No. 26503-0-III.The Court of Appeals of Washington, Division Three.
October 14, 2008.
Appeal from a judgment of the Superior Court for Franklin County, No. 07-1-50305-5, Cameron Mitchell, J., entered October 2, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, A.C.J., and Korsmo, J.
BROWN, J.
Alexander William Edwards appeals his attempted first degree theft conviction, contending through counsel that insufficient evidence exists to show intent to deprive Donald S. Stevens of his van. Pro se, Mr. Edwards believes Mr. Stevens’ opinion of the van’s value is insufficient to support conviction. We disagree on both points, and affirm.
FACTS
Because we review an evidence sufficiency challenge, the facts are presented in the light most favorable to the State. See, e.g., State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (setting forth the test for sufficiency of the evidence) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)).
In July 2007, Mr. Stevens parked his van next to his Recreational Vehicle (RV) at his Pasco job-site and left the motor running, before going into the RV. While inside the RV, Mr. Stevens heard the van’s starter engage several times. He investigated and saw a person, later identified as Mr. Edwards, sitting in the driver’s seat of his van, attempting to engage the starter. Mr. Edwards did not respond to Mr. Stevens’ questions, and took off running. Mr. Stevens called 911. Police soon caught and arrested Mr. Edwards. Mr. Edwards did not have any car prowl tools with him when arrested. The State charged Mr. Edwards with one count of attempted first degree theft, in violation of RCW 9A.28.020(1), RCW 9A.56.020(1)(a), and RCW 9A.56.030(1)(a).
Before his jury trial, Mr. Edwards successfully moved to exclude the Blue Book value for Mr. Stevens’ van because of a discovery failure. Mr. Stevens testified about his van’s age and mileage and then gave his value opinion, “I would say currently probably 3500, 4,000, not being in the automotive industry.” Report of Proceedings (RP) (Sept. 26, 2007) at 75. Mr. Stevens related he did not give Mr. Edwards permission to occupy or drive his vehicle and he was not aware of anything missing from his van or any damage to his van.
Officer Anthony Aceves testified he arrested Mr. Edwards and searched him incident to arrest. Officer Aceves did not find any vehicle prowl tools either on Mr. Edwards’ person or in the backpack Mr. Edwards was carrying. Officer Aceves related that when Mr. Edwards was arrested, he did not admit going inside the van.
Mr. Edwards did not present witnesses. Defense counsel argued Mr. Edwards was inside of Mr. Stevens’ mini-van, but his purpose was to steal items inside, not the vehicle. The jury found Mr. Edwards guilty as charged. Mr. Edwards appealed.
ANALYSIS
The issue is whether sufficient evidence establishes “intent to steal” and “value” to support Mr. Edwards’ conviction of attempted first degree theft. We review evidence sufficiency challenges testing, “whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.”Salinas, 119 Wn.2d at 201 (citing Green, 94 Wn.2d at 220-22). We draw all reasonable inferences from the evidence for the State and interpret them most strongly against the defendant. Id. (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)). Circumstantial evidence is as reliable as direct evidence. State v. Castillo, 144 Wn. App. 584, 588, 183 P.3d 355 (2008) (citing State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157 (1996)). We defer to the fact-finder to decide matters of witness credibility and evidence weight. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). “[T]he specific criminal intent of the accused may be inferred from the conduct where it is plainly indicated as a matter of logical probability.” State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
For the jury to convict Mr. Edwards of attempted first degree theft, it had to find Mr. Edwards, with intent to commit first degree theft, defined as theft of property exceeding $1,500 in value, did an act which was a substantial step toward the commission of that crime. See RCW 9A.28.020 (1) (defining criminal attempt); RCW 9A.56.030(1)(a) (defining first degree theft).[1] “A substantial step is conduct `strongly corroborative of the actor’s criminal purpose.'” State v. Sivins, 138 Wn. App. 52, 63, 155 P.3d 982 (2007) (quoting State v. Aumick, 126 Wn.2d 422, 427, 894 P.2d 1325 (1995)). “`Any slight act done in furtherance of a crime constitutes an attempt if it clearly shows the design of the individual to commit the crime.'” Id. at 64 (quoting State v. Price, 103 Wn. App. 845, 852, 14 P.3d 841 (2000)).
Theft is defined as “[t]o wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services.” RCW 9A.56.020 (1)(a). Intent to “permanently” deprive is not an element of the theft statute. State v. Komok, 113 Wn.2d 810, 816-17, 783 P.2d 1061
(1989). Except in cases involving theft of intellectual property, “deprive” is given its common meaning. Id. at 814-15 (citing former RCW 9A.56.010 (5) (1998)); see also RCW 9A.56.010(6) (defining “deprive” for purposes of theft and robbery). Our Supreme Court has defined the common meaning of “deprive” as “[t]o take something away from”; “[t]o keep from having or enjoying”; or “[t]o take.” Id. at 815 n. 4 (final alteration in original) (citing Webster’s II New Riverside University Dictionary 365 (1984); Black’s Law Dictionary 529 (4th ed. 1968)).
Mr. Edwards argues “intent to deprive” implies the deprivation be of a greater duration than required for taking a motor vehicle without permission, citing State v. Walker, 75 Wn. App. 101, 879 P.2d 957
(1994). In State v. Walker, the defendant was convicted of first degree theft of a car in which he was found several days later. Id. at 103-05. He was charged with taking a motor vehicle without permission (“joyriding”), but the trial court granted the State’s motion to amend the charge to first degree theft. Id. at 104, 106. In deciding the crimes were not concurrent, the court discussed duration differences. The court stated, “the joyriding statute proscribes the initial unauthorized use of an automobile, while the theft statute proscribes the continued or permanent unauthorized use of an automobile.” Id. at 108.
State v. Walker does not help Mr. Edwards. Under Walker, proof that an item has been taken for a substantial period of time may help to establish the intent element of theft, but proof of duration is not required as an element. Mr. Stevens testified that he heard the starter on his van engage several times. When he investigated, he saw Mr. Edwards trying to start the van. Nothing in the van was missing or damaged. The officers found no vehicle prowl tools with Mr. Edwards or in the van. The jury could infer that Mr. Edwards intended to deprive Mr. Stevens of his van. See Delmarter, 94 Wn.2d at 638. And, an attempt requires only that Mr. Edwards take a substantial step toward committing first degree theft. See RCW 9A.28.020(1). The trial evidence sufficiently shows Mr. Edwards took a substantial step toward the theft of Mr. Stevens’ van. See Sivins, 138 Wn. App. at 63-64.
Regarding Mr. Edwards’ pro se concern “`[v]alue’ means the market value of the property or services at the time and in the approximate area of the criminal act.” RCW 9A.56.010(18)(a). Further, “`[m]arket value’ is defined in this state as the price which a well-informed buyer would pay to a well-informed seller, where neither is obliged to enter into the transaction.” State v. Longshore, 141 Wn.2d 414, 429, 5 P.3d 1256 (2000) (internal quotation marks omitted) (quoting State v. Clark, 13 Wn. App. 782, 787, 537 P.2d 820 (1975)).
In Washington, the owner of a chattel may testify to its market value without first being qualified as an expert in such matters. McCurdy v. Union Pac. R.R. Co., 68 Wn.2d 457, 468-69, 413 P.2d 617 (1966); State v. Hammond, 6 Wn. App. 459, 461, 493 P.2d 1249 (1972). “The owner of property is presumed to be familiar with its value by reason of inquiries, comparisons, purchases and sales.” Hammond, 6 Wn. App. at 461. “The weight of such testimony is another question and may be affected by disclosures made upon cross-examination as to the basis for such knowledge, but this will not disqualify the owner as a witness.” Id. Mr. Stevens related his van was worth more than the necessary $1,500 base value.
Mr. Edwards had the opportunity to cross-examine Mr. Stevens and cast doubt on his estimate. See Hammond, 6 Wn. App. at 461. Viewing the evidence in the light most favorable to the State and deferring to the trier of fact on the issues of witness credibility and persuasiveness of the evidence, the evidence was sufficient to support the verdict. See Salinas, 119 Wn.2d at 201 (citing Green, 94 Wn.2d at 220-22); Thomas, 150 Wn.2d at 874-75 (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81
(1985).
In support of his argument, Mr. Edwards cites to State v. Morley, 119 Wn. App. 939, 83 P.3d 1023 (2004). But State v. Morley is inapplicable because the evidence showed the value of a new generator, unlike the used generator there in question. See id. at 942, 944. Here, Mr. Stevens did not testify as to the retail price of a new van, but to the value of his used van.
In sum, the evidence sufficiently supports both “intent to deprive” and “value.”
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. WE CONCUR:
KULIK, A.C.J., KORSMO, J.