Opinion
No. 54359-8-I.
May 22, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-1-03524-2, Michael Heavey, J., entered May 18, 2004.
Counsel for Appellant(s), Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Julie Anne Kays, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Affirmed by unpublished per curiam opinion.
Travis Troy Shott appeals his conviction as an accomplice to second degree theft. Shott argues that his Fifth Amendment right against self-incrimination was violated when the State used his pre-arrest silence as evidence of guilt at trial. He also argues that the evidence was insufficient to prove beyond a reasonable doubt that he was an accomplice to second degree theft.
Because the testimony of the loss prevention officer to which Shott now objects, was not by a "law enforcement officer" within the meaning of Miranda, and the Fifth Amendment, we hold there was no violation of his constitutional rights. Moreover, there was sufficient evidence to support his conviction. We affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In December 2003, Shott accompanied a woman to a Sears department store in the Sea-Tac Mall. Loss prevention officers (LPOs) employed by Sears monitored Shott and the woman on closed-circuit television and observed the woman steal merchandise. While the woman placed items in the cart, Shott "was scanning the area furtively" and "looking around," according to the testimony. An LPO detained Shott and the woman as they were leaving the store with stolen items. They were taken into police custody after Sears contacted the authorities.
The woman pled guilty to second degree theft. The State charged Shott with second degree theft as an accomplice. A jury returned a verdict of guilty. Shott moved for an arrest of judgment and/or a new trial based solely on his claim of insufficient evidence. The trial court denied the motions.
Shott appeals. PRE-ARREST SILENCE
For the first time on appeal, Shott argues that the State violated his Fifth Amendment right against self-incrimination when it used his pre-arrest silence as evidence of guilt. We hold that neither the Fifth Amendment nor the state constitution precluded the loss prevention officer here from either so testifying or the State pointing to that evidence in closing argument.
The Fifth Amendment provides that "[n]o person shall . . . be compelled in any criminal case to be a witness against himself." The Washington Constitution, article 1, section 9 states: "no person shall be compelled in any criminal case to give evidence against himself." Courts interpret the two provisions in the same manner.
State v. Lewis, 130 Wn.2d 700, 704-05, 927 P.2d 235 (1996).
State v. Easter, 130 Wn.2d 228, 235, 922 P.2d 1285 (1996).
Id.
At trial, the Fifth Amendment prevents the prosecutor from eliciting comments by witnesses or from commenting during closing on the defendant's silence, thereby implying guilt. The purpose of the right is to prevent the government from forcing a defendant to reveal his knowledge of inculpatory facts or sharing his thoughts or beliefs with the State. Constitutional errors may be raised for the first time on appeal. When a defendant speaks to private citizens, the State is not compelling him to speak, and the Fifth Amendment does not apply. However, where a defendant speaks to "law enforcement officers" — agents of the State — constitutional protections may apply.
Id. at 236.
Id. at 241.
RAP 2.5(a)(3).
(rights not violated by use of defendant's silence when speaking to his employer).
Two cases, State v. Heritage and State v. Valpredo are dispositive. In Heritage, two city park security officers questioned a group of juveniles about a marijuana pipe, and Heritage responded, "it's my pipe." The police subsequently arrived and arrested Heritage. She moved to suppress her admission, arguing the security officers should have given her Miranda warnings. The Heritage court found that the security officers were State agents for purposes of Miranda because they worked for the city and their duties included investigating and reporting crimes. The court also noted that the security officers wore bullet proof vests under their t-shits, wore belts containing pepper spray, a baton, handcuffs, a radio, and a flashlight holder, and they approached the juveniles asking authoritative questions. The court reasoned that a reasonable person in Heritage's position would view the officers as "law enforcement officers." In Valpredo, store employees observed the defendant stealing merchandise. The employees detained the defendant and informed him of his "Miranda" rights, but did not inform him of his right to free legal counsel if indigent. After the warnings were given, the employees obtained incriminating statements that were admitted at trial. The Valpredo court held that the statements were admissible because the Fifth Amendment and Miranda are not applicable when an accused is interrogated by persons who are not officers of the law.
152 Wn.2d 210, 95 P.3d 345 (2004).
75 Wn.2d 368, 450 P.2d 979 (1969).
Id. at 212-13.
Id.
Id.
Id. at 217.
Id.
Id.
Id.
Id.
Id. at 370.
Here, Valpredo controls. Michael Kline, an LPO at Sears, testified at trial regarding his observations and his detention of Shott. The prosecutor asked Kline about Shott's silence after detention. Kline testified that Shott expressed no confusion when he stopped him, he expressed no outrage at being stopped, and his demeanor was "really calm," with "no real reaction." The prosecutor further inquired, without objection, about Shott's silence after Kline escorted him to the loss prevention office. The prosecutor asked:
Q. Did he tell you anything at that point?
A. No.
Q. Did he ask you why am I being held here?
A. No.
Q. Did he say anything?
A. No.
The prosecutor also referred, without objection, to Shott's silence in closing argument, stating:
If you need any additional confirmation, . . . think about the defendant's reaction when he is caught. He shrugs his [shoulders] and turns back inside. No question, confusion, no outrage.
Report of Proceedings (April 21, 2004) at 293 (emphasis added).
Here, unlike the facts in Heritage, there was nothing to show that the LPOs who interacted with Shott were acting as law enforcement officers. There was no evidence that they were employed by any governmental organization. To the contrary, they appear to have worked exclusively for Sears. Moreover, there was no evidence in this case that the LPOs were wearing any of the indicia of law enforcement that the Heritage court noted. This case is much closer to that in Valpredo. In short, there was nothing to substantiate that a reasonable person in Shott's position would have perceived the LPOs as law enforcement officers — agents of the State — for purposes of the constitutional protections afforded to pre-arrest silence under the Fifth Amendment and Miranda.
Valpredo, 75 Wn.2d at 370; Oplinger, 150 F.3d at 1066-67.
Shott relies on State v. Easter, which is distinguishable. In that case, Easter was charged with vehicular assault after striking another car. At trial, the prosecutor questioned the officer about Easter's pre-arrest silence. The officer testified that when he arrived at the scene Easter "totally ignored" him, and that Easter was a "smart drunk," meaning he was evasive, wouldn't talk to him or look at him. The prosecutor used this testimony in closing argument to imply Easter's guilt. The supreme court held that the State's use of Easter's pre-arrest silence as substantive evidence violated the Fifth Amendment.
Id. at 231.
Id. at 232-33.
Id. at 234.
Id. at 243.
Easter is distinguishable because a police officer there, not a private actor, testified about the defendant's pre-arrest silence. Here, there is neither a police officer nor a "law enforcement officer" who gave the testimony at trial.
We hold that the State did not violate Shott's constitutional rights.
SUFFICIENCY OF THE EVIDENCE
Shott also argues that there was insufficient evidence that he was an accomplice to second degree theft. We disagree.
When considering a sufficiency of the evidence challenge, we review the evidence in the light most favorable to the State. Under this standard, there must be sufficient evidence for any rational trier of fact to have found the essential elements of the crimes charged beyond a reasonable doubt. A claim of insufficient evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. Shott was charged with and convicted of second degree theft as an accomplice. A person is guilty of second degree theft if he or she commits theft of:
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
Id. at 221-22.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
(a) Property or services which exceed(s) two hundred and fifty dollars in value . . . but does not exceed one thousand five hundred dollars in value.
A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of a crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it.
At trial, the LPOs testified that Shott was "looking around" and "scanning the area furtively" as the woman he accompanied placed merchandise in the cart. Shott watched the woman put on a leather jacket and tuck the tags inside, and then Shott turned and "glanced around," according to the testimony. An LPO further testified that the woman placed jeans in her bag and Shott moved in between her and a customer. The LPO stated that "[f]or the most part [Shott] was looking around in the area,". . . "looking outwards away from her." Shott and the woman then exited the south doors of the store without paying for the merchandise. The court also admitted into evidence the videotape taken from one of the cameras at Sears, which the jury viewed.
In response to Shott's motion to dismiss based on the alleged insufficiency of evidence to prove he acted as the woman's accomplice, the trial court stated that the evidence thus far showed that Shott was "looking around" and "[t]he rational juror could infer that he was acting as a look-out." Because a jury could find Shott guilty beyond a reasonable doubt, the trial court denied both motions.
On review, looking at the evidence in the light most favorable to the State, we agree with the trial court. Shott was not only present at the scene, with knowledge of the crime, but the evidence also showed that Shott was glancing around, made furtive movements, and also moved in between the woman and a customer. This is sufficient evidence to establish Shott aided in the crime as an accomplice.
Shott relies on In re Welfare of Wilson, to argue that there was insufficient evidence that he acted as an accomplice. In Wilson, a witness testified that she saw several kids string rope across the highway, and pull it when cars approached. Wilson was present with the other kids, but was never seen pulling the rope. The juvenile court found that Wilson was an accomplice because he participated by going to the scene, being with his friends, standing there, and being involved in what was going on. The supreme court reversed, holding that something more than Wilson's presence and knowledge of ongoing activity must be shown to establish the intent requisite of accomplice liability.
91 Wn.2d 487, 588 P.2d 1161 (1979).
Id. at 489.
Id. at 490.
Id.
Id. at 492.
Wilson is distinguishable because the evidence in this case established not only that Shott was present and had knowledge of the theft, but also that he acted as a look-out.
We affirm the judgment and sentence.
COX, J., SCHINDLER, J. and GROSSE, J.