Opinion
No. 34543-9-II.
April 24, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-03539-2, Bryan E. Chushcoff, J., entered March 10, 2006.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Erin Noreen Kelly appeals her conviction for second degree theft, arguing that insufficient evidence supports her conviction. We affirm because the appeal is wholly lacking in merit.
"A person is guilty of theft in the second degree if he or she commits theft of: [p]roperty or services which exceed(s) two hundred and fifty dollars in value other than a firearm as defined in RCW 9.41.010, but does not exceed one thousand five hundred dollars in value." RCW 9A.56.040(1)(a).
FACTS
On July 16, 2005, two Target store security employees, Matthew Morrison and Syed Rashid, observed Robert Throm, a known "box stuffer," Report of Proceedings (RP) at 79, enter the store. They watched him placing merchandise into a metal garbage can that was contained within a cardboard box. They observed him until he left the store and saw him ride away on a bicycle. After Strom exited the store, they discovered that the box containing the garbage can "had a puncture on the top of it." RP at 41. Rashid immediately began video surveillance of the box with the puncture mark.
After about two to three hours, Morrison and Rashid watched Kelly enter the aisle where the box was located. She picked out the punctured box from identical items. She was talking on her cell phone at the time. The can inside tilted as Kelly was putting the box into her shopping cart, forcing the top of the box open, and spilling the merchandise out. Rashid watched Kelly put the garbage can on the floor and shove the merchandise back in with her hand. Once she had pushed the merchandise back into the can, "she put back the lid and covered the box, she placed it back on the cart and she started walking the floor . . . from the store, she selected a tape and . . . she taped the box with the tape." RP at 83.
Kelly paid the cashier only for the garbage can and a "pop," RP at 83, and then she attempted to leave the store. Security personnel detained her before she could exit. The merchandise in the garbage can was worth $714.89.
Tacoma police officer, Joseph Bundy, responded to the theft and took Kelly into custody after she told him that she did something stupid. "[S]he knew it was wrong to steal and that she was doing a friend a favor." RP at 26. Bundy then arrested Kelly.
The State charged Kelly with second degree theft. Her jury trial began on February 14, 2006. Throm testified that he did not know Kelly and did not conspire with her to commit the crime. After hearing the testimony and deliberating, the jury found Kelly guilty of second degree theft.
This is Kelly's second trial for second degree theft based on the same incident. In the first trial, the State charged Kelly with second degree theft and bail jumping. The jury found Kelly guilty of the bail jumping charge, but hung on the theft charge.
Kelly appeals.
ANALYSIS
Kelly challenges her conviction for second degree theft, claiming insufficient evidence to establish the intent element. Viewing the evidence in a light most favorable to the State, we hold that Kelly's argument has no merit.
In her statement of additional grounds (SAG), Kelly also argues lack of intent. On appeal a defendant may submit a statement to address issues defendant's counsel failed to raise. "A defendant/appellant in a review of a criminal case may file a pro se statement of additional grounds for review to identify and discuss those matters which the defendant/appellant believes have not been adequately addressed by the brief filed by the defendant/appellant's counsel." RAP 10.10(a).
But Kelly's counsel adequately addresses the intent argument in appellant's opening brief. While addressing the intent element pro se, Kelly makes vague and peripheral references to prosecutorial misconduct, erroneous jury instructions, improper fingerprint evidence, due process violations, and denial of the opportunity to face her accuser. Though RAP 10.10 does not require a pro se appellant to refer to the record or cite to authority, the rule does requires the defendant to inform us of the "nature and occurrence of the alleged errors." RAP 10.10(c). Kelly's assertions are too vague to allow us to identify specific legal issues and, thus, we do not reach the merits. Further, Kelly discusses her bail jumping charge, which is unrelated to this appeal.
When evaluating the sufficiency of the evidence for a criminal conviction, we view the evidence in the light most favorable to the prosecution and determine whether 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). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. We treat circumstantial and direct evidence as equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). And we defer to the trier of fact on issues of "conflicting testimony . . . credibility of witnesses, and . . . persuasiveness of evidence." State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157 (1996).
We may infer specific intent whenever a defendant's conduct plainly indicates the required intent as a matter of logical probability. State v. Stearns, 61 Wn. App. 224, 228, 810 P.2d 41 (1991). In making the inference, we consider the defendant's conduct in light of surrounding facts and circumstances. State v. Woods, 63 Wn. App. 588, 591, 821 P.2d 1235 (1991).
Kelly contends that the State failed to present sufficient evidence of second degree theft because (1) she did not intend to commit the crime and (2) Throm testified that he was not involved in the crime. But the jury chose not to believe this testimony.
The State's witnesses, Rashid and Morrison, testified that they saw Kelly select the punctured cardboard box from many identical items. Rashid testified that he saw Kelly stuff the merchandise back into the can when it tipped over, causing the box to come open. According to Rashid, she then taped the box shut. Both Rashid and Morrison testified to seeing Kelly try to leave the store without paying for the merchandise inside the can. Moreover, Bundy testified that Kelly admitted that she did something stupid and knew it was wrong to steal. Throm testified that he did not conspire with Kelly.
Contradictory witness testimony creates the need for credibility determinations. But we do not determine credibility on appeal. The trier of fact, who has the opportunity to view the witnesses' demeanor and evaluate their testimony, determines credibility. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Here the trial court correctly instructed the jury that in order to convict Kelly for second degree theft, the State had to show Kelly's intent to deprive the rightful owner of property that "exceeded $250 in value but did not exceed $1,500 in value." Clerk's Papers (CP) at 64. The trial court also instructed the jury that "[a] person acts with intent or intentionally when acting with the objective or purpose to accomplish a result, which constitutes a crime." CP at 61. After deliberation, the jury found Kelly guilty beyond a reasonable doubt. Thus, the jury found the State's witnesses to be credible and did not believe Kelly's defense.
Taking the State's evidence as true and making all reasonable inferences, we hold that the State's evidence established Kelly's intent to deprive Target of its property and that the property was worth more than $250, but not more than $1,500. RCW 9A.56.040(1)(a). The State's evidence satisfied the elements of second degree theft and the jury had sufficient evidence to conclude beyond a reasonable doubt that Kelly committed the crime.
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.
Van Deren, A.C.J. We concur:
Bridgewater, J. Quinn-Brintnall, J.