidence, the court views the evidence in the light most favorable to the State, deciding whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. McKague, 172 Wn.2d 802, 805, 262 P.3d 1225 (2011). A defendant challenging the sufficiency of the evidence admits the truth of the State's evidence, and all reasonable inferences therefrom are drawn in favor of the State. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). This court defers to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83, P.3d 970 (2004), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
"Theft" is defined at RCW 9A.56.020(1) as meaning, in relevant part:
(a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services; or
(b) By color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services.
As courts have noted, "Subsection (a) is known as theft by taking while subsection (b) is known as theft by deception." State v. Smith, 115 Wn.2d 434, 438, 798 P.2d 1146 (1990). First degree theft, as charged here, is committed if a person commits theft of property of any value, "taken from the person of another." RCW 9A.56.030(1)(b). The jury instruction was consistent with this statute, providing that to convict Van of theft in the first degree, it must be proved beyond a reasonable doubt that, in relevant part, "the defendant wrongfully took property from the person of another."
The term, "taken from the person of another, " is not defined in the statute. The parties state that the only Washington case addressing this definition is State v. Chamroeum Nam, 136 Wn.App. 698, 705, 150 P.3d 617 (2007), where this court was considering statutory language for robbery that uses the same term. The court reasoned, in part:
The literal interpretation of taking something from another's person would be to take something on the person's body or directly attached to someone's physical body or clothing. That is consistent with one legal scholar's definition. 3 Wayne R. LaFave, Substantial Criminal Law § 20.3(c) at 179 (2d ed. 2003) ("Property is on the victim's person if it is in [her] hand, the pocket of the clothing [she] wears, or is otherwise attached to [her] body or [her] clothing.")Id. (alterations in original). Nam went on to hold that a purse situated next to the victim on the passenger seat of her car was not taken from her person. Id. at 707.
Van concedes that he committed theft, having used deception to obtain the food. But, he asserts he did not commit first degree theft because he did not take the food and money from Phan's person.
Applying the definition in Nam, we hold that the evidence was sufficient to support the jury's conclusion that Van took property from Phan's person. As discussed above, the testimony of Van and the other perpetrators was contradictory to Phan's testimony. Van and his accomplices testified that they simply tricked Phan into willingly handing the food over for their inspection. But, Phan, by contrast, stated unambiguously and numerous times that the boys took the food from his hands and ran:
Q And when the young men wanted to check the pizza what did you think about that?
A Well, the other guys grab the pizza and ran. That's all.
A Well, when the two persons who wanted to check the pizza I say you pay me first or I come to your apartment you pay me and then I'll let you check the pizza.
Q Why was it important that they pay you first?
A That's our rule. They have to pay before they have hold on their pizza.
Q Did they give you any money?
A No. They did - - they took it pretty quick. They just grab it and ran pretty quick.
[Q] Now, when the pizza was grabbed, where was it grabbed from?
A From my hand.
Van's insufficiency of the evidence argument admits the truth of Phan's testimony and all of the State's evidence, and it supports the jury's conclusion that Van and his accomplice took the food from Phan's person. As the Nam court contemplated, property is on the victim's person if it is in his hand, and the pizzas were in Phan's hand when they were taken. Id. at 705.
Van contends the video contradicts Phan's testimony, and conclusively reflects that Phan handed the pizzas over voluntarily, with no one taking them from his person. But, the video is incomplete. It appears to show Van's accomplice taking two pizzas, one at a time, as Phan hands them over, but it does not show the entire transaction. Thus, the video cannot conclusively rebut Phan's verbal testimony, nor can it support Van's assertion that no rational trier of fact could have found the taking of the food from Phan's person. Because the video is not sufficiently conclusive independently, it requires additional explanation from witnesses and was subject to different interpretations at trial. The matter thus became one of conflicting testimony, credibility of the witnesses, and persuasiveness of the evidence-areas where we necessarily defer to the jury. Thomas, 150 Wn.2d at 874-75.
Looking at the evidence in the light most favorable to the State and drawing all reasonable inferences in the State's favor, we hold that there was sufficient evidence to support the jury's conclusion that Van took the food from Phan's person, and thus committed theft in the first degree.
We affirm.
WE CONCUR