State Of Wash. v. Gates
| Decision Date | 14 September 2010 |
| Docket Number | No. 38762-0-II,No. 38759-0-II,38759-0-II,38762-0-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ROBERT TROY GATES, Appellant. |
Robert Troy Gates appeals his convictions of first degree trafficking in stolen property, witness tampering, and intimidating a witness. We affirm.
On April 20, 2008, three males broke into Garfield Elementary School in Olympia, Washington, and stole several iMac desktop and laptop computers.1
On April 23, Robert Badillo, Gates's acquaintance, tried to move a vehicle for Gates. When Badillo could not start the car, Gates instructed him to move the "merchandise out of the back of the trunk." I RP at 43. Badillo moved three boxes of computers back to his apartment. Gates met Badillo at Badillo's apartment, inspected the boxes, and then left for some time. Gates returned "devastated," telling Badillo that the computers had been stolen, "that some kids hadsnitched them off already," and that Gates did not know where to put the computers. I RP at 45.
The next day, Badillo contacted law enforcement and told them that he did not want to get in trouble, but that he had in his possession items he believed were from the Garfield Elementary School burglary. Law enforcement recovered four iMac desktop computers, five keyboards, four computer mouse devices, and a laptop. The lead investigating officer verified that the computers Badillo turned over to police were from the school burglary. While some of the items had serial numbers, one of the burglars had removed the stickers identifying the equipment as belonging to Garfield Elementary School.
I RP at 62-64. Badillo informed law enforcement, and the State filed additional charges of witness tampering and intimidating a witness.
At trial, Tyson Embry, one of the men who pleaded guilty to crimes associated with the burglary, initially testified that he did not know Gates and that he had never had contact with Gates. During a break, Embry conferred with counsel and then changed his testimony. He stated that he sold the computers to Gates for $1,000. Embry sold the computers to Gates without any packaging or boxes. But he never told Gates the computers were stolen.
Badillo testified that the computers he picked up were boxed up and taped as if new from the store. When Gates's trial counsel asked if Gates told Badillo to hold onto the boxes until Gates "figured out what was going on," Badillo responded, I RP at 55. But in Badillo's original statement to law enforcement, he stated that Gates told Badillo the merchandise was stolen after he returned to Badillo's apartment.
The State admitted as exhibits pictures of the text messages Gates sent to Badillo. Badillo summarized the text messages generally as threatening his life, calling Badillo a "punk," andtelling Badillo that he was "going to die." I RP at 54. Badillo believed Gates sent the text messages because Badillo was providing information to the court. Badillo stated that the text messages he received from Gates were frightening.
Ron Morsette, the educational technology director for the Olympia School District, testified that the items Gates possessed were valued at about $4,000 to $5,000.
Gates did not propose any jury instructions nor object to the trial court's instructions. The jury found Gates guilty on all three counts.
We review claims of insufficient evidence under the familiar test outlined in State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) and State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980), determining whether substantial evidence supports the jury's findings and deferring to the jury on matters of witness credibility and weight of the evidence.
Gates argues that insufficient evidence supports his conviction for trafficking in stolen property because he did not know the computers were stolen until after he transferred them to Badillo. We disagree.
A person is guilty of first degree trafficking in stolen property if he or she knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others, or who knowingly traffics in stolen property. RCW 9A.82.050(1). "'Traffic'" meansto 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. Former RCW 9A.82.010(19) (2006). A person acts knowingly when he or she is aware of facts, circumstances, or results described by a statute defining an offense, or he or she has information that would lead a reasonable person in the same situation to believe that facts exist which are described by a statute defining an offense. RCW 9A.08.010(1)(b).
Here, Gates was aware of facts that a reasonable person in the same situation would believe constituted trafficking in stolen property. Gates purchased four iMac desktop computers, five keyboards, four computer mouse devices, and one laptop computer for $1,000, a small fraction of their $4,000 to $5,000 value. In addition, the computers were loose, not in boxes. By the time Gates had Badillo pick up the computers, he had boxed them up as if they were new. While Embry testified that he never told Gates the computers were stolen, a reasonable person would suspect that high-end computer equipment sold in a parking lot for a fraction of its value was stolen. Gates had knowledge of these facts when he transferred the computers to Badillo. Sufficient evidence supports Gates's conviction for first degree trafficking in stolen property.
Gates next contends that insufficient evidence supports his conviction for intimidating a witness because his text messages to Badillo were not true threats because he threatened to harm only himself, and not Badillo.
A person is guilty of intimidating a witness, as the State charged Gates, if by use of a "threat against a current or prospective witness, he or she attempts to influence the testimony of that person. RCW 9A.72.110(1)(a). As the trial court instructed the jury:
CP at 42 (emphasis added); see also RCW 9A.04.110(27)(a), (j).
We must interpret a statute that criminalizes pure speech with the commands of the First Amendment in mind. State v. Kilburn, 151 Wn.2d 36, 41, 84 P.3d 1215 (2004). Threats are a form of pure speech. State v. Tellez, 141 Wn. App. 479, 482, 170 P.3d 75 (2007). This means that the speech criminalized must be unprotected speech, such as a true threat. Kilburn, 151 Wn.2d at 43. A "true threat" is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intent to inflict bodily harm on or to take the life of another person. Kilburn, 151 Wn.2d at 43. A true threat is a serious threat, not one said in jest, idle talk, or political argument. Kilburn, 151 Wn.2d at 43.
Whether a true threat has been made is determined under an objective standard that focuses on the speaker. Kilburn, 151 Wn.2d at 44. Whether a statement is a true threat or a joke is determined in light of the entire context, and the relevant question is whether a reasonable person in the defendant's place would foresee that, in context, the listener would interpret thestatement as a threat or a joke. Kilburn, 151 Wn.2d at 46.
Whether language constitutes a true threat is an issue of fact for the trier of fact in the first instance. State v. Johnston, 156 Wn.2d 355, 365, 127 P.3d 707 (2006). As explained in Kilburn, however, a rule of independent appellate review applies in First Amendment speech cases. An appellate court must make an independent examination of the whole record, so as to assure itself that the judgment does not constitute a forbidden intrusion on the field of free expression. Kilburn, 151 Wn.2d at 50. The appellate court is required to independently...
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