State v. Hermann

• Decision Date: 15 May 2007
• Docket Number: No. 34161-1-II.,34161-1-II.
• Citation: 158 P.3d 96,138 Wn. App. 596
• Parties: STATE of Washington, Respondent, v. Nathan W. HERMANN, Appellant.
• Court: Washington Court of Appeals

158 P.3d 96

138 Wn. App. 596

STATE of Washington, Respondent, v. Nathan W. HERMANN, Appellant.

No. 34161-1-II.

Court of Appeals of Washington, Division 2.

May 15, 2007.

Thomas Edward Doyle, Attorney at Law, Hansville, WA, Patricia Anne Pethick, Attorney at Law, Tacoma, WA, for Appellant.

Monty Dale Cobb, Mason County Prosecutors Office, Shelton, WA, for Respondent.

HOUGHTON, C.J.

¶ 1 Nathan Hermann appeals his convictions of first degree theft and trafficking in stolen property, arguing that insufficient evidence supported the verdict, his counsel provided ineffective assistance, and the trial court commented on the evidence when it instructed the jury. He also argues that the trial court violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), when it added one point to his offender score without a jury finding that he was on community placement at the time of the crimes. We agree that instructing the jury that evidence of retail price paid could be sufficient evidence of value constituted a prejudicial comment on the evidence. We affirm the trafficking in stolen property conviction and the trial court's offender score calculation. We reverse the first degree theft conviction and remand for further proceedings.

FACTS

¶ 2 Joann Hermann, the defendant's adoptive mother, owned a large jewelry collection. She kept a box containing 12 rings on the dresser behind the VCR in her bedroom. Joann¹ also stored two other rings in the dresser drawer.

¶ 3 In January 2005, Hermann helped Joann replace her VCR with a new one that she had received for Christmas. To do so they removed all the drawers from the dresser.

¶ 4 Around the end of the month, Joann discovered that the box of rings was missing. She searched the house and all the cupboards. When she could not find the rings, she asked Hermann and his girl friend, Kristie Southerland, whether they had seen the jewelry box. They denied seeing it.

¶ 5 Around this time, Hermann lived with Southerland. After the conversation with Joann, Southerland discovered in Hermann's possessions several pawn slips for rings. Southerland gave the pawn slips to Joann.

¶ 6 Joann reported the theft to the police. When he learned this, Hermann asked her if she would drop the charges if he got the rings back. He also asked her if she had found one of the rings that she kept in the drawer. Joann was not aware that ring was missing, but when she checked the drawer it was gone. Hermann went into the bathroom and came out with the missing jewelry box. He told Joann he was just borrowing the rings and admitted he had pawned them on two occasions.

¶ 7 Detective Harry Heldreth of the Shelton Police Department placed a hold on the rings that Hermann pawned in Lacey. He also obtained pawn slips from a shop in Shelton confirming that Hermann had pawned rings there on January 13 and February 11.

¶ 8 On May 26, Heldreth interviewed Hermann at the police station. After waiving his Miranda rights, Hermann admitted that he had pawned Joann's rings at two different pawn shops. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The police arrested Hermann. Authorities later recovered eight rings from a Lacey pawn shop.

¶ 9 The State charged Hermann with first degree theft and two counts of first degree trafficking in stolen property. A jury heard the matter and when it could not reach a verdict, the trial court declared a mistrial.

¶ 10 At the second jury trial, a certified diamond grader appraised the eight recovered rings at slightly over $900, based on the value of the gold and diamonds. The appraiser did not take into account the value of any colored stones. Joann also submitted sales receipts for many of the rings, including some of the rings that were not recovered. The receipts for the rings placed their purchase price at over $4,000.

¶ 11 The State proffered an original jury instruction stating that evidence of retail price may be sufficient to establish value. Hermann objected, arguing that the instruction was not included in the pattern jury instructions and improperly commented on the evidence. The trial court gave the instruction, finding that it was accurate and well founded in case law.

¶ 12 The jury convicted Hermann on all three charges. In calculating his offender score, the trial court added a point because he was on community placement at the time of the crime. Based on an offender score of 8, the trial court sentenced Hermann to 65 months in prison. He appeals.

ANALYSIS

SUFFICIENCY OF THE EVIDENCE

¶ 13 Hermann first argues that insufficient evidence supported the convictions. We disagree.

¶ 14 The standard for determining sufficiency of the evidence on appeal is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). In challenging the sufficiency of the evidence, the appellant admits the truth of the State's evidence and all inferences that can reasonably be drawn from it. State v. McNeal, 145 Wash.2d 352, 360, 37 P.3d 280 (2002). Circumstantial and direct evidence have equal weight. State v. Varga, 151 Wash.2d 179, 201, 86 P.3d 139 (2004). The State bears the burden of proving all the elements of the crime charged beyond a reasonable doubt. State v. Teal, 152 Wash.2d 333, 337, 96 P.3d 974 (2004); State v. McCullum, 98 Wash.2d 484, 489, 656 P.2d 1064 (1983).

A. First Degree Theft

¶ 15 Hermann contends that the sales receipts for the rings did not prove that the value of the rings exceeded $1,500 because the purchases were too remote, having occurred over a 20 year period.

¶ 16 To prove first degree theft, the State must present evidence that the defendant stole property exceeding $1,500 in value. RCW 9A.56.030(1)(a). "Value" refers to the market value of the property at the time and in the general area of the crime. RCW 9A.56.010(18)(a). Market value is an objective standard and consists of the price a well-informed buyer would pay to a well-informed seller. State v. Kleist, 126 Wash.2d 432, 435, 895 P.2d 398 (1995); State v. Shaw, 120 Wash.App. 847, 850, 86 P.3d 823 (2004).

¶ 17 In determining the value of an item, evidence of price paid is entitled to great weight. State v. Melrose, 2 Wash.App. 824, 831, 470 P.2d 552 (1970). The jury can consider changes in the property's condition that would affect its market value. Melrose, 2 Wash.App. at 831, 470 P.2d 552. Value need not be proven by direct evidence as the jury may draw reasonable inferences from the evidence. Melrose, 2 Wash.App. at 831, 470 P.2d 552.

¶ 18 Here, the evidence was sufficient to place the value of the stolen rings in excess of $1,500. Joann's receipts showed that she paid at least three times that amount when she purchased the rings. One of the unrecovered rings came with a lifetime guarantee for its full value of $1,110.34. The recovered rings were worth at least $915 because of the value of the gold and diamonds, without considering the value of the colored stones. Considering only the wholesale value of the gold and diamonds in the recovered rings, together with the guaranteed value of the unrecovered ring, the State presented sufficient evidence from which the jury could reasonably infer that the value of the stolen jewelry exceeded $1,500.

¶ 19 Moreover, Hermann misplaces reliance on State v. Morley, 119 Wash.App. 939, 83 P.3d 1023 (2004). In Morley, Division Three held that evidence of retail value was insufficient to prove market value under the facts of that case. 119 Wash.App. at 943, 83 P.3d 1023. But that case involved a used generator, which was purchased at less than retail price and depreciated in value. Morley, 119 Wash.App. at 943, 83 P.3d 1023. Here, Joann purchased the rings at retail prices and they retained their wholesale value as gold and gemstones. Under these facts, Morley does not apply.

¶ 20 Because the State presented sufficient evidence for the jury to conclude that the value of the stolen rings exceeded $1,500, Hermann's first argument fails.

B. Trafficking in Stolen Property

¶ 21 In his statement of additional grounds, Hermann contends that because the pawn slips state that the transaction was a loan rather than a sale, the evidence insufficiently proved that he trafficked in stolen property.

¶ 22 A defendant "who knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others, or who knowingly traffics in stolen property, is guilty of trafficking in stolen property in the first degree." RCW 9A.82.050(1). "Traffic" is defined as "to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person." RCW 9A.82.010(19).

¶ 23 Contrary to Hermann's contention, sale or transfer of ownership is not the exclusive means of committing trafficking in stolen property. Evidence that a defendant knowingly pawns stolen goods is sufficient to support a charge of trafficking in stolen property. See generally State v. Michielli, 132 Wash.2d 229, 235, 937 P.2d 587 (1997).

¶ 24 Furthermore, the trafficking statute encompasses the transfer of possession of a stolen good, not merely the transfer of ownership. It is well established that a thief does not take title to stolen property. See State v. Mermis, 105 Wash.App. 738, 748, 20 P.3d 1044 (2001) (citing RCW 10.79.050). Therefore, a thief cannot transfer valid title to stolen property. Mermis, 105 Wash.App. at 748, 20 P.3d 1044. Reading the trafficking statute to prohibit only the transfer of title in stolen property would render the statute a nullity. Instead, the legislature clearly intended to prohibit any commercial transaction involving property known to be stolen.

¶ 25 The evidence is undisputed that Hermann took his mother's rings without her permission and used them as collateral to obtain loans from pawn shops. He thereby...