Opinion
No. 36590-1-II.
September 30, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-00689-7, Christine A. Pomeroy, J., entered July 19, 2007.
UNPUBLISHED OPINION
Henry Marshall appeals his convictions for first degree arson and first degree conspiracy to commit theft entered after a jury trial. He argues that the trial court violated his right to be free from double jeopardy, that his counsel was ineffective, and that the evidence was not sufficient to prove that he committed either crime. We affirm his convictions and sentence.
FACTS
In early April 2007, Shawn Leras, Marshall's roommate, heard Marshall mention that he had a friend named "John" who wanted to get rid of an automobile and "do insurance fraud." Report of Proceedings (RP) at 10.
All report of proceedings citations are to the volume containing transcripts of the jury trial and sentencing, held July 16, 17, and 19, 2007.
A day later, Marshall again mentioned the vehicle and insurance fraud. Leras warned Marshall not to become involved in any plans to destroy a vehicle. Leras later saw Paul Zamora, Marshall's friend, driving a black 2004 Isuzu Rodeo and Marshall following the Rodeo in his own car. Leras tried to call Marshall to prevent him from helping to destroy the Rodeo, but Marshall did not answer the phone. That evening, Leras overheard Marshall speaking with Zamora about a "big fire." RP at 12.
The next day, Leras asked Marshall to turn himself in to authorities. According to Leras, Marshall knew what he had done was "stupid" and that he should not have become involved in it. RP at 12. A few days later, Leras, still bothered by the incident, contacted Detective David Haller of the Thurston County Sheriff's Office. Haller met with Leras and discussed Leras's concerns. The conversation reminded Haller of a vehicle fire that deputies had responded to a few days earlier; he contacted the communications unit and requested information on the incident.
Haller met with Marshall and recorded their initial interview. Marshall admitted being involved in the vehicle fire. He stated that he picked up an Isuzu Rodeo from a Wal-Mart store parking lot with Zamora, then followed Zamora to a remote location where he helped Zamora remove tires from the car and pour lighter fluid into the interior. Zamora then ignited the car. Haller attempted to contact co-participants identified by Marshall but could not find them.
A few days later, Marshall called Haller to tell him that he wanted to turn himself in. Haller conducted a second recorded interview with Marshall after placing him under arrest. Marshall changed some of the details of his first statement, but still admitted that he helped burn an Isuzu Rodeo. He also identified John Wilkerson as the car's owner and told Haller that Wilkerson informed Marshall he wanted to get rid of it. Marshall then contacted Zamora, who said he would destroy the car. Marshall did not mention insurance proceeds or insurance fraud to Haller in either recorded statement.
On April 7, 2007, Officer Darcy Olsen of the Lakewood Police Department received a complaint about a stolen 2004 Isuzu Rodeo from John Wilkerson. Wilkerson submitted a claim to his insurance company for the destroyed vehicle. When the vehicle was destroyed, it was worth approximately $13,000.00, but was subject to a $17,000.00 lien for the purchase loan. A representative from the insurance company testified that the company first pays the lienholder and then pays any remaining insurance proceeds to the insured.
The State charged Marshall with four crimes: count I, first degree arson in violation of RCW 9A.48.020(1)(a)(b)(c) or (d); count II, first degree possession of stolen property in violation of RCW 9A.56.150(1); count III, first degree trafficking in stolen property in violation of RCW 9A.82.050(1); and count IV, first degree conspiracy to commit theft in violation of RCW 9A.56.030(1)(a) and RCW 9A.28.040. The trial court dismissed counts II and III, the stolen property charges, because Marshall possessed the Rodeo with permission of the registered owner. A jury convicted Marshall on the remaining two counts. The court sentenced Marshall to thirty months in custody for the arson conviction and four months for the conspiracy conviction, to be served concurrently.
(1) A person is guilty of arson in the first degree if he or she knowingly and maliciously:
(a) Causes a fire or explosion which is manifestly dangerous to any human life, including firemen; or
(b) Causes a fire or explosion which damages a dwelling; or
(c) Causes a fire or explosion in any building in which there shall be at the time a human being who is not a participant in the crime; or
(d) Causes a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds.
RCW 9A.48.020(1)(a)(b)(c) or (d).
"A person is guilty of possessing stolen property in the first degree if he or she possesses stolen property other than a firearm as defined in RCW 9.41.010 which exceeds one thousand five hundred dollars in value." RCW 9A.56.150(1).
"A person 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, is guilty of trafficking in stolen property." RCW 9A.82.050(1).
"(1) A person is guilty of theft in the first degree if he or she commits theft of: (a) Property or services which exceed(s) one thousand five hundred dollars in value other than a firearm as defined in RCW 9.41.010." RCW 9A.56.030(1)(a). And
(1) A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.
(2) It shall not be a defense to criminal conspiracy that the person or persons with whom the accused is alleged to have conspired:
(a) Has not been prosecuted or convicted; or
(b) Has been convicted of a different offense; or
(c) Is not amenable to justice; or
(d) Has been acquitted; or
(e) Lacked the capacity to commit an offense; or
(f) Is a law enforcement officer or other government agent who did not intend that a crime be committed.
RCW 9A28.040(1)(2).
One element the State is required to prove when seeking a conspiracy conviction is that one of the conspirators took a "substantial step" to further the conspiracy. State v. Bobic, 140 Wn.2d 250, 265, 996 P.2d 610 (2000); see also RCW 9A.28.040(1). When instructing the jury, the trial court used the Washington pattern jury instruction definition of "substantial step" for an attempt crime, rather than conspiracy. Compare 11A Washington Practice: Washington Practice Jury Instructions: Criminal 100.05, at 222 (2d ed. 1994) (WPIC) (for attempt crimes, "[a] substantial step is conduct which strongly indicates a criminal purpose and which is more than mere preparation") with WPIC 110.03, at 183 (2d ed. 2005 supp.) (for conspiracy, "[a] substantial step is conduct of the defendant which strongly indicates a criminal purpose"). The "substantial step" element in attempt crimes requires greater effort than it does in conspiracy crimes. State v. Dent, 123 Wn.2d 467, 477, 869 P.2d 392 (1994). When parties do not object to jury instructions, they are treated as the law on appeal. State v. Hickman, 135 Wn.2d 97, 102-03, 954 P.2d 900 (1998). In any event, the State's failure to object actually raised its burden of proof. Hickman, 135 Wn.2d at 102-03 (quoting State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 (1995)) (for the proposition that "`[a]dded elements become the law of the case . . . when they are included in instructions to the jury'").
Marshall filed a notice of appeal and submitted a statement of additional grounds for review. RAP 10.10.
ANALYSIS
Marshall argues that the conspiracy to commit theft "was incidental to, a part of, or coexistent with" the larger crime of first degree arson. Br. of Appellant at 9 (emphasis omitted). Consequently, he maintains that the conspiracy conviction must be reversed on double jeopardy grounds because "the single act of burning Wilkerson's truck at his request" cannot support both convictions. Br. of Appellant at 11. He also argues that his counsel was ineffective for failing to object to his conspiracy conviction on double jeopardy grounds and that the evidence is insufficient to support his convictions for first degree conspiracy to commit theft and first degree arson.
I. Double Jeopardy
Marshall claims that he was punished twice for the same crime by his convictions for first degree arson and conspiracy to commit theft. He did not object to the two convictions on double jeopardy grounds at trial. A double jeopardy claim, however, may be raised for the first time on appeal. State v. Jackman, 156 Wn.2d 736, 746, 132 P.2d 136 (2006); see also RAP 2.5(a). We review questions of law de novo. Jackman, 156 Wn.2d at 746.
The Washington State Constitution provides that a person may not be "twice put in jeopardy for the same offense." Wash. Const. art. I, § 9. To analyze a double jeopardy claim, a court must initially examine statutory language to see if the applicable statutes expressly permit punishment for the same act or transaction. State v. Calle, 125 Wn.2d 769, 776-77, 888 P.2d 155 (1995). The State does not contest that the statutes at issue here do not contain language permitting separate punishments for the same conduct.
Because the statutes do not speak to multiple punishments for the same act, we apply the "same evidence" test. Jackman, 156 Wn.2d at 746. This test provides that "if each offense contains elements not contained in the other offense, the offenses are different and multiple convictions can stand." Jackman 156 Wn.2d at 747. Marshall admits that the two statutes under which he was convicted contain different elements.
Finally, even if the statutes do not contain the same elements, multiple convictions are not allowed if the legislature has "otherwise clearly indicated its intent that the same conduct or transaction will not be pun ished under both statutes." Jackman, 156 Wn.2d at 746 (quoting State v. Baldwin, 150 Wn.2d 448, 455-56, 78 P.3d 1005 (2003) (emphasis added)). Marshall relies on the language in State v. Womac, 160 Wn.2d 643, 655, 160 P.3d 40 (2007) that states the "same evidence" test is not always dispositive and "establishes only a presumption which may be overcome by clear evidence of contrary [legislative] intent." He argues:
Here, Wilkerson's Isuzu Rodeo on which Wilkerson was still making payments was burned at his request by Marshall and another accomplice with Wilkerson then claiming it was stolen and submitting an insurance claim. This Court should construe this as evidence that the first crime (arson in the first degree as the court instructed in Instruction No. 13 [CP 34], a burning for the purposes of collecting insurance proceeds) was not completed as the second crime (conspiracy to commit theft in the first degree — an agreement to wrongfully deprive the owner of property) was in progress, then the conspiracy to commit theft was incidental to, a part of, or coexistent with the arson in the first degree, with the result that the [theft] conviction. . . . will not stand.
Br. of Appellant at 9 (citing State v. Johnson, 92 Wn.2d 671, 680, 600 P.2d 1249 (1979)).
The State disputes Marshall's argument that the "single act of burning Wilkerson's truck at his request" cannot support both the arson and the conspiracy to commit theft convictions. Br. of Appellant at 11. It argues that a conspiracy conviction is viewed differently than a conviction for an underlying crime. A criminal conspiracy conviction targets the "additional dangers inherent in group activity" and is primarily concerned with attacking the "conspiratorial agreement, not the specific criminal object or objects," thus, it can be distinguished from a conviction for a substantive underlying crime. Br. of Appellant at 3 (internal quotation marks omitted) (quoting State v. Dent, 123 Wn.2d 467, 476, 869 P.2d 392 (1994) and State v. Bobic, 140 Wn.2d 250, 265, 996 P.2d 610 (2000)).
We agree with the State that the same series of acts can support a conspiracy conviction and a conviction for a completed crime without violating a defendant's right to be free from double jeopardy. In State v. Gocken, 127 Wn.2d 95, 108, 896 P.2d 1267 (1995), the Washington Supreme Court addressed whether a defendant could be convicted for both criminal conspiracy and as an accomplice to second degree theft. At trial, one defendant was convicted on both counts for the following actions: she and another woman entered a store and, after some discussion, each woman grabbed clothing and ran from the store; while being chased, both women dropped the merchandise. Gocken, 127 Wn.2d at 98. Our Supreme Court stated:
Double jeopardy is avoided. . . . because criminal conspiracy and accomplice liability have separate elements. Criminal conspiracy requires an element of intent, while accomplice liability requires a lesser culpable state of knowledge. Likewise, accomplice liability requires a completed crime, while criminal conspiracy requires only proof that one of the conspirators took a substantial step toward the commission of the agreed crime, which can consist of mere preparatory conduct.
Gocken, 127 Wn.2d at 109. See generally Iannelli v. United States, 420 U.S. 770, 777-78, 95 S. Ct. 1284, 43 L. Ed. 616 (1975) ("[S]eparate sentences can be imposed for the conspiracy to do an act and for the subsequent accomplishment of that end."). We are satisfied that Gocken and other cases that distinguish between conspiracy convictions and convictions for underlying crimes, even when both convictions arise from the same set of facts, are both binding and persuasive authority and we affirm Marshall's convictions for both crimes.
II. Ineffective Assistance of Counsel
Marshall also asserts that his counsel was ineffective because his counsel failed to argue his right to be free from double jeopardy at trial. We disagree.
To prove ineffective assistance of counsel, the appellant must show that (1) counsel's performance was deficient, i.e., that the representation "fell below an objective standard of reasonableness based on consideration of all the circumstances" and (2) counsel's deficient performance prejudiced him, i.e., "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Marshall's counsel was not ineffective for failing to present a double jeopardy objection at trial. As discussed, double jeopardy does not bar prosecution for first degree arson and conspiracy to commit theft. Consequently, his counsel's performance was not deficient. Additionally, Marshall was not prejudiced by this alleged error because a double jeopardy claim may be raised for the first time on appeal. Jackman, 156 Wn.2d at 746; see also RAP 2.5(a).
III. Sufficiency of the Evidence
Marshall also argues that the evidence was not sufficient to prove conspiracy to commit theft or first degree arson. When a defendant challenges the sufficiency of the evidence, we review the evidence in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A. Evidence of Conspiracy to Commit Theft
Marshall contends that the evidence was insufficient to convict him of conspiracy to commit theft. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Salinas, 119 Wn.2d at 201.
Marshall contends that the State was required to prove beyond a reasonable doubt that "Marshall knew that the Isuzu Rodeo was owned by the bank when he agreed to burn it at Wilkerson's request." Br. of Appellant at 14. The State responds that it had to show only that Marshall intended to perform "conduct constituting a crime," here, the burning of the vehicle. Br. of Resp't at 9 (quoting RCW 9A.28.040(1)).
RCW 9A.56.030(1)(a) required the State had to demonstrate that Marshall conspired to wrongfully obtain control of the property of another, valued over $1,500.00, with the intent to deprive that person of the property. Here, Marshall's statement to Leras that he was going to "do insurance fraud" demonstrates his knowledge that someone (the insurance company) other than Wilkerson, the vehicle's registered owner, would sustain a loss when the vehicle was destroyed. RP at 10. Moreover, Marshall's own statements and actions indicate that he knew he was committing a crime by burning the vehicle. Finally, Marshall's conviction for first degree arson under RCW 9A.48.020(1)(d) required that he admit or be convicted of causing a fire with the intent to collect insurance proceeds. That conviction is sufficient evidence to support Marshall's conviction for conspiracy to commit theft.
Reviewing the evidence in the light most favorable to the State, we hold that the State presented sufficient evidence that Marshall conspired to commit theft and we affirm his conviction.
B. Evidence of First Degree Arson
Applying the legal standard used in Salinas to analyze the sufficiency of the evidence to commit conspiracy, we briefly address the merits of Marshall's claim that the evidence was insufficient to prove that he committed first degree arson. 119 Wn. at 201. Marshall argues that the State failed to prove that he acted to collect insurance proceeds. But the State presented evidence that Marshall told Leras that he was going to "do insurance fraud." RP at 10. In addition, the State proved that the loss caused by Marshall exceeded $10,000.00. Moreover, Marshall admitted to Haller that he helped burn the Isuzu Rodeo. Reviewing the evidence in the light most favorable to the State, we hold that the evidence was sufficient to prove that Marshall committed first degree arson.
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.
HUNT, J. and QUINN-BRINTNALL, J., concur.