Opinion
No. 33926-9-II.
January 3, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-00322-9, Kathryn J. Nelson, J., entered October 5, 2005.
Counsel for Appellant(s), Rita Joan Griffith, Attorney at Law, WA.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, WA.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, C.J., concurred in by Van Deren, J.; Quinn-Brintnall, J., dissenting in part.
Charles Legan appeals his convictions of trafficking in stolen property, RCW 9A.82.050(2); first degree possession of stolen property, RCW 9A.56.140(1) and .150(1); and obstructing a police officer, RCW 9A.76.020(1). He claims that the first two offenses violate double jeopardy protections, that he was denied a fair trial because of prosecutorial misconduct, and that insufficient evidence supports the obstructing conviction. We affirm his conviction of trafficking in stolen property but we reverse his convictions of first degree possession of stolen property and obstructing a police officer and remand to the trial court to dismiss with prejudice and for resentencing.
Facts
On August 1, 2004, Johanna McHenry found that someone had broken into her car and stolen, among other things, a two-month old laptop computer that she had received as a graduation gift from her grandparents. She estimated its value at $2,100. A short time later, she received a telephone call from someone purporting to be a police officer asking for the password so he could access the computer. She gave it to him and then realized her mistake and called the police and reported it to Dell, the laptop manufacturer.
In January 2005, she received a telephone call from Dell computers informing her that someone had requested technical support on her machine. She contacted the police, who recovered the laptop, and returned it to her.
Pierce County Sheriff's Office Deputy Allen Myron investigated the Dell technical support call. He learned that the person who had called Dell had recently purchased the laptop from Pawn X-Change. Pawn X-Change had bought it from Legan for $175 and had Legan's social security number, address, driver's license number, and phone number on file because of the sale.
On January 13, Myron called Legan. Legan explained that he got the laptop from a guy named Terry in exchange for some work he did on Terry's computer. Myron later explained to the jury that this made him skeptical because, if Legan worked with computers, he would understand that the laptop was worth much more than $175. When Myron questioned Legan about Terry, Legan corrected himself and said that he had actually put a water pump in Terry's Cadillac. Also, he told Myron that he did not know Terry's address, phone number, or how to contact him. Myron explained to Legan that he was a theft suspect and asked him to try to find Terry's contact information.
On January 19, Myron met Legan at Horizon Mortgage where Legan was working. Legan apologized for giving Myron incorrect information over the telephone and explained that he had gotten the laptop from Tammy McCarroll. He had signed a bail bond for her and she had failed to appear in court and, consequently, he owed $1,600 to the bail bond company. He had done significant work on McCarroll's car and when she was in jail, he went and retrieved her car. He found the laptop in the car and sold it to recover some of the $1,600. He said he did not know how to contact McCarroll.
When Myron told Legan that his story did not make sense, Legan explained that the laptop actually belonged to Terry but he did not know that when he sold it to Pawn X-Change. Myron later explained, "I'm thinking that now I'm getting yet another story as to the origin of this computer or who it belonged to, and, you know, not having Terry to talk to or Tammy to talk to, the only person I could suspect would be Mr. Legan." Report of Proceedings (RP) at 42. Myron then arrested Legan.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After Legan waived his Miranda rights, he explained that he had gotten the laptop a couple days before McCarroll's car was towed and produced a tow slip dated December 15, 2004. Myron reminded Legan that he had sold the laptop a month before that to which Legan replied that McCarroll may have gotten the laptop for her birthday, which was December 19. Legan also gave Myron a written statement he had prepared the day before explaining the events.
The State charged Legan with trafficking in stolen property, first degree possession of stolen property, and obstructing a police officer. At trial, McCarroll testified that she stayed with Legan and Karen Greer for a few months and that Legan had replaced the motor in her car and bailed her out of jail. She explained that because Legan and Greer were her friends, she had no qualms about Legan taking her car and selling the laptop. She explained that she had received the laptop from her boyfriend, Eric, for Christmas but she sold it to a friend because she needed bail money.
Greer testified that McCarroll had stayed with them, that she did not want Legan to sign her bail papers, and that he sold the laptop to help recover some of the $1,600. She also testified that Legan picked up McCarroll's car on November 10, a few days after he received the letter from the bail bond company.
Legan testified that McCarroll had lived with him and Greer for about four months and that he had completely rebuilt her car, including the engine, transmission, and interior. He explained that he took her car so that when she got out of jail, she would talk to him about the $1,600 bill. He explained that he thought the laptop was hers and, only after he sold it to the pawnshop, did he learn that Terry Jonassen owned it. He also described meeting with Myron and another officer at his business. He said he gave Myron a written statement, the bail papers, and the towing bill. He also gave him Terry's telephone number. At that time, he did not know where McCarroll was staying.
The jury returned guilty verdicts on all counts. Legan appeals.
Analysis Double Jeopardy
Legan first argues that his conviction for trafficking in stolen property and first degree possession of stolen property violated his right to be free of double jeopardy. The State denies that a double jeopardy violation occurred but agrees that the conviction must be reversed because the jury instructions made the trafficking charge a lesser included offense.
As the State's concession is valid, we need not address the constitutional issue. RCW 9A.56.140(1) provides, "`Possessing stolen property' means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto." But the court's "to convict" instruction limited the scope of possession of stolen property to "disposed":
(1) That on or about the 15th day of November, 2004, the defendant knowingly disposed of stolen property;
(2) That the defendant acted with knowledge that the property had been stolen;
(3) That the defendant withheld or appropriated the property to the use of someone other than the true owner or person entitled thereto;
(4) That the value of the stolen property exceeded $1500; and
(5) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 15. The court further instructed:
(1) That on or about the 15th day of November, 2004 the defendant knowingly trafficked in stolen property;
(2) That the defendant acted with the knowledge that the property had been stolen;
(3) That the acts occurred in the State of Washington.
CP at 21. The court defined "traffic" 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." CP at 22.
The jury found that Legan possessed stolen property when he "disposed" of the laptop by selling it to Pawn X-Change. As this was the same act the State proved in convicting him of trafficking in stolen property, it was necessarily a lesser included offense. See State v. Willis, 153 Wn.2d 366, 374, 103 P.2d 1213 (2005) (jury instructions given without objection become the law of the case); State v. Hickman, 135 Wn.2d 97, 105, 954 P.2d 900 (1998) (State must prove additional element in jury instruction because it did not object at trial).
Legan's possession of stolen property conviction must be reversed and dismissed with prejudice.
Prosecutorial Misconduct
Legan next contends that the prosecutor committed misconduct in commenting on the credibility of witnesses and in eliciting impermissible opinion testimony as to guilt. He argues that this misconduct violated his rights to a fair trial and to a jury trial based on the evidence presented at trial.
First, Legan did not object at trial on these bases. Thus, we limit our review to determining whether, if there was misconduct, it was so flagrant and ill-intentioned that no curative instructions could have obviated the prejudice the misconduct engendered. State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). And we must reverse for prosecutorial misconduct when there is a substantial likelihood that the argument affected the jury verdict. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407, cert. denied, 479 U.S.995 (1986). The defense bears the burden of proving such prejudice. State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986).
Legan argues that the prosecutor commented on McCarroll's credibility when he remarked that she was "being fairly evasive here." RP at 80. The comment was made during the State's cross-examination:
Q. Have you resolved the case that put you in jail?
A. Yes.
Q. How has that been resolved?
A. It was ruled illegal search and dismissed, I believe. There's another case I'm going to court on, also, but the one was dismissed two weeks ago.
Q. And what's happened with the other case?
A. I'm not sure I'm going to be going back to court.
Q. You're being fairly evasive here.
A. I'm not sure. I don't know how it's going to turn out. My attorney said that he's going for drug court on one and first time offender on the other, on the other case.
RP at 80-81. Legan disputes the State's assertion that the prosecutor was simply asking for clarification by suggesting that she was trying to hide the truth.
We agree that the comment was improper but not that it was prejudicial. First, the remark did not relate to the substance of her testimony but rather suggested that she was not being forthright about her criminal history. Second, McCarroll's testimony was confusing and the prosecutor was in his right to seek clarification. But third, the remark was not flagrant or ill-intentioned and there is little or no likelihood that it affected the verdict.
Legan also complains that the prosecutor repeatedly elicited Myron's opinion that Legan had not been truthful and was in fact guilty. For example, when exploring his investigation, the State asked:
Q. As part of your job as investigator, are you trained to spot situations that may lead you to believe there's something going on other than what you're being told?
A. Yes, I am.
Q. What were you thinking when he told you that he sold the laptop to Pawn X-Change for $175?
A. I was skeptical in that, if somebody works in computers, they would understand that the value of a laptop is much greater than that.
Q. What was your understanding of the value of this laptop?
A. I was expecting around $2,000.
RP at 34-35.
The prosecutor elicited from Myron that he found it suspicious that Legan got the computer about the same time as McHenry had hers stolen. The prosecutor also elicited that Myron regarded Legan as not forthright with him about his relationship with McCarroll:
Q. So, what are you thinking at this point when you've heard this on-and-off-again friend, actually the person really lives with me and I posted bail for them?
A. It was clear he wasn't being forthright with me about the relationship.
RP at 39. Myron then explained, "I, again, advised him that his story just wasn't adding up. It does not — it did not make sense, what he was telling me." RP at 41. According to Myron, Legan then gave him another different explanation in which the laptop belonged to McCarroll's friend, and that he lied to Terry about selling the laptop because he was embarrassed about selling it. The prosecutor then asked Myron what he was thinking at the time based on his training and experience. Myron responded, "Well, I'm thinking that now I'm getting yet another story as to the origin of this computer or who it belonged to, and, you know, not having Terry to talk to or Tammy to talk to, the only person I could suspect would be Mr. Legan." RP at 42.
The State then asked Myron why he arrested Legan. He responded:
Well, again, just too many inconsistencies that could not be answered. You know, he begins by talking about an illness. He wasn't thinking straight. He admitted lying to me during a previous interview, being embarrassed to tell me the truth because it would make him appear to be a liar.
He talks about his friend Tammy, disregards everything he said about Terry and doing car work for him, talking to Terry, and it just, again, did not follow a good path.
RP at 53. The State then asked Myron if he contacted McCarroll or Terry after Legan gave him contact information:
A. Well, I guess it was a point that I had already received so much false information that I came to the conclusion that he was either a party to the theft or was covering up for persons that were involved with the theft, and therefore, taking part in it after the fact.
Q. And why did you not contact — I should say why did you not try to find out if Tammy McCarroll was in custody and if he had actually bailed her out or not?
A. Well, I did, in fact, during the course of my investigation, I did find that Tammy was a real person, found out that Terry was a real person, but based on his initial statements that she was transient, he had no way of getting ahold of her, didn't know where she was at, I chose not to spin my wheels in a direction that wasn't going to be fruitful.
RP 66-67.
Legan argues that this testimony told the jury that in Myron's opinion, Legan was untruthful and guilty and that this was so well established that Myron did not even have to investigate what Legan had told him.
The above noted excerpts show the progress of Myron's investigation, they describe the interactions he had with Legan, and they explain why he conducted no further investigation after the meeting at Horizon Mortgage. Myron was justifiably skeptical of Legan's changing explanations, especially of Legan's claim of working with computers but then selling a $2,000 laptop for $175. In our view, this testimony does not invade the jury's exclusive province of deciding Legan's guilt. See State v. Farr-Lenzini, 93 Wn. App. 453, 465, 970 P.2d 313 (1999) (improper opinion on defendant's guilt invades jury's province).
Sufficiency of the Evidence
Legan contends that sufficient evidence does not exist to support his obstructing a police officer conviction because the State failed to prove two things: (1) that he hindered, delayed, or obstructed Myron's investigation because Myron testified that his interview on with Legan on January 19, 2005, was the end of his investigation; and (2) that the acts occurred in Pierce County.
When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
The court instructed the jury:
(1) That on or about the 19th day of January, 2005 the defendant hindered, delayed, or obstructed a law enforcement officer in the discharge of the law enforcement officer's powers or duties;
(2) That the defendant knew that the law enforcement officer was discharging official duties at that time:
(3) That the defendant knew that his conduct would hinder, delay or obstruct the public servant: and
(4) That the acts occurred in Pierce County, Washington.
CP at 24. Again, while RCW 9A.76.020 does not require the State to prove venue, this instruction did and thus the State had to prove it beyond a reasonable doubt. See Hickman, 135 Wn.2d 97. The record contains no evidence of Horizon Mortgage's location.
The State counters that Legan admitted on January 19, 2005, that he had lied to Myron on January 13, while at his Tacoma, Washington home. This lie, it argues, delayed Myron's investigation for six days, from January 13 to 19, while waiting for additional information on Terry. But the State does not assert, nor could it, that the record shows that Legan obstructed or delayed Myron's investigation on January 19 in Pierce County. Legan argues that the record does not even show in what city or county Legan resided.
Apparently exhibit 5, the pawn ticket, shows his address but it was not made part of the appellate record.
The conviction must be reversed as the State failed to prove these required elements.
Statement of Additional Grounds, RAP 10.10
In his Statement of Additional Grounds, Legan challenges the admissibility of his statements to Myron before he was arrested, defense counsel's failure to give him a copy of the police report, defense counsel's failure to present evidence of the laptop's value that he asked to be presented, and that he was never informed that he did not have to have a defense attorney that was a state employee.
On appeal, we limit our review to issues contained in the record. Not one of these claims is reviewable because they all involve evidence extrinsic to the trial record. See State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995) ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record").
We affirm Legan's conviction of trafficking in stolen property. His convictions for first degree possession of stolen property and obstructing a police officer are reversed with instructions to dismiss. We remand the matter for resentencing.
A majorityofthe 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.
I concur: _______________ Van Deren, J.
I concur with that portion of the majority opinion and analysis affirming Charles D. Legan's conviction for trafficking in stolen property and accepting the State's concession that the jury instructions made possession of stolen property a lesser included offense of trafficking as charged and require vacation of the possession of stolen property charge. But I must respectfully dissent from that portion of the majority opinion holding that the evidence is not legally sufficient to support the jury's verdict finding Legan guilty of obstructing a law enforcement officer.
The court's Instruction No. 16 instructed the jury that to convict the defendant of the crime of obstructing a law enforcement officer, the State must prove beyond a reasonable doubt:
(1) That on or about the 19th day of January, 2005 the defendant hindered, delayed, or obstructed a law enforcement officer in the discharge of the law enforcement officer's powers or duties;
(2) That the defendant knew that the law enforcement officer was discharging official duties at that time;
(3) That the defendant knew that his conduct would hinder, delay or obstruct the public servant; and
(4) That the acts occurred in Pierce County, Washington.
Clerk's Papers (CP) at 24 (emphasis added). As with the other elements instructions, No. 7 and No. 13, a handwritten "G", apparently written by the presiding juror who signed the verdict forms, appears at the end of each of the typed instructional elements. The majority holds that because the record contains no address for Horizon Mortgage, where Deputy Allen Myron and his security escort met with Legan on January 19, that the evidence is insufficient as a matter of law to support the jury's verdict finding Legan guilty of obstructing. Although the majority acknowledges that when reviewing a challenge to the sufficiency of the evidence we are required to weigh the evidence in a light most favorable to the jury's verdict, in my opinion, it fails to do so here.
Element (1) of Instruction No. 16 required that the jury find beyond a reasonable doubt that "on or about the 19th day of January, 2005 the defendant hindered, delayed, or obstructed a law enforcement officer in the discharge of the law enforcement officer's powers or duties." CP at 24. In State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788 (1996), we held that the language "on or about" in an information is sufficient to admit proof of the act anytime within the statute of limitations, unless time is an element of the charge or the defendant asserts an alibi defense. The evidence before the jury established that on January 13, 2005, Deputy Myron called Legan at his home at 3902 South Mason Loop Road, right off Tyler. (Legan's current address is 3260 South 72nd Street in Tacoma. He lived there for four months since April, and previously lived at 3902 South Mason Loop Road for four years.)
During the January 13 telephone call, Deputy Myron identified himself as a police officer and told Legan that he was investigating a stolen laptop computer that Legan had sold to Pawn X-Change for $175. Legan spoke with Deputy Myron on the telephone about the computer, telling him that it belonged to someone named Terry. Later, Legan called Deputy Myron and arranged to meet him on January 19 at Legan's jobsite on the third or fourth floor of the Horizon Mortgage building (which also housed GMAC and Allstate offices) to "clear up misunderstandings" from the January 13 telephone call. 1 Report of Proceedings (RP) at 149. When Deputy Myron and a uniformed Pierce County Sheriff security officer met Legan at the jobsite, Legan apologized for lying to him in the initial January 13 telephone conversation and provided Deputy Myron with a "for your eyes only" statement he had typewritten on January 18. 1 RP at 143.
On direct examination, Legan explained:
[Defense Counsel]: When you first spoke to him, I know you said you cleared it up later, but why did you initially tell him that you got the computer from Terry?
[Legan]: I was kind of embarrassed of — put on the spot, acting foolish. I didn't really know what to say at the time because, like I said, at one point I thought it was Tammy's. In fact, I was sure it was hers because I had seen her with a laptop, and then Terry came and claimed it was his. So when [Deputy Myron] called me up and said that it was stolen, you know, I — I knew I lied to him, but I wanted to point him in Terry's direction.
1 RP at 141.
Thus, the record shows that Legan admitted during trial that he committed the crime of obstructing a law enforcment officer in his telephone conversation with Deputy Myron on January 13.3 The address of the Horizon Mortgage office building, which houses the GMAC and Allstate 3 Legan later read to the jury the typewritten statement which he had given to Deputy Myron:
To Deputy Allen Myron from Charles Legan.
Subject: Your investigation. Dated 1/18/05.
Sir, when you first contacted me, I was just getting over a crippling cold and flu. I misunderstood some of the questions you had asked me, and as a result, I misspoke and answered inconsistent. I've had so much happen in the last six months — you know, like my father dying and stuff — that my account of the past events was not accurate and factual. Upon this, I felt embarrassed to tell the truth, thinking I would look like a liar if I changed my answers. Being an intensely spiritual person, I feel the need to not waste your time with false leads, and I feel compelled to be as honest as possible.
This letter is meant to provide you with the facts as I see them. This is for your eyes only. It's not meant to nail someone to the cross. I fear for the safety of my family, and I would be devastated if harm should come to us as a result of this letter.
These are the facts as I see them. My friend, Tammy, missed a court date. Because I helped bail her out, I received a $1,600 bill. When bounty hunters apprehended her, Tammy's boyfriend, Eric Buie, had possession of her `88 Toyota Camry station wagon and was staying at Hannah Skaggs' house. I thought it was 1010 Geiger Street or 1011 Geiger Street, Tacoma.
Within two days after receiving this bill, I went to Hannah's house. Eric was not there . . ., but the Camry station wagon was. I told Hannah and her present company that I was taking the car, and if anyone had any questions, they knew where to find me.
After returning to my apartment, I removed all of Tammy and Eric's things from the Camry and used it for transportation for a few weeks. Among her belongings was a laptop computer. Within two or three days, I took what I thought was Tammy's computer and sold it to a local pawn shop to help recoup
offices, is irrelevant. But even if, as the majority holds, the specific jury instructions in this case required the State to prove that Legan was in Pierce County when he lied to misdirect Deputy Myron toward Terry, the record demonstrates that he was. Legan was living at 3902 South Mason Loop Road, just off Tyler, when Deputy Myron placed the first telephone call to Legan's home on January 13 and heard Legan's first lies.
In my opinion, when viewed in a light most favorable to the State, the evidence in the record is sufficient as a matter of law to allow any rational jury to find that Legan obstructed Pierce County Sheriff's Deputy Myron in Pierce County and the jury's verdict should be affirmed.
___________________ QUINN-BRINTNALL, J.
some of the $1,600.
Two weeks went by. Terry, a friend of Eric's, stopped by my apartment. He was looking for his laptop computer. I told him I didn't know anything about it.
Tammy doesn't have a permanent residence. She stays with us every now and then for a few days. She uses my apartment for a mailing address. Her Toyota had been stolen four times in the last year. The last time it had been recovered by the Puyallup Tribal Police. My downstairs neighbor called the Tacoma police to complain about noise one day, and basically the police showed up, stopped by my apartment, checked out the noise. They found a stolen Toyota Camry station wagon there. They asked about it, searched my apartment, and then impounded the car. Nothing came of that incident.
Upon talking to you, I did my own research. I found Terry Jonassen, and his phone number is there. On Tammy's bail application I filled out, Eric had given me a reference name a couple of months ago, and I hadn't remembered. Also, while clearing out my Caller I.D., I had Rose Jonassen and Terry's phone number there. These times coincide when Eric and Tammy stayed at my place throughout the time.
These are the facts as I know them to be. If you have any questions, please let me know. Thank you. Respectfully, Charles Legan.
1 RP at 142-45.