Opinion
No. 24151-3-III.
June 29, 2006.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 04-1-00596-2, Donald W. Schacht, J., entered May 16, 2005.
Counsel for Appellant(s), Donald G. Miller, Attorney at Law, 422 W Riverside Ave Ste 518, Spokane, WA 99201-0302.
Counsel for Respondent(s), James Lyle Nagle, Office of the Pros Attorney, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.
Affirmed by unpublished opinion per Brown, J., concurred in by Kato and Kulik, JJ.
Eugene P. Marquez, convicted of Taking a Motor Vehicle without permission in the Second Degree (TMVWOP), appeals alleging (1) error in denying his dismissal motions, (2) instructional error, (3) insufficient evidence, and (4) evidentiary error. We affirm.
FACTS
On December 4, 2004, Daniel Coffey reported his 1991 Chrysler New Yorker was stolen from outside his Walla Walla home. On December 9, 2004, Robert J. Mercado (who was familiar with the stolen car) and Nicholas L. Jaggar saw the car and followed it into a parking lot. The pair simultaneously reported their observations to the police. When the car stopped, a person identified by Mr. Jaggar as Mr. Marquez left the stolen car and approached them.
Mr. Marquez ran toward Mr. Mercado and Mr. Jaggar, appearing to them to be reaching for a weapon, causing the pair to move to a safe distance. Mr. Marquez returned to the car and left. Police went to Mr. Marquez's residence area, spotted the stolen car nearby and returned it Mr. Coffey.
On December 25, Officer Eric Knudson approached Mr. Marquez's residence to question him about the stolen vehicle. Officer Knudson saw a car speeding away and followed it for a short time until it stopped a bit ahead of Officer Knudson. The driver-side door flew open, and to Officer Knudson it appeared from a distance that nobody was inside, but when the Officer approached he found Mr. Marquez lying across the front seat with his feet on the driver's side.
The State charged Mr. Marquez with TMVWOP. The information specifically alleged Mr. Marquez `took or drove away' or `rode in' a stolen vehicle on or about the `9th day of December, 2004.' Clerk's Papers (CP) at 40-41.
At the beginning of Mr. Marquez's trial, he requested dismissal of the `taking' means of second degree TMVWOP. The court denied the request, finding the information's language was `a term of art' based on Mr. Marquez's use of the vehicle on December 9; the court found Mr. Marquez was not charged with the initial theft.
During trial, Officer Knudson testified when he approached Mr. Marquez's vehicle on December 25, Mr. Marquez was in the driver's seat, `leaning over in the passenger's side.' Report of Proceedings (RP) at 233. Officer Knudson stated, `in my opinion, he was trying to hide from me.' RP at 233. The court sustained a defense objection. Later, Officer Knudson testified Mr. Marquez's actions were intended `to get me to believe that someone was fleeing from the car.' RP at 234.
At the close of the State's case, Mr. Marquez again unsuccessfully requested dismissal of one means of committing TMVWOP. The court instructed the jury to convict Mr. Marquez it must find Mr. Marquez, on December 9, 2004:
(a) intentionally took or drove away, an automobile or motor vehicle without permission of the owner or person entitled to possession; or
(b) voluntarily rode in or upon an automobile or motor vehicle knowing that it was unlawfully taken.
CP at 83 (Jury Instruction No. 6). The jury found Mr. Marquez guilty as charged. Mr. Marquez appealed.
ANALYSIS
A. TMVWOP Alternatives
The first issue is whether the trial court abused its discretion in denying Mr. Marquez's dismissal motions for the `taking' alternative means of TMVWOP under these facts. Mr. Marquez theorizes, partly on unanimity grounds, that because no evidence supports a `taking' the court further erred in giving Instruction No. 6, the `to convict' instruction that includes both the `taking' and `riding' means of TMVWOP.
We review a trial court's denial of a motion to dismiss for manifest abuse of discretion. State v. Gary J.E., 99 Wn. App. 258, 261, 991 P.2d 1220 (2000). The trial court has considerable discretion regarding the wording of jury instructions. State v. Reay, 61 Wn. App. 141, 146, 810 P.2d 512 (1991). We review jury instructions de novo. State v. Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005).
A person is guilty of taking a motor vehicle without permission in the second degree if he or she, without the owner's permission, `intentionally takes or drives away any automobile or motor vehicle, . . . or he or she voluntarily rides in or upon the automobile or motor vehicle with knowledge of the fact that the automobile or motor vehicle was unlawfully taken.' RCW 9A.56.075(1).
This statute has alternative prongs. `Under the `taking' prong, the elements are: (1) taking or driving away without the owner's permission (2) a motor vehicle (3) intentionally. Under the `riding' prong, the elements are: (1) voluntarily riding in a motor vehicle (2) with knowledge that it was unlawfully taken.' State v. Walker, 75 Wn. App. 101, 106, 879 P.2d 957 (1994). "The `riding' prong proscribes a certain activity regardless of whether the person engaged in that activity is a passenger, driver, accomplice, or taker of the vehicle." State v. Pettitt, 93 Wn.2d 288, 292, 609 P.2d 1364 (1980) (quoting State v. Pettitt, 22 Wn. App. 689, 693, 591 P.2d 862 (1979)
In State v. Ford, 33 Wn. App. 788, 790, 658 P.2d 36 (1983), Division One of this court looked at the `taking' and `riding' prongs of the TMVWOP statute and held: `The State is only required to prove either a taking or riding even though the information uses the conjunctive.' Therefore, the court had a tenable basis to deny Mr. Marquez's motions to dismiss and in wording the to-convict jury instruction to include both means.
If a single offense may be committed in more than one way, unanimity is not required as to the means `so long as substantial evidence supports each alternative means.' State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988). But `[i]f one of the alternative means upon which a charge is based fails and there is only a general verdict, the verdict cannot stand unless the reviewing court can determine that the verdict was founded upon one of the methods with regard to which substantial evidence was introduced.' State v. Bland, 71 Wn. App. 345, 358, 860 P.2d 1046 (1993). The jury was instructed that in order to find Mr. Marquez guilty of TMVWOP, it had to find `[t]hat on or about the 9th day of December' he `intentionally took' or `voluntarily rode in' the vehicle. CP at 83. Since the vehicle was taken on December 4, it follows that the verdict was founded upon the `riding' prong rather than the `taking' prong. Under Pettitt, even though Mr. Marquez was the driver on December 9, a driver is still engaged in the proscribed activity of riding. Pettitt, 93 Wn.2d at 292. Therefore, the lack of a unanimity instruction did not amount to reversible error.
B. Evidence Sufficiency for Riding Alternative
The issue is whether sufficient evidence exists to support Mr. Marquez's TMVWOP conviction based on the `riding' prong. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find 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.' Id. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In determining whether the necessary quantum of proof exists, we need not be convinced of the defendant's guilt beyond a reasonable doubt; our focus is whether substantial evidence supports the State's case. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000). Substantial evidence `would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed.' State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 (1972)
A person is guilty of second degree taking a motor vehicle without permission if, without permission of the owner, he or she voluntarily drives or rides in a vehicle `with knowledge' it was unlawfully taken. RCW 9A.56.075(1). A person knows of a fact by being aware of it or having information that would lead a reasonable person to conclude the fact exists. RCW 9A.08.010(1)(b). Although knowledge may not be presumed because a reasonable person would have knowledge under similar circumstances, it may be inferred. State v. Womble, 93 Wn. App. 599, 604, 969 P.2d 1097 (1999).
Mere possession of recently stolen property is insufficient to establish that the possessor knew the property was stolen. State v. Couet, 71 Wn.2d 773, 775, 430 P.2d 974 (1967). But possession of recently stolen property, coupled with even slight corroborative evidence, is sufficient to prove guilty knowledge. Womble, 93 Wn. App. at 604. A damaged ignition, an implausible story, and fleeing when stopped are examples of such corroborative circumstances. State v. L.A., 82 Wn. App. 275, 276, 918 P.2d 173 (1996).
Here viewing the evidence as true with reasonable inferences, Mr. Marquez was seen with the car five days after it was stolen. When discovered in the car, Mr. Marquez approached Mr. Mercado and Mr. Jaggar in a threatening manner. He fled when police arrived at his residence. When he stopped, he tried to hide from the investigating officer. Based on his possession and the other corroborative evidence, sufficient evidence, more than slight evidence, exists supporting the `riding' prong of Mr. Marquez's TMVWOP conviction.
C. Evidence Ruling
The issue is whether the trial court erred in admitting Officer Knudson's description of Mr. Marquez's flight as evidence tending to show knowledge that Mr. Coffey's car had been stolen when he was seen riding in the car on December 9th.
We review evidence admissibility rulings for abuse of discretion. State v. Redmond, 150 Wn.2d 489, 495, 78 P.3d 1001 (2003).
Officer Knudson testified when he approached Mr. Marquez's vehicle on December 25, Mr. Marquez was in the drivers seat, `leaning over in the passenger's side.' RP at 233. Officer Knudson then stated, `in my opinion, he was trying to hide from me.' RP at 233. The court sustained a defense objection. Later, Officer Knudson testified Mr. Marquez's actions were intended `to get me to believe that someone was fleeing from the car.' RP at 234.
Evidence of resistance to arrest and concealment are admissible if it creates "a reasonable inference of consciousness of guilt of the charged crime." State v. Freeburg, 105 Wn. App. 492, 497-98, 20 P.3d 984 (2001) (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)), review denied, 152 Wn.2d 1022 (2004). Mr. Marquez's actions created a reasonable inference of a consciousness of guilt. The offered testimony was admissible. Thus, the trial court did not abuse its discretion in admitting Officer Knudson's testimony.
Affirmed.
A majority of the panel has determined this opinion will not be permitted in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.05.040.
KATO, J. and KULIK, J., concur.