Opinion
No. 37514-1-II.
April 7, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-05428-0, Kitty-Ann van Doorninck, J., entered March 17, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Quinn-Brintnall, JJ.
Robyn Ackley appeals her jury conviction for second degree possession of stolen property under RCW 9A.56.140, .160. She argues that the evidence is insufficient to support her conviction because the State failed to meet its burden of establishing all the crime's elements. We affirm.
Facts I. Possession of Stolen Property
A vehicle collided with Robyn Ackley's Ford Mustang, causing both cars to rollover and resulting in Ackley's hospitalization and the death of her passenger. Following standard procedure for a fatality collision, State troopers searched the Mustang for documents that would identify the vehicle's occupants. They found a bag containing a pink purse and Ackley's identification. Inside the pink purse, they found crystal powder (later determined to be methamphetamine and cocaine) and a key to a safe, which the officers later discovered in the Mustang's trunk.
The officers questioned Ackley at the hospital. She told them that the pink purse, the key, and the safe belonged to her. The officers obtained a warrant and opened the safe; inside the safe, they found checks and bank statements addressed to various third parties, including a Bank of America credit card imprinted with the name "David W. Cupps" and financial statements addressed to Cupps. The officers found no links between Cupps and Ackley.
Ackley does not challenge the admissibility of these statements.
Ackley did not say whether the powder or drugs belonged to her.
In the safe, the officers also found several forged driver's licenses, scales, $3,273.57 in cash, various kinds of pills, and large quantities of cocaine and methamphetamine.
II. Procedure
The State charged Ackley with possession of a controlled substance, methamphetamine, with intent to deliver (Count I); possession of a controlled substance, cocaine, with intent to deliver (Count II); unlawful possession of a payment instrument (Count III); second degree identity theft (Count V); and second degree possessing stolen property (Count VI). At Ackley's jury trial, Washington State Patrol Detective Juli Mitchell testified that (1) Ackley told her that both the safe and the key belonged to her; (2) among other items, Ackley's safe contained check books, bank cards, and bank statements imprinted with or addressed to eight separate individuals, including Cupps' Bank of America credit card and financial statements; and (3) she (Mitchell) found no affiliation between these individuals and Ackley.
The State dropped Counts IV and VII, driving under the influence of intoxicants and second degree identity theft.
Cupps testified that (1) the credit card looked like a Bank of America card that he used to have; (2) his card could be used for "[p]urchases, like, dinner, hotel, travel; things like that," III Report of Proceedings at 268; (3) he believed the card could also be used to obtain cash; and (4) he did not know Ackley, and he had never given her permission to use the card.
At the close of the State's case-in-chief, Ackley moved to dismiss Counts III, V, and VI on grounds that the State had presented insufficient evidence to meet the elements of each crime. The trial court denied the motion. The jury found Ackley guilty of all five charges.
Ackley presented no witnesses.
The trial court sentenced Ackley to 60 months on both Counts I and II, eight months on Counts III and VI, and 14 months on Count V.
Ackley appeals her conviction for second degree possession of stolen property, Count VI.
Ackley does not assign error to her other convictions.
Analysis
Ackley argues that the State presented insufficient evidence to prove two elements of possessing stolen property: (1) that the credit card was stolen, and (2) that it was an "access device." More specifically she argues that the State failed to prove that Cupps's credit card was: (1) stolen property because the State presented no evidence establishing how the card had left Cupps's possession or how Ackley had obtained the card through theft, Appellant's Amended Opening Br. at 5; and (2) an "access device" because the State did not establish that the card was valid when Ackley possessed it. We disagree.
I. Standard of Review
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Scoby, 117 Wn.2d 55, 61, 810 P.2d 1358 (1991). Both direct and indirect evidence can establish guilt. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). A claim of insufficiency admits the truth of the State's evidence. Salinas, 119 Wn.2d at 201. We draw all reasonable inferences in favor of the State and interpret them most strongly against the defendant. State v. Craven, 67 Wn. App. 921, 928, 841 P.2d 774 (1992). We defer to the fact finder "on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." Thomas, 150 Wn.2d at 874-75 (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
II. Second Degree Possession of Stolen Property
To convict Ackley of second degree possession of stolen property, the State had to prove that Ackley knowingly received, retained, possessed, or concealed stolen property, acted with the knowledge that the property had been stolen, and withheld or appropriated the property for the use of someone other than the true owner, David Cupps. RCW 9A.56.140(1). The State also had to prove that the stolen property was an "access device." RCW 9A.56.160(1)(c). Drawing all reasonable inferences in favor of the State, as we must, we hold that the State presented sufficient evidence that Cupps's credit card was both stolen and an "access device."
A. Stolen Property
"`Stolen' means obtained by theft, robbery, or extortion[.]" RCW 9A.56.010(14). "Theft" encompasses actions taken wrongfully to "obtain or exert unauthorized control over the property . . . of another." RCW 9A.56.020(a). "[T]hat the person who stole the property has not been convicted, apprehended, or identified is not a defense to a charge of possessing stolen property." RCW 9A.56.140(2).
The trial court instructed the jury that "Stolen means obtained by theft."
Cupps testified that he had a Bank of America credit card like the one found in Ackley's safe, that he did not know Ackley, and that he did not give her permission to use his credit card. Mitchell testified that she had found Cupps's credit card in Ackley's safe, along with check books, bank cards, and bank statements apparently belonging to eight other persons, none of whom had any association with Ackley. The presence of many financial documents belonging to a number of individuals, in conjunction with Cupps's statements that he did not authorize Ackley to use his credit card, are circumstantial evidence that Ackley exerted unauthorized control over Cupps's credit card. Therefore, the jury could reasonably determine that the card in Ackley's possession was stolen.
B. Access Device
"`Access device' means any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value." RCW 9A.56.010(1). RCW 9A.56.010(a) does not require the State to prove that the access device was activated while in Ackley's possession. State v. Clay, 144 Wn. App. 894, 898, 184 P.3d 674 (2008). At trial, Cupps testified that the credit card looked like his Bank of America card, a card he had used to purchase goods and services; he also testified that the card could be used to obtain cash. Based on this testimony, a reasonable jury could conclude that the card found in Ackley's safe was an "access device" for purposes of RCW 9A.56.160(1)(c).
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, PJ. and QUINN-BRINTNALL, J., concur.