Opinion
No. 22968-8-III
Filed: March 22, 2005
Appeal from Superior Court of Grant County. Docket No. 03-1-00931-1. Judgment or order under review. Date filed: 04/23/2004. Judge signing: Hon. Evan E. Sperline.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
Albert H. Lin, Grant County Prosecutors Office, Law Justice Center, PO Box 37, Ephrata, WA 98823-0037.
A Sea-Doo personal watercraft and its trailer, reported stolen in 1999, were discovered in the possession of John Ring nearly four years later. Mr. Ring was charged with first degree possession of stolen property (the Sea-Doo) and second degree possession of stolen property (the trailer). He was convicted of those charges after a jury trial. On appeal, he contends the evidence is insufficient to show that the items were stolen. He also argues he had ineffective assistance of trial counsel. Because we find that Mr. Ring's conviction is supported by sufficient evidence and that his counsel was effective, we affirm.
Facts
In September 1999, Walter Clayton reported that a 1997 Sea-Doo and a 1993 EZ Loader trailer were stolen from his Mason County property. He provided the hull identification number (HIN) of the Sea-Doo and the vehicle identification number (VIN) of the trailer. The Sea-Doo had been stolen without its `dead man switch' — a device that plugged into the vehicle and that prevented operation of the vehicle if it was removed. Report of Proceedings (RP) at 30. The Mason County sheriff's department entered the stolen property report into the state-wide computer log of crime information (WACIC) and the national crime information center (NCIC).
Nothing was heard regarding the stolen Sea-Doo and trailer until some time in 2003, when Detective Jacob McMillen of the Washington state patrol received information from a citizen that there was a possibly stolen Sea-Doo in Moses Lake. The citizen gave Detective McMillen the Moses Lake telephone number of Stacey Clasen, Mr. Ring's sister-in-law. When contacted by the detective in July 2003, Ms. Clasen told him that in August 2002 her sister and brother-in-law, Patrice and John Ring, towed the Sea-Doo to her property in Moses Lake. The Rings had told Ms. Clasen that they intended to move to Moses Lake and wished to store the Sea-Doo and trailer on her property until they arrived. After about six months, Ms. Clasen moved the trailer and Sea-Doo to the property of her father, Duane Simmons, also in Moses Lake. The Rings had told both Ms. Clasen and Mr. Simmons that the Rings owned the watercraft.
The Rings never moved to Moses Lake.
Detective McMillan investigated the Sea-Doo and trailer on Mr. Simmons's property. He discovered that the HIN number on the Sea-Doo and the VIN number on the trailer had been removed. The dead man switch was missing and some wires behind the dead man switch had been pulled out. A transportation license plate registered to Belfair Towing — Mr. Ring's business — was attached to the trailer. Using a motor identification number found on the Sea-Doo, Detective McMillan called the manufacturer and obtained the vehicle's HIN number. Eventually he determined that the Sea-Doo on Mr. Simmons's property was the same Sea-Doo stolen from Mr. Clayton in 1999.
Mr. Ring was charged in November 2003 with one count of possessing stolen property in the first degree, RCW 9A.56.150, and one count of possessing stolen property in the second degree, RCW 9A.56.160. At trial, he presented evidence that he accepted the Sea-Doo and trailer as collateral on a loan he made to an employee, Eric Rasmussen. Mr. Rasmussen had died in May 2000, but his girl friend testified that he borrowed money from Mr. Ring to make car payments. Mr. Ring presented a written statement purportedly signed by Mr. Rasmussen on April 5, 2000 that indicated the loan was for $800 and stated the Sea-Doo and trailer would be returned upon repayment in full by January 1, 2001. The HIN number of the Sea-Doo and the VIN number of the trailer were included. On cross-examination, the prosecutor asked Mr. Ring to compare Mr. Rasmussen's signature on a certified copy of Mr. Rasmussen's driver's license with the signature on the loan agreement. Mr. Ring stated that he thought they looked similar.
Mr. Ring also presented a notarized `Affidavit of Loss, Release of Interest' document that declared Mr. Rasmussen had lost the title for the Sea-Doo and the trailer. Ex. D-11. Although the notarization was dated April 5, 2000, the prosecutor asked Mr. Ring if it appeared that the date had originally said April 5, 2003, but had been written over. Mr. Ring answered that he could not tell. He testified that he never thought the Sea-Doo and trailer were stolen and never used the Sea-Doo because, at first, he was only holding it as collateral, and later, he had to figure out what to do with it after Mr. Rasmussen died. When Mr. Rasmussen's heirs showed no interest in the watercraft, he decided to sell it. Using the HIN number and VIN number on the loan agreement, he ran a check for the legal title holder, but found no record of the Sea-Doo or trailer. Detective McMillan had earlier testified that his first attempts to trace the identification numbers from the recovered Sea-Doo and trailer also came up empty because someone entered the numbers incorrectly.
After the State rested, Mr. Ring moved to dismiss, arguing that the State had failed to make a prima facie case of either first or second degree possession of stolen property. The trial court was sympathetic. Although the court found that, giving every favorable inference to the State, there was sufficient evidence to support each element, the court also noted that it would not find guilt beyond reasonable doubt based on the State's evidence to that point (before Mr. Ring's testimony and admission of the signed loan agreement). The motion to dismiss was denied.
The jury found Mr. Ring guilty on both counts and he was sentenced to two months of incarceration in the county jail. He timely appealed.
Sufficiency of the Evidence
Mr. Ring first contends the trial court should have granted his motion to dismiss at the conclusion of the State's case in chief. He argues that the trial judge enunciated compelling reasons to grant the motion for failure to present sufficient evidence that the Sea-Doo and trailer were actually stolen property, yet the judge inexplicably denied the motion to dismiss.
If a defendant challenges the sufficiency of the evidence in a motion to dismiss after the State rests, the defendant waives review of the denial of that motion if he or she then produces evidence in his or her behalf. State v. Jackson, 82 Wn. App. 594, 608-09, 918 P.2d 945 (1996). This does not mean that the defendant cannot claim insufficiency of the evidence later; it means only that this court will examine the sufficiency of all the evidence presented at trial to that point. Id. Mr. Ring presented evidence in his defense case in chief. Consequently, we examine all the evidence submitted at trial — not just the evidence presented in the State's case in chief — to determine whether there is sufficient evidence to support beyond reasonable doubt the elements of the charged crimes. Id. We will find evidence sufficient to support a criminal conviction if, viewing the evidence in the light most favorable to the State, we find it sufficient to allow any rational trier of fact to find beyond reasonable doubt the essential elements of the charges. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We weigh direct and circumstantial evidence equally in our analysis. Id.
To convict Mr. Ring of first degree possession of stolen property, the State had to prove that he knowingly received, retained, possessed, concealed, or disposed of stolen property exceeding $1,500 in value, knowing it was stolen, and that he withheld or appropriated that property for the use of any person other than the person entitled to it. RCW 9A.56.140(1), .150. Conviction under the second degree possession of stolen property statute requires the same essential elements except for the value of the property, which must exceed $250 but must not exceed $1,500.
RCW 9A.56.140(1), .160.
Mr. Ring challenges only the sufficiency of the evidence to show that the property here was actually stolen. He cites comments made by the judge during the hearing on the motion to dismiss:
This is one of those cases in which the legal standard that the court has to apply on this motion is dispositive of the motion, but were I to apply the standards that the jury is called upon to apply, there is no way on this evidence that I would find someone guilty of these felonies. . . .
. . . .
. . . [T]here's no evidence that the property was stolen, there's only evidence that it's reported stolen. And that's significant because that's why people like [the insurance investigator] are in business, or one of the reasons, because insurance fraud includes people who report their property as stolen and then sell it. All we know is that somebody reported that it was stolen. And then over and over again we repeat that yes it was reported stolen, but there's no evidence of its theft.
RP at 111-12.
In our review of the evidence, however, we accept the truth of the State's evidence and all inferences that can be reasonably drawn from it. Goodman, 150 Wn.2d at 781. Inspector Dean Byrd of the Mason County sheriff's department testified that he received a report of the stolen Sea-Doo and EZ Loader trailer from Mr. Clayton. The inspector obtained the HIN and VIN numbers for the vehicles, noted that the dead man switch was not on the Sea-Doo when it was stolen, and entered the identification numbers on WACIC and NCIC. Detective McMillan testified that a citizen informed him a stolen Sea-Doo could be located in Moses Lake and that Ms. Clasen could tell him where to find it. Later, Detective McMillan traced the Sea-Doo's HIN number to the stolen property report on WACIC. This evidence, unrebutted at trial, supports any rational juror's determination beyond reasonable doubt that the Sea-Doo had been stolen.
Although the VIN number for the recovered trailer was never discovered, the fact that its identification number had been removed raises an inference that it too was stolen. And Detective McMillan testified that the trailer matched the description of the stolen trailer. This evidence, also unrebutted, is sufficient to support a reasonable inference that the recovered trailer was the trailer stolen from Mr. Clayton along with the Sea-Doo.
Sufficient evidence supports every element of the charges. Mr. Ring admitted knowingly receiving and possessing the Sea-Doo and the trailer. RCW 9A.56.140(1). Transporting these items across the state to Moses Lake obviously withheld them from their true owner. RCW 9A.56.140(1). Testimony proved that the Sea-Doo was worth more than $1,500 (RCW 9A.56.150) and the trailer was worth between $250 and $1,500 (RCW 9A.56.160). And whether Mr. Ring knew the items were stolen was an issue of credibility best decided by the jury. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) ('This court must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.').
Assistance of Counsel
Mr. Ring also contends he was denied effective assistance of counsel because defense counsel did not request a jury instruction on the defense of good faith claim of title. To prove ineffective assistance of counsel, he must show that trial counsel's representation was deficient and that this deficiency prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He meets the burden of the first prong — deficient performance — by establishing that his counsel's conduct failed to meet an objective standard of reasonableness. State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068 (1996). The second prong requires proof of a reasonable probability that without counsel's errors the result of the proceedings would have been different. In re Pers. Restraint of Hutchinson, 147 Wn.2d 197, 206, 53 P.3d 17 (2002). We strongly presume effective representation. Id.
According to Mr. Ring, trial counsel failed to request an instruction that was clearly justified by the evidence: an instruction informing the jury that he was not guilty of possessing stolen property if he had a good faith claim to the title to that property. He cites by analogy Washington Pattern Jury Instruction 19.08, which reads as follows: `It is a defense to a charge of theft that the property or service was appropriated openly and avowedly under a good faith claim of title, even though the claim be untenable.' 11 Washington Pattern Jury Instructions: Criminal 19.08 (2d ed. 1994) (WPIC). This instruction is appropriate in some cases involving the various degrees of theft, public assistance fraud, and taking a motor vehicle without permission. WPIC 19.08, note on use at 252.
In State v. Smyth, 7 Wn. App. 50, 55, 499 P.2d 63 (1972), Division Two of this court held that a trial court erred in refusing to give a similar instruction regarding a defense to larceny. The former crime of larceny required proof that the defendant, knowing property had been wrongly appropriated, brought that property into the state or bought, sold, or helped conceal that property. Former RCW 9.54.010(5), repealed by Laws of 1975, 1st Ex. Sess., ch. 260, sec. 9A.92.010; Smyth, 7 Wn. App. at 51 n. 1. The defendant in Smyth claimed that he had purchased stereo equipment without knowing it was stolen and had received a bill of sale. Although two instructions informed the jury that one of the essential elements of the State's case was to prove knowledge, Smyth held that the defendant was entitled to an instruction on good faith claim of title. Id. at 55-56.
A party is entitled to jury instructions that allow the party to argue its theory of the case, as long as the instructions do not mislead the jury and properly state the applicable law. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999). In this case, the State carried the burden of proving that Mr. Ring knowingly possessed stolen property. RCW 9A.56.140(1). The court's instructions informed the jury that knowledge was a necessary element and defined knowledge in a separate instruction. Even if Mr. Ring may have been entitled to an instruction on good faith claim of title (which we need not decide here), he fails to show either that trial counsel erred in failing to propose such an instruction or that his verdict would have been any different with the instruction. Although Smyth is somewhat analogous, it does not address a trial counsel's failure to propose a good faith claim of title instruction. There is simply no clear precedent for proposing such an instruction. More important, it was logically impossible for the jury in this case to convict Mr. Ring of first and second degree possession of stolen property without rejecting his testimony that he thought he had good title to the Sea-Doo and the trailer. See State v. Casey, 81 Wn. App. 524, 527, 915 P.2d 587 (1996) (theft by deception). Consequently, counsel's failure to propose an instruction on good faith claim of title was not prejudicial. Because Mr. Ring can show neither deficient performance nor prejudice, he fails to prove ineffective assistance of counsel. Hutchinson, 147 Wn.2d at 208.
In State v. Casey, 81 Wn. App. 524, 527, 915 P.2d 587 (1996), a theft by deception case, Division One of this court held that a good faith claim of title instruction is not justified when it is logically impossible to convict without implicitly rejecting any claim of good faith. When the State is already required to prove knowledge that the possessed property is stolen, the jury logically cannot convict without rejecting the defendant's claim that he or she reasonably thought he or she had good title to the property. Id.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and KURTZ, J., concur.