State v. Ehrhardt

• Decision Date: 01 May 2012
• Docket Number: No. 41277–2–II.,41277–2–II.
• Citation: 167 Wash.App. 934,276 P.3d 332
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Joseph O. EHRHARDT, Appellant.

167 Wash.App. 934

276 P.3d 332

STATE of Washington, Respondent,

v.Joseph O. EHRHARDT, Appellant.

No. 41277–2–II.

Court of Appeals of Washington, Division 2.

May 1, 2012.

James Lewis Reese III, Attorney at Law, Port Orchard, WA, for Appellant.

Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.

WORSWICK, A.C.J.

[167 Wash.App. 936]¶ 1 A jury found Joseph Ehrhardt guilty of second degree burglary and second degree theft for entering a shed on Brian Glaze's property and exerting unauthorized control over items found therein. Ehrhardt appeals, arguing (1) the trial court erred in refusing to give a jury instruction that mere possession of stolen property was insufficient to prove theft or burglary, (2) the trial court erred in giving an expert testimony instruction, (3) the trial court erred by denying Ehrhardt an opportunity to voir dire an expert witness regarding his qualifications, (4) the trial court gave an erroneous instruction defining “value” for the purposes of theft, and (5) the evidence was insufficient to support Ehrhardt's convictions. We affirm Ehrhardt's burglary conviction but reverse his theft conviction with prejudice because the State presented insufficient evidence to support the charge. ¹

FACTS

¶ 2 On the evening of June 15, 2010, Glaze arrived home to find Ehrhardt's pickup truck in Glaze's driveway. Ehrhardt was working under the truck's hood, and Ehrhardt explained to Glaze that the truck would not start. Ehrhardt seemed nervous and refused Glaze's offer of help. Ehrhardt eventually got the truck started and drove away.

¶ 3 After Ehrhardt left, Glaze noticed that a number of items that he normally kept inside a shed had been piled outside his house. The items consisted of two rotary hammers, a pressure washer, a box of stereo wiring, an air compressor, and two nail guns. Glaze called his wife to check whether she had moved the tools, and then called 911 to report a possible break in or theft and gave the police a description of Ehrhardt and his pickup truck. Glaze later discovered that gasoline had been taken from his lawn mowers and two four-wheelers, and that a gasoline can was missing from the back porch.

[167 Wash.App. 938]¶ 4 The police subsequently apprehended Ehrhardt, and Glaze went to the scene. Glaze identified his gasoline can in the back of Ehrhardt's truck.

¶ 5 The State charged Ehrhardt with second degree burglary and second degree theft. At Ehrhardt's jury trial, Glaze testified to the above facts. Glaze further testified about his four years of experience working in construction and the cost of the tools that had been moved from the shed.

¶ 6 Glaze testified that he bought the air compressor for $100 five or six years before trial, but that he had never used it and it was brand new. He testified that he purchased the pressure washer for $199 within the last year. And he testified that he acquired the items in the stereo wiring box for well over $200 or $300 “over the years,” but that the items were “just bits and parts and pieces” at that point, worth $100. Report of Proceedings (RP) at 84.

¶ 7 Glaze further testified that the rotary hammers belonged to his employer, that they cost about $450, and that they were about three years old. He testified that the nail guns also belonged to his employer, that they cost “in the $230 range” each, and that they were also about three years old. RP at 86–87. Glaze identified the items from photographs the State admitted into evidence. Ehrhardt did not request to voir dire Glaze about his qualifications to testify about the cost or value of these items, nor did he object to Glaze's testimony on this point.

¶ 8 The trial court gave an expert testimony jury instruction over Ehrhardt's objection. The trial court declined to give Ehrhardt's proposed instruction that stated, “Mere possession of stolen property alone is insufficient to find the defendant guilty of either theft 2 or burglary 2.” Clerk's Papers (GP) at 38. The jury found Ehrhardt guilty as charged. Ehrhardt appeals.

ANALYSIS

I. Mere Possession Instruction

¶ 9 Ehrhardt first argues that the trial court erred by refusing to grant his proposed instruction that mere possession of property is insufficient to show theft or burglary. We disagree.

¶ 10 We review a trial court's refusal to give jury instructions for abuse of discretion. State v. Buzzell, 148 Wash.App. 592, 602, 200 P.3d 287 (2009). Jury instructions are improper if they do not permit the defendant to argue his theories of the case, if they mislead the jury, or if they do not properly inform the jury of the applicable law. State v. Vander Houwen, 163 Wash.2d 25, 29, 177 P.3d 93 (2008). A trial court is under no obligation to give inaccurate or misleading instructions. State v. Crittenden, 146 Wash.App. 361, 369, 189 P.3d 849 (2008).

¶ 11 Ehrhardt's instruction was based on State v. Mace, 97 Wash.2d 840, 650 P.2d 217 (1982). The Mace court recognized that “proof of possession of recently stolen property, unless accompanied by other evidence of guilt, is not prima facie evidence of burglary.” 97 Wash.2d at 843, 650 P.2d 217. To support a burglary conviction, the State must also show at least slight corroborative evidence of other inculpatory circumstances. 97 Wash.2d at 843, 650 P.2d 217 (quoting State v. Portee, 25 Wash.2d 246, 253–54, 170 P.2d 326 (1946)). Such inculpatory circumstances include “presence of the accused near the scene of the crime,” or “flight, improbable or inconsistent explanations, the giving of fictitious names or circumstantial proof of entry.” 97 Wash.2d at 843, 844–45, 650 P.2d 217.

¶ 12 Ehrhardt's proposed instruction stated, “Mere possession of stolen property alone is insufficient to find the defendant guilty of either theft 2 or burglary 2.” CP at 38. This instruction was correct; both second degree burglary and second degree theft require proof beyond mere possessionof stolen property. RCW 9A.52.030(1); ²RCW 9A.56.020(1), ³ .040(1).⁴

¶ 13 However, this instruction was also misleading. Mace held that evidence of possession of stolen property plus inculpatory circumstances could suffice to support a burglary conviction. 97 Wash.2d at 843, 650 P.2d 217 (quoting Portee, 25 Wash.2d at 254, 170 P.2d 326). Ehrhardt's proposed instruction did not inform the jury that Ehrhardt's presence at the scene of the burglary, combined with his possession of recently stolen property, could be sufficient proof of second degree theft or second degree burglary. Ehrhardt's instruction could have misled a layperson to believe that Ehrhardt's possession of stolen property was not at all probative of burglary or theft. As such, the trial court was under no obligation to give Ehrhardt's instruction.

¶ 14 Even if Ehrhardt's instruction was not misleading, the trial court did not abuse its discretion in rejecting it. “Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law.” State v. Barnes, 153 Wash.2d 378, 382, 103 P.3d 1219 (2005).

¶ 15 The trial court gave correct “to convict” instructions that stated every element of second degree burglary and second degree theft. The “to convict” instructions thus allowed Ehrhardt to argue his theory that the State's evidence was insufficient to show every element of the crimes charged. Moreover, the instructions were not misleading. The jury instructions were therefore proper and the trial court did not err in refusing to add Ehrhardt's proposed instruction. Ehrhardt's argument on this point fails.

II. Expert Testimony Instruction

¶ 16 Ehrhardt next argues that the trial court erred by giving an expert testimony instruction because Glaze had not been certified as an expert witness. We do not consider Ehrhardt's argument on this point.

¶ 17 Over Glaze's objection, the trial court gave the pattern jury instruction on expert testimony, found at 11 Washington Practice: Pattern Jury Instructions: Criminal 6.51, at 199 (3d ed. 2008) (WPIC).⁵ Ehrhardt does not argue that this instruction was an incorrect statement of the law, nor does he argue that it was misleading. Ehrhardt argues only that Glaze's qualifications as an expert were not properly developed at trial and that Glaze was not qualified to render an opinion on the value of the items. Thus, while Ehrhardt's argument is framed as an objection to the jury instruction, his argument relates only to the admissibility of Glaze's testimony.

¶ 18 Failure to object to the admissibility of evidence at trial precludes appellate review unless the error is a manifest error affecting a constitutional right. State v. Florczak, 76 Wash.App. 55, 72, 882 P.2d 199 (1994). And Ehrhardt does not argue that admission of Glaze's testimony is manifest error affecting a constitutional right. Ehrhardt failed to preserve for review the question of the admissibility of Glaze's testimony by failing to object at trial. We do not consider his argument on this point.

III. Opportunity for Voir Dire

¶ 19 Ehrhardt next argues that he was denied an opportunity to voir dire Glaze as to his expert qualifications. We disagree.

¶ 20 Ehrhardt's argument relies on City of Bellevue v. Lightfoot, 75 Wash.App. 214, 877 P.2d 247 (1994). There, Lightfoot obtained the trial court's permission to voir dire a radar equipment expert as to his qualifications. 75 Wash.App. at 216, 877 P.2d 247. Prior to conducting voir dire however, Lightfoot sought to question the expert about the scope of his expertise, attempting to show that the expert had no experience or training in the field of engineering. 75 Wash.App. at 217, 877 P.2d 247. The City objected to Lightfoot's questioning. 75 Wash.App. at 217, 877 P.2d 247. The trial court sustained the objection and did not permit Lightfoot to conduct any voir dire examination of the expert. 75 Wash.App. at 217, 877 P.2d 247.

¶ 21 Division One of this court noted that, although...