State v. Rhinehart

• Decision Date: 25 September 1978
• Docket Number: No. 5606-I,5606-I
• Citation: 21 Wn.App. 708,586 P.2d 124
• Parties: STATE of Washington, Appellant, v. James A. RHINEHART, Respondent.
• Court: Washington Court of Appeals

Page 708

21 Wn.App. 708

586 P.2d 124

STATE of Washington, Appellant, v. James A. RHINEHART, Respondent.

No. 5606-I.

Court of Appeals of Washington, Division 1.

Sept. 25, 1978.

As Amended Oct. 9, 1978.

Reconsideration Denied Dec. 21, 1978.

Christopher T. Bayley, King County Pros. Atty., Jose E. Gaitan, Seattle, for appellant.

Kempton, Savage & Gossard, Anthony Savage, Seattle, for respondent.

SWANSON, Judge.

The State appeals an order of dismissal granted at the close of its presentation in a prosecution for possession of stolen property, alleging error in the trial court's conclusion that a prima facie case had not been made. We agree, and remand for trial.

The State charged James A. Rhinehart by information with possessing stolen property in the first degree, pursuant to RCW 9A.56.140(1), .150. At trial the State offered evidence demonstrating that in September, 1976, Rhinehart purchased a Ford Bronco from a Mr. Briggs in Oregon for $1,200. The vehicle had been in an accident, and the front end was "totalled," resulting in a bent frame. On November 22, 1976, a Ford Bronco was reported stolen from a dealer, Hanna Motors, in Vancouver, Washington. Five days later, on November 27, 1976, Rhinehart sold a Ford Bronco to one Doyle, transferring the Briggs title to Doyle. As elements of that sale, Rhinehart demanded cash ($4,400), instructed Doyle not to have the vehicle licensed until the new year, and offered only one key which did not open all doors of the vehicle. On January 11, 1977, Mrs. Doyle had the vehicle inspected for licensing purposes at which time a patrolman discovered the identification number of the vehicle's frame matched that of the vehicle stolen from Hanna Motors. Mr. Briggs testified that a number of parts in the vehicle were from the Bronco he sold Rhinehart.

A detective testified that such a fact pattern inferred a "salvage-switch operation" by which the identity of a legally transferable, but wrecked vehicle is substituted for that of a stolen vehicle of the same make.

After the State closed, Rhinehart moved for dismissal arguing, among other things, that the State had failed to prove any stolen goods in his possession were worth more than $1,500, an element of first-degree possession of stolen property. RCW 9A.56.150(1). The trial judge agreed and dismissed. The State moved for reconsideration. At hearing the trial court denied the motion, citing as additional grounds for dismissal Rhinehart's argument that the State had failed to demonstrate the knowledge necessary for conviction.

Thus, two issues before us are whether the State failed to make a prima facie case regarding either value or knowledge. Rhinehart offers a third rationale for dismissal by challenging the adequacy of the information. We will discuss these issues seriatim.

The trial court believed the State failed to prove the value of any stolen property in Rhinehart's possession, and thus, a conviction for possessing stolen property in the first degree as charged was not possible. We need not decide whether the evidence of the retail value of the Hanna vehicle and the market value of the Briggs vehicle viewed in the manner most favorable to the State establish value, for the State correctly argues that a lesser included offense instruction would have been appropriate.

A lesser included offense exists when all of the elements of the lesser offense are necessary elements of the greater offense. State v. Bishop, 6 Wash.App. 146, 491 P.2d 1359 (1971). Put another way, if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime. Comment, The Lesser Included Offense Doctrine, 5 Conn.L.Rev. 255, 261 (1972).

State v. Roybal, 82 Wash.2d 577, 583, 512 P.2d 718, 721 (1973). See also State v. Schrager, 74 Wash.2d 75, 81, 442 P.2d 1004 (1968).

In the instant case a lesser included offense instruction of possessing stolen property in the third degree, RCW 9A.56.170, would have been appropriate. RCW 9A.56.140(1) defines the offense of possession of stolen property:

"Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.

Later sections delineate degrees of that offense, based on the value of the stolen property possessed. A person is guilty of possessing stolen property in the first degree if he possesses stolen property which exceeds one thousand five hundred dollars in value.

RCW 9A.56.150(1).

A person is guilty of possessing stolen property in the third degree if he possesses stolen property which does not exceed two hundred fifty dollars in value.

RCW 9A.56.170(1). Because one could not be guilty of possessing stolen property in the first degree without also being guilty of possessing stolen property in the third degree, the latter is a lesser included offense of the former. No proof of value is necessary for conviction of the third-degree charge; thus, a lesser included offense instruction could have negated the import of the State's argued failure to prove value.

A necessary element of the crime of possessing stolen property is knowledge knowledgable possession and knowledge that the property is stolen. RCW 9A.56.150(1). Mere possession of stolen property will not justify a conviction. State v. Douglas, 71 Wash.2d 303, 428 P.2d 535 (1967); State v. Portee, 25 Wash.2d 246, 170 P.2d 326 (1946). Where possession is coupled with "indicatory evidence on collateral points," however, a conviction may be warranted. The court in State v. Portee, supra at 253-54, 170 P.2d at 330, stated:

The general nature of this so-called "indicatory evidence on collateral points" is suggested by the following section in 4 Nichols on Applied Evidence 3664, § 29:

"SUFFICIENCY IN CONNECTION WITH OTHER EVIDENCE. Possession of recently stolen property, in connection with other evidence tending to show guilt, is sufficient to warrant a conviction. When a person is found in possession of recently stolen property, slight corroborative evidence of other inculpatory circumstances tending to show his guilt will support a conviction."

See State v. Pisauro, 14 Wash.App. 217, 220, 540 P.2d 447 (1975); State v. Beck, 4 Wash.App. 306, 480 P.2d 803 (1971). Cf. State v. Budinich, 17 Wash.App. 336-37, 562 P.2d 1006, 1007 (1977) (wherein the court held the Portee standard "is an accurate and appropriate statement of the law where . . .the issue is a challenge to the sufficiency of the State's evidence" but "is not an appropriate instruction for the guidance of the jury . . .").

It is undisputed that a challenge to the sufficiency of the evidence admits the truth of the evidence offered by the nonmoving party and all inferences that can reasonably be drawn therefrom. Said evidence will be interpreted most strongly against the moving party and in a light most favorable to the nonmoving party. State v. Woody, 73 Wash.2d 179, 181, 437 P.2d 167 (1968); State v. Etheridge, 74 Wash.2d 102, 110, 443 P.2d 536 (1968). The trial court was bound by this standard. State v. Randecker, 79 Wash.2d 512, 517, 487 P.2d 1295 (1971).

In this case, testimony raised numerous inferences which if believed would adequately imply the knowledge necessary for conviction. For example, Rhinehart possessed stolen property within 5 days of the report of its theft and demanded cash for its sale. He advised the buyers not to record the sale until the new year, a month hence. Taking these facts in the posture most disfavorable to Rhinehart, it would be logical for a jury to conclude that he knew the property in his possession was stolen. Thus, a dismissal on the grounds of failure to prove knowledge was improper. Indeed, Rhinehart's counsel concedes "that a prima facie case was made out on the matter of knowledge insofar as the car's frame is concerned."

This raises Rhinehart's final argument in support of the dismissal. Rhinehart contends that the information charged him with possession of a particular stolen car, and thus proof of possession of a stolen frame, as evidenced by the vehicle identification number, was insufficient to establish a prima facie case. With this we cannot agree.

The purpose of an information is well established.

(I)t is fundamental that an accused must be informed of the charge he is to meet at trial and that he cannot be tried for an offense not charged. U.S.Const. amend. 6; Const. art. 1, § 22 (amendment 10); State v. Frazier, 76 Wash.2d 373, 456 P.2d 352 (1969).

State v. Smith, 11 Wash.App. 216, 225, 521 P.2d 1197, 1203 (1974). And further:

A complaint, information or indictment, though sufficient to charge a crime, may be subject to attack because it is too indefinite or uncertain to enable the accused to prepare his defense.

State v. Dixon, 78 Wash.2d 796, 802, 479 P.2d 931, 935 (1971).

If Rhinehart intended by this semantic distinction to attack the information as being too indefinite to enable him to prepare a defense, his objection would be untimely and could not support the order of dismissal.

Objections to the sufficiency or definiteness of an information must be made before the trial commences. State v. Thomas, 73 Wash.2d 729, 440 P.2d 488 (1968).

State v. Pyles, 9 Wash.App. 246, 248, 511 P.2d 1374, 1376 (1973). It appears, however, that Rhinehart would like this court to affirm the order of dismissal on the ground that the information's specification of a Ford Bronco, as opposed to the parts thereof, increases the State's burden of proof. ¹ Thus, the argument runs, if the State failed to prove possession of a complete automobile, a prima facie case would not be present. Such an argument is untenable.

Initially, it must be emphasized that the crime charged was possessing stolen property, RCW 9A.56.140(1), not possessing a stolen vehicle. The State obviously had no...