State v. George

• Decision Date: 09 August 2007
• Docket Number: No. 78782-4.,78782-4.
• Citation: 164 P.3d 506,161 Wn.2d 203
• Parties: STATE of Washington, Respondent, v. John S. GEORGE and Tommy B. George, and each of them, Petitioners.
• Court: Washington Supreme Court

164 P.3d 506

161 Wn.2d 203

STATE of Washington, Respondent, v. John S. GEORGE and Tommy B. George, and each of them, Petitioners.

No. 78782-4.

Supreme Court of Washington, En Banc.

Argued May 8, 2007.

Decided August 9, 2007.

Jeffrey Healy Smith, Law Offices of Jeffrey H. Smith, Seattle, WA, for Petitioners.

Michael Paul Mohandeson, Deborah A. Dwyer, James Morrissey Whisman, King County Prosecutor's Office/Appellate Unit, Seattle, WA, for Respondent.

CHAMBERS, J.

¶ 1 Father and son John and Tommy George attempted to sell a pickup truck to an undercover Seattle police officer for $5,500. The Georges fraudulently misrepresented the condition and history of the truck in their attempt to sell it. They were convicted of attempted first degree theft by deception. The Georges contend that the State failed to prove the market value of the truck and therefore failed to prove attempted theft in the first degree. The State responds that because this case involved theft of money, it need not prove the market value of the truck. Rather, the measure of value for purposes of the degree of theft is the value of the property attempted to be obtained by deceit. We agree with the State and affirm the convictions.

I

¶ 2 In June 2003, Tommy George approached Jerome Potter, asking if he was interested in selling his 1974 Chevrolet half-ton pickup truck. A problem with the rear wheel differential rendered the truck inoperable for the two years prior to the sale, during which time it sat uncovered, outside of Potter's home. Potter disclosed the mechanical problems and further informed Tommy George that he had replaced the old engine, a "350," with a "400." Potter said the truck had 185,000 miles on it — although the five digit odometer read 70,000.¹ Potter informed George that he had purchased the truck used and that it had sat outside inoperable for two years. Tommy George's father, John, returned a few days later to negotiate, and he eventually bought the truck for $1,800.

¶ 3 The Georges placed an ad in The Seattle Times that read: "1974 Cheyenne Super ½ T, 1 ownr, 350 v8, AT, tow pkg. All stock and original gar'd. 70 K mi very nice $5,500." Clerk's Papers at 7. The Seattle Police Department reads The Seattle Times advertisements searching for fraudulent offers that appear "too good to be true." Report of Proceedings (RP) (Sept. 8, 2004) at 79-80. Detective Daniel Stokke believed he had found such an advertisement placed by the Georges. He elicited the assistance of Detectives Richard O'Donnell and Dana Duffy who impersonated interested buyers. Detective O'Donnell spoke with Tommy George who reported that his father, John George, was the original and sole owner, that the truck had always been garaged, was in "perfect condition," and had 70,000 miles on it. RP (Sept. 9, 2004) at 6. John George confirmed, when he met with Detective O'Donnell, that he was the sole owner, the truck had "always been in the garage," had 70,000 miles on it, and was in "great shape." Id. at 9, 12. The Georges asked for $5,500, which Detective O'Donnell agreed to pay. John George required some time to retrieve the title, so the parties arranged to complete the sale the following day. The officers arrived the next day with a cashier's check and, after the sale was completed, the officers arrested the Georges.

¶ 4 The State charged the Georges with attempted first degree theft by deception. Because of the vehicle's age, Detective Stokke could not find standardized pricing information. At a joint trial, the only evidence the State presented that could prove the market value of the truck was the amount the Georges paid Potter. The Georges offered no evidence on the value of the truck; in fact, the Georges presented no evidence in their defense. After the State rested, the Georges moved for dismissal. The Georges argued a prima facie case had not been established because after they purchased the truck they made improvements to the truck and the State offered no evidence showing that the truck as sold was worth less than the sales price. The Georges alleged the State merely established the elements of attempted theft in the third degree, which punishes theft of property worth less than $250. The trial court denied their motion but did give the jury lesser included instructions on attempted second and third degree theft.

¶ 5 Defense counsel for John George argued to the jury, "[The police] got something of value in exchange for their $5,500. The State has failed to prove how much a value that truck has, so by failing to prove that they can't prove to you that it's more than $250." RP (Sept. 9, 2004) at 79. Defense counsel for Tommy George drew an analogy to a jeweler who lies about a diamond and sells it for $10,000 — a dollar more than it is worth. Criticizing the claim that the jeweler stole $10,000, instead of a dollar, he remarked, "[t]he law can't allow that, that's not logical. It's an absurd result." Id. at 90-91. The State, in response, argued that the Georges committed attempted theft by their efforts to deprive the buyer of $5,500 through deception. The property they tried to steal was the $5,500 cashiers check. The jury convicted both Georges of attempted theft in the first degree.

¶ 6 The Court of Appeals affirmed the convictions. State v. George, 132 Wash.App. 654, 133 P.3d 487 (2006). This court granted review. State v. George, noted at ___ Wash.2d ___, 153 P.3d 196. Although the Georges argued in their petition for review that the theft statute is unconstitutionally vague, and that the evidence was insufficient to prove theft, we limited our review to the question of "whether `value' for purposes of the degree of the theft is determined by the amount of money received or the difference between the amount of money received and the market value of the item sold." Wash. State Supreme Court Order (Jan. 13, 2007).

II

¶ 7 We are asked to interpret the word "value" within the theft statute. This is a question of law. Review is de novo. State v. J.P., 149 Wash.2d 444, 449, 69 P.3d 318 (2003).

III

¶ 8 Theft by deception means "[b]y color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services." RCW 9A.56.020(1)(b). Theft in the first degree is defined as theft of "[p]roperty or services which exceed(s) one thousand five hundred dollars in value." RCW 9A.56.030(1)(a). Theft in the second degree is defined as theft of property with a value less than $1,500, but more than $250. RCW 9A.56.040(1)(a). Theft in the third degree is theft of property with a value less than $250. RCW 9A.56.050(1)(a). "Property," as used in RCW 9A.56.030(1)(a), refers to the "property or services of another" that a defendant has stolen. See RCW 9A.56.020(1)(c). "Value" is defined as "the market value of the property or services at the time and in the approximate area of the criminal act."² RCW 9A.56.010(18).

¶ 9 The Georges argue there was no evidence of the actual loss to the potential victim because there was no evidence of the value of the truck after they repaired it. The Georges reason that the truck might be worth even more than the $5,500 the police agreed to pay for it. However, the Georges misread the statute. A careful reading of the statute leads to the conclusion that the actual value of the truck is not relevant to the measure of value of the stolen property. We agree with the Court of Appeals that the Georges would have an excellent argument if they were charged with stealing the truck. But they were not. Instead, they were charged with attempted theft by deception for obtaining a $5,500 cashiers check. The cashiers check was the "property of another" they intended to obtain by aid of deception, and it cannot be disputed that its value exceeds $1,500.³ We also agree with the Court of Appeals that the legislature did not intend "an inquiry into the thief's net gain or the victim's net loss." George, 132 Wash.App. at 661, 133 P.3d 487. In deception cases, the statute looks only to the value of the property obtained, not the net result of the exchange. See RCW 9A.56.020(1)(b). Here, the property the Georges attempted to obtain was a valid cashiers check for $5,500. The Court of Appeals correctly observed:

theft by color or aid of deception means that "the deception operated to bring about the obtaining of property or services; it is not necessary that deception be the sole means of obtaining the property or services." In drawing the line between criminal conduct and sharp business practices, the legislature clearly contemplated that something in addition to pure deception will be involved. Indeed, in many acts of theft by deception, something falsely described is given in exchange to induce the transaction.

George, 132 Wash.App. at 660, 133 P.3d 487 (footnote omitted) (quoting RCW 9A.56.010(4)).

IV

¶ 10 Our precedent supports the Court of Appeals' reading of theft by deception. In State v. Sargent, 2 Wash.2d 190, 192, 97 P.2d 692, 100 P.2d 20 (1940), the defendant, Sargent, lied to an investor inducing the purchase of shares of mining company stock less attractive to investors than Sargent purported them to be. Sargent claimed the mining company had interests in land "within four hundred feet" of a mine with a proven track record and that a "strong financial company in New York" was poised to purchase a large portion of the stock. Id. at 192-93, 97 P.2d 692. Neither claim was accurate, yet the State offered no evidence proving the value of the stock. This court observed:

It will be noted that there is no allegation that Marion was defrauded, in the sense that he suffered any pecuniary loss. For aught that is charged, he may even have gained by the transaction. The appellant urges that this vitiates the information; but, as we read the statute, the gist of the offense is obtaining property from an owner by the use of false and fraudulent...