State of Washington v. Jones, 96-1-00094-4

• Decision Date: 19 March 1999
• Docket Number: 96-1-00094-4
• Parties: <PartyHeader> STATE OF WASHINGTON, RESPONDENT, v. JAMES E. JONES, APPELLANT. </PartyHeader>
• Court: Washington Court of Appeals

[1]
[2]	STATE OF WASHINGTON, RESPONDENT,; v.; JAMES E. JONES, APPELLANT.
[3]	No. 22465-8-II
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of Jefferson County Docket No: 96-1-00094-4 Judgement or order under review Date filed: 09/25/1997 Judge signing: Hon. William E. Howard
[6]	March 19, 1999
[7]	Counsel: Counsel for Appellant(s) Robert W. Strohmeyer Ritchie & Strohmeyer PS 212 E 5th St Port Angeles, WA 98362 Counsel for Respondent(s) Juelanne B. Dalzell Prosecuting Attorney PO Box 1220 Port Townsend, WA 98368
[8]	The opinion of the court was delivered by: Houghton, J.
[9]	Judges: Authored by Elaine M. Houghton Concurring: J. Dean Morgan J. Robin Hunt
[10]	[Editor's note: originally released as an unpublished opinion]
[11]	James E. Jones appeals his conviction of possession of stolen property in the second degree for possessing gravel belonging to Jefferson County, on grounds the trial court erred in denying his motions to suppress evidence, to dismiss, and for a new trial. We affirm.
[12]	FACTS
[13]	On April 4, 1996, while on routine patrol, Jefferson County Deputy Sheriff Rick Smith observed what appeared to be freshly laid gravel on the Jones driveway at 255 G&L Shake Road. Upon further investigation, Smith discovered that the gravel pile located at the end of Shake Road appeared to have recently had gravel removed from it. Knowing that Michael Shaw leased the area, Smith telephoned Shaw to inquire whether he had given Jones permission to remove gravel from his property. Shaw told Smith that he had not given Jones permission to remove gravel and that he used the gravel stored on his property for highway work. Shaw told Smith that he would inspect the gravel pile and would contact Smith if he wanted charges filed.
[14]	On April 6, 1996, Jones telephoned Smith, telling him that Shaw had just been to his residence and had told him that Smith was investigating the possible theft of gravel from Shaw's property. Jones then admitted to the theft, stating, "It was me, I took it, but I didn't know who it belonged to, I'll make restitution , I'll pay for it. I just used a little in my driveway." Smith told Jones that he would speak with Shaw to determine whether he wanted to file charges.
[15]	Smith spoke to Shaw again, who confirmed that the missing gravel was taken from the Jefferson County gravel pile. Shaw explained that it was top grade gravel, known as "washed chip rock," and that it was very expensive. Shaw also told Smith that he had spoken with Jones and that Jones had confessed to taking the gravel without permission for use on his driveway.
[16]	Smith telephoned Melvin Fraker, a Jefferson County (County) Public Works foreman, requesting that he confirm the theft. Fraker later telephoned Smith, stating that he and Al Newman, the County Engineer, had visited the site and confirmed the theft. Fraker told Smith that while they were visiting the site Jones approached them and confessed to taking the gravel without permission for use on his driveway, but that he intended to pay for it, so they need not do anything further. After investigating the gravel pile, Fraker and Newman stopped at Jones' driveway, which is in open view from G&L Shake Road. Both men agreed that the gravel on Jones' driveway had come from the County gravel pile, and that it contained numerous yards of gravel.
[17]	On April 18, 1996, Fraker, Newman, and Earl Wells, the operations manager, took measurements at the County gravel pile, and determined that approximately 100 yards of gravel were missing. They then conducted an appraisal of Jones' driveway. Jones was present and gave his permission for the men to come on his property for the purpose of measuring the County gravel on his property. According to Newman, the driveway measured 300 feet by 30 feet, and contained approximately 24 cubic yards of County gravel.
[18]	Wells told Smith that the cost to the County for the gravel was $40 per yard, totaling $960 for the 24 yards on Jones' driveway. Wells also explained that the County had intended to use the gravel to rebuild the Upper Hoh Road, but that the gravel would now have to be replaced before the road could be rebuilt, further costing the county the price of employee wages and rescheduling for the time delay.
[19]	On October 15, 1996, Jones was charged by information with one count of possession of stolen property in the second degree, RCW 9A56.160. On January 24, 1997, Jones' counsel sent a letter to a criminal deputy prosecutor stating that a defense witness, Richard J. Schneider, would testify that there was no more than eight cubic yards of County gravel on Jones' driveway, not the 24 cubic yards alleged by the State. Because of the large discrepancy between measurements taken by the State in April 1996 and by Jones in January 1997, the State believed that Jones had removed and/or altered the County gravel on his driveway and then had hired an expert to take measurements.
[20]	The State, therefore, sought a search warrant to allow law enforcement officers to enter Jones' property to inspect the gravel on his driveway. The basis for the search warrant was that the Jefferson County Sheriff's Office had probable cause to believe that Jones had tampered with evidence. On February 20, 1997, pursuant to the search warrant, the State again measured the gravel on Jones' driveway, but it concluded that there had been no tampering or alteration of the gravel.
[21]	On April 4, 1997, Jones filed a motion to dismiss and a motion to suppress physical evidence seized during the execution of the search warrant on February 20, 1997. At the May 16, 1997, hearing on Jones' motions, defense counsel conceded that there were facts in dispute, and that the matter was not subject to dismissal under State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). The trial court, therefore, denied Jones' motion to dismiss based upon contested facts. The trial court also denied Jones' motion to suppress, finding probable cause to support the search warrant and that there was no evidence to suppress.
[22]	Jones' case was tried to a jury. At the close of the State's case, Jones filed a second motion to dismiss, alleging that

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