State v. Lindsey

• Decision Date: 15 October 2013
• Docket Number: No. 43219–6–II.
• Citation: State v. Lindsey, 177 Wash.App. 233, 311 P.3d 61 (Wash. App. 2013)
• Parties: STATE of Washington, Respondent, v. Gary Lee LINDSEY, Jr., Appellant.
• Court: Washington Court of Appeals

177 Wash.App. 233

311 P.3d 61

STATE of Washington, Respondent,

v.Gary Lee LINDSEY, Jr., Appellant.

No. 43219–6–II.

Court of Appeals of Washington, Division 2.

Oct. 15, 2013.

Eric H. Bentson, Cowlitz County Prosecutor, Kelso, WA, for Respondent.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

MAXA, J.

¶ 1Gary Lee Lindsey, Jr., appeals his conviction for trafficking in stolen property under RCW 9A.82.050(1).He argues that this statute identifies eight alternative means of committing the crime, and based on this alternative means argument claims that (1) the charging document was factually deficient because it did not state facts supporting each alternative means, (2)he was denied a fair trial because the trial court instructed the jury on an uncharged alternative means of committing the offense, and (3)he was denied his constitutional right to an unanimous verdict because there was insufficient evidence to support conviction on several of the alternative means.Lindsey also argues that the trial court improperly refused to appoint new counsel when conflicts arose with his trial counsel, thereby violating his constitutional right to counsel.

¶ 2We hold that RCW 9A.82.050(1) identifies only two alternative means, and on that basis reject Lindsey's arguments regarding the information and sufficiency of the evidence.We do not consider Lindsey's challenge to the jury instruction because he did not object below.We also hold that the trial court did not abuse its discretion in refusing to appoint new counsel.We affirm.

FACTS

Charged Crime

¶ 3Earl Teel had possession of a large, 470–pound stainless steel tank that he hoped to sell on Craigslist.Teel placed the tank near a scrap bin where he deposited recyclable metals disposed of in his business.

¶ 4 On July 6, 2011, Teel observed a pickup truck drive onto his business property and then saw the driver—Lindsey—start looking through the scrap bin.Teel approached and asked Lindsey what he was doing, and Lindsey responded that he needed some cables to pull a log over an embankment for his firewood business.Teel told him to take the cables but not to return or take anything else without permission.

¶ 5 On July 10, Teel discovered that the tank was gone.Teel immediately called the police.The next morning Cowlitz County Deputy SheriffLorenzo Gladson went to GT Metals and Salvage and asked the owner to keep an eye out for anyone trying to scrap a stainless steel tank.One of GT Metals' employees later reported that someone was trying to scrap the lid to a stainless steel tank and would be returning with the rest of the tank.Gladson waited until Lindsey arrived with the tank and arrested him.

¶ 6 Gladson asked Lindsey how he got the tank.Lindsey responded that he had purchased it from someone known to him as a thief and that he knew the tank was stolen.Later, while sitting in the patrol car waiting for Teel to arrive, Lindsey remarked, “ ‘I might as well be honest with you.I took it.’ ”Report of Proceedings (RP)at 82.After matching the serial numbers on the tank with those Teel had given him earlier, Gladson showed Teel a photograph of Lindsey.Teel identified Lindsey as the same man who had been at his business going through his scrap bin.

¶ 7The State charged Lindsey with first degree trafficking in stolen property.¹The amended information charged the following:

TRAFFICKING IN STOLEN PROPERTY IN THE FIRST DEGREE

The defendant, in the County of Cowlitz, State of Washington, on, about or between July 08, 2011, and July 11, 2011, did knowingly organize, plan, finance, direct, manage and/or supervise the theft of property, to-wit: steel tank and/or cover, for sale to others, or did knowingly traffic in stolen property, to wit: steel tank and/or cover, contrary to RCW 9A.82.050(1) and against the peace and dignity of the State of Washington.

Clerk's Papers(CP)at 1.This amended information omitted the word “initiate” before “organize”, which is contained in the statutory language.

Conflict with Counsel

¶ 8 At three separate hearings before trial, the issue arose as to whether Lindsey and his appointed counsel had a conflict entitling Lindsey to a change of attorney.The trial court held a hearing on November 2, 2011, because of Lindsey's concerns.At that hearing, Lindsey expressly waived counsel's conflict of interest.

¶ 9 On November 30, Lindsey asked for a new attorney, asserting that his counsel was not doing enough to get the charges reduced and that his counsel was not helping him.The trial court denied his request.On December 8, Lindsey again requested new counsel, explaining that poor communication and lack of trust undermined his attorney-client relationship.Defense counsel explained that they had engaged in heated arguments over getting a lesser charge from the prosecutor, but that these arguments would not keep him from representing Lindsey fairly.The trial court again denied the motion.The issue did not arise again.

Trial

¶ 10 At trial, the trial gave the following “to convict” instruction to the jury:

To convict the defendant of the crime of Trafficking in Stolen Property in the First Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on, about, or between July 8 and July 11, 2011, the defendant knowingly:

(a) initiated, organized, planned, financed, directed, managed, and /or supervised the theft of property for sale to others; or

(b) trafficked in stolen property with the knowledge that the property was stolen; and

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

Suppl.CPat 48.The instruction included the word “initiated” that had been omitted from the amended information.Lindsey did not object to this instruction.

¶ 11 The jury returned a guilty verdict.At the sentencing hearing, Lindsey mentioned his counsel when responding to the trial court's questions, saying, “He's [defense counsel] doing good.Don't get me wrong.”RPat 188.

ANALYSIS

A.Alternative Means Arguments

¶ 12 Lindsey argues that RCW 9A.82.050(1) identifies eight alternative means of committing the crime of first degree trafficking in stolen property.Three of his. assignments of error are based on this argument.We disagree with this interpretation of RCW 9A.82.050(1).

¶ 13RCW 9A.82.050 defines first degree trafficking in stolen property:

(1) A person 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.

(2) Trafficking in stolen property in the first degree is a class B felony.

Lindsey claims that this statute identifies eight alternative means for committing the crime: knowingly (1) initiating, (2) organizing, (3) planning, (4) financing, (5) directing, (6) managing and (7) supervising the theft of property for sale to others, and (8) knowingly trafficking in stolen property.The State contends that there are two alternative means: (1) knowingly initiating, organizing, planning, financing, directing, managing or supervising the theft of property for sale to others; and (2) knowingly trafficking in stolen property.

¶ 14“An ‘alternative means crime’ is one ‘that provide[s] that the proscribed criminal conduct may be proved in a variety of ways.’ ”State v. Peterson,168 Wash.2d 763, 769, 230 P.3d 588(2010)(alteration in original)(quotingState v. Smith,159 Wash.2d 778, 784, 154 P.3d 873(2007)).Because the legislature has not defined what constitutes an alternative means crime, whether a statute provides an alternate means for committing a particular crime is left to judicial determination.Peterson,168 Wash.2d at 769, 230 P.3d 588.However, there is no bright-line rule for making this determination and each case must be evaluated on its own merits.Peterson,168 Wash.2d at 769, 230 P.3d 588.

¶ 15 Washington cases suggest some guidelines for analyzing the alternative means issue.Merely stating methods of committing a crime in the disjunctive does not mean that there are alternative means of committing a crime.Peterson,168 Wash.2d at 770, 230 P.3d 588.Definitional statutes do not create additional alternative means for a crime.Smith,159 Wash.2d at 785, 154 P.3d 873.And a statute divided into subparts is more likely to be found to designate alternative means.SeeState v. Al–Hamdani,109 Wash.App. 599, 607, 36 P.3d 1103(2001)(distinguishing statutes for alternative means purposes because they separate means by subparts).

¶ 16 Reviewing RCW 9A.82.050(1) as a whole convinces us that the legislature intended two alternative means of committing the crime of trafficking in stolen property rather than eight.First, the placement and repetition of the word “knowingly” suggests that the legislature intended two means.The first “knowingly” clearly relates to all seven terms in the first part of the statute—“initiates, organizes, plans, finances, directs, manages, or supervises”—as a group.If each word was interpreted as standing on its own, the knowing requirement would apply only to “initiates”.Similarly, the phrase “the theft of property for sale to others” relates to the entire group.Treating these terms as a group indicates that they represent multiple facets of a single means of committing the crime.And use of the word “knowingly” a second time before the phrase “trafficking in stolen property” indicates that this is a separate means set apart from the other group.If the statute described eight means, there would be no need to use the word knowingly again.

¶ 17 Second and similarly, the statute repeats the word “who”.The statute thus contains two parts with each using “who” as a subject and separated with a disjunctive, making two independent clauses.Each clause describes distinct means of committing the offense.If the statute described eight means there would...