Opinion
No. 63144-6-I.
Filed: March 7, 2011.
Appeal from a judgment of the Superior Court for Whatcom County, No. 07-1-00684-5, Charles R. Snyder, J., entered February 17, 2009.
Reversed and remanded by unpublished opinion per Ellington, J., concurred in by Grosse and Lau, JJ.
At the time of Loa Lankhaar's prosecution, first degree possession of stolen property required proof that the stolen items had a market value in excess of $1,500. We conclude that the State's evidence of the market value of used milking equipment was insufficient to establish this element. We also agree that the trial court violated Lankhaar's right to a public trial when it conducted a portion of voir dire in chambers. We therefore reverse Lankhaar's conviction for first degree possession of stolen property.
Although charged under the surname Miller-Shelton, by the time of trial, Loa Miller-Shelton had married Wayne Lankhaar.
See former RCW 9A.56.150(1) (2007).
FACTS
The State charged Loa Lankhaar with one count of first degree theft and one count of first degree possession of stolen property following the disappearance of milking equipment from Gerald Hardy's farm in Whatcom County. Hardy had run a large dairy farm on the property until 2003, when the business became unprofitable. The dairy equipment remained intact on the property in case a future purchaser wanted to restart the dairy business.
Robert Dodge, Hardy's stepson, testified that he met Loa and Wayne Lankhaar in the spring of 2006. With Hardy's permission, Dodge arranged for the Lankhaars to live in a trailer that was moved onto the property near the former milking parlor.
Dodge gave the Lankhaars permission to install a washer and dryer in the equipment room, which was located at the front of the milking parlor. In order to make room for the washer and dryer, Dodge allowed the Lankhaars to move pumps, mufflers, and other electrical equipment into the milking parlor. When Dodge last viewed the area where the Lankhaars were living in the late fall of 2006, he did not observe anything missing, but he was not specifically looking for the milking equipment.
Wayne Lankhaar ran a salvage business from the farm. He would haul away "junk" from various places and prepare it for recycling. Hardy eventually became annoyed with the Lankhaars because of the amount of "stuff," including cars, that they were hauling onto the property, and because they had fallen behind on their payments. In about March 2007, Hardy told Loa that they would have to move. According to Hardy, Loa tried to dissuade him by pointing out metal fence posts and other metal that he could sell for scrap. Hardy declined the suggestion, and the Lankhaars eventually agreed to leave by the end of April 2007.
For purposes of clarity, we refer to the Lankhaars by their first names.
In mid-April 2007, Hardy saw a pickup truck carrying what appeared to be garbage drive up to the trailer and went to investigate. Loa immediately approached Hardy and told him that the pickup belonged to friends who were just "reloading [this stuff] and tying it down here." Loa confirmed that she and Wayne would be out by the end of the month and added, "we won't take anything of yours." Through the big open door, Hardy saw two people in the milking parlor.
Report of Proceedings (RP) (Apr. 8, 2008) at 100.
Id.
Sometime in early May 2007, Dodge became "fed up" when he discovered that the Lankhaars were burning garbage very close to the milking parlor. He told them they had to leave immediately and return the next day to move the rest of their belongings.
On the evening of May 12, 2007, Hardy saw the Lankhaars drive their truck up to the milking area. The Lankhaars were no longer living on the property but had permission to remove their belongings. Hardy heard hammering and banging through the open door of the parlor house and upon entering, found Wayne inside attempting to remove a metal butt plate. When asked what he was doing, Wayne replied that he was salvaging the metal to get even with Dodge for having a van hauled away. Hardy told Wayne he was going to call the sheriff.
Shortly after Hardy called the sheriff, Loa called Shirley Hardy, Gerald's wife, and pleaded with her, "please don't let Jerry let the sheriff take Wayne." Loa acknowledged that "we did sell a load of things" and spent some of the money. Loa offered to return what was left of the money, provide a receipt showing how much they had received, and repay the remainder at the first of the month.
Id. at 123.
Id.
Deputy Brian Oswald responded to Hardy's call at about 8:00 p.m. After talking to Wayne, Oswald spoke with Loa inside the trailer about the theft of metal from the property. Loa said she knew the metal was stolen, but "didn't ask." She said that "she and Wayne" had transported the metal to a recycler within the past four to six weeks and had received $400 for it. Loa identified the recycler as "Sean" and gave Oswald his telephone number. Oswald arrested both Loa and Wayne.
RP (Apr. 7, 2008) at 23.
Id. at 22.
Wayne testified that he had pleaded guilty to trafficking in stolen property in connection with the theft of Hardy's property and was currently serving his prison sentence. He admitted taking the stainless steel panels from the milking parlor and acknowledged that he was removing more metal when Hardy caught him on May 12. He maintained that he told Loa about the theft immediately after Hardy left and that she had not known about it before then. Wayne said that Loa accompanied him to the recycler several weeks earlier but did not see the stolen plates because they were underneath other recycling materials. Wayne claimed he received $321 for the metal plates from the recycler on that occasion.
Hardy testified that as of the date of the Lankhaars' arrest, most of the milking equipment was gone, including metal butt plates and stainless steel panels, pumps, washing equipment, stainless steel tanks, copper pipes, wiring and an automatic washing system. He also discovered that all of the metal fence posts and the "nice wheels" from a car were missing. When asked what the stolen property was worth, Hardy said that he paid about $50,000 for the equipment in 1980. Hardy received about $24,000 from the insurance company for the loss but asserted he could not replace the equipment for that amount.
RP (Apr. 8, 2008) at 102.
During closing, the State argued that Loa was guilty as both a principal and an accomplice. The jury found Loa not guilty of first degree theft and guilty as charged of first degree possession of stolen property. At sentencing, the trial court observed that "had it not been for the one instance where [Loa] went to the scrap dealer, there would have been not enough evidence for the jury to probably find her guilty of much of anything in this case." The court then imposed an exceptional sentence below the standard range.
RP (Feb. 17, 2009) at 27-28.
DISCUSSION
Loa contends the evidence was insufficient to support her conviction for first degree possession of stolen property because the State failed to prove that she possessed stolen property with a value in excess of $1,500. We agree.
At the time of Loa's prosecution, first degree possession of stolen property required proof that the defendant knowingly received, retained, possessed, concealed, or disposed of stolen property exceeding $1,500 in value. "Value" means "the market value of the property or services at the time and in the approximate area of the criminal act." In Washington, "market value" is "the price which a well-informed buyer would pay to a well-informed seller, where neither is obliged to enter into the transaction." The determination of market value involves the application of an objective standard, not the value of property to any particular person.
See former RCW 9A.56.140(1), .150(1) (2007).
State v. Kleist, 126 Wn.2d 432, 435, 895 P.2d 398 (1995).
Id. at 438.
The State relied primarily on Hardy's testimony to establish the market value of the stolen dairy equipment. Although an owner may testify as to the market value of personal property without being qualified as an expert, Hardy did not offer an opinion on the market value of the equipment. Rather, he stated that he paid $50,000 for the equipment in 1980, that his insurance carrier had paid about $24,000 for the loss, and that he would have to pay more than the insurance reimbursement to purchase new equipment. But without some evidence establishing the contractual basis for the payment, the mere amount of an insurance reimbursement does not support a reasonable inference as to the market value of used equipment.
State v. McPhee, 156 Wn. App. 44, 65, 230 P.3d 284, review denied, 169 Wn.2d 1028 (2010).
See State v. Morley, 119 Wn. App. 939, 944, 83 P.3d 1023 (2004) (retail price of new generator insufficient to establish market value of used generator).
The only other evidence pertaining to value was the Lankhaars' testimony acknowledging a single delivery of stainless steel to recyclers, for which they received $400 or less. Although there was testimony that the value of used equipment is generally greater than scrap value, the State presented no evidence identifying the specific stolen items contained in that single delivery or their value as used equipment.
Moreover, the State has conceded that the stolen dairy equipment would have required more than one load to transport. But the record contains no evidence establishing when or how any of the other missing items were taken or to what extent Loa may have participated in their removal. Nor did the State establish the specific identity, manufacturer, model number, condition, market value, or any other characteristic of the individual pieces of milking equipment that might be relevant to a determination of market value. Even when viewed in the light most favorable to the State, the evidence does not establish that Loa possessed stolen property, either as a principal or an accomplice, with a market value in excess of $1,500. We therefore reverse Loa's conviction.
Id.
We also agree with Loa that the trial court violated her right to a public trial when it conducted voir dire of a juror in chambers without first considering and weighing the five factors set forth in State v. Bone-Club. When one of the potential jurors interrupted voir dire, the trial court granted the juror's request to speak in private and questioned the juror privately in chambers. The court then excused the juror for cause.
128 Wn.2d 254, 906 P.2d 325 (1995).
The State argues that reversal is not warranted because the brief courtroom closure was a de minimis violation of the public trial right. But Washington courts, including our Supreme Court, have never found a public trial right violation to be de minimis. We decline to do so here.
See In re Detention of Ticeson, No. 63122-5-I, 2011 WL 167476, at *5, n. 40 (Wash. Ct. App. Jan. 18, 2011) (citing State v. Strode, 167 Wn.2d 222, 230, 217 P.3d 310 (2009)).
The trial court did not state its reasons for closing the courtroom and did not discuss Loa's public trial rights. As in State v. Strode, the trial court initiated the in-chambers voir dire to preserve the prospective juror's privacy, and nothing in the record indicates that the court addressed Loa's public trial rights in light of the competing interests, analyzed the requisite Bone-Club factors, including consideration of less restrictive alternatives to private individual questioning, or undertook "the detailed review that is required in order to protect the public trial right." Under the circumstances, the court's failure to conduct the Bone-Club analysis also requires reversal of Loa's conviction.
167 Wn.2d 222, 217 P.3d 310 (2009).
Id. at 228.
On appeal, Loa also alleges a deficient charging document, prosecutorial misconduct, instructional error, and juror misconduct. In light of our disposition, we do not address these contentions.
Reversed and remanded.
WE CONCUR: