State v. Williams (In re In re Williams)

• Decision Date: 23 May 2017
• Docket Number: 33840-1-III),No. 33832-1-III (consolidated with 33296-9-III,33832-1-III (consolidated with 33296-9-III
• Citation: 199 Wash.App. 99,398 P.3d 1150
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Lelbert Louise WILLIAMS, Appellant. In re the Matter of Personal Restraint of Lelbert Louise Williams, Petitioner.

199 Wash.App. 99

398 P.3d 1150

STATE of Washington, Respondent,

v. Lelbert Louise WILLIAMS, Appellant.In re the Matter of Personal Restraint of Lelbert Louise Williams, Petitioner.

No. 33832-1-III (consolidated with 33296-9-III

33840-1-III)

Court of Appeals of Washington, Division 3.

MAY 23, 2017

Kristina M. Nichols, Laura Michelle Chuang, Nichols and Reuter, PLLC, P.O. Box 19203, Eastern Washington Appellate Law, Spokane, WA, 99219-9203, for Appellant.

Lelbert Louise Williams (Appearing Pro Se), # 977983 (217002820/E-122), King Cty. Corr. Ctr., 500 5th Ave., Seattle, WA, 98104, for Petitioner.

Brian Clayton O'Brien, Larry D. Steinmetz, Spokane Co. Pros. Atty., 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent.

Fearing, C.J.¶1 Our appeal measures the sufficiency of evidence for purposes of the State establishing the value of stolen property. We also address under what circumstances a trial court may deny a drug offender sentencing alternative (DOSA) sentence. We hold that the State lacked sufficient evidence to convict appellant Lelbert Williams of second degree possession of stolen property because the victim presented testimony of a rough estimate of value without identifying the basis for the estimate. We further hold that the trial court properly denied a request for a DOSA sentencing alternative because of the lack of any substance abuse. We remand for resentencing, however, based on the vacation of one of Williams' four convictions. We dismiss Williams' related personal restraint petition.

FACTS

¶2 The prosecution of Lelbert Williams arose from a series of furtive behavior by Williams. In May 2014, the Spokane Police Department received calls complaining of a man stalking through backyards in a west Spokane neighborhood. On May 6, 2014, one caller, Brad Dawson, observed the man carrying two sports duffel bags and possibly a screwdriver. Also on May 6, 2014, someone burglarized the home of David and Joan Nelson. Joan Nelson's brother, John Johnston, drove through the neighborhood in an attempt to apprehend the burglar. After inspecting five homes, Johnston espied a kneeling gentleman, with two duffels bags astride, employing a screwdriver to pry open a lock on a storage facility. The man fled when Johnston yelled. Johnston called 911 and tracked the fleer as the fleer scattered from yard to yard and hid in changing locations. Johnston kept contact on his cellphone with Spokane police.

¶3 Spokane police officers arrived and apprehended the burglar, Lelbert Williams. Law enforcement officers found a duffle bag, a Bluetooth speaker, a laptop, running shoes, a jacket, and two rings belonging to Adam Macomber in the possession of Williams. Days earlier Macomber had discovered the property missing from his apartment.

PROCEDURE

¶4 The State of Washington charged Lelbert Williams with five crimes: (1) residential burglary, (2) second degree burglary, (3) attempted second degree burglary, (4) attempted theft of a motor vehicle, and (5) possession of stolen property in the second degree. The State added the final charge near the date of trial.

¶5 During trial, Adam Macomber identified those items missing from his apartment. The State then asked Macomber to value his stolen property:

Q. Show the jury again. Were you able to assess a value of an amount that all that property was worth at the time it was taken?

A. I could give a rough estimate.

Q. And I know that you stated there was a laptop computer.

A. Mm-hm.

Q. A mobile hotspot.

A. Mm-hm.

Q. And number of other items including your rings, the Bluetooth speaker, and the miscellaneous items you work out in, including your tennis shoes there.

A. Mm-hm.

Q. What value would you total your loss at being?

A. I would say roughly $800.

Report of Proceedings (RP) at 278. The State presented no other testimony of the value of stolen goods. The trial court denied a request by Lelbert Williams for a lesser included offense instruction with regard to second degree possession of stolen property. The jury found Williams guilty of first degree criminal trespass, attempted second degree burglary, vehicle prowling, and second degree possession of stolen property. The jury acquitted Williams of residential burglary. Our appeal concerns the possession of stolen property conviction.

¶6 At sentencing, Lelbert Williams requested a DOSA. He claimed he committed his last violent offense over ten years earlier. The trial court denied the DOSA on the basis that the court lacked any information of Lelbert Williams abusing controlled substances. The trial court sentenced Williams to the standard range for his crimes and ran the sentences for all crimes concurrently. Our appeal also addresses the denial of a DOSA sentence.

¶7 This court consolidated an appeal and a personal restraint petition filed by Lelbert Williams.

LAW AND ANALYSIS

Sufficiency of Evidence

¶8 Lelbert Williams challenges his conviction for second degree possession of stolen property. We agree that the State presented insufficient evidence to convict Williams of second degree possession and thus reverse this conviction.

¶9 Evidence suffices for a conviction if a rational trier of fact could find each element of the crime beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980). Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wash.App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor of the State. State v. Partin, 88 Wash.2d 899, 906-07, 567 P.2d 1136 (1977). Only the trier of fact weighs the evidence and judges the credibility of witnesses. State v. Carver, 113 Wash.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).

¶10 The State charged Lelbert Williams with second degree possession of stolen property under RCW 9A.56.140 and .160. The former statute defines possessing stolen property. The latter statute reads, in relevant part:

(1) A person is guilty of possessing stolen property in the second degree if:

(a) He or she possesses stolen property, other than a firearm as defined in RCW 9.41.010 or a motor vehicle, which exceeds seven hundred fifty dollars in value but does not exceed five thousand dollars in value;

(Emphasis added.) RCW 9A.56.010(21) defines "value" for purposes of the crime, as: (a) "Value" means the market value of the property or services at the time and in the approximate area of the criminal act.

¶11 The key words of witness Adam Macomber were "I could give a rough estimate." RP at 278. "I would say roughly $800." RP at 278. We find this testimony fails to show beyond a reasonable doubt the value of stolen property to exceed $750.

¶12 "Value" for the purposes of theft means the market value of the property at the time and in the approximate area of the theft. "Market value" is the price which a well-informed buyer would pay to a well-informed seller, when neither is obliged to enter into the transaction. State v. Clark, 13 Wash.App. 782, 787, 537 P.2d 820 (1975). In a prosecution, value need not be proved by direct evidence. State v. Hermann, 138 Wash.App. 596, 602, 158 P.3d 96 (2007). Rather, the jury may draw reasonable inferences from the evidence, including changes in the condition of the property that affect its value. State v. Melrose, 2 Wash.App. 824, 831, 470 P.2d 552 (1970). In determining the value of an item, evidence of price paid is entitled to great weight. State v. Hermann, 138 Wash.App. at 602, 158 P.3d 96 (2007).

¶13 The State may suggest that, since Lelbert Williams did not object to Adam Macomber's valuation testimony or since Williams presented no competing testimony, Macomber's testimony suffices to convict. We disagree. The trial court reasonably would have overruled any objection, since Adam Macomber could testify to a value of the stolen property as its owner. The owner of a chattel may testify to its market value without being qualified as an expert on valuation. McCurdy v. Union Pacific Railroad Co., 68 Wash.2d 457, 468, 413 P.2d 617 (1966) ; State v. Hammond, 6 Wash.App. 459, 461, 493 P.2d 1249 (1972). This principle does not end our inquiry, however. The State still bears the burden of establishing each of the elements beyond a reasonable doubt. State v. W.R., 181 Wash.2d 757, 762, 336 P.3d 1134 (2014).

¶14 The parties rely on two Washington decisions, both of which assist Lelbert Williams: State v. Hammond, 6 Wash.App. 459, 493 P.2d 1249, and State v. Ehrhardt, 167 Wash.App. 934, 276 P.3d 332 (2012). State v. Hammond addressed the admissibility of an owner's valuation testimony concerning the worth of a diamond ring and whether the jury could consider such testimony when determining if the stolen items had a combined value exceeding $75. The State charged the defendant with grand larceny for having stolen five rings in excess of $75. All of the rings were introduced into evidence as exhibits and were before the jury for their consideration. Victim McDaniels was the only witness to testify concerning the value of the five rings. She testified that three rings were "cheap junk jewelry," worth only a few dollars. State v. Hammond, 6 Wash.App. at 460, 493 P.2d 1249. She added that she paid approximately $25 to $29 in 1968 for a sapphire ring, the fourth ring.

¶15 Appellant Dale Hammond challenged the admissibility of testimony concerning the fifth ring, a diamond. The victim testified she had owned the ring for thirty years. During direct examination, the following exchange took place:

Q [By the prosecutor] Now, again, I understand that you are not trying to sell the rings, but do you have an idea as to the approximate fair market value of them?

A [By the owner-witness] Well, I am well satisfied that you couldn't buy a ring like this—[Defense counsel] I object.

THE COURT: She may answer.

Q [By the prosecutor] Go ahead, Mrs.—

A [By the owner-witness] For $600, I know.

State v. Hammond, 6 Wash.App. at 460, 493 P.2d 1249 (emphasis added) (alteration in original). The trial court ruled the testimony admissible on...