State v. Greathouse
| Decision Date | 16 September 2002 |
| Docket Number | No. 47267-4-I.,47267-4-I. |
| Citation | 56 P.3d 569,113 Wn. App. 889,113 Wash. App. 889 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Michael E. GREATHOUSE, Appellant. |
Jason Brett Saunders, Washington Appellate Project, Seattle, for Appellant.
Lynn S. Prunhuber, Deputy Prosecuting Attorney, for Respondent.
Michael Greathouse was convicted by a jury of fourteen counts of theft, fourteen counts of trafficking in stolen property, and one count of evading a special fuel tax. The State concedes, and we agree, that the convictions for trafficking in stolen property must be reversed because the criminal profiteering act, enacted in 1985, included a 10-year termination provision and the Legislature's attempt to repeal the termination provision was void on constitutional grounds; thus, Greathouse was charged and convicted of a crime that did not exist. But we reject Greathouse's contentions that his convictions of theft must also be reversed because (1) the information was fatally defective for failing to state all the essential elements of theft; (2) the evidence was insufficient to prove theft; (3) his constitutional right to a unanimous jury was violated when the trial court failed to give a unanimity instruction and the State failed to elect specific acts of theft to support the fourteen counts; and (4) the trial court erred by admitting evidence that Greathouse failed to report the money he obtained by selling stolen fuel on four out of five of his federal income tax returns. We also reject Greathouse's contention that the trial court exceeded its statutory authority by imposing a penalty for fuel tax evasion for a period beyond that permissible under the applicable statute of limitations. Accordingly, we reverse the convictions for trafficking in stolen property, affirm the convictions for theft, and affirm the fuel tax evasion penalty.
Michael E. Greathouse worked as a tank truck driver for Dennis Petroleum, a major distributor of petroleum in the greater Seattle area. Greathouse delivered fuel to various large-volume customers, including Alaska Marine Lines, Boeing, the Port of Edmonds, Magnolia Unocal, Associated Sand and Gravel, and Petrocard Systems. Although some of these customers could measure with precision the amount of fuel they received, others could not, particularly Alaska Marine Lines, Boeing, and Associated Sand and Gravel.
From 1992 to 1996, Greathouse also used the Dennis Petroleum truck to deliver fuel to Gaston Brothers Excavating, Inc. However, Gaston Brothers was not a Dennis Petroleum customer, and Greathouse was only authorized by Dennis Petroleum to deliver fuel to its customers. Gaston Brothers purchased about 600 gallons of fuel per delivery from Greathouse at $0.60 cents a gallon, half the normal price. Between 1992 and 1996, Gaston Brothers paid Greathouse $169, 530 for fuel.1 Gaston Brothers paid for the fuel with checks made payable to Michael Greathouse, not to Dennis Petroleum. Greathouse did not provide invoices for the fuel or receipts for payment from Gaston Brothers. Greathouse cashed these checks, in contrast to his legitimate paychecks from Dennis Petroleum, which he deposited into his bank account. The special fuel tax that was due on Greathouse's sales of fuel to Gaston Brothers was not paid.
From 1992 to 1995, Greathouse failed to report any of the payments he received from Gaston Brothers on his federal income tax returns. However, on his 1996 federal tax return, signed after charges had been filed in this case, Greathouse reported $34,710 in additional income for 1996, as net profit from self-employment. Gaston Brothers actually paid him $34,970 in 1996.
The Dennis Petroleum fuel truck that Greathouse drove was a five-compartment tractor-trailer unit. The two compartments in the truck and the three compartments in the trailer could be loaded and unloaded all at once or separately. When the truck was loaded to its legal weight limit, there was still extra volume in the truck and trailer compartments.
The State presented circumstantial evidence that Greathouse accumulated the fuel he sold to Gaston Brothers either by loading the tanker truck he drove beyond its legal weight limit, or by "short-dropping" deliveries to those of Dennis Petroleum's customers that were unable to accurately measure the amount of fuel delivered, including Alaska Marine Lines, Associated Sand and Gravel, and Boeing. To short-drop, the driver does not open a valve on one of the fuel compartments, or anticipates when that compartment is half empty and shuts the valve off. The fuel that a driver short-drops can come from more than one load. The driver can short-drop a series of customers, build up a volume in one of the compartments, and then unload the collected diesel at an unauthorized location. Because Dennis Petroleum had very poor controls over its own fuel inventory, a driver could also load more than the legal weight limit into the truck and trailer compartments, make his scheduled deliveries in the amounts that had been ordered, and than unload the excess at an unauthorized location.
In mid-November 1996, Lt. Mark Couey of the Washington State Patrol began an investigation of Greathouse's untaxed fuel deliveries to Gaston Brothers Excavating, Inc. Lt. Couey obtained a search warrant, went to Gaston Brothers unannounced, and seized various company documents and records, including the company's bookkeeping computer. Lt. Couey learned that Gaston Brothers purchased approximately 70 percent of its fuel from Michael Greathouse. When interviewed by Washington State Patrol detectives, Greathouse made a series of contradictory exculpatory statements. First he said that he never delivered any fuel in unscheduled deliveries, but just transferred some fuel using his pump truck six or seven times, making just $60 or $70 under the table. When shown carbon copies of five checks payable to him in 1996 from Gaston Brothers, he said it was for framing or construction work he did on the side. When shown a sixth check, with the memo line covered, Greathouse again said it was for framing. However, the check memo line noted "fuel."
Upon learning of the situation, Paul Dennis of Dennis Petroleum told several of the company's large-volume customers that they might not have received all of the fuel they had paid for, and offered to reimburse them for missing fuel. However, because those customers most likely to have been short-dropped were the ones lacking accurate fuel measuring devices, none of them could tell whether they had been short-dropped, and if so by how much. Consequently, none of them submitted a claim for reimbursement.
On September 15, 1999, the State charged Greathouse and Gary Gaston, the owner of Gaston Brothers Excavating, Inc., with one count of theft in the first degree, thirteen counts of theft in the second degree, fourteen counts of trafficking in stolen property in the first degree, and one count of evading a special fuel tax. By amended information, the State added Gaston Brothers Excavating, Inc. as a defendant to the fuel tax evasion charge, and added one count of conspiracy to commit theft in the first degree against all three defendants.
The jury deadlocked, and was unable to reach a verdict against Gary Gaston or his company as to any of the counts with which they were charged. The jury found Greathouse guilty of all counts of theft, trafficking, and evasion of a special fuel tax, but was unable to reach a verdict on the count charging criminal conspiracy to commit theft in the first degree.
The trial court sentenced Greathouse within the standard range, and imposed a penalty of $38,640 for the full amount of the special fuel taxes evaded during the charging period, January 1992 through December 1996. Greathouse filed a motion for a new trial, which was denied. Greathouse appeals.
Greathouse argues that he could not be prosecuted for trafficking in stolen property because the Legislature's attempt to repeal the 10-year termination provision of the criminal profiteering act was invalid, and the crime no longer existed. The State properly concedes that Greathouse is correct. This issue was addressed directly in State v. Thomas, 103 Wash.App. 800, 14 P.3d 854 (2000), review denied, 143 Wash.2d 1022, 29 P.3d 719 (2001). The criminal profiteering act contained a provision that the act would terminate ten years after its enactment; thus the act was due to terminate effective July 1, 1995. In 1995, the Legislature attempted to repeal the 10 year termination provision as part of an act entitled "An Act relating to insurance fraud." Id. at 805-06, 14 P.3d 854. The Thomas court held that the attempted repeal of the termination provision of the criminal profiteering act violated both the single-subject and the subject-in-title provisions of the Washington State Constitution; therefore, the criminal profiteering act (with a few minor exceptions for insurance fraud) terminated effective July 1, 1995. Id. at 810-14, 14 P.3d 854.
Greathouse was charged with fourteen counts of trafficking in stolen property in violation of RCW 9A.82.010 and 9A.82.050. These statutes were part of the criminal profiteering act that were not rationally related to insurance fraud, and were no longer in effect when Greathouse was charged on September 15, 1999. Accordingly, we accept the State's concession of error, reverse Greathouse's convictions for trafficking in stolen property (counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26 and 28) and remand for dismissal of these counts with prejudice.
A defendant has a constitutional right to be informed of the nature and cause of the charges against him. Wash. Const. article 1 § 22; United States Constitution, Sixth Amendment. When an information...
To continue reading
Request your trial
-
State v. Kinneman
...admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Greathouse, 113 Wash.App. 889, 906, 56 P.3d 569 (2002) (citations omitted) (quoting State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992)). Kinneman maintains that the acts i......
-
State v. Brooks, No. 27446-9-II (Wash. App. 3/9/2004)
...1120 (1997); State v. Hepton, 113 Wn. App. 673, 687, 54 P.3d 233 (2002), review denied, 149 Wn.2d 1018 (2003); State v. Greathouse, 113 Wn. App. 889, 918, 56 P.3d 569 (2002), review denied, 149 Wn.2d 1014 (2003). Evidence of other crimes or misconduct must be logically relevant to a materia......
-
State v. Jerrome
...of property, whether owned by one or several individuals, will be treated as a single criminal offense.”); State v. Greathouse, 113 Wash.App. 889, 56 P.3d 569, 581 n. 2 (2002) (“Where successive takings from several victims are pursuant to a single scheme, the takings may, by the great weig......
-
State v. Bowen
... ... City of ... Bothell v. Kaiser, 152 Wn.App. 466, 471-72, 217 P.3d 339 ... (2009). However, we reach the question of actual prejudice ... only if we determine that the information contains the ... essential elements of the crime charged. State v ... Greathouse, 113 Wn.App. 889, 900, 56 P.3d 569 (2002) ... B ... Possession of a Stolen Vehicle ... Bowen ... argues that the charging document failed to include all ... essential elements of the crime of possession of a stolen ... vehicle and failed to ... ...