IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 67867-1-1
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JERAMIE DAVID OWENS, IH
Appellant. FILED: April 29, 2013 t/i 5H
Grosse, J. — Where the State charges an alternative means crime, the trial
court instructs the jury on each means, and no way exists to determine which
means served as the basis for the conviction, sufficient evidence must support
each means. Because the State did not meet this burden, we reverse Jeramie
Owens's conviction for first degree trafficking in stolen property. In all other
respects, we affirm.
FACTS
On July 2, 2010, Michael Cassida was working as a salesman at Motor
City, a used car dealership in Mount Vernon, Washington, when Owens and
another man expressed interest in a solid blue 1967 Volkswagen Beetle with a
high-performance engine and a surfboard attached to a roof rack. Owens closely
examined the car's frame, engine compartment and interior and even crawled
underneath the body. Cassida accompanied Owens on a short test drive of the
car. Owens told Cassida that he restored Volkswagens for a living and even had a
tattoo that said "Volkswagen" on his back. Owens and Cassida drove back to the
dealership and Owens said he would get in touch.
The next morning, when Cassida was opening the dealership for business,
he noticed that a lock on the fence had been cut and the 1967 Beetle, which had
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been parked at the edge of the lot, was missing. Cassida also noticed the ignition
key for the Beetle was missing from his key ring.
On July 6, 2010, Owens filed an application with the Department of
Licensing for title to a black 1971 Volkswagen.
On July 28, 2010, Owens posted a Craigslist advertisement for a "1971
Volkswagen Beetle." The "1971 Beetle" was painted blue and white and did not
have a high-performance engine, a roof rack or a surfboard. Craig Sauvageau
responded to the advertisement, went to Owens's address, and agreed to
purchase the Beetle for $2,800. Owens claimed he had lost the title to the Beetle
but had completed an affidavit of lost title which Sauvageau could present to the
Department of Licensing to obtain a new title.
On August 3, 2010, Sauvageau brought the Beetle to Conaway Motors, a
repair shop specializing in European automobiles, for a tune-up. A mechanic,
Alberto Ruiz, noticed that the rivets attaching the public VIN1 plate were not
fastened tightly and were shiny and new despite the fact that the Beetle was
approximately 40 years old. Based on this fact, Ruiz believed that the original
public VIN plate had been removed and another VIN plate put on. Ruiz also knew
that the Beetle could not be from the 1971 model year because 1971 parts did not
fit.
1 "VIN" stands for "vehicle identification number," a number that uniquely identifies
an automobile. Most cars have both a "public" VIN, which is stamped on a metal
plate that is affixed to a visible location such as the dashboard, and a "confidential"
VIN, which is stamped in a hidden location determined by the car's manufacturer.
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Detective Paul Ryan of the Monroe Police Department and the Snohomish
County Auto Theft Task Force was called to investigate. Detective Ryan located
the Beetle's confidential VIN and determined that it did not match the public VIN,
but that it did match the VIN for the 1967 Beetle stolen from Motor City. The public
VIN matched the 1971 Volkswagen to which Owens obtained title on July 6, 2010.
Searching online using the phone number Owens gave Sauvageau,
Detective Ryan discovered other Craigslist advertisements posted by Owens.
One of the advertisements was for a yellow 1956 Beetle with a roof rack and the
identical type of high-performance engine missing from Motor City's 1967 Beetle.
On that basis, Detective Ryan obtained a search warrant for Owens's property. In
Owens's garage, officers found a rivet gun, a paint sprayer, and the surfboard from
the 1967 Beetle. Owens admitted that the 1967 Beetle he sold to Sauvageau was
the same Beetle that he test-drove at Motor City on July 2. He claimed he bought
the Beetle from a private seller on Craigslist, but could not provide any information
about the purchase. The Department of Licensing had no bill of sale from
Owens's purported purchase of the 1967 Beetle.
The State charged Owens with one count of possession of a stolen vehicle,
one count of first degree trafficking in stolen property, and one count of first degree
taking a motor vehicle without permission. The State later amended the
information to include a charge of bail jumping after Owens failed to appear for a
court hearing and a warrant was issued. A jury convicted Owens on the
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possession, trafficking, and bail jumping charges but acquitted him of taking a
motor vehicle. Owens timely appeals.
ANALYSIS
1. Sufficiency of the Evidence
Owens makes several challenges to the sufficiency of the evidence. To
evaluate a challenge to the sufficiency of the evidence, we view the evidence in
the light most favorable to the State and determine whether any rational trier of
fact could have found the essential elements of the charged crime beyond a
reasonable doubt.2 A challenge to the sufficiency of the evidence admits the truth
of the State's evidence and all reasonable inferences must be drawn in favor of
the State and interpreted against the defendant.3 We defer to the trier of fact to
weigh the evidence, resolve conflicts in testimony, and evaluate witness
credibility.4 Circumstantial evidence is no less reliable than direct evidence and is
sufficient to prove any element of the crime.5
a. First Degree Trafficking in Stolen Property
Owens contends that the crime of first degree trafficking in stolen property
is an alternative means crime and the State failed to present sufficient evidence to
support each of the means. We agree.
2 State v. Wentz, 149 Wn.2d 342, 347, 68 P.2d 282 (2003).
3 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
4 State v. Stewart. 141 Wn. App. 791, 795, 174 P.3d 111 (2007).
5 State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
No. 67867-1-1/5
Criminal defendants have a right to an expressly unanimous jury verdict.6
A general verdict of guilty on a crime that can be committed by alternative means
will be upheld only if sufficient evidence supports each means.7
RCW 9A.82.050 provides that a person is guilty of first degree trafficking in
stolen property "who knowingly initiates, organizes, plans, finances, directs,
manages, or supervises the theft of property for sale to others, or who knowingly
traffics in stolen property." This definition identifies eight alternative means of
committing the offense: knowingly (1) initiating, (2) organizing, (3) planning, (4)
financing, (5) directing, (6) managing, or (7) supervising the theft of property for
sale to others, or (8) knowingly trafficking in stolen property.8
Owens argues that the State failed to present substantial evidence
supporting at least one of the alternative means of first degree trafficking in stolen
property, specifically: that Owens "supervised" the theft of the 1967 Beetle. As this
court relied upon in Strohm. the definition of "supervise" is "to coordinate, direct,
and inspect continuously and at first hand the accomplishment of: oversee with the
powers of direction and decision the implementation of one's own or another's
intentions."9 Inherent in the definition of "supervise" is the involvement of another
6 Wash. Const, art. I, § 21; State v. Ortega-Martinez. 124 Wn.2d 702, 707, 881
P.2d231 (1994).
7 Orteoa-Martinez. 124 Wn.2d at 708.
8 State v. Strohm. 75 Wn. App. 301, 307, 879 P.2d 962 (1994) (quoting RCW
9A.85.050(2)).
9 Strohm, 75 Wn. App. at 305 (quoting Webster's Third New International
Dictionary 2296 (1986)).
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person. Although the State presented testimony that Owens was accompanied by
a friend at Motor City, there was no evidence that anyone other than Owens was
involved in the theft or trafficking of the Beetle.
If one or more of the alternative means is not supported by substantial
evidence, the verdict will stand only if we can determine that the "Verdict was
based on only one of the alternative means and that substantial evidence
supported that alternative means.'"10 That is not possible here. The information
charging Owens with first degree trafficking in stolen property listed the full
statutory language and did not limit or specify a means. The trial court instructed
the jury to consider all eight of the means.11 The trial court did not instruct the jury
that it must reach a unanimous agreement as to the alternative means, nor was
there a special verdict form specifying the means relied upon. As a result, it is
unclear based on the verdict alone which means the jury relied upon to support the
10
State v. Howard. 127 Wn. App. 862, 872, 113 P.3d 511 (2005) (quoting State v.
Rivas. 97 Wn. App. 349, 351-52, 984 P.2d 432 (1999)).
11 There is no pattern instruction for first degree trafficking in stolen property. The
"to convict" instruction for first degree trafficking in stolen property proposed by the
State and given by the trial court read:
To convict the defendant of the crime of Trafficking in Stolen
Property in the First Degree, as charged in Count II, each of the
following elements of the crime must be proved beyond a
reasonable doubt:
(1) That on or about the 28th day of July, 2010, the defendant
did knowingly initiate, organize, plan, finance, direct, manage or
supervise the theft of a motor vehicle for sale to others;
(2) That the defendant did knowingly traffic in stolen property;
and
(3) That any of these acts occurred in Snohomish County.
No. 67867-1-1/7
conviction. Owens's first degree trafficking in stolen property conviction must be
reversed.
b. Possession of a Stolen Vehicle
To convict Owens of possession of a stolen vehicle, the State had to prove
beyond a reasonable doubt that he knowingly possessed a stolen motor vehicle
and that he knew the vehicle was stolen.12 Owens contends that the State failed
to present sufficient evidence of the "knowledge" element.13
Possession of stolen property alone does not create a presumption that the
person knew the property was stolen, but that fact, together with "slight
corroborative evidence of other inculpatory circumstances tending to show guilt"
will support a conviction.14 Examples of such corroborative evidence include the
absence of a plausible explanation and flight.15
12 RCW 9A.56.068(1), .140(1). RCW 9A.56.068(1) states that "[a] person is guilty
of possession of a stolen vehicle if he or she possess [possesses] a stolen motor
vehicle." RCW 9A.56.140(1) defines possession of stolen property in part as
"knowingly" receiving, retaining, possessing, concealing, or disposing of stolen
property "knowing that it has been stolen." The jury was instructed that
"[possessing a stolen motor vehicle means knowingly to receive, retain, possess,
conceal, or dispose of a stolen motor vehicle 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."
13 Owens also claims there was insufficient evidence of the "knowledge" element
to support his first degree trafficking in stolen property conviction. Because we
reverse that conviction, we do not address this issue, nor do we address his claim
that the "to convict" instruction for first degree trafficking in stolen property relieved
the State of the burden to prove knowledge.
14 State v.Ford. 33 Wn. App. 788, 790, 658 P.2d 36 (1983).
is gee, e^, State v. Hudson. 56 Wn. App. 490, 495, 784 P.2d 533 (1990) ("[t]he
absence of any explanation for [the defendant's] use of what appears to have
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Here, viewing the evidence in the light most favorable to the State and
drawing all reasonable inferences therefrom, the evidence was sufficient to sustain
the conviction. The Beetle was stolen less than 24 hours after Owens test-drove
it. A few days after the theft, Owens registered the title to a 1971 Volkswagen.
Roughly three weeks later, Owens sold the stolen 1967 Beetle to Sauvageau.
Owens misrepresented to Sauvageau that the car was actually a 1971 Beetle,
despite the fact that Owens worked on Volkswagens for a living, was extremely
knowledgeable about Volkswagens, and even had a Volkswagen tattoo stretching
across his back. Owens told Sauvageau he had "lost" the title. The Beetle Owens
sold to Sauvageau had a fake VIN plate that corresponded to the 1971
Volkswagen to which Owens registered title. The surfboard attached to the 1967
Beetle at Motor City was found in Owens's garage, as were a rivet gun and
painting supplies. Owens admitted the car was the same one that he had test-
driven at Motor City immediately before it was stolen. He claimed he bought it
from a private individual on Craigslist but there was no evidence to support this
claim. Prior to trial, Owens jumped bail. A rational jury could infer from the facts
that Owens knew the 1967 Beetle was stolen and that he knowingly possessed it.
2. Prosecutorial Misconduct
Owens contends that the deputy prosecutor committed misconduct by
misstating the law regarding the element of knowledge. We review alleged
been a recently stolen automobile . . . and his flight provide ample evidence from
which to infer guilty knowledge.").
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No. 67867-1-1/9
misconduct in the context of the entire argument, the issues in the case, the
evidence addressed in the argument, and the instructions given to the jury.16 To
prevail on a claim of prosecutorial misconduct, a defendant must show both
improper conduct and prejudicial effect.17 If the defendant failed to object to the
misconduct at trial, appellate review is only appropriate if the prosecutorial
misconduct is so "flagrant and ill intentioned" that no curative instruction could
have obviated the prejudice engendered by the misconduct.18
"A person knows or acts knowingly or with knowledge when: (i) he or she is
aware of a fact, facts, or circumstances or result described by a statute defining an
offense; or (ii) he or she has information which would lead a reasonable person in
the same situation to believe that facts exist which facts are described by a statute
defining an offense."19 However, this definition "must be interpreted as only
permitting, rather than directing, the jury to find that the defendant had knowledge
if it finds that the ordinary person would have had knowledge under the
circumstances."20 In accordance with this interpretation, the jury was given the
pattern instruction on "knowledge":
A person knows or acts knowingly or with knowledge with
respect to a fact, circumstance or result when he or she is aware of that
fact, circumstance or result. It is not necessary that the person know
16 State v.Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
17 State v. Roberts. 142 Wn.2d 471, 533, 14 P.3d 713 (2000).
18 State v. Emery. 174 Wn.2d 741, 761-62, 278 P.3d 653 (2012).
19RCW9A.08.010(b)
20 State v.Shipp. 93 Wn.2d 510, 516, 610 P.2d 1322 (1980).
No. 67867-1-1/10
that the fact, circumstance or result is defined by law as being unlawful
or an element of a crime.
If a person has information that would lead a reasonable person
in the same situation to believe that a fact exists, the jury is permitted
but not required to find that he or she acted with knowledge of that fact.
When acting knowingly is required to establish an element of a
crime, the element is also established if a person acts intentionally.1211
Owens contends that the deputy prosecutor improperly instructed the jury
that they were required to find that Owens knew the Beetle was stolen if a
"reasonable person" would have done so.22 We disagree. The deputy prosecutor
correctly quoted the law, informing the jury that they were allowed to presume
Owens's knowledge based on a "reasonable person" standard, but were not
required to do so. The jury was so instructed, and we presume jurors follow the
instructions they are given.23
Moreover, because Owens failed to object to the deputy prosecutor's
statements, he must show that it was so "flagrant and ill intentioned" that no
curative instruction could have obviated the prejudice. Owens does not show
21 11 Washington Practice: Washington Pattern Jury Instructions: Criminal
10.02 (3d ed. 2008).
22 Owens cites to the following portion of the State's closing argument:
Knowingly isn't a subjective standard. What that describes, if you look
at the second paragraph on Instruction Number 6, "If a person has
information that would lead a reasonable person in the same situation
to believe that a fact exists, the jury is permitted but not required to
find that she acted with knowledge."
The reasonable person standard is this. It's a reasonable
person. It's an objective standard. It means, what would a common,
everyday person say, Hey, this clearly is suspicious. It's not what was
that person thinking, what was that specific person thinking. It's the
general knowledge, what an average person should know.
23 State v. Grisbv. 97 Wn.2d 493, 509, 647 P.2d 6 (1982).
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No. 67867-1-1/11
incurable prejudice. Even without the permissive inference, there was sufficient
evidence from which the jury could find that Owens had actual, subjective
knowledge that the Beetle was stolen. Owens attempted to resell the Beetle
immediately after he claimed he purchased it; he misrepresented the model year
to Sauvageau; and he could not explain how the Beetle came to possess a
fraudulent VIN plate belonging to another Volkswagen he possessed.
Accordingly, Owens fails to prove misconduct that undercuts the validity of the
verdict.
We reverse and remand for resentencing, striking the first degree trafficking
in stolen property conviction. We affirm Owens's remaining two convictions.
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WE CONCUR:
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