State v. Rosie, No. 27665-8-II (WA 5/25/2004)
| Decision Date | 25 May 2004 |
| Docket Number | No. 27665-8-II,27665-8-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. BRENT J. ROSIE, Appellant. |
Appeal from Superior Court of Thurston County. Docket No. 01-1-00318-0. Judgment or order under review. Date filed: 07/12/2001. Judge signing: Hon. Wm Thomas McPhee.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Brent J. Rosie appeals his convictions of six counts of second degree theft, arguing that the trial court instructed the jury on an uncharged alternative means and failed to provide the jury with a unanimity instruction. He further argues that we should dismiss the charges with prejudice because the evidence did not support the charged means. In addition, he challenges his offender score calculation1 and alleges ineffective assistance of trial counsel based on counsel's failure to object to the defective jury instructions or challenge the offender score. The State concedes that the trial court instructed the jury on an uncharged alternative means but argues that the appropriate remedy is dismissal without prejudice. Although we accept the State's concession, we affirm the convictions because the trial court's single-meaning instructions clearly defined only the means charged and the evidence is sufficient to support the convictions. We also reject Rosie's ineffective assistance of counsel claims. But we remand for resentencing.
The State charged Rosie by second amended information with six counts of second degree theft, counts I and III through VII, and one count of second degree vehicle prowl, count II, arising from the theft of a briefcase and its contents from Lacey Police Department Commander Edward Sorger's car. The State brought the theft charges under RCW 9A.56.020(1)(a) and alleged that Rosie committed the thefts by `wrongfully obtain{ing} control over' Sorger's property, a police radio and several account access cards. The State also charged count I in the alternative as second degree possession of stolen property.3
At trial, Sorger testified that on January 29, 2001, his briefcase was stolen from his unlocked personal car while he was inside a convenience store. At the time it was stolen, his briefcase contained: (1) a small two-way police radio; (2) a police department tape recorder; (3) a wallet containing his badge, his identification, five or six credit cards, his driver's license, his commission cards, and other items; (4) chemical spray in a leather holder; (5) his checkbook; (6) various paperwork; and (7) `department trading cards.' I Report of Proceedings (RP) at 102-03.
After Sorger discovered his briefcase was missing, he and two other officers spoke to the store's staff and reviewed the store's security tapes. Sorger's car was not visible on the tapes, but the tapes showed a white Ford Tempo pull into the parking lot and behave suspiciously, by pulling in and then backing up in an unusual manner. The tapes did not show the people inside the white car clearly, but store personnel told the officers that two men and a woman who appeared to be in their twenties, one of whom had a dark complexion and appeared Hispanic, occupied the car. Jamie Murphy, the woman who was in the white car, later testified that the car was a four door model.4
About 45 minutes after the officers viewed the tapes, a white car similar to the one on the tapes passed one of the officers. The passenger in the car was a white woman in her twenties and the driver was `dark complected, possibly Hispanic.' II RP at 155-56. The officer, who was joined by a second officer in a separate patrol car, pulled in behind the white car. When the second officer activated his emergency lights, the car pulled over, but when the officer exited his car, it sped away.
The officers pursued the white car as the people in the car threw things out of the windows. The driver eventually lost control and the back end of the car hit a tree. When the officers approached the wrecked car, they found Sorger's briefcase in what appeared to have been the trunk area of the car.
The officers identified the two people in the car as Ricky Rangel and Jamie Murphy. Sorger recognized Rangel from the convenience store. Along the side of the road, the officers recovered several items from the briefcase. The police radio, the chemical spray, and Sorger's badge were still missing at the time of the trial.
Rangel testified that before the accident, he was driving the white Tempo with Murphy in the front passenger seat and Rosie in the back seat and that they stopped at the convenience store. Rosie and Murphy stayed behind when he went inside.
When he returned to the car, Murphy was in the driver's seat; she told Rangel to hurry so they could leave. They then took Rosie home.
Although Rangel testified at trial that when he got back into the car at the store he noticed the briefcase sitting between the two front seats, the State impeached Rangel by presenting an earlier interview in which he said he had seen the briefcase in the back seat with Rosie. Detective Chris Edin later verified that Rangel had stated in a January 29 interview that he had seen the briefcase in the back seat of the car with Rosie.
While at Rosie's house, they needed to move the car. During the January 29 interview, Rangel stated that Rosie moved the car and when he returned he told Rangel he had put something in the trunk. Rangel later asserted that his trial testimony was more accurate than the statements he made during the January 29 interview because at that time he was just trying to place the blame on someone else.
Rangel also testified that while they were at Rosie's house, Rosie showed Murphy a two-way radio because she and Rangel were interested in purchasing one. But he asserted that Rosie had a variety of hand-held radios, and that the radio he showed Murphy was a two-way radio rather than a police radio.
Rangel further testified that when the police initially pulled him over, Murphy showed him the badge and the attached wallet. He also stated that after Murphy took these items out of the car's glove box, she told him that they should blame everything on Rosie.
Cheryl O'Brien testified that Rosie had been staying with her family at the time of the incident. On or about January 29, she heard Rosie trying to sell a small police radio that he said was stolen. But O'Brien also testified that although Rosie said that `we' had taken the radio from an officer's car, she did not recall him saying that `he' had stolen it. II RP at 315, 346.
O'Brien further testified that she had also observed Rosie with an empty pepper spray holder and a photograph of a man; she confirmed that the photograph was similar to the police trading cards that had been in Sorger's briefcase. Rosie told her that he also had the pepper spray canister.
O'Brien's daughter, Aimee Carlson, testified that she had seen Rosie with the police trading card and the police radio. She testified that she heard Rosie say the radio `was taken out of a cop's car, or it was stolen from a cop,' and that he said that he was the one who had taken it. II RP at 374.
During closing argument, the prosecutor repeatedly emphasized that the key issue in determining whether Rosie was guilty of the theft of Sorger's property was who had entered Sorger's vehicle and taken the briefcase. She informed the jury that if it did not find that Rosie had entered Sorger's car, it could still find that he possessed the stolen radio under the alternative possession of stolen property charge. But she did not suggest that possession of any of the items alone, without proof that Rosie actually took the items from Sorger's car, would establish the theft charges.
The trial court presented the parties with its proposed jury instructions and neither party objected or excepted to any of the instructions relevant to this appeal. But the record on appeal does not reveal which party offered what instructions.
Instruction 13, the to convict instruction for count I, and instruction 19, the to convict instruction for counts III through VII, required the jury to find, `That on or about January 29, 2001, the defendant wrongfully obtained or exerted unauthorized control over property of another.' Clerk's Papers (CP) at 24, 29 (emphasis added). Instructions 12 and 18 defined the term `theft' as `to wrongfully obtain or exert unauthorized control over the property of another with intent to deprive that person of such property.' CP at 24, 28 (emphasis added). They further defined the phrase `{w}rongfully obtains or exerts unauthorized control' as `to take wrongfully the property of another.' CP at 24, 28.5
The jury found Rosie guilty on counts I and III through VII and not guilty on count II. Rosie appeals his convictions and sentence.
Rosie first contends that because the charging information alleged only that he wrongfully obtained control over the property of another and not that he exerted unauthorized control over the property, the jury instructions allowed the jury to convict him on an uncharged alternative means.6 The State concedes that the jury instructions included an uncharged alternative means of committing second degree theft.
`It is fundamental that under our state constitution an accused person must be informed of the criminal charge he or she is to meet at trial, and cannot be tried for an offense not charged.' State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988); see also State v. Olds, 39 Wn.2d 258, 260-61, 235 P.2d 165 (1951). When an information alleges only one crime, it is constitutional error to instruct the jury on a different, uncharged crime. Olds, 39 Wn.2d 258 at 260-61; see also State v. Doogan, 82 Wn. App. 185, 188...
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