Opinion
40650-1-II
01-24-2012
STATE OF WASHINGTON, Respondent, v. RICHARD T. SANCHEZ, Appellant.
UNPUBLISHED OPINION
Johanson, J.
Richard T. Sanchez appeals his jury trial convictions for second degree theft with intent to resell and first degree trafficking in stolen property. He argues that the trial court erred in not dismissing the charges for lack of corpus delicti and that his trial counsel provided ineffective assistance in failing to raise the corpus delicti issues. We affirm.
FACTS
On December 5 and 8, 2009, Tena Nickle, a manager at the Aberdeen Top Foods, noticed that all of the Oil of Olay women's skin care products were disappearing from the store shelves even though only three Oil of Olay items had been sold during that time period. Because the Oil of Olay products were "very high theft" items, Nickle would stock the shelves with only one of each of the approximately 30 Oil of Olay products the store carried to facilitate tracking. Verbatim Report of Proceedings (VRP) (Mar. 30, 2010) at 4. Nichols estimated that about 20 Oil of Olay products had gone missing on each of the two days.
Nickle contacted Robert Mosley, a Top Foods "organized retail crime specialist." VRP (Mar.30, 2010) at 12. Mosley reviewed the December 5 and 8 security tapes, which showed Sanchez entering the store, taking the Oil of Olay products from the shelves, concealing these products in his jacket, walking around the store, and then leaving the store.
On December 10, Mosley was at the Aberdeen store when Sanchez returned. Mosley watched as Sanchez selected several items, including more Oil of Olay products and several Burt's Bees lip glosses from the shelves; concealed these items in his jacket; and left the store without paying for these items. When Mosley and other store employees confronted Sanchez outside the store, Sanchez attempted to run away, but the employees caught him and brought him back inside the store. They recovered $178 in merchandise from Sanchez.
Although the trial court admitted a receipt listing each of the products Sanchez had taken on December 10, that receipt is not part of the record before us.
After confronting Sanchez with still photographs from the surveillance tapes, Mosley asked Sanchez what he planned to do with products he had stolen. Sanchez responded that he was selling the stolen items for drug money. When Mosley asked him if others were involved in stealing these types of products, Sanchez said there were and identified from the still photographs a woman who was "part of the group that's working as well." VRP (Mar. 30, 2010) at 22-23.
The State charged Sanchez with theft with intent to resell and first degree trafficking in stolen property. The State's witnesses testified as described above. Sanchez did not object to Mosley's testimony about Sanchez's statements. Nor did Sanchez ever argue that there was no corpus delicti of the crimes. Sanchez did not present any witnesses.
The jury found Sanchez guilty of second degree theft with intent to resell and first degree trafficking in stolen property. Sanchez appeals.
ANALYSIS
Sanchez (1) challenges the trial court's failure to dismiss the charges, arguing that the State failed to establish corpus delicti; and (2) argues that, if this error was not preserved, his trial counsel provided ineffective assistance of counsel in failing to raise the corpus delicti challenge. Because Sanchez did not raise any corpus delicti objections below, and the corpus delicti rule is a judicially created rule of evidence, not a constitutional sufficiency of the evidence requirement, he has waived his right to raise this issue directly on appeal. State v. Page, 147 Wn.App. 849, 855, 199 P.3d 437 (2008) (citing RAP 2.5(a); State v. C.D.W., 76 Wn.App. 761, 764, 887 P.2d 911 (1995)), review denied, 166 Wn.2d 1008 (2009); see also State v. Dow, 168 Wn.2d 243, 253-54, 227 P.3d 1278 (2010). Nevertheless, we may address these arguments in the context of his ineffective assistance of counsel claim.
I. Standard of Review and Corpus Delicti Rule
A criminal defendant claiming that his counsel ineffectively represented him must prove that (1) counsel's representation fell below an objective standard of reasonableness, and (2) this deficient representation prejudiced him. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). We presume that counsel was effective. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (emphasis omitted) (citing State v. Kyllo, 166 Wn.2d 856, 862-63, 215 P.3d 177 (2009)). A defendant establishes prejudice by showing a reasonable probability that the result would have differed but for counsel's deficient conduct. Reichenbach, 153 Wn.2d at 130.
The corpus delicti doctrine "tests the sufficiency or adequacy of evidence, other than a defendant's confession, to corroborate the confession." Dow, 168 Wn.2d at 249 (citing State v. Brockob, 159 Wn.2d 311, 327-28, 150 P.3d 59 (2006)). "The purpose of the corpus delicti rule is to prevent defendants from being unjustly convicted based on confessions alone. Dow, 168 Wn.2d at 249 (citing City of Bremerton v. Corbett, 106 Wn.2d 569, 576, 723 P.2d 1135 (1986)). A defendant's incriminating statement is not sufficient to establish that a crime occurred. Brockob, 159 Wn.2d at 328.
To satisfy the corpus delicti rule, the State must present evidence independent of the incriminating statement that shows the crime described in the defendant's statement occurred. Brockob, 159 Wn.2d at 328. In determining whether this standard is satisfied, we review the evidence in the light most favorable to the State. Brockob, 159 Wn.2d at 328. The independent evidence need not be sufficient to support a conviction, but it must provide prima facie corroboration of the crime described in a defendant's incriminating statement. Brockob, 159 Wn.2d at 328. Prima facie corroboration exists if the independent evidence supports a "logical and reasonable inference" of the facts the State seeks to prove. State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995). The independent evidence must be consistent with guilt and inconsistent with innocence. State v. Aten, 130 Wn.2d 640, 660, 927 P.2d 210 (1996). Furthermore, "the State must still prove every element of the crime charged by evidence independent of the defendant's statement." Dow, 168 Wn.2d at 254 (citing Brockob, 159 Wn.2d at 328).
The State argues that Brockob did not alter the corpus delicti rule to require corroboration of each element of the charged crime. In support of this argument, the State cites Division Three of this court's decision in State v. Angulo, 148 Wn.App. 642, 653, 200 P.3d 752 (2009) (citing State v. Lung, 70 Wn.2d 365, 423 P.2d 72 (1967)), review denied, 170 Wn.2d 1009 (2010), in which it rejected the appellant's argument that under Brockob, there had to be independent proof of each element of the charged crime. Because the evidence here clearly meets Division Three's demanding standard, we need not address whether Brockob altered the corpus delicti rule to require corroboration of each element of the charged crime; nor need we decide whether to adopt or reject Angulo's rationale and holding.
II. No Ineffective Assistance of Counsel
To prove second degree theft with intent to resell, the State had to prove that Sanchez intended to "resell the [stolen] property for monetary or other gain." RCW 9A.56.340(1). Similarly, the first degree trafficking in stolen property charge required the State to prove that Sanchez possessed or obtained control of stolen property with intent to sell or to otherwise dispose of the property to another person. RCW 9A.82.010(19); RCW 9A.82.050(1). Sanchez argues that a corpus delicti challenge would have been successful because there was no evidence independent of his statements showing that he intended to resell the stolen items. We disagree.
Sanchez does not contend that the State failed to establish corpus delicti as to any other elements of these crimes.
Taking the evidence in the light most favorable to the State, Sanchez's frequent thefts of large amounts of specific, "very high theft, " women's skin care products (products that he was unlikely to use himself) over a short period of time supports a logical and reasonable inference that he was taking these items to sell or for other gain, rather than for personal use. VRP (Mar. 30, 2010) at 4. The number of thefts and the quantity of stolen products does not suggest an intent inconsistent with Sanchez's stated intent of reselling these items, such as personal use or theft with intent to give these products away for free or without any gain. Accordingly, even if defense counsel had raised a corpus delicti challenge, the trial court would have denied the motion. Thus, Sanchez fails to establish ineffective assistance of counsel.
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.
We concur: Hunt, P.J., Van Deren, J.