State v. Schloredt

• Court: Washington Court of Appeals
• Writing for the Court: ELLINGTON, J.
• Citation: State v. Schloredt, 987 P.2d 647, 97 Wash.App. 789 (Wash. App. 1999)
• Decision Date: 01 November 1999
• Docket Number: No. 43569-8-I.
• Parties: STATE of Washington, Respondent, v. Phillip Lynch SCHLOREDT, Appellant.

987 P.2d 647

97 Wash.App. 789

STATE of Washington, Respondent, v. Phillip Lynch SCHLOREDT, Appellant.

No. 43569-8-I.

Court of Appeals of Washington, Division 1.

November 1, 1999.

Rita Griffith, Griffith & Cole, PLLC, Seattle, for Appellant.

Erin E. Ehlert, King County Prosecutor's Office, Seattle, for Respondent.

ELLINGTON, J.

When Phillip Schloredt was apprehended in a convenience store stealing cigarettes, he had stolen credit cards in his pocket. He was convicted of burglary in the second degree and four counts of possession of stolen property (specifically, stolen "access devices") in the second degree. We affirm Schloredt's conviction, holding that the evidence was sufficient to establish the cards were access devices; that Schloredt received sufficient notice of the charges against him; and that an improper jury instruction on the burglary charge was harmless error under State v. Deal.¹ We also hold that the trial court did not rely on an impermissible basis in refusing to impose an exceptional mitigated sentence based upon Schloredt's mental illness.

Facts

On January 10, 1998, at approximately 4:56 a.m., Seattle Police Officer Steven Strand responded to a call at the J & P Food Center. As he approached, he noticed a broken window at the front of the store, so he backed his car away and looked inside through binoculars. Strand could see someone behind the counter taking cigarettes from the overhead shelf and putting them in some kind of bag.

Strand approached the store on foot. There was a car parked in front with its motor running. Officer John Pote arrived on the scene and the two officers entered the store. Strand ordered the individual to the ground, and required him to remove the maroon scarf and goggles he was wearing. The individual in the store was eventually identified as Phillip Schloredt. Schloredt told Strand there was one other person in the store, but Strand and Pote found no one else inside. Schloredt also told Strand that he had given another person a ride and had not known there would be a burglary.

Strand found bags of cigarettes and an unplugged VCR sitting on a chair. A search of Schloredt revealed nine credit cards in his pocket, bearing the names of Adam Dick and Cecilia Asencio. On the way to the precinct, Schloredt asked Strand if he thought he had a lot of cigarettes, and indicated that he intended to sell the cigarettes for a dollar each and then use the money to buy drugs. Schloredt told Strand that he found the credit cards in a phone booth outside the store just before he went inside.

The owner of J & P Food Center, Jong Soo Kim, testified that he closed the store at approximately 9:00 p.m. on January 9, 1998. When he left, the front door was locked, no windows were broken, and the VCR was located under the counter and plugged in. Two days before the burglary, Cecilia Asencio's vehicle was broken into and a duffel bag containing her credit cards was stolen. That same day, someone broke into Adam Dick's vehicle and took his credit cards.

Schloredt was charged with one count of burglary in the second degree and four counts of possession of stolen property in the second degree. A jury convicted Schloredt as charged. The trial court denied Schloredt's request for a mitigated exceptional sentence, and imposed a sentence within the standard range.

Discussion

A. Access Devices

Schloredt contends there was insufficient evidence to establish all the elements of the possession of stolen property charges.² The information charged Schloredt with possession of stolen credit cards in violation of RCW 9A.56.160, which prohibits possession of stolen "access devices."

RCW 9A.56.010(1) defines "access device" as:

any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument[.]

Schloredt asserts that the State failed to establish that the cards found in Schloredt's possession were "access devices" because it failed to prove they were "operational" on the date Schloredt possessed them.

Schloredt argues that the language "can be used" in the definition of access device requires the State to prove the stolen cards remained active at the time of their discovery in his pocket. Schloredt emphasizes the present tense used in the definition, as well as legislative history.

In 1987, the legislature substituted the term "access device" for "credit card,"³ broadening the statute to account for changing technology in banking practices and to "`make it easier for prosecutor's [sic] to establish certain types of fraudulent transactions.'"⁴

Schloredt asserts that because the former definition of credit card included the phrase "whether incomplete, revoked, or expired," while the new definition of "access device" does not, the legislature "decriminalized" possession of an incomplete, revoked, or expired credit card. He thus argues that the State is required to prove the credit cards in his possession were not "incomplete, revoked, or expired," and that the evidence was insufficient to establish this "element." In particular, he argues the State failed to prove the owners of the cards had not cancelled them upon discovering the thefts. Under Schloredt's reading of the statute, such an act by the victim removes the cards from the definition of access device.

Schloredt's argument is without merit. A reviewing court will not give a hypertechnical reading of a statute so as to yield an absurd result.⁵ It begs reason to assume the legislature intended that a defendant could not be charged with possessing a stolen credit card or other access device solely because the victim discovered the theft and cancelled the account on the stolen card before the defendant was apprehended. Nor does the history of the statutory definition aid Schloredt's argument. The legislature's failure to incorporate into a new definition certain characteristics that were part of the definition it has abandoned and replaced does not have the effect of transforming the absence of these characteristics into an element of the new definition. This is gymnastics, not statutory construction, and we decline Schloredt's invitation to assume the legislature intended to engage in such contortions in writing a simple definition. The clear legislative intent of the language "can be used" in RCW 9A.56.010(3) is a reference to the status of the access device when last in possession of its lawful owner. It does not reference the status of the device when later located in unauthorized hands.

Schloredt was apprehended on January 10, 1998, and in his pocket police found credit cards in the names of Adam Dick and Cecilia Asencio. Both victims testified that their credit cards were stolen on January 8, 1998. At the time they were stolen, none of the cards had expired. The State did not specifically ask either victim whether the cards were active when stolen, but the testimony of each victim, in context, was sufficient to justify that conclusion, and there was no evidence to the contrary. The jury was thus entitled to find, as it was instructed it must do to convict, that the cards met the definition of an "access device." Whether the victims cancelled their accounts prior to Schloredt's arrest is irrelevant.

B. Notice

We likewise reject Schloredt's assertion that he received insufficient notice of the possession of stolen property charges because the term "credit card" instead of "access device" was used in the charging document.⁶ At the outset, we note that Schloredt did not object to any of the charging documents until his appeal. An information challenged initially on appeal will be construed "quite liberally."⁷

In interpreting an information, it is not necessary that the exact words of the statute be used in the charging document, so long as sufficient words were used to convey the same meaning.⁸ The inquiry is whether the elements appear in any form, or by fair construction can be found in the information.⁹

Although the information did not explicitly use the words "access device," it referred to RCW 9A.56.160(1)(c), the statutory provision dealing with possession of stolen access devices, and also to Schloredt's possession of stolen credit cards. Therefore, the information is more specific than it would have been had it merely charged Schloredt with possession of a "stolen access device" without identifying what particular access device was found in his possession. Schloredt received sufficient notice of the charges against him.

C. Improper Jury Instruction

Schloredt challenges the constitutionality of the court's jury instruction on burglary, which stated:

A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein unless such entering or remaining shall be explained by evidence satisfactory to the jury to have been made without such criminal intent. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.

(Emphasis added). Schloredt correctly points out that the instruction created a mandatory presumption, which shifted the burden of proof to the defendant and thereby unconstitutionally relieved the State of its duty to prove all the elements of the crime beyond a reasonable doubt. The State concedes that the jury instruction was improper. The only question is whether the error was harmless. We hold it was, because there is no doubt the jury would have found Schloredt guilty of burglary even if the improper instruction had not been given.

In State v. Deal,¹⁰ our Supreme Court considered an identical instruction and held it improperly shifted the burden to the defendant to produce evidence that he entered the premises...