State v. Longshore
| Decision Date | 17 August 2000 |
| Docket Number | No. 68531-2.,68531-2. |
| Citation | 141 Wash.2d 414,5 P.3d 1256 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Timothy LONGSHORE, Petitioner. |
Christine Gregoire, Atty. Gen., Jay Douglas Geck, Asst., Olympia, for Amicus Curiae on Behalf of Attorney General.
Settle & Johnson, Robert William Johnson, Shelton, for Amicus Curiae on Behalf of Pacific Coast Shellfish Growers Assoc.
John B. Arum, Seattle, for Amicus Curiae on Behalf of Washington Environmental Council.
Johnson & Miller, Stephen Gregory Johnson, Tacoma, for Petitioner.
Gary P. Burleson, Prosecuting Attorney, David B. St. Pierre, Deputy Prosecuting Attorney, Shelton, for Respondent.
Digging 340 pounds of clams on privately owned tidelands earned Timothy Longshore a conviction for second degree theft. The questions are twofold: do clams in naturally occurring beds on privately owned tidelands constitute "property of another" within the meaning of the theft statutes, and, if so, did the state prove the clams Longshore took had a market value of more than $250. We answer both questions in the affirmative, and affirm.
William Mackelwich owns a waterfront lot on Hammersley Inlet in Mason County. There are naturally occurring clam beds in the tidelands along the inlet, but Mackelwich has not seeded or staked any of these beds.
Early in the morning of October 6, 1997, one of Mackelwich's neighbors, Ms. Nancy Nelson, contacted Sergeant Steven DeMiero of the Washington State Department of Fish and Wildlife to report suspected illegal clam harvesting. Around 4:30 a.m., Nelson observed two or three individuals walk up from the beach toward a cul-de-sac and depart in a small silver pickup truck. Shortly thereafter a tan sedan returned with two individuals who picked up several bags of clams hidden in the bushes, placed them in the trunk, and departed.1 When Nelson called Sergeant DeMiero, DeMiero contacted fellow fish and wildlife officer Matthew Nixon to investigate the allegations of illegal clam harvesting. DeMiero positioned himself in the general area to intercept the suspects. Observing a vehicle matching the description given by Nelson, DeMiero gave chase and stopped the sedan, assisted by Nixon. The officers handcuffed and identified the suspects. DeMiero recognized one of the passengers as Longshore. The driver was Floyd Irvin. Obtaining Irvin's permission to search the trunk of the vehicle, DeMiero discovered over 300 pounds of sacked clams. Nixon also observed a large quantity of certification tags2 in the trunk.
Seizing the clams, the officers placed them in Nixon's pickup. Eventually Nixon photographed, weighed, and destroyed the seized clams because they came from an uncertified beach, one within a prohibited shellfish harvesting zone due to potential fecal coliform bacteria contamination.
On October 8, 1997, the state charged Longshore with one count of second degree theft. A jury trial commenced on April 6, 1998. At trial Mackelwich testified he did not grant permission to any person to harvest clams from his beach.
Under a grant of transactional immunity, Irvin, the driver of the vehicle, testified on behalf of the state. Irvin testified that on October 6, 1997, he, Longshore, and Ken Burnett unlawfully harvested clams from Mackelwich's beach property. Irvin stated it was their intent to harvest and sell the clams.
To establish the value of the clams Longshore harvested, Irvin testified that the previous evening, October 5, 1997, he and Longshore illicitly harvested clams from Mackelwich's property and sold them to Skipper John's in Hoodsport for $1.50 per pound.3 Irvin also stated Skipper John's was not informed the clams originated from an uncertified beach. Sergeant DeMiero testified there exists a "gray" market for clams taken from uncertified beaches, and explained the market value for uncertified clams was between $1.15 and $1.50 per pound in October 1997. Similarly, David Robertson, the intertidal division manager for a commercial shellfish company, explained the market value of certified clams was about $2.00 per pound whereas the price for uncertified clams was about $1.50 per pound.
After the state rested its case, the defense moved for a directed verdict, arguing the state failed to prove a prima facie case of second degree theft. Longshore argued uncertified clams have no fair market value in an informed arm's length transaction. He also argued he could not have taken the property of Mackelwich as a matter of law because clams in a natural bed are animals "ferae naturae," and therefore not the property of any person until reduced to possession.
The trial court denied Longshore's motion for a directed verdict, giving three alternative justifications. First, the court reasoned the state's original transfer of title to the tidelands to Mackelwich's predecessor did not expressly reserve to the general public an ownership of natural beds of clams. The court also reasoned the Washington Legislature changed the common law rule of animals ferae naturae when it excluded "shellfish" from the definition of "wildlife" in RCW 77.08.010(16). Finally, the court ruled even if shellfish constitute animals ferae naturae, due to their sedentary nature shellfish constitute personal property of a landowner.
The case was submitted to the jury, which found Longshore guilty of second degree theft. Before sentencing, Longshore moved to arrest the judgment, again arguing clams in natural beds were animals ferae naturae and could not be the subject of theft. But the trial court denied Longshore's motion.
Longshore appealed to the Court of Appeals, Division Two. By published opinion the Court of Appeals affirmed, holding when the state vests title to tidelands in a private landowner, such investiture carries with it the right to exercise dominion and ownership "`over ... things so closely related to the soil as clams.'" State v. Longshore, 97 Wash.App. 144, 150, 982 P.2d 1191 (1999) (quoting Sequim Bay Canning Co. v. Bugge, 49 Wash. 127, 131, 94 P. 922 (1908)). The appellate court also held the state presented sufficient evidence to establish the value of the clams taken by Longshore was greater than $250. We granted Longshore's petition for review. State v. Longshore, 139 Wash.2d 1015, 994 P.2d 849 (2000).
Review of a trial court decision denying either a motion for directed verdict or a motion for arrest of judgment requires the appellate court to engage in the same inquiry as the trial court.
A directed verdict is appropriate if, after viewing the material evidence in the light most favorable to the nonmoving party, the court determines there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party. Hizey v. Carpenter, 119 Wash.2d 251, 271-72, 830 P.2d 646 (1992).
Criminal Rule 7.4 provides a defendant may bring a motion for arrest of judgment for "insufficiency of the proof of a material element of the crime." CrR 7.4(a). The evidence presented in a criminal trial is legally sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence in a light most favorable to the state, could find the essential elements of the charged crime beyond a reasonable doubt. State v. Bourne, 90 Wash.App. 963, 967-68, 954 P.2d 366 (1998).
Longshore contends he should not have been convicted of theft because clams in naturally occurring beds are not the personal property of any individual until reduced to actual possession.4 But the Court of Appeals held while this is true as to state-owned tidelands, once tidelands are sold to an individual, title to the clams passes to the private property owner. Longshore, 97 Wash.App. at 150-51, 982 P.2d 1191. We agree.
To convict Longshore of theft the state was required to prove he took the property or services of another. RCW 9A.56.040(1)(a). "Property of another" implicates the definition of "owner" provided by RCW 9A.56.010(10): "`a person, other than the actor, who has possession of or any other interest in the property or services involved, and without whose consent the actor has no authority to exert control over the property or services.'" State v. Pike, 118 Wash.2d 585, 590, 826 P.2d 152 (1992) (quoting RCW 9A.56.010(8)).
Although Longshore concedes Mackelwich is the owner of the tidelands from which he harvested the clams, he nevertheless contends shellfish in naturally occurring beds on private property cannot be the property of another. Longshore relies on the common law regarding animals ferae naturae and the public trust doctrine to argue the ownership interests of a private tidelands owner do not include natural beds of clams.
Longshore contends clams in naturally occurring beds are animals ferae naturae and therefore constitute property of the general public until reduced to possession and confined by an owner of private tidelands. But the law of our state does not support Longshore's argument.
The general rule is clams and oysters cannot be the subject of theft or larceny unless artificially planted or cultivated in the beds from which they were taken:
The difference between the locomotive powers of swimming fish and shellfish, such as oysters and clams, justifies the law in making a distinction as to their ownership. In their natural state, clams and oysters are classified as ferae naturae, and their ownership is vested in the state in its sovereign capacity, but where planted where they do not naturally grow, in locations marked by posts or otherwise, they are classified as domestic animals and are the subjects of private ownership, although their owner has no greater actual possession than is evidenced by their planting and staking. In the latter case, they may be the subject of larceny, and if one injures or converts such shellfish, he is liable to respond in damages.
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