State v. Johnson

• Decision Date: 13 July 2017
• Docket Number: NO. 93453-3,93453-3
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. John Henry JOHNSON, Petitioner.

188 Wash.2d 742

399 P.3d 507

STATE of Washington, Respondent,

v.John Henry JOHNSON, Petitioner.

NO. 93453-3

Supreme Court of Washington.

Argued Feb. 28, 2017

Filed July 13, 2017

Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave., Ste. 701, Seattle, WA, 98101-3647, for Petitioner.

Mara J. Rozzano, Snohomish County Prosecuting Attorneys Office, 3000 Rockefeller Ave., Everett, WA, 98201-4046, for Respondent.

STEPHENS, J.

¶1 This case comes to us as a sufficiency of the evidence challenge to John Johnson's conviction for second degree theft of an access device. Yet, resolving this challenge moves us beyond mere consideration of the evidence in Johnson's case to broader consideration of how federal due process law and Washington's "law of the case" doctrine intersect. Specifically, we must decide whether the United States Supreme Court's recent decision in Musacchio v. United States , ––– U.S. ––––, 136 S.Ct. 709, 193 L.Ed. 2d 639 (2016), supersedes our decision in State v. Hickman , 135 Wash.2d 97, 954 P.2d 900 (1998). Under Hickman , the State must establish all elements it agrees to include in the to-convict instruction, even if not required by statute, because unchallenged instructions become the "law of the case." Id. at 102, 954 P.2d 900. In Musacchio , the Supreme Court rejected a "law of the case" argument and held that due process requires only that evidentiary sufficiency claims "be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction." 136 S.Ct. at 715.

¶2 Here, the jury was instructed that an element of the theft charge included Johnson's intent "to deprive the [victim] of the access device." Clerk's Papers (CP) at 157 (to-convict instruction). The jury convicted Johnson, and he appealed. The Court of Appeals affirmed the conviction, holding that neither the statute nor the "law of the case" doctrine placed the burden of proving the erroneously added element on the State. That court concluded Musacchio supersedes Washington's "law of the case" doctrine because Washington has adopted the federal due process standard for evidentiary sufficiency and thus Supreme Court precedent interpreting that standard controls.¹

¶3 We disagree because our state "law of the case" doctrine does not rest on federal due process principles. This long standing doctrine has developed through the common law and state procedural rules, and remains intact following Musacchio. Because the State has not demonstrated that our "law of the case" doctrine is incorrect and harmful, or that its legal underpinnings have been eroded, we adhere to the framework established in Hickman. Accordingly, we hold that the State was required to prove Johnson specifically intended to steal an access device. Because sufficient evidence supports this element, we affirm Johnson's conviction.

FACTS AND PROCEDURAL HISTORY

¶4 Kendra Farmer was shopping with her family at the Pottery Barn store at Alderwood Mall in Lynnwood. Her husband, Ryan, and one of their children were near the front of the store; Kendra and another child were near a cash register in a different part of the store. While speaking with a sales associate near the cash register, Kendra left her Coach brand purse unattended on a display couch a few feet away. The purse contained her wallet, credit cards, and debit cards, among other items.

¶5 The purse had a heavy metal chain that made a distinct sound when moved. Ryan heard that sound and, expecting to see his wife, instead saw Johnson picking up the purse and attempting to place it inside a plastic bag. Ryan confronted Johnson and told him the purse did not belong to him. Johnson handed the purse to Ryan and then turned around to walk in the opposite direction. Ryan handed the purse to Kendra, called the police, and followed Johnson outside until the police arrived.

¶6 Johnson was charged with one count of second degree theft of an access device pursuant to RCW 9A.56.040(1)(d).² That statute provides that "[a] person is guilty of theft in the second degree if he or she commits theft of ... [a]n access device." RCW 9A.56.040(1)(d).³ "Theft" means "[t]o wrongfully obtain or exert unauthorized 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)(a) (emphasis added).

¶7 At trial, the to-convict instruction stated,

To convict the defendant of the crime of theft in the second degree, each of the following four elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 22nd day of August, 2013, the defendant wrongfully obtained or exerted unauthorized control over property of another;

(2) That the property was an access device;

(3) That the defendant intended to deprive the other person of the access device ; and

(4) That this act occurred in the State of Washington.

CP at 157 (emphasis added). After receiving this instruction, the jury found Johnson guilty. Id. at 147.¶8 Johnson timely appealed his conviction to Division One of the Court of Appeals. Johnson contended that insufficient evidence supported the jury's verdict because under both the theft statute and the to-convict instruction, the State was required, but failed, to prove his specific intent to steal Kendra's access device. Appellant's Opening Br. at 6. The Court of Appeals affirmed, holding that neither the theft statute nor the to-convict instruction placed such a requirement on the State. State v. Johnson , No. 73113-1-1, slip op. at 4, 7, 2016 WL 3190525 (Wash. Ct. App. June 6, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/731131.pdf. With regard to the theft statute, that court found there was sufficient evidence to sustain the conviction because the State was required to prove only that Johnson intended to deprive Kendra of her purse and its contents and, separately, that the contents included an access device. Id. at 4-5. With regard to the to-convict instruction, that court held that although the instruction erroneously included as an element the specific intent to deprive Kendra of an access device, the Supreme Court's decision in Musacchio rendered the instruction irrelevant in reviewing a claim for insufficient evidence. Id. at 6. Because Washington's "sufficiency inquiry is based on the Fourteenth Amendment's due process clause and the Jackson [v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ] standard," and because the Supreme Court "is the final arbiter on the meaning and interpretation of the United States Constitution," its holding that a "Fourteenth Amendment evidentiary sufficiency challenge must be assessed against the elements of the charged crime, not against the erroneously heightened elements set forth in a jury instruction ... supersedes all inconsistent interpretations by" Washington courts. Id. at 6-7. The Court of Appeals thus concluded the State need prove only the statutory elements of the crime for which there was sufficient evidence. Id. at 7.

¶9 Johnson then filed a petition for review in this court, which we granted. State v. Johnson , 186 Wash.2d 1025, 385 P.3d 125 (2016).

ANALYSIS

¶10 Johnson contends there is insufficient evidence to support his conviction because the State did not prove he specifically intended to steal any access device in Kendra's purse. Sufficiency review secures the fundamental protection of due process of law. Jackson , 443 U.S. at 319, 99 S.Ct. 2781. Under both the federal and state constitutions, due process requires that the State prove every element of a crime beyond a reasonable doubt. U.S. CONST. amend. XIV ; WASH. CONST. art. I, § 3 ; In re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed. 2d 368 (1970) ; State v. Rich, 184 Wash.2d 897, 903, 365 P.3d 746 (2016).⁴ In reviewing a claim for insufficient evidence, we therefore consider " ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " State v. Green , 94 Wash.2d 216, 221, 616 P.2d 628 (1980) (plurality opinion) (emphasis omitted) (quoting Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ). Johnson contends this standard is not met because both the theft statute and the "law of the case" doctrine required the State to prove his specific intent to steal an access device, which it failed to do. Pet. for Review at 12. To assess Johnson's sufficiency claim, we consider the State's burden of proof under the theft statute and the "law of the case" doctrine, as well as Musacchio 's effect on our "law of the case" doctrine.

I. Specific Intent To Steal an Access Device Is Not a Statutory Element of Second Degree Theft of An Access Device

¶11 The statute at issue provides in relevant part, "A person is guilty of theft in the second degree if he or she commits theft of ... [a]n access device." RCW 9A.56.040(1)(d). "Theft" means "[t]o wrongfully obtain or exert unauthorized 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)(a). A credit card is an "access device." RCW 9A.56.010(1).

¶12 Johnson argues that when read side by side, the theft statute ( RCW 9A.56.020(1)(a) ) and the second degree theft statute ( RCW 9A.56.040(1)(d) ) required the State to prove intent to steal Kendra's access device, rather than her property in general. Appellant's Opening Br. at 6-7; Suppl. Br. of Pet'r at 5-6. The theft statute requires " ‘intent to deprive [the other] of such property ,"’ which under the second degree theft statute is an access device. Appellant's Opening Br. at 6-7 (quoting RCW 9A.56.020(1)(a) ); Suppl. Br. of Pet'r at 5-6.

¶13 The State counters that Johnson misinterprets the theft statute, which includes two separate elements: (1) intent to take the property and (2) the nature of the property taken. Suppl. Br. of Resp't at 6....