State v. Delmarter

Decision Date23 October 1980
Docket NumberNo. 46508,46508
Citation618 P.2d 99,94 Wn.2d 634
PartiesThe STATE of Washington, Respondent, v. Rodney G. DELMARTER, Petitioner, Dennis J. Delmarter and Carole Marie Jentry, Defendants.
CourtWashington Supreme Court

Fred Diamondstone, Seattle, for petitioner.

Norman K. Maleng, Pros. Atty., William P. Harris, Deputy Pros. Atty., Seattle, for respondent.

DOLLIVER, Justice.

Defendant, Rodney Guy Delmarter, was charged with simple assault and attempted theft in the first degree of property in Warren's Drug Store. None of the witnesses who testified at trial saw defendant enter the store, nor noticed him until he was near the prescription counter at the back of the store.

Defendant testified that he went to the drugstore to purchase some cough syrup, placed his change on the pharmacy counter, and some of it rolled off the counter to the floor inside the pharmacy area. Defendant stated he then went behind the counter, which is off limits to customers, to pick up his change. He further testified that he was looking for the pharmacist at that time. Entry to the pharmacy area is through a swinging door and a step up about 8 inches onto the raised floor.

The pharmacist testified that he first observed defendant in the area near the prescription counter walking around among the shelves and magazine racks, and that he saw defendant weaving and looking behind the counter to see if anybody was there. Later, he found defendant inside the pharmacy area crouched down on the floor in front of but facing away from a camouflaged cash drawer. The pharmacist also testified that, shortly before the incident, a clerk had obtained change from the cash drawer; that it was used to make change many times a day; and that the requests for change were sometimes shouted by clerks at the other end of the store. When the pharmacist confronted defendant, a struggle ensued which resulted in the assault conviction. Defendant broke away and fled from the store with his two companions.

Testimony at trial established that a camouflaged cash drawer, which appeared to be nothing more than a shelf containing medications, was situated behind the prescription counter approximately 17 feet from the swinging door used to enter the pharmacy area and that employees using the cash drawer could be seen from various parts of the store. Approximately $1,800 in cash was in the drawer at the time of this incident along with certain controlled substances. The drugs concealed in the cash drawer were valued at approximately $100 acquisition cost while the retail value of all the drugs in the store was around $15,000.

Defendant was convicted of simple assault and attempted theft in the first degree. After the jury returned its verdict, defendant moved for a new trial and, in the alternative, asked the court to reduce the conviction to attempted theft in the third degree to conform with the evidence. Both motions were denied.

Defendant appealed only the conviction of attempted theft in the first degree. The Court of Appeals affirmed. State v. Delmarter, 23 Wash.App. 1024 (1979). We granted defendant's petition for review in which defendant seeks a remand of the case with instructions to reduce the grade of the conviction to attempted theft in the third degree.

Defendant was convicted of attempted theft in the first degree under RCW 9A.28.020(1), which provides:

A person is guilty of an attempt to commit crime if, with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime.

(Italics ours.) Theft is defined in RCW 9A.56.020 as follows:

(1) "Theft" means:

(a) 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; ...

RCW 9A.56.030 establishes the elements of theft in the first degree:

(1) A person is guilty of theft in the first degree if he commits theft of:

(a) Property or services which exceed(s) one thousand five hundred dollars in value; ...

While defendant concedes there is sufficient evidence to convict him of attempted theft, he asserts the evidence is insufficient to prove he had the specific intent to take property valued in excess of $1,500.

Initially, defendant contends that to be convicted of attempted first-degree theft, the state must prove he knew the property he attempted to steal had a value in excess of $1,500. Defendant confuses knowledge with intent. RCW 9A.56.020-.030(1)(a) does not include as an element of the crime that defendant must have knowledge of the value of the property. Defendant cites no case authority for his position other than State v. Leach, 36 Wash.2d 641, 219 P.2d 972 (1950), which concerns intent, not knowledge, and is not in point.

The crucial question is whether there is sufficient evidence that defendant intended to steal from the camouflaged cash drawer. Defendant claims that since there is no evidence he knew of the existence of the cash drawer there is insufficient evidence to convict.

The rule applied in this state by an appellate court in determining the sufficiency of the evidence in a criminal case has been altered recently by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Prior to Jackson, it was necessary for the court,

to be satisfied that there (was) 'substantial evidence' to support either the state's case, or the particular element in question. When that quantum of evidence has been presented, there is some proof of the element or crime in question and the motion in arrest of judgment must be denied.

State v. Randecker, 79 Wash.2d 512, 518, 487 P.2d 1295 (1971). The standard of review enunciated in Jackson, however, now requires us to determine:

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, supra, 443 U.S. at 319, 99 S.Ct. at 2789. We have recently applied the Jackson test in analyzing the sufficiency of the evidence in a criminal case. State v. Green, 94 Wash.2d 216, 616 P.2d...

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