JESSUP v. STATE, 25650-9-II (Wash.App. 7-13-2001)

No. 25650-9-II.The Court of Appeals of Washington, Division Two.
Filed: July 13, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Cowlitz County, No. 99-1-00858-5, Hon. Randolph Furman, February 17, 2000, Judgment or order under review.

Counsel for Appellant(s), Robert W. Huffhines Jr., Attorney At Law, 206 N. Pacific Ave., Kelso, WA 98626.

Counsel for Respondent(s), Susan I. Baur, Cowlitz County Prosecuting Attorney, Hall of Justice, 312 S.W. 1st, Kelso, WA 98626.

HOUGHTON, J.

A jury found Larry J. Jessup guilty of second degree theft. The sole issue he raises on appeal is whether the evidence was sufficient to support the conviction. We affirm.

Facts
In May and June 1999, Jessup worked as a casual laborer for Triangle Motors owned by Jay Douglas (Jay). Jessup’s responsibilities included washing and gassing up cars, sweeping the lot, and picking up automobile parts as needed. Jay occasionally left Jessup alone at the car lot when he ran errands. Jessup stopped working at Triangle Motors on June 11 or 12. On June 26, Jay received a call from Cindy Hardin, a liquor store clerk. Hardin told Jay that Jessup bought a bottle of alcohol earlier that day using a VISA credit card issued to Triangle Motors under the name `David Douglas’ (David), Jay’s father. Jay never gave Jessup the credit card. David used this credit card to purchase cars for Triangle Motors and other business expenses. Jay and David were the only two people authorized to use the card. Jay kept the card in a locked drawer in his office. He kept the only key to the drawer on his key ring. Jay did not know the credit card was missing until Hardin’s call. Jay reported the card stolen to his credit union and closed the account. He learned that a dozen unauthorized charges, totaling approximately $300, had been made on the account between June 12 and June 26. When Jessup was arrested on September 10, the police found the Triangle Motors credit card in his wallet. Jessup told the police that (1) he had permission to use the credit card, (2) he used it for purchases of goods, lodging and gasoline for his private vehicle, (3) he stopped working at Triangle Motors in July, and (4) he expected that the purchases he made with the card would be deducted from his wages. The State charged Jessup with second degree theft, alleging that he `did wrongfully obtain and/or exert unauthorized control over property of another, to-wit: an access device, a Visa Card issued to Jay Douglas, with intent to deprive Jay Douglas of such property,’ in violation of RCW 9A.56.020(1)(a) and 9A.56.040(1)(c). Clerk’s Papers at 5. The jury found Jessup guilty as charged. Jessup contends on appeal that the evidence was insufficient to establish his guilt.

Analysis
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency of evidence admits the truth of the State’s evidence and all inferences that can be reasonably drawn therefrom. Salinas, 119 Wn.2d at 201. `{A}ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.’ Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99
(1980). Credibility determinations are for the trier of fact and are not reviewable on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850
(1990). To convict Jessup of second degree theft, the State had to prove beyond a reasonable doubt that he committed theft of an access card, e.g., Triangle Motors’ VISA credit card. RCW 9A.56.040(1)(c). RCW 9A.56.020
defines `theft’ as to `wrongfully obtain or exert unauthorized control . . . with intent to deprive{.}’ Former RCW 9A.56.010(7) (1998) further defines the terms `wrongfully obtains’ and `exerts unauthorized control’ to mean:

(a) To take the property or services of another; (b) Having any property . . . in one’s possession, custody or control as . . . employee . . . of any person, . . . to secrete, withhold, or appropriate the same to his or her own use or to the use of any person other than the true owner or person entitled thereto{.}

We review the evidence against these definitions. Jessup argues that the evidence failed to establish that he wrongfully took the credit card, relying on Frankie Dillard’s testimony that he saw Jay hand the credit card to Jessup on two occasions to buy lunch. And, Jessup further argues, this rebutted Jay’s testimony that he never gave Jessup the credit card. Jessup’s reliance on Dillard’s testimony is unpersuasive.

First, credibility determinations are not reviewable on appeal. Thus, to the extent that Dillard and Jay contradicted each other on whether Jay ever gave the credit card to Jessup to use, we defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of the evidence, and to assess the credibility of witnesses. State v. Gerber, 28 Wn. App. 214, 216, 622 P.2d 888 (1981). See also, Camarillo, 115 Wn.2d at 71. Second, even if Dillard was believed by the jury, his testimony gave rise to inferences that use of the card was only authorized when directed by Jay, and that the card would be returned afterwards. These inferences in turn supported the conclusion that when Jessup used it to buy alcohol and for his personal expenses, such use was unauthorized and he had misappropriated the credit card.

Finally, Jessup argues that the conviction cannot stand because there was no evidence of forced entry into the locked drawer where Jay kept the credit card. This argument fails because it is immaterial how Jessup acquired it. The State did not need to prove how Jessup accessed the card because there was ample evidence to show that he exerted unauthorized control over it. A person exerts unauthorized control if he appropriates another’s property, in his possession, for his own use or for the use of any person not the true owner. See State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993) (citing former RCW 9A.56.010(7)(b) (1998)). Here, not only did Jessup use the card to make unauthorized personal purchases, he retained possession of it for two to three months after leaving Jay’s employ. From this evidence, the jury could reasonably find that Jessup exerted unauthorized control by withholding or appropriating the Triangle Motors credit card. On the record here, ample evidence exists to support the second degree theft conviction.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

QUINN-BRINTNALL, J. and ARMSTRONG, C.J. concur.