Opinion
No. 27665-8-II.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No. 01-1-00318-0. Judgment or order under review. Date filed: 07/12/2001. Judge signing: Hon. Wm Thomas McPhee.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Brent J. Rosie appeals his convictions of six counts of second degree theft, arguing that the trial court instructed the jury on an uncharged alternative means and failed to provide the jury with a unanimity instruction. He further argues that we should dismiss the charges with prejudice because the evidence did not support the charged means. In addition, he challenges his offender score calculation and alleges ineffective assistance of trial counsel based on counsel's failure to object to the defective jury instructions or challenge the offender score. The State concedes that the trial court instructed the jury on an uncharged alternative means but argues that the appropriate remedy is dismissal without prejudice. Although we accept the State's concession, we affirm the convictions because the trial court's single-meaning instructions clearly defined only the means charged and the evidence is sufficient to support the convictions. We also reject Rosie's ineffective assistance of counsel claims. But we remand for resentencing.
Rosie raised his offender score issue in a Motion Pursuant to RAP 18.15. A commissioner of this court ruled that accelerated review and severance from the trial issues were inappropriate.
Facts
Because Rosie argues that the evidence was insufficient to support the theft convictions, we present the facts in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The State charged Rosie by second amended information with six counts of second degree theft, counts I and III through VII, and one count of second degree vehicle prowl, count II, arising from the theft of a briefcase and its contents from Lacey Police Department Commander Edward Sorger's car. The State brought the theft charges under RCW 9A.56.020(1)(a) and alleged that Rosie committed the thefts by `wrongfully obtain[ing] control over' Sorger's property, a police radio and several account access cards. The State also charged count I in the alternative as second degree possession of stolen property.
The State also charged Rosie with an additional theft, count VIII, charged in the alternative as taking a motor vehicle without the owner's permission, and unlawful possession of a controlled substance, count IX. The trial court declared a mistrial on these counts, and Rosie does not raise any issues related to these charges on appeal.
At trial, Sorger testified that on January 29, 2001, his briefcase was stolen from his unlocked personal car while he was inside a convenience store. At the time it was stolen, his briefcase contained: (1) a small two-way police radio; (2) a police department tape recorder; (3) a wallet containing his badge, his identification, five or six credit cards, his driver's license, his commission cards, and other items; (4) chemical spray in a leather holder; (5) his checkbook; (6) various paperwork; and (7) `department trading cards.' I Report of Proceedings (RP) at 102-03.
After Sorger discovered his briefcase was missing, he and two other officers spoke to the store's staff and reviewed the store's security tapes. Sorger's car was not visible on the tapes, but the tapes showed a white Ford Tempo pull into the parking lot and behave suspiciously, by pulling in and then backing up in an unusual manner. The tapes did not show the people inside the white car clearly, but store personnel told the officers that two men and a woman who appeared to be in their twenties, one of whom had a dark complexion and appeared Hispanic, occupied the car. Jamie Murphy, the woman who was in the white car, later testified that the car was a four door model.
Murphy testified for the State to fulfill her plea bargain, but she testified that she recalled very little about the events of January 29, because she suffered a head injury and had been taking various prescription and non-prescription drugs, including methamphetamine, on the day of the theft.
About 45 minutes after the officers viewed the tapes, a white car similar to the one on the tapes passed one of the officers. The passenger in the car was a white woman in her twenties and the driver was `dark complected, possibly Hispanic.' II RP at 155-56. The officer, who was joined by a second officer in a separate patrol car, pulled in behind the white car. When the second officer activated his emergency lights, the car pulled over, but when the officer exited his car, it sped away.
The officers pursued the white car as the people in the car threw things out of the windows. The driver eventually lost control and the back end of the car hit a tree. When the officers approached the wrecked car, they found Sorger's briefcase in what appeared to have been the trunk area of the car.
The officers identified the two people in the car as Ricky Rangel and Jamie Murphy. Sorger recognized Rangel from the convenience store. Along the side of the road, the officers recovered several items from the briefcase. The police radio, the chemical spray, and Sorger's badge were still missing at the time of the trial.
Rangel testified that before the accident, he was driving the white Tempo with Murphy in the front passenger seat and Rosie in the back seat and that they stopped at the convenience store. Rosie and Murphy stayed behind when he went inside.
When he returned to the car, Murphy was in the driver's seat; she told Rangel to hurry so they could leave. They then took Rosie home.
Although Rangel testified at trial that when he got back into the car at the store he noticed the briefcase sitting between the two front seats, the State impeached Rangel by presenting an earlier interview in which he said he had seen the briefcase in the back seat with Rosie. Detective Chris Edin later verified that Rangel had stated in a January 29 interview that he had seen the briefcase in the back seat of the car with Rosie.
While at Rosie's house, they needed to move the car. During the January 29 interview, Rangel stated that Rosie moved the car and when he returned he told Rangel he had put something in the trunk. Rangel later asserted that his trial testimony was more accurate than the statements he made during the January 29 interview because at that time he was just trying to place the blame on someone else.
Rangel also testified that while they were at Rosie's house, Rosie showed Murphy a two-way radio because she and Rangel were interested in purchasing one. But he asserted that Rosie had a variety of hand-held radios, and that the radio he showed Murphy was a two-way radio rather than a police radio.
Rangel further testified that when the police initially pulled him over, Murphy showed him the badge and the attached wallet. He also stated that after Murphy took these items out of the car's glove box, she told him that they should blame everything on Rosie.
Cheryl O'Brien testified that Rosie had been staying with her family at the time of the incident. On or about January 29, she heard Rosie trying to sell a small police radio that he said was stolen. But O'Brien also testified that although Rosie said that `we' had taken the radio from an officer's car, she did not recall him saying that `he' had stolen it. II RP at 315, 346.
O'Brien further testified that she had also observed Rosie with an empty pepper spray holder and a photograph of a man; she confirmed that the photograph was similar to the police trading cards that had been in Sorger's briefcase. Rosie told her that he also had the pepper spray canister.
O'Brien's daughter, Aimee Carlson, testified that she had seen Rosie with the police trading card and the police radio. She testified that she heard Rosie say the radio `was taken out of a cop's car, or it was stolen from a cop,' and that he said that he was the one who had taken it. II RP at 374.
During closing argument, the prosecutor repeatedly emphasized that the key issue in determining whether Rosie was guilty of the theft of Sorger's property was who had entered Sorger's vehicle and taken the briefcase. She informed the jury that if it did not find that Rosie had entered Sorger's car, it could still find that he possessed the stolen radio under the alternative possession of stolen property charge. But she did not suggest that possession of any of the items alone, without proof that Rosie actually took the items from Sorger's car, would establish the theft charges.
The trial court presented the parties with its proposed jury instructions and neither party objected or excepted to any of the instructions relevant to this appeal. But the record on appeal does not reveal which party offered what instructions.
Instruction 13, the to convict instruction for count I, and instruction 19, the to convict instruction for counts III through VII, required the jury to find, `That on or about January 29, 2001, the defendant wrongfully obtained or exerted unauthorized control over property of another.' Clerk's Papers (CP) at 24, 29 (emphasis added). Instructions 12 and 18 defined the term `theft' as `to wrongfully obtain or exert unauthorized control over the property of another with intent to deprive that person of such property.' CP at 24, 28 (emphasis added). They further defined the phrase `[w]rongfully obtains or exerts unauthorized control' as `to take wrongfully the property of another.' CP at 24, 28.
After the jury verdict, Rosie moved for arrest of judgment or a new trial, arguing that the verdict on count II was inconsistent with the verdict on counts III through VII and insufficient evidence. The trial court denied this motion.
The jury found Rosie guilty on counts I and III through VII and not guilty on count II. Rosie appeals his convictions and sentence.
Analysis I. Alternative Means
Rosie first contends that because the charging information alleged only that he wrongfully obtained control over the property of another and not that he exerted unauthorized control over the property, the jury instructions allowed the jury to convict him on an uncharged alternative means. The State concedes that the jury instructions included an uncharged alternative means of committing second degree theft.
Although Rosie's counsel did not raise this issue below, we will consider this issue on appeal because it is a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Davis, 141 Wn.2d 798, 866, 10 P.3d 977 (2000). Because we address Rosie's alternative means arguments, we do not address his ineffective assistance of counsel claim based on his trial counsel's failure to object to the relevant to convict instructions below.
Additionally, we note that because the record does not reveal whether Rosie proposed the to convict instructions at issue, we cannot determine whether the invited error doctrine precludes review of this issue. State v. Henderson, 114 Wn.2d 867, 870-71, 792 P.2d 514 (1990) (invited error doctrine precludes review of any instructional error, even one of constitutional magnitude, where the challenged instruction is one that was proposed by the defendant). Because the invited error doctrine does not prevent Rosie from raising this same issue as part of an ineffective assistance of counsel claim should his counsel have proposed these instructions, State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996), we consider this issue despite the defective record.
`It is fundamental that under our state constitution an accused person must be informed of the criminal charge he or she is to meet at trial, and cannot be tried for an offense not charged.' State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988); see also State v. Olds, 39 Wn.2d 258, 260-61, 235 P.2d 165 (1951). When an information alleges only one crime, it is constitutional error to instruct the jury on a different, uncharged crime. Olds, 39 Wn.2d 258 at 260-61; see also State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996) (trying a defendant under uncharged statutory alternative violates the defendant's right to notice of crime charged); State v. Nicholas, 55 Wn. App. 261, 272-73, 776 P.2d 1385; State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988). Such an error is `presumed prejudicial unless it affirmatively appears that the error was harmless,' Bray, 52 Wn. App. at 34-35, and requires reversal unless `in subsequent instructions the crime charged was clearly and specifically defined to the jury.' State v. Severns, 13 Wn.2d 542, 549, 125 P.2d 659 (1942); see also Bray, 52 Wn. App. at 35 (quoting Severns, 13 Wn.2d at 549).
RCW 9A.56.020(1)(a) defines `theft' as: `To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services.' The issue here is whether the phrase `wrongfully obtain or exert unauthorized control' establishes two alternative means of committing theft.
RCW 9A.56.010(19) provides that:
`Wrongfully obtains' or `exerts unauthorized control' means:
(a) To take the property or services of another;
(b) Having any property or services in one's possession, custody or control as bailee, factor, lessee, pledgee, renter, servant, attorney, agent, employee, trustee, executor, administrator, guardian, or officer of any person, estate, association, or corporation, or as a public officer, or person authorized by agreement or competent authority to take or hold such possession, custody, or control, to secrete, withhold, or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto; or
(c) Having any property or services in one's possession, custody, or control as partner, to secrete, withhold, or appropriate the same to his or her use or to the use of any person other than the true owner or person entitled thereto, where the use is unauthorized by the partnership agreement.
Relying on State v. Lee, 128 Wn.2d 151, 904 P.2d 1143 (1995), the State concedes that `wrongfully obtain[ed]' and `exerted unauthorized control over' are alternate means of committing theft under RCW 9A.56.020(1)(a) and that the trial court erred in providing the jury with to convict instructions that contained both terms when only one term was used in the charging document. Although Lee did not address whether these two `prongs' of RCW 9A.56.020(1)(a) constitute distinct means of committing theft, the Supreme Court has held that the two terms establish alternative means of committing theft. State v. Linehan, 147 Wn.2d 638, 56 P.3d 542 (2002), cert. denied, 123 So. Ct. 1633 (2003). Accordingly, we accept the State's concession.
Although the Lee court recognized that RCW 9A.56.020(1) described four `types' of theft, (1) theft by taking; (2) embezzlement; (3) theft by deception; and (4) appropriation of lost or misdelivered property, it did not discuss whether the two terms contained in RCW 9A.56.020(1)(a) established two separate means of committing theft. Lee, 128 Wn.2d at 157-58. Instead, the Lee court relied on State v. Southard, 49 Wn. App. 59, 741 P.2d 78 (1987), which found that there were four types of theft by referring to both RCW 9A.56.020 and the definitional statute RCW 9A.56.010. State v. Linehan, 147 Wn.2d 638, 56 P.3d 542 (2002), cert. denied, 123 S.Ct. 1633 (2003), overrules this aspect of Lee and Southard.
In Linehan, the court concluded that the appellate courts erred when they held that theft by taking and embezzlement were alternative means of committing theft because the courts reached this conclusion only by relying on a definitional statute, former RCW 9A.56.010(7) (1998) (now RCW 9A.56.010(19)). Linehan, 147 Wn.2d at 646-49 (discussing State v. Stephenson, 89 Wn. App. 217, 948 P.2d 1321 (1997) and State v. Vargas, 37 Wn. App. 780, 683 P.2d 234 (1984), and concluding that Stephenson wrongly interpreted Vargas's holding that there were four types of theft as implying that there were four means of committing theft).
But, despite recognizing that the terms in the phrase `wrongfully obtain or exert unauthorized control' in RCW 9A.56.020(1)(a) are `defined together in [RCW 9A.56.010(19)],' and finding `the cases that have defined the alternative means of `wrongfully obtains' and `exerts unauthorized control' as a unit' instructive, the court also specifically stated that RCW 9A.56.020(1)(a) contains two alternative means of committing theft. Linehan, 147 Wn.2d at 644-45, 649, 651.
Because we accept the State's concession on this issue, we do not reach Rosie's unanimity instruction argument.
But, despite the State's concession, we conclude that reversal is inappropriate. The trial court also instructed the jury that the phrase `wrongfully obtains or exerts unauthorized control' had a single meaning: `to take wrongfully the property of another,' and the prosecutor argued that the jury could find Rosie guilty of the thefts only if it found that Rosie was the person who took Sorger's property. III RP at 545-52. Thus, the instructions taken as a whole clearly and specifically defined the single alternative means of theft by taking, and the error in the to convict instructions was harmless.
Nor do we accept Rosie's assertion that the apparent inconsistent verdicts on the six theft charges and the vehicle prowl charge demonstrate that the jury convicted him under the `exerted unauthorized control' section of the to convict instruction. Br. of App. at 12. Because the jury's reasoning inheres in the verdict, we cannot determine why the jury rendered these seemingly inconsistent verdicts; and, particularly in light of the court's single-meaning instruction and the prosecutor's argument, we cannot presume that the jury reached inconsistent verdicts because of the uncharged alternative means of committing theft. See State v. Ng, 110 Wn.2d 32, 46-48, 750 P.2d 632 (1988) (where evidence supports the conviction, a criminal defendant convicted by a jury on one count cannot attack that conviction because it is inconsistent with the jury's acquittal on another count). Our focus in determining whether the instructional error was prejudicial must be based on the record related to that charge, not on the jury's decision on another charge.
II. Sufficient Evidence
Rosie also appears to argue that the evidence was insufficient to support the verdict on the theft convictions. We disagree.
Evidence is sufficient to support a conviction 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 (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385 (1980)). And circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Additionally, credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Accordingly, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Here, the evidence, taken in the light most favorable to the State, shows that Rosie was in the car with Rangel and Murphy when they arrived at the convenience store where Sorger's car was parked. While Rangel was in the store, Murphy got into the driver's seat and moved the car around the parking lot in a suspicious manner and when Rangel returned, the briefcase was inside the car. Upon arriving at Rosie's residence, Rosie and Murphy examined a radio similar to the one that had been inside Sorger's brief case. O'Brien also observed Rosie with items from the briefcase and overheard him trying to sell a police radio that was taken from an officer's car. And Carlson overheard Rosie telling others that he had taken the radio from the car.
A reasonable jury could have found that because Rosie was a passenger when Murphy moved the car, he was most likely the person to exit the car and take the briefcase from Sorger's car. Additionally, O'Brien's observations and Carlson's testimony support the conclusion that Rosie was the person who actually took the briefcase. Thus, there is sufficient evidence to support the verdict on the theft charges.
III. Offender Score
Finally, Rosie argues that the trial court included three juvenile offenses in his offender score that washed out under former RCW 9.94A.030(12) (1996), because he committed these offenses before he turned 15. Because we reach the issue, we need not address Rosie's ineffective assistance of counsel claim based on counsel's failure to raise this issue at trial. We agree.
In response to Rosie's RAP 18.15 motion, the State argued that this issue is moot because Rosie has already served his sentence. This argument is not well taken because the length of Rosie's sentence could potentially have future consequences should Rosie reoffend. See State v. Raines, 83 Wn. App. 312, 315, 922 P.2d 100 (1996) (finding that a case was not moot even though the appellant had served his entire sentence because the modified sentence that he challenged had potential impact on his future offender score).
Rosie's criminal history included three juvenile felony offenses committed before he turned 15 on February 12, 1995: (1) an October 31, 1994 residential burglary; (2) an April 17, 1993 second degree burglary; and (3) an April 30, 1992 second degree malicious mischief. Until 1997, a defendant's prior juvenile class B and C felony convictions washed-out for purposes of calculating an offender score once the defendant turned 23 years old; offenses committed before the juvenile reached age 15 never counted in an adult offender score. See former RCW 9.94A.030(12)(b). The Legislature eliminated both wash-out provisions in 1997. See Laws of 1997, ch. 338 sec. 2; State v. Dean, 113 Wn. App. 691, 54 P.3d 243 (2002), review denied, 149 Wn.2d 1009 (2003) (discussing State v. Smith, 144 Wn.2d 665, 30 P.3d 1245, 39 P.3d 294 (2001) (washed-out juvenile offenses may not be revived), and State v. Cruz, 139 Wn.2d 186, 985 P.2d 384 (1999)).
Because Rosie reached the age of 15 before the date of the 1997 amendment and he committed the current offense before the subsequent amendments to the Sentencing Reform Act in 2002, the trial court erred when it included these offenses in Rosie's offender score calculation. In re Personal Restraint of Jones, Wn. App., 88 P.3d 424 (April 23, 2004).
Accordingly, we affirm the convictions, but remand for resentencing.
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.
MORGAN, J. and QUINN-BRINTNALL, C.J., concur.