State v. Acevedo
| Decision Date | 27 January 2011 |
| Docket Number | No. 28633–9–III.,28633–9–III. |
| Citation | 248 P.3d 526,159 Wash.App. 221 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent,v.Miguel Angel ACEVEDO, Appellant. |
OPINION TEXT STARTS HERE
Andrea Burkhart, Burkhart & Burkhart PLLC, Walla Walla, WA, for Appellant.Rea Lynn Culwell, Columbia County Prosecutors Office, June Riley, Columbia County Prosecuting Attorney, Dayton, WA, for Respondent.Panel: SWEENEY, KULIK and KORSMO, JJ.SWEENEY, J.
[159 Wash.App. 224] ¶ 1 This appeal follows a conviction for possession of a stolen motor vehicle. The defendant wanted to argue that what he possessed was a pile of car parts because he bought the vehicle sans motor or transmission and in a wrecked condition. He moved to dismiss at the close of the State's case on that theory and, alternatively, proposed a jury instruction defining a vehicle as self-propelled. The court refused to dismiss and refused to give his proposed jury instruction. We agree with the trial court that the vehicle did not have to be operable to satisfy the elements of this crime. We do, however, conclude that the court improperly ordered restitution for the full value of the vehicle in its undamaged condition because that level of restitution appears unrelated to the crime for which he was convicted. We also conclude that the prohibition against possession of deadly weapons is not crime related or authorized by statute. We, therefore, affirm in part, reverse in part, and remand for entry of a new judgment and sentence.
¶ 2 Someone broke into Tietan Auto Body Shop in Walla Walla, Washington, and stole Dan Wold's 1998 Acura. The thief drove the car through a security fence, scattering the Acura's headlights and other pieces of its front end on the ground.
¶ 3 Miguel Angel Acevedo bought the 1998 Acura with no front end, engine, or transmission from someone named Manuel in Milton–Freewater. Mr. Acevedo wanted the Acura's parts for his own Acura. Manuel delivered the Acura to the house Mr. Acevedo was renting in Dayton. Mr. Acevedo paid Manuel $200 and told him he would give him another $200 when he received the Acura's title. He never heard from Manuel again. Mr. Acevedo became suspicious and left the car under a tarp in the rental property's back yard when he moved out.
¶ 4 The rental property's owner, Duane Lowe, contacted the sheriff's office after Mr. Acevedo moved out. He told Deputy Nicholas Henzel that he found the 1998 Acura in the back yard of the rental property. It had no motor, transmission, wheels, or tires. Deputy Henzel read the vehicle identification number to dispatch and learned that the Acura had been stolen.
¶ 5 The State charged Mr. Acevedo with one count of possession of a stolen vehicle. Mr. Acevedo moved to dismiss the charge after the State rested. He argued that he possessed a bunch of automobile parts, not a motor vehicle, and therefore could not be guilty of possession of a stolen vehicle as a matter of law. The court concluded that the question was one for the jury and denied the motion:
I'm—I'm not ruling as a matter of law that [the Acura] definitely was capable of propulsion on the defendant's watch. Not at all. That's—the jury's got to decide that.
Report of Proceedings (RP) at 224. The court later rejected Mr. Acevedo's proposed jury instruction defining “motor vehicle” as “any vehicle that is self-propelled.” RP at 242, 245. It instead concluded that the Acura was a motor vehicle even though it was inoperable:
I rule as a matter of law since there seems to be a case of first impression, at least in the Hell's Canyon Circuit, 1 that a parts car, absent a motor and transmission, constitutes a motor vehicle for theft and or possession of stolen property purposes in Washington.
RP at 246. And it refused to allow Mr. Acevedo to argue that the Acura was not a “motor vehicle.” RP at 246.
¶ 6 The jury found Mr. Acevedo guilty of possessing a stolen vehicle. Mr. Acevedo moved for a new trial based on the court's ruling that the inoperable Acura was a motor vehicle as a matter of law. The trial court reiterated that “for purposes of the possession of a stolen motor vehicle statute, operability [is] not required.” RP at 299. And it denied Mr. Acevedo's motion.
¶ 7 The court then held a restitution hearing. Mr. Wold testified that the Acura was in “perfect condition” when it was stolen. RP at 326–27. He had purchased it for $1,000 and spent nearly $5,000 restoring it. After he got the car back from Mr. Acevedo, he tried unsuccessfully to sell it as scrap metal. A wrecking yard ultimately disposed of it for free. The court concluded that Mr. Acevedo and the car thief were jointly and severally liable for Mr. Wold's loss and ordered Mr. Acevedo to pay $6,000 in restitution.
¶ 8 The trial court sentenced Mr. Acevedo to 90 days of confinement and 12 months of community custody with conditions. Those conditions prohibited Mr. Acevedo from using or possessing drugs, using alcohol in excess, associating with people on probation or parole, and possessing deadly weapons. They also required that he be fully employed or in school, submit to a polygraph or urinalysis upon request, and participate in alcohol and drug treatment if recommended by his community supervision officer.
¶ 9 Mr. Acevedo contends that he was denied the opportunity to argue his theory of the case because the court refused to define a “motor vehicle” for the jury as a “vehicle that is self-propelled.” RCW 46.04.320; RCW 9A.04.110(28). His theory was that he bought and possessed a pile of parts, not a motor vehicle. The State responds that the court's ruling is correct because a motor vehicle, under the possession of a stolen vehicle statute, includes an inoperable car. The State, thus, maintains it was not required to show that the vehicle was self-propelled or operable.
¶ 10 Our review is de novo because the court's decision was based on a legal ruling. State v. White, 137 Wash.App. 227, 230, 152 P.3d 364 (2007).
¶ 11 A defendant is entitled to jury instructions that allow him to argue his theory of the case. Id. The instructions, as a whole, must properly instruct the jury on the applicable law. State v. Redmond, 150 Wash.2d 489, 493, 78 P.3d 1001 (2003). They must not mislead the jury. Id.
¶ 12 The trial court here defined the crime of possession of a stolen motor vehicle for the jury:
A person commits the crime of possessing a stolen motor vehicle when he or she possesses a stolen motor vehicle.
Possessing a stolen motor vehicle means [to] knowingly ... receive, retain, possess, conceal, or dispose of a stolen motor vehicle knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.
Clerk's Papers (CP) at 41 (Instruction 9). The court also instructed the jury on the elements of possession of a stolen motor vehicle:
To convict the defendant of the crime of possessing a stolen motor vehicle, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about June 11, 2009, the defendant knowingly retained, possessed, or concealed a stolen motor vehicle;
(2) That the defendant acted with knowledge that the motor vehicle had been stolen; and
(3) That the defendant withheld or appropriated the motor vehicle to the use of someone other than the true owner or person entitled thereto; and
(4) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 42 (Instruction 10).
¶ 13 The trial court instructed the jury that “[v]ehicle means a motor vehicle.” CP at 39 (Instruction 7). It, however, refused to instruct the jury that a motor vehicle is a self-propelled vehicle because it concluded as a matter of law that a vehicle does not have to be currently operable to be a motor vehicle.
¶ 14 “A person is guilty of possession of a stolen vehicle if he or she ... [possesses] a stolen motor vehicle.” RCW 9A.56.068(1). In this case, “ ‘[v]ehicle’ means a ‘motor vehicle’ as defined in the vehicle and traffic laws.” RCW 9A.04.110(28). And, in the vehicle and traffic laws, “ ‘[m]otor vehicle’ means every vehicle that is self-propelled.” RCW 46.04.320.
¶ 15 But a motor vehicle falls under the heading of self-propelled even if it is currently incapable of self-propulsion. State v. McGary, 37 Wash.App. 856, 859, 683 P.2d 1125 (1984). The definition of “motor vehicle” as a self-propelled vehicle refers to the vehicle's design, mechanism, and construction, not its condition. Id. Interpreting the definition this way furthers the purpose of the possession of a stolen vehicle statute—to combat motor vehicle theft. LAWS OF 2007, ch. 199, § 1(2). It would not further the statute's purpose to interpret the definition of “motor vehicle” as only an operable, self-propelled vehicle, which Mr. Acevedo urges us to do. The trial judge made the same observation:
By yanking out a motor and a transmission, it's no longer a vehicle? The defendant can just strip the motor and vehicle out of a car and now it's no longer a motor vehicle for, ah, the enhanced charging statute of either theft or possession of a stolen vehicle as to just regular old stolen property of some other generic kind.... [T]he defendant should not be able to control what they get charged with.
¶ 16 We read the possession of a stolen vehicle statute in a way that furthers its purpose and avoids unlikely, absurd, or strained consequences. State v. Fjermestad, 114 Wash.2d 828, 835, 791 P.2d 897 (1990). And to do so we conclude that the State had to prove Mr. Acevedo possessed...
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