State v. Medley

• Decision Date: 26 June 1974
• Docket Number: No. 658--II,658--II
• Citation: 524 P.2d 466,11 Wn.App. 491
• Parties: The STATE of Washington, Respondent, v. William Franklin MEDLEY, Appellant.
• Court: Washington Court of Appeals

Page 491

11 Wn.App. 491

524 P.2d 466

The STATE of Washington, Respondent, v. William Franklin MEDLEY, Appellant.

No. 658--II.

Court of Appeals of Washington, Division 2.

June 26, 1974.

Review Denied Sept. 25, 1974.

James S. Witt, III, Don R. Smith--appointed cocounsels, Tacoma, for appellant.

Joseph D. Mladinov, Special Counsel to the Pros. Atty. for Pierce County, Tacoma, (Ronald L. Hendry, Pros. Atty., with him on the brief), for respondent.

PEARSON, Chief Judge.

Defendant, William F. Medley, was charged alternatively by information with unlawfully taking an automobile without the owner's permission, or with voluntarily riding in the vehicle with knowledge that it had been unlawfully taken. A Pierce County jury found him guilty as charged and defendant appeals the judgment and sentence.

Defendant's chief assignment of error states that 'The trial court erred in not striking all instructions relating to the Taking of the automobile . . .' (Italics ours.) The challenged instructions are not set forth verbatim in the brief as required by CAROA 42(g)(1)(iii) and CAROA 43, and we normally do not consider challenged instructions unless these rules are followed. State v. Draper, 10 Wash.App. 802, 521 P.2d 53 (1974). However, the argument presented does not purport to challenge the abstract legal statements contained in the instructions. Rather, defendant contends under this assignment of error (1) that the information was defectively duplicitous, (2) that the evidence was insufficient in law to support one of the alternate modes charged in the information, namely, the unlawful taking of the automobile, and (3) the jury was not properly charged that a verdict must be unanimous on either alternative mode charged in the information. Since trial counsel had properly preserved two of these claimed errors at trial, we deem it necessary to consider them on the merits, despite the inadequacy of the assignment of error. See State v. Robinson, 78 Wash.2d 479, 475 P.2d 560 (1970).

There is no merit to defendant's challenge to the information. The information was couched in the statutory language. RCW 9.54.020. ¹ Both the statute and the information assert two methods by which a single crime may be committed. The information does not improperly charge two crimes in the alternative in one count. State v. Scott, 64 Wash.2d 992, 395 P.2d 377 (1964). The elements instruction given to the jury allowed the jury to consider two alternative methods for determining defendant's guilt or innocence of a single crime. ² The form and substance of this instruction has been specifically approved. State v. Robinson, Supra.

We next consider the contention that the evidence was insufficient to submit to the jury the unlawful 'taking' alternative method of committing the crime. There is authority, as appellant contends, that if the evidence was insufficient as to one mode, prejudicial error may have occurred in the submission of two modes of commission to the jury. State v. Golladay, 78 Wash.2d 121, 470 P.2d 191 (1970).

The pertinent facts are as follows. Two Armed Forces Police officers were patrolling in a residential area in Pierce County when they recognized an automobile which one of their fellow officers had reported as stolen from him on the previous day. Not only did they recognize the 1961 Buick Convertible, but the license plate numbers matched those of the vehicle reported stolen. Because it was daylight and because the stolen vehicle was a convertible, the officers were able to observe both the physical characteristics and mode of dress of the two occupants.

After calling for assistance from the Pierce County Sheriff, the two officers undertook to follow the vehicle. During this time the officers noticed that the driver was dark haired, clean shaven, and had a bandaged right hand. He was wearing a blue jacket and a red stocking-type cap. The passenger was full-bearded and wore a green jacket and a blue or black stocking cap.

At one point during the surveillance, the stolen vehicle stopped at a tavern. The occupants were inside briefly and when they returned to the car the two changed places so that the bearded man assumed the role of driver.

Shortly thereafter a high speed chase ensued involving the stolen vehicle, the Armed Forces Police, and a Pierce County Deputy Sheriff who had responded to the call for assistance. The chase abruptly ended when the stolen vehicle was stopped and its occupants fled on foot into a 640-acre wooded tract near the highway.

About this time two state patrol officers, who had also responded to the call for assistance, proceeded to the opposite side of the wooded tract. One of the officers was familiar with the area and knew that a footpath traversed the woods. About one-half hour later two men matching the descriptions radioed to the patrol officers emerged from the woods on the footpath and were apprehended.

The clean-shaven man with the bandaged hand was identified as Ronald Carpenter. ³ One of his fingerprints was later taken from the stolen car. The man with the beard was the defendant, William Medley.

A short time later the two Armed Forces policemen and the Pierce County Deputy Sheriff arrived at the scene of the apprehension. all three identified the two men as those who had been in or driving the stolen vehicle and the arrest was made by the deputy sheriff.

At trial, and over defendant's objection, in-court identification was made of Medley by the three police witnesses who had observed him driving the stolen vehicle. Defendant did not take the stand in his own behalf. Instead, he called one of two sheriff's deputies who had interrogated him at the jail shortly after his arrest. The substance of this testimony was that defendant had not been with Carpenter on the day the vehicle was stolen and that he had no knowledge concerning its ownership. Defendant submitted other evidence that at the time of the incident he was proceeding with Carpenter to pick up a paycheck from the latter's employer, who resided in the general area.

Clearly, the vehicle here was taken without the permission of the owner--that fact was established by testimony of the owner. The vehicle did not belong to defendant, although he assumed control of it at the aforementioned tavern, according to the witness. Any innocent explanation for his actions could reasonably be negated by his attempts to escape capture thereafter. These circumstances are sufficient to establish a prima facie case on the first prong of RCW 9.54.020, the 'taking' statute. See State v. Nelson, 63 Wash.2d 188, 191, 386 P.2d 142, 144 (1963), where the court states:

It is sufficient to show that the automobile taken did not belong to the appropriator, and that it was intentionally taken from and without permission of the person entitled to its possession at the time of the taking.

We deem it immaterial whether the vehicle was taken by defendant on the day it was reported stolen or at some later time, so long as his culpability may reasonably be inferred from his actions at the time of his appropriation of the vehicle. There is no contention made that the evidence fails to establish a prima facie case on the second prong of RCW 9.54.020, namely, voluntarily Riding with knowledge of a wrongful appropriation. Consequently, defendant's challenge to the sufficiency of the evidence must be rejected.

We next turn to defendant's claim that reversible error occurred by the refusal of the court to instruct the jury that its verdict must be unanimous on either alternative prong of the statute. This claim must be rejected on two grounds. First, although trial counsel took exception to the refusal of the court to give a unanimity instruction, the record does not show that such an instruction was proposed. The error, therefore, has not been preserved. See State v. Draper, 10 Wash.App. 802, 521 P.2d 53 (1974); CAROA 43.

Second, the cases which suggest the necessity of a special unanimity instruction where a single crime may be committed in different ways or by different means, involve criminal statutes totally different from the one under consideration here. In State v. Golladay, 78 Wash.2d 121, 470 P.2d 191 (1970), where that requirement appears to have originated, the court was concerned with three alternative modes of committing first-degree murder (RCW 9.48.030), namely, (1) larceny murder, (2) rape murder, and (3) premeditated murder, and the sufficiency of the evidence of each mode. The court concluded that the evidence did not support larceny murder and the error in submitting that issue was prejudicial under the circumstances of that case. The court mentioned by way of dictum the necessity for a unanimous verdict on any of the alternatives.

In State v. Carothers, 9 Wash.App. 691, 514 P.2d 170

(1973), Division I of this court was confronted with the absence of a unanimity instruction where the alternative modes for committing first-degree murder were (1) premeditated murder, (2) robbery murder, or (3) first-degree murder via the accomplice statute, RCW 9.01.030. The court concluded that prejudicial error had not occurred, since the accomplice statute did not create a separate or alternative mode, and the robbery murder mode was submitted under an instruction by which unanimity could be ascertained, even in the absence of a special instruction.

In a footnote, a majority of the court in State v. Carothers, Supra, stated at page 694, 514 P.2d at page 173:

We suggest that unanimity as to mode of commission of a single crime should not be required if (1) the modes charged are not repugnant, and (2) substantial evidence concerning each mode is submitted to the jury.

We are agreement with that suggestion, but need not rely upon it to decide the question before us. The nature of the criminal statute before us is totally different from those involved in State v. Golladay, Supra, and State v. Carothers, Supra. RCW 9.54.020 makes the culpable ...