Opinion
No. 31956-0-II
Filed: August 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 04-1-00689-2. Judgment or order under review. Date filed: 06/22/2004. Judge signing: Hon. Christine A. Pomeroy.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), James C. Powers, Thurston County Prosecuting Attorney Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6001.
A jury convicted Anthony Louis Santana of one count of first degree trafficking in stolen property and one count of possession of a controlled substance. Santana appeals, arguing instructional error, ineffective assistance of counsel, and insufficiency of the evidence to convict. We affirm.
Although Santana included the possession conviction in his notice of appeal, he neither assigned error nor devoted argument to this issue. RAP 10.3(a)(3) and (a)(5) (providing that the appellant's brief should contain an assignment of errors and citation to legal authority). Thus, he waived any appeal of this conviction. Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986).
FACTS
On April 2, 2004, Aaron Belton, Tiffany Roberts, Ashley Wilding and Sean Tucker went hiking at Priest Point Park. When the group returned to their car, they found it open. Belton noticed that six dollars, cigarettes, and Roberts's pink cell phone were missing. They did not immediately call the police, instead deciding to spend some time searching for the missing cell phone.
Roberts called her cell phone to check her messages, and someone later identified as Santana answered. Belton took the phone from her and spoke to Santana. He told Santana that he wanted the cell phone back. Santana said that Belton could retrieve the phone the next morning in exchange for $20, the price he paid for the phone, and an additional $40 for him to purchase a new phone. When Belton inquired where to meet, Santana told him to call back in the morning.
Belton could not reach Santana during the next two days. But Belton and Santana eventually arranged to exchange money for the phone and SIM (subscriber identity module) card. Santana told Belton to bring $40 and arrive alone at Room 223 of the Tumwater Motel 6.
Belton, Wilding, Tucker, and Roberts drove to the Motel 6 after speaking with Santana. Belton and Tucker went to Room 223 and they noticed a silver knife sitting on the window sill. The door was slightly ajar. Belton knocked and a person he identified as Santana came to the door.
Santana asked Belton if he had the money. Belton told Santana he did not want to pay for his own property. When Belton refused to give him the money, Santana stated that he could no longer trust Belton. Belton said he felt 'pretty nervous because [Santana] looked pretty upset.' Report of Proceedings (Trial) (RP) at 139.
Santana moved quickly around the room and appeared agitated, like '[h]e was . . . looking for something.' RP at 139. Santana threatened Belton by saying, "[Y]ou and your friend are going to get shot." RP at 140. He then pulled a gold cell phone out of the bureau, pulled the SIM card out of it, and put the card in a cardboard box. Belton asked Santana if he had the phone that went with the SIM card. Santana indicated that he had "lots of phones, but you . . . can't afford them," apparently referring to Belton's failure to bring him $40. RP at 145. Belton retrieved the SIM card from Santana, and Santana again threatened that Belton and his friend were going to get shot.
The gold cell phone was not the phone stolen from Belton's car. The missing phone was a Samsung with a pink faceplate.
Belton and Tucker backed out of the motel room and down the stairs for fear that Santana would exit the motel room with a gun. They got in the car and sped out of the parking lot to a safe location. Once secure, Belton called 911 and reported the incident to the police.
Police officers arrived on the scene, observed Santana outside of the motel room, and detained him. Detective Mason gave Miranda warnings and Santana said he was willing to talk.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Mason asked Santana about the SIM card, and Santana said that he had gotten it from a friend named Reese. Santana stated he purchased the SIM card from Reese for $20 and that Reese purchased it from a store. Mason became suspicious because SIM cards are not usually sold to the general public.
After speaking with Santana, Mason searched his backpack. Inside, he found a stolen cell phone and a wooden box containing hypodermic needles and small baggies of a substance that later tested as methamphetamine. Santana claimed he found the box in the garbage and that it did not belong to him.
Santana told the officer that the cell phone was stolen.
The State charged Santana with one count of first degree trafficking in stolen property, one count of unlawful possession of a controlled substance, and two counts of felony harassment.
The jury convicted him on the trafficking and possession charges, but acquitted him on the harassment charges.
Santana appeals.
ANALYSIS
Santana contends that the trial court erred in instructing the jury. He asserts that the definition of the word 'traffic' created an uncharged alternative means. He also asserts that the trial court should have given a unanimity instruction based on the alternative means. Definition statutes 'do not create additional alternative means, [or] 'means within means,' of committing an offense.' State v. Strohm, 75 Wn. App. 301, 309, 879 P.2d 962 (1994), review denied, 126 Wn.2d 1002 (1995). The jury need not reach unanimity concerning any of the definitions, 'nor must substantial evidence support each definition.' State v. Linehan, 147 Wn.2d 638, 650, 56 P.3d 542 (2002), cert. denied, 538 U.S. 945 (2003). The mere fact that a definition statute 'states methods of committing a crime in the disjunctive' does not create alternative means of committing that crime. State v. Laico, 97 Wn. App. 759, 762, 987 P.2d 638 (1999).
As an initial matter, Santana did not object to the jury instruction below. We do not review an alleged error not raised below unless it is a 'manifest error affecting a constitutional right.' RAP 2.5(a)(3). '[A]n alleged instructional error in a jury instruction is of sufficient constitutional magnitude to be raised for the first time on appeal.' State v. Davis, 141 Wn.2d 798, 866, 10 P.3d 977 (2000).
In Strohm, the trial court included the statutory definitions of 'traffic' in its instructions. 75 Wn. App. at 307. The defendant challenged the verdict based on the same claim Santana raises here. Strohm, 75 Wn. App. at 309. Division One held that the definitions of 'traffic' within the statute merely exhibited different ways one can traffic in stolen property and thus more purely informational. Strohm, 75 Wn. App. at 309. We agree with the Strohm court's reasoning and adopt it here.
The instruction here followed the statute, as did the instruction in Strohm.
Because RCW 9A.82.010 defines terms contained in other sections of the statute, it is a definitional statute and does not create alternative means of committing the crime. See Strohm, 75 Wn. App. at 309. Further, the jury need not be unanimous as to any definition nor must the State provide substantial evidence to support each definition. Linehan, 147 Wn.2d at 649-50. Santana's jury instruction arguments fail.
Charging Document
Santana further contends that the charging document did not reference his intent to sell, but rather only selling, transferring or disposing of stolen property. He argues that, as a result, the information failed to alert him to the alternative ways of committing the crime charged.
If a statute provides alternative means to commit a crime, the State may allege none, some, or all of the alternatives in the charging document. State v. Chino, 117 Wn. App. 531, 539, 72 P.3d 256 (2003). But where the information alleges only some of the alternative means, the trial court may not instruct the jury on uncharged alternatives. Chino, 117 Wn. App. at 540. Otherwise stated, the State cannot try a defendant on an uncharged offense. Chino, 117 Wn. App. at 540.
The information in Santana's case reads:
COUNT I: TRAFFICKING IN STOLEN PROPERTY IN THE FIRST DEGREE, CLASS B FELONY RCW 9A.82.050(2):
In that the defendant, ANOTHONY LOUIS SANTANA, in the County of Thurston, State of Washington, on or about the 5th day of April, 2004, did knowingly sell, transfer, or otherwise dispose of stolen property to another person.
Clerk's Papers at 5. Santana claims the definition statute, RCW 9A.82.010, not cited in the information, sets out alternative means.
The to-convict instruction asked the jury whether Santana 'knowingly trafficked in stolen property.' CP at 22. The court then gave an instruction taken from the definition statute to define the term 'traffic.'
The to-convict instruction reads:
To convict the defendant of the crime of trafficking in stolen property in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 5th day of April, 2004, the defendant knowingly trafficked in stolen property;
(2) That the defendant acted with knowledge that the property was stolen; and
(3) That the acts occurred in the State of Washington. CP at 22.
As previously discussed, definition statutes do not create alternative means of committing a crime. Strohm, 75 Wn. App. at 309. Because the definition statute does not create alternative means, jury instruction 9 does not inform the jury of alternative means of committing first degree trafficking in stolen property. Santana's argument fails.
Ineffective Assistance of Counsel
Santana also argues that he received ineffective assistance of counsel when his attorney failed to argue uncharged alternative means and object to the lack of a unanimity instruction. Because we hold that this is not an alternative means case, Santana's argument fails.
Sufficiency of the Evidence
Finally, Santana argues that insufficient evidence supports his conviction. He asserts that he merely returned the property to its rightful owner and, because he did not receive any money, he did not traffic in stolen property.
Evidence sufficiently supports a conviction when, if viewed in the light most favorable to the prosecution, 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.' Salinas, 119 Wn.2d at 201. We view circumstantial and direct evidence as equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We leave issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence to the fact finder and do not review them on appeal. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
A person guilty of first degree trafficking in stolen property is one who 'knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others, or who knowingly traffics in stolen property.' RCW 9A.82.050(1). 'Traffic' is defined as 'to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person, or to buy, receive, possess, or obtain control of stolen property, with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to another person.'
Here, sufficient evidence supports Santana's conviction. Belton testified that his girl friend's cell phone disappeared from their car while they hiked at Priest Point Park. Roberts called her phone to check her messages and Santana answered. Belton talked to Santana and asked for the return of his girl friend's cell phone.
Santana demanded money for the cell phone's return. He told Mason that he knew some of the property he sold was stolen. Even if Santana did not know the SIM card was stolen before his conversation with Belton, he knew after they spoke and still intended to sell the SIM card. Sufficient evidence supports Santana's conviction.
Affirmed.
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.
ARMSTRONG, J. and HUNT, J., concur.