Opinion
No. 60101-6-I.
August 11, 2008.
Appeal from a judgment of the Superior Court for What-com County, No. 06-1-00874-2, Steven J. Mura, J., entered May 29, 2007.
Affirmed in part and reversed in part by unpublished opinion per Becker, J., concurred in by Grosse and Appelwick, JJ.
A person who breaks into a house and steals codeine pills, jewelry, luggage, coins and other expensive items may properly be convicted of burglary, theft, and possession of a controlled substance without any double jeopardy violation. But a conviction for possession of stolen property cannot stand when based on the same facts that constitute theft. We remand to strike the conviction for possession of stolen property, and affirm the other convictions.
Appellant Richard Adams was charged with residential burglary, possession of a controlled substance, first degree theft, and first degree possession of stolen property. A jury convicted him as charged.
According to testimony at trial, Officer Landis from the City of Blaine first spotted Adams' late model Cadillac at an intersection on Semiahmoo Drive in Whatcom County on June 22, 2006. He pulled the Cadillac over after observing traffic violations and discovering that the owner of the car did not have a valid driver's license.
As Officer Landis approached the car, he noticed expensive luggage in the back seat. He also noticed that the female passenger, Victoria Johnson, made several suspicious movements consistent with stuffing something into, or between, the seats. Officer Landis asked about the luggage and Johnson told him it was hers.
Officer Landis noticed a prescription bottle shoved between the crease of the driver's seat. When Adams gave him permission to look at the bottle, Officer Landis noticed that the label showed a prescription for Kenneth Pettichord at an address on Semiahmoo Drive, the same road where Officer Landis first spotted Adams' Cadillac. Because the prescription did not belong to Adams, Officer Landis arrested Adams for possession of a controlled substance. When Officer Landis patted Adams down he found a digital clock, a coin wrapped up like a collector's coin, a watch, and Adams' wallet. He also found a plastic bag that had more pills in it and more prescription bottles. It was later established that some of the pills found in the prescription bottles were codeine.
Officer Landis saw that the names on the luggage tags said "Kenneth Pettichord" at the same Semihamoo Drive address as on the prescription bottles. Investigating officers went to the address. It was a house a mile and a half from where Officer Landis first saw Adams' car. While at the house, the officers discovered a window that was ajar with a missing screen. Under a tree in the yard, the officers found a bag containing, among other things, more collector's coins, like the one found on Adams.
Kenneth Pettichord, the homeowner, testified that he and his wife came home and noticed several items missing. The missing items included a $9,000 coin collection, jewelry worth more than $4,000, a safe containing paperwork, several suitcases, and various prescription medications. When shown the materials recovered from Adams' car, Pettichord identified all of them as items missing from his home.
Adams argued that there was not enough evidence to find that either he or Johnson committed the burglary or the theft — only that they possessed the stolen property.
SEPARATE CRIMES
Adams was convicted of first degree theft and first degree possession of stolen property, both based upon his possession of the stolen items. He contends his conviction for first degree possession of stolen property must be vacated because one cannot be both the "principal thief" and the "receiver of stolen goods." State v. Hancock, 44 Wn. App. 297, 301, 721 P.2d 1006 (1986); see also State v. Melick, 131 Wn. App. 835, 129 P.3d 816 (2006). This is so "for the commonsensical, if not obvious, reason that a man who takes property does not at the same time give himself the property he has taken." Hancock, 44 Wn. App. at 301. We accept the State's concession that the conviction for possession of stolen property must be vacated under Hancock and Melick.
Adams contends the Hancock reasoning requires that his conviction for possession of a controlled substance must likewise be reversed. We disagree. In Hancock andMelick, it was clear that the defendants were being convicted for stealing the same items that they later possessed. Here Adams' theft conviction was based upon a large number of items and did not depend on proof of his possession of the prescription drugs. In fact, the State did not elicit any evidence as to the value of the drugs, as would have been necessary if the State had relied on the drugs to prove either first degree theft or first degree possession of stolen property.
DOUBLE JEOPARDY
Adams alternatively claims his conviction for possession of a controlled substance violates double jeopardy.
The State may bring (and a jury may consider) multiple charges arising from the same criminal conduct in a single proceeding. Courts may not, however, enter multiple convictions for the same offense without offending double jeopardy. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005). Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).
The dispositive question is whether, and if so when, the legislature intended to punish separately first degree theft and possession of controlled substances.
Because the question largely turns on what the legislature intended, we first consider any express or implicit legislative intent. Sometimes the legislative intent is clear. . . . Sometimes, there is sufficient evidence of legislative intent that we are confident in concluding that the legislature intended to punish two offenses arising out of the same bad act separately without more analysis. E.g., [State v.] Calle, 125 Wn.2d [769], 777-78[, 888 P.2d 155 (1995)] (rape and incest are separate offenses).
Second, if the legislative intent is not clear, we may turn to the Blockburger test. see Calle, 125 Wn.2d at 777-78; Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). If each crime contains an element that the other does not, we presume that the crimes are not the same offense for double jeopardy purposes. Calle, 125 Wn.2d at 777; Blockburger, 284 U.S. at 304 (establishing "same evidence" or "same elements" test). . . .
. . . .
Third, if applicable, the merger doctrine is another aid in determining legislative intent, even when two crimes have formally different elements. Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime. . . .
Finally, even if on an abstract level two convictions appear to be for the same offense or for charges that would merge, if there is an independent purpose or effect to each, they may be punished as separate offenses.
Freeman, 153 Wn.2d at 771-73.
Application of the four-part test in Freeman demonstrates that the legislature intended separate punishment for theft and possession of controlled substances.
Here, there is no explicit statement of legislative intent, but there is evidence that the legislature intended to punish theft and possession of controlled substances arising out of the same bad act separately. see Freeman, 153 Wn.2d at 772;see State v. Calle, 125 Wn.2d 769, 780, 888 P.2d 155 (1995) (the differing purposes served by the incest and rape statutes, their location in different chapters of the criminal code, and the fact that they have been regarded as separate crimes in Washington since before statehood, are evidence of the legislature's intent to punish them as separate offenses).
As in Calle, the differing purposes underlying the theft and possession of controlled substances statutes are evidence that the legislature intended to punish the two offenses separately. The possession of controlled substances statute is intended to combat drug abuse and the theft statute is intended to protect private property. Both crimes have long been considered separate crimes and both are defined in different sections of the criminal code. Just like rape and incest, theft and possession of controlled substances are separate offenses, even when committed during the same act.See RCW 9A.56 (theft and robbery) and RCW 69.50.4013 (possession of controlled substances).
At oral argument, Adams responded to the Calle analysis by citing U.S. v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). As a condition of release, the court ordered Dixon not to commit any criminal offense. Dixon was later arrested and charged with a drug offense. Based on the same conduct, he was also charged with criminal contempt for committing a criminal offense in violation of the court's order. The Court rejected the government's argument that the different interests served by the contempt and substantive criminal law statutes precluded a finding of double jeopardy violation. This is because the text of the double jeopardy clause "looks to whether the offenses are the same, not the interests that the offenses violate." Dixon, 509 U.S. at 699. Because Dixon's drug and contempt offenses included the same elements, his subsequent prosecution for contempt violated double jeopardy. Dixon, 509 U.S. at 700.
We do not see Calle as inconsistent with Dixon. Calle did not simply declare that rape and incest violate different interests; it looked at the differing purposes served by the two distinct criminal statutes as an indicator of legislative intent. But in any event, application of theBlockburger "same evidence" test also shows that the offenses are not the same.
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
When applying the Blockburger test, we do not consider the elements of the crime on an abstract level.Freeman, 153 Wn.2d at 772. The test to be applied to determine whether the same act or transaction constitutes a violation of two distinct statutory provisions is whether each provision " requires proof of an additional fact which the other does not." Orange, 152 Wn.2d at 817 (quoting Blockburger, 284 U.S. at 304).
Adams relies heavily on Orange, but fails to acknowledge the factual distinction. In Orange, the defendant was charged with both first degree attempted murder and first degree assault for firing a single gunshot at a single victim. The Supreme Court concluded that Orange could not be convicted of both charges because the "substantial step" element of the attempted murder charge required the same factual proof as the assault charge.Orange, 152 Wn.2d at 820. Thus, the evidence required to sustain the attempted murder conviction was the same evidence that was required to sustain the assault conviction.Orange, 152 Wn.2d at 820.
Here, each crime as charged and proved required proof of a fact that the other did not, both in the abstract and as charged and proved. The conviction for possession of drugs required proof of possession of drugs; the conviction for theft did not. Proof of possession of the codeine required evidence of what the officer found in Adams' possession at the traffic stop, not by evidence of what was taken from the Pettichords' home. It also required proof that the pills were codeine — a controlled substance. And the conviction for first degree theft required proof that items valued at more than $1,500 were wrongfully taken, whereas the conviction for drug possession did not require proof that the drugs had any particular value or that they were wrongfully taken. The State had abundant evidence with which to prove first degree theft. In charging theft, the State aggregated the prescription drugs along with the other stolen items, but the drugs were not necessary to the proof that the value of the total items taken was greater than $1,500. The State offered no evidence to prove the value of the prescription drugs. Thus, the same facts do not support both convictions. Each offense is distinct under Blockburger.
Another tool for determining legislative intent in the context of double jeopardy is the merger doctrine. Freeman, 153 Wn.2d at 777. The merger doctrine is a rule of statutory construction that applies only where the legislature has clearly indicated that in order to prove a particular degree of crime the State must prove not only that a defendant committed that crime but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes.Freeman, 153 Wn.2d at 777-78. Possession of a controlled substance can be proved without being accompanied by theft, and vice versa. Thus the merger doctrine does not apply.
Finally, we look to whether there is an independent purpose or effect to each crime such that they may be punished as separate offenses. The offenses may in fact be separate when there is a separate injury to the person or property of the victim or others, which is separate and distinct from and not merely incidental to the crime of which it forms an element.Freeman, 153 Wn.2d at 778. The injuries caused by these two crimes are separate and distinct. The theft conviction addressed the individualized injury suffered by the Pettichords and the possession of controlled substances conviction addressed the injury suffered by the public when prescription drugs are not used correctly.
The tools that courts use to determine legislative intent all point in the same direction. Adams' convictions for theft and possession of a controlled substance are not for the same offense.
CONFRONTATION CLAUSE
Adams claims he is entitled to a new trial because the trial court violated his confrontation rights by admitting, over objection, a statement Victoria Johnson made to Officer Landis explaining the presence of the luggage in Adams' car. Officer Landis said, "She told me that she was going to move in with Richard; that was her luggage."
Report of Proceedings (May 1, 2007) at 120.
"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The Confrontation Clause prohibits admission of testimonial statements made out of court by a witness who is unavailable for trial unless there has been a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Whether a trial court has violated an accused's confrontation rights is an issue reviewed de novo. State v. Medina, 112 Wn. App. 40, 48, 48 P.3d 1005 (2002).
When out of court assertions are not introduced to prove the truth of the matter asserted, no confrontation clause concerns arise. In re Pers. Restraint of Theders, 130 Wn. App. 422, 433, 123 P.3d 489 (2005) (trial court admitted statement co-defendant made to police after arrest because not introduced to prove truth of the matter asserted); Crawford, 541 U.S. at 59 n. 9 ("The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.").
Adams contends Johnson's out-of-court statement was testimonial and should have been excluded under Crawford. As the State notes, however, Johnson's statement, although arguably testimonial because it was made to a police officer during interrogation, was not admitted to establish the truth of the matter asserted. It did not matter whether Johnson was actually moving in with Adams. Her living arrangements had no bearing or relevance to the crimes.
Even if the statement was inadmissible as a confrontation violation, the error was harmless. see State v. Watt, 160 Wn.2d 626, 635, 160 P.3d 640 (2007). A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. Watt, 160 Wn.2d at 635. The jury heard undisputed evidence proving the Pettichord home had been burglarized. The jury also heard evidence of Adams' inconsistent explanations and his proximity to the Pettichord home when first spotted by Officer Landis. The jury knew that Adams had several stolen items in his pockets when he was arrested. Beyond a reasonable doubt, absent the officer's testimony about Johnson's statement, the jury would have reached the same result.
SUFFICIENCY OF THE EVIDENCE
Adams challenges the sufficiency of the evidence supporting his convictions for residential burglary and first degree theft.
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rationale trier of fact could have found guilt beyond a reasonable doubt. When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
To convict Adams of residential burglary, the jury had to find that Adams or an accomplice entered or remained unlawfully in the Pettichord home and that the entering or remaining was with intent to commit a crime against a person or property therein. RCW 9A.52.025(1). To convict him of first degree theft, the jury had to find that Adams or an accomplice wrongfully obtained or exerted unauthorized control over property or services of another or the value thereof; that the property or services exceeded $1,500 in value; and that Adams intended to deprive the other person of the property or services. RCW 9A.56.020(1)(a) and .030(1)(a).
Proof of possession of recently stolen property, unless accompanied by other evidence of guilt, is not prima facie evidence of burglary. State v. Mace, 97 Wn.2d 840, 843, 650 P.2d 217 (1982). It is, however, well established that proof of such possession, if accompanied by "indicatory evidence on collateral matters," will support a burglary conviction.Mace, 97 Wn.2d at 843 (internal quotations omitted).
When a person is found in possession of recently stolen property, slight corroborative evidence of other inculpatory circumstances tending to show his guilt will support a conviction [for larceny]. When the fact of possession . . . is supplemented by the giving of a false or improbable explanation of it, or a failure to explain . . . or the giving of a fictitious name, a case is made for the jury.
State v. Portee, 25 Wn.2d 246, 253-54, 170 P.2d 326 (1946). Other corroborative inculpatory circumstances include flight or the presence of the accused near the scene of the crime. Mace, 97 Wn.2d at 843.
In Mace, an apartment was burglarized. Afterwards, a number of items were missing, including a purse containing a wallet and a bank card. Mace's fingerprints were found on a paper bag containing the wallet. The bag was found in a garbage can next to a cash machine where the bank card had been used. No fingerprints were found on the wallet itself. The next day someone attempted to use the bank card in the bank machine, but the machine seized it. Mace's fingerprints were found on a bank receipt in the trash receptacle next to the machine. Mace was convicted of second degree burglary.
The Supreme Court held that the State had failed to sustain its burden of proof of second degree burglary. The Court explained that the only corroborative evidence was Mace's failure to explain the alleged possession of the bank card to the police at the time of his arrest or at trial. Mace, 97 Wn.2d at 843. Since Mace's post-arrest silence could not be used as evidence of his guilt, the only evidence of guilt was the fingerprints on the bag and the receipt, and the fact that the card had been used by someone shortly after the burglary. Based on this evidence, the Court noted that the inference that Mace recently possessed the stolen property was strong. It did not, however, support the conclusion that Mace actually entered the premises. Accordingly, the trial court erred when it denied Mace's motion to dismiss for insufficient evidence. Relying onMace, Adams contends that the evidence here was similarly inadequate to convict him of anything but possession of stolen property.
But here, the State established actual possessionplus the giving of a false or improbable explanationand the presence of the accused near the scene of the crime. Although only circumstantial evidence ties Adams directly to the burglary, a rational trier of fact could have found guilt beyond a reasonable doubt based on the corroborative evidence of these other inculpatory circumstances tending to show his guilt. It was the circumstantial evidence in combination with the undisputed evidence of a burglary at the Pettichord home, the internal inconsistencies in Adams' own stories, the inconsistency between what Adams and Johnson said when stopped, and Adams' presence near the scene of the crime that created the reasonable inference that Adams or Johnson entered and wrongfully obtained over $1,500 worth of property from the Pettichord home.
Other evidence supports the inference that Adams and Johnson were accomplices. The jury instruction stated in part that a person can be guilty of a crime whether present at the scene or not if, with knowledge that it will promote or facilitate the commission of the crime, he either solicits, commands, encourages, or requests another person to commit the crime; or aids or agrees to aid another person in planning or committing the crime. A jury need not determine which defendant was an accomplice and which was the principal. State v. Hoffman, 116 Wn.2d 51, 104, 804 P.2d 577 (1991).
Here, there was evidence that Adams and Johnson had a sexual relationship lasting several months, the coin collections were heavy, and all of the stolen property was found in Adams' car — which was first spotted just a mile and a half from the Pettichord home. A reasonable juror could infer from this evidence that Adams at least aided Johnson in committing the burglary and theft, even if he did not enter the home himself. Picking her up at or near the Pettichord home indicates planning. The bulk and volume of the stolen goods indicates that he assisted with loading the goods into his car. On this record, we conclude sufficient evidence supported Adams' residential burglary and theft convictions.
FINDINGS AND CONCLUSIONS
Adams correctly notes that the trial court did not enter CrR 3.5 findings until February 5, 2008, after the appellant's brief was filed in December 2007. Because Adams has not shown that the late entry of findings had an appearance of unfairness or that he was prejudiced, there is no error. State v. Hillman, 66 Wn. App. 770, 774, 832 P.2d 1369 (1992).
CONCLUSION
Adams' conviction for possession of stolen property cannot stand in light of his theft conviction. That conviction is vacated. The remaining convictions are affirmed.
WE CONCUR: