Opinion
No. 22864-9-III
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No: 03-1-02486-0. Judgment or order under review. Date filed: 03/19/2004. Judge signing: Hon. Margaret Anne Penny Sowards.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Kenneth L. Jr Ramm, Yakima County Courthouse, 128 N 2nd St Rm 211, Yakima, WA 98901-2639.
Peter Willis was convicted for the crimes of second degree possession of stolen property and possession of methamphetamine. He challenges his conviction for second degree possession of stolen property. Mr. Willis contends that the evidence was insufficient to support the knowledge element of the crime and that the trial court erred when instructing the jury and calculating his offender score. We affirm Mr. Willis's convictions, reverse his sentence, and remand for resentencing.
FACTS
In November 2003, Peter Willis was charged by amended information with possession of a controlled substance, methamphetamine, and first degree possession of stolen property. Mr. Willis was convicted of second degree possession of stolen property and possession of methamphetamine. On appeal, Mr. Willis challenges his second degree stolen property conviction. This conviction resulted from Mr. Willis's use of a vehicle owned by Thomas Thompson.
Mr. Thompson owned a 2002 Ford Taurus. During the month of November 2003, Mr. Thompson had pneumonia and was living in a medical residence in Yakima because he was too ill to return to his home in Kennewick.
Mr. Willis was one of the residents of an apartment in the complex. Shortly after the two men met, Mr. Thompson helped Mr. Willis by driving him to Portland to pay off some fines. Although Mr. Thompson had known Mr. Willis for only two weeks, Mr. Thompson hoped that they would develop a romantic relationship.
On November 18, Mr. Thompson allowed the residence manager to borrow the Taurus for transportation to a physical therapy appointment. Later that day, Mr. Willis asked to borrow the Taurus to go to Wal-Mart. After Mr. Willis was gone, Mr. Thompson became concerned that Mr. Willis had been gone too long; Mr. Thompson telephoned Mr. Willis on his cell phone to check on his whereabouts. Mr. Willis assured Mr. Thompson that he was on his way home.
Once Mr. Willis returned, he informed Mr. Thompson that he needed to borrow the Taurus for a return trip to Wal-Mart. Mr. Willis completed this trip and returned to the complex. After Mr. Willis returned, Mr. Thompson laid down on the couch to rest. After a long period of time, Mr. Thompson got up to get some of his clothes out of his car. But Mr. Thompson discovered that both his car and Mr. Willis were gone. Mr. Thompson then called the police to report that his car had been stolen.
At 8:25 p.m. on November 18, Officer James Wentz of the Yakima Police Department met with Mr. Thompson and was informed that the Taurus was missing and that $100 was missing from Mr. Thompson's wallet.
The next morning, Homeland Security officers discovered the Taurus sitting on the bank of a ditch. Mr. Willis was inside the car. Upon learning that the car had been reported stolen, county deputies were summoned to the scene to arrest Mr. Willis.
Deputy Jerrold Towell was dispatched to the scene at 11:50 a.m. Mr. Willis told the deputy that Mr. Thompson had loaned the car to him, and that he had a receipt with Mr. Thompson's name on it in his jacket pocket. The deputy testified that Mr. Willis warned him to be careful because there was a syringe in the pocket with the receipt.
Deputy Towell checked the registration and learned that the car was registered to Thomas Thompson. The deputy found Mr. Willis's jacket in the backseat of the Taurus. Detective Towell searched the jacket and found a syringe. Inside the vehicle, the deputy also found a pipe and a folded candy wrapper containing a white powder. A field test of the substance was positive for methamphetamine. This result was confirmed by a forensic scientist with the Washington State Patrol Crime Laboratory. The jury convicted Mr. Willis of the lesser-included offense of second degree possession of stolen property and possession of a controlled substance, methamphetamine. The trial court determined that Mr. Willis's offender score was 7. Mr. Willis objected. Based on the offender score of 7, the trial court sentenced Mr. Willis to two concurrent sentences for a total of 20 months.
Mr. Willis appeals.
ANALYSIS
Sufficiency of the Evidence. When determining the sufficiency of the evidence, the court examines the evidence in the light most favorable to the State and determines whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all inferences that can reasonably be drawn from this evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Credibility determinations are reserved for the trier of fact and cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The elements of possession of stolen property are (1) actual or constructive possession of stolen property, and (2) actual or constructive knowledge that the property was stolen. State v. Jennings, 35 Wn. App. 216, 219, 666 P.2d 381 (1983) (citing RCW 9A.56.140(1)).
Mr. Willis contends he had permission to use Mr. Thompson's vehicle and this permission had not been withdrawn, or, if so, he was never informed of the withdrawal of this permission. In contrast, the State argues testimony at trial established that Mr. Thompson gave Mr. Willis permission to use the car for two trips to Wal-Mart and that these specific grants of permission were limited to specific trips of short duration. Sufficient evidence exists to support Mr. Willis's conviction of second degree possession of stolen property. Testimony establishes that Mr. Thompson allowed Mr. Willis to borrow the Taurus for two specific trips. There is no evidence indicating that Mr. Thompson granted Mr. Willis unrestricted use of the Taurus.
Relying on State v. Hite, 3 Wn. App. 9, 472 P.2d 600 (1970), Mr. Willis argues that the original thief cannot be prosecuted for possession of stolen property under RCW 9A.56.140. But Mr. Willis misapprehends the discussion in Hite in which the court concluded that the act of stealing is not sufficient to support a conviction for receiving, concealing, or withholding because these acts are not encompassed within the evidence required to establish a taking. Id. at 13.
Here, the evidence establishes that Mr. Willis was in possession of the stolen vehicle when he was apprehended by Homeland Security officers. Mr. Willis was charged and convicted of a possession charge — not a possession charge and a theft charge.
The to-convict instruction for the crime of possession states the elements of this crime as `knowingly received, retained, possessed, concealed, and/or disposed of stolen property.' Clerk's Papers at 49. Mr. Willis contends the jury instructions were incorrect because the State elected to define only the word `receive.' He argues that by mentioning only this word, the State made an election to rely on this act as the basis for the conviction. And, because the State made this election, there was insufficient evidence to support the conviction.
But Mr. Willis is mistaken; the jury was also instructed as to the definition of the word `possession.' Moreover, the jury was instructed as to all the elements of the crime of possession of stolen property. The fact that there are several means to prove this crime does not render the evidence here insufficient to support the conviction.
Mr. Willis also contends that the evidence was insufficient to establish that he was aware that the Taurus had been reported stolen. Contrary to Mr. Willis's assertions, proof that the property was reported stolen is not an element of the crime of possession of stolen property.
There is sufficient evidence to support the conviction. Jury Instruction. The adequacy of jury instructions is a question of law subject to de novo review. See State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). An instructional error is presumed to be prejudicial unless it affirmatively appears to be harmless. State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977) (quoting State v. Golladay, 78 Wn.2d 121, 139, 470 P.2d 191 (1970)). Jury instructions are sufficient if they are not misleading, permit each party to argue his or her theory of the case, and, when read as a whole, properly inform the trier of fact of the applicable law. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 194, 668 P.2d 571 (1983).
Here, Mr. Willis was charged with two crimes, possession of stolen property and possession of methamphetamine. The court gave the `to-convict' instruction for the crime of second degree possession of stolen property and for the crime of possession of a controlled substance. To obtain a conviction on the possession of stolen property charge, the State had to prove that Mr. Willis was in possession of stolen property and that he knew the property was stolen.
Mr. Willis concedes that he was in actual possession of the vehicle, but maintains that the jury was not instructed on the issue of knowledge. However, the jury was instructed as to the elements of the crime of possession of stolen property and Mr. Willis did not object to the instructions.
Mr. Willis also suggests that the jury instructions were misleading because the State elected to define only the word `receive.' But the definition of the word `possession' was included in the jury instructions — after the elements instruction for the possession of controlled substance charge. Read as a whole, the instructions correctly informed the jury of the applicable law.
Mr. Willis suggests that the court erred by giving instructions 7, 10, 11, and 13.
An element of the crime of possession of stolen property is that the property must be stolen. Instruction 7 correctly states the law because it restates the definition of the word `stolen' contained in RCW 9A.56.010(14). Likewise, instruction 11 sets forth the definition of the word `receive' as stated in RCW 9A.56.010(11). Instruction 13 relates to the lesser-included degree of possession of stolen property and was properly given. Instruction 10 concerns the status of the property as stolen and was properly given.
Next, Mr. Willis suggests that even if the instructions were correct statements of the law, the jury instructions contained definitions applicable to theft and did not inform the jury that a conviction of the possession of stolen property charge required both possession and knowledge. In other words, the instructions may have created the impression that the charged crime was theft rather than possession because instructions 7, 10, 11, and 13 concentrated on definitions related to theft.
The elements of the crime of possession of stolen property were set forth in the jury instructions as were the applicable definitions. The instructions, when read as a whole, correctly informed the jury of the applicable law.
Moreover, defense counsel must state the reasons for an objection to a jury instruction at trial so that the trial court has the opportunity to correct this error.
CrR 6.15(c). Had defense counsel objected to the instructions related to theft at trial, this matter could have been remedied by the trial court. Assuming that the instructions were erroneous, we must determine, beyond a reasonable doubt, that the error did not contribute to the verdict. See State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002). Examining the record here, we conclude it is clear beyond a reasonable doubt that any failure to give additional instructions related to the element of knowledge did not contribute to the verdict.
Offender Score. Both parties agree that the court miscalculated Mr. Willis's offender score. Accordingly, we remand for recalculation and resentencing.
Mr. Willis's convictions are affirmed. The case is remanded for resentencing.
The majority of the panel has determined 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.
KATO, C.J. and SCHULTHEIS, J., Concur.