No. 26034-4-II.The Court of Appeals of Washington, Division Two.
Filed: March 15, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of Clark County, No. 001002866, Hon. Barbara D. Johnson, June 2, 2000, Judgment or order under review.
Counsel for Appellant(s), Donald G. Grant, Mark A. Erikson Atty At Law Pllc, 1014 Franklin St Ste 216, Vancouver, WA 98660.
Counsel for Respondent(s), Philip A. Meyers, Clark Co Deputy Pros Atty, P.O. Box 5000, Vancouver, WA 98668.
HUNT, A.C.J.
Marty William Martinez appeals his Clark County convictions of second degree trafficking in stolen property and second degree possession of stolen property, challenging the sufficiency of the evidence as to both counts. As the State concedes, trafficking in stolen property was not a crime at the time of the activity in question. See State v. Thomas, 103 Wn. App. 800, 14 P.3d 854 (2000), review denied 143 Wn.2d 1022, 29 P.3d 719 (2001). We therefore reverse that conviction, affirm the conviction of possession of stolen property, and remand for resentencing.
FACTS
The charges were based on Martinez’s possession of two Stihl .036 model chainsaws belonging to the Department of Natural Resources (DNR).
The saws had been kept at the Larch Corrections Center, where inmates used them to perform a variety of forestry-related tasks such as tree planting, timber thinning, fire fighting, and trail construction. They were accounted for on September 18, 1996, but were discovered missing on October 11, 1996.
The saws remained missing until January, 2000, when Cory Knott brought them to Wayne’s Saw Shop to inquire about selling them. He said that Martinez had traded them to him for firewood. An employee at Wayne’s noticed DNR identification tags on the saws, and the owner of the shop notified Larch.
DNR investigator Floyd Green contacted Martinez about the saws. Martinez said that he had bought the saws four years earlier in a garage sale. He did not show Green a bill of sale, but he did show one to Department of Corrections investigator George Gilbert. It was written on a small piece of paper and dated May 16, 1998. Gilbert copied down the address written on the paper. The owner of that property testified that he had lived there since March 1997 and had never held a garage sale.
At trial, Martinez testified that he bought two chainsaws at a garage sale in 1998. He said he picked them out of a group of five saws because they were clean. But he later testified that they were filthy, so he would not have noticed DNR tags on them if there were such tags. He also asserted that at least one of the saws in evidence was not one he had purchased. He explained that he had etched an identification number on the handle of one of the saws he possessed, and neither of the saws in evidence contained that number. Martinez produced a bill of sale that did not have an address on it. On rebuttal, Officer Gilbert testified that this bill of sale was not the one Martinez had shown him.
Cory Knott testified that Martinez told him he had gotten the saws from his brother, a police officer, who had taken them in payment of a debt. The jury convicted Martinez as charged, and the court sentenced him to 60 days in jail for each count.
ANALYSIS I. Trafficking in Stolen Property
As the State concedes, the first count must be dismissed. Trafficking in stolen property was a crime under the criminal profiteering act,[1]
which was repealed, in pertinent part, by RCW 9A.82.903. Thomas, 103 Wn. App. at 803, in 1995. Therefore, trafficking in stolen property was not a crime from 1996 on, when Martinez possessed the saws. Accordingly, we agree that Martinez’s conviction under the criminal profiteering act, Count I, must be vacated. Thomas, 103 Wn. App. at 800.
II. Possession of Stolen Property
Martinez also challenges the sufficiency of the evidence as to Count II, contending that the State did not prove that the saws had been stolen or that he “knowingly” possessed stolen property.[2]
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, 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 admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). Thus, credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
“[T]he elements of possession of stolen property are: (1) actual or constructive possession of stolen property, and (2) actual or constructive knowledge the property is stolen. RCW 9A.56.140(1); See State v. Richards, 27 Wn. App. 703, 706, 621 P.2d 165 (1980).” State v. Jennings, 35 Wn. App. 216, 219, 666 P.2d 381 (1983). The evidence here was sufficient to establish every element of the crime beyond a reasonable doubt. There was evidence that (1) the chainsaws were in the Larch Corrections Center saw shop on September 18, 1996; (2) they were missing from the shop on October 11, 1996; and (3) they could not be found thereafter on the grounds of the correction center. This evidence was legally sufficient to permit the jury to find that they were stolen See State v. Tollett, 71 Wn.2d 806, 431 P.2d 168 (1967).[3]
Martinez argues that the saws “could have easily been misplaced in the field or disposed of by an inmate after damaging them and found by a third party, then purchased by Mr. Martinez two years later in 1998 at a garage sale.” Brief of Appellant at 13. But the evidence need only establish circumstances upon which to predicate a finding that the saws were stolen; the circumstances need not exclude every other possible explanation for the absence of the saws. See State v. Myers, 65 Wn.2d 911, 913, 400 P.2d 372 (1965).
Likewise without merit is Martinez’s contention that the evidence was insufficient to prove that he knew the saws were stolen. Knowledge may be proven by direct or circumstantial evidence. It is not essential that there be actual and positive knowledge that the goods were stolen. It is sufficient if there is constructive knowledge through notice of facts and circumstances from which guilty knowledge may be inferred. State v. Rye, 2 Wn. App. 920, 927, 471 P.2d 96 (1970), citing State v. Salle, 34 Wn.2d 183, 208 P.2d 872 (1949). Possession of stolen property in connection with “slight corroborative evidence of other inclupatory circumstances” is sufficient to support a conviction of possession of stolen property. State v. Rhinehart, 21 Wn. App. 708, 712, 586 P.2d 124
(1978), quoting State v. Portee, 25 Wn.2d 246, 253-54, 170 P.2d 326
(1946).
The other corroborative evidence can consist of a false or improbable explanation or inconsistent explanations. See State v. Rockett, 6 Wn. App. 399, 402-03, 493 P.2d 321 (1972). Here, the inculpatory circumstances included (1) the presence of the DNR tags on the saws, (2) Martinez’s refusal to let Officer Gilbert make a copy of the bill of sale he had shown Gilbert, (3) the existence of two different bills of sale, and (4) Martinez’s three inconsistent explanations for his possession of the saws. This evidence was sufficient to permit the jury to find that Martinez knew the saws were stolen.
We affirm Martinez’s conviction for possession of stolen property, Count
We reverse his conviction for trafficking in stolen property and dismiss Count I with prejudice. We remand for resentencing.
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.
MORGAN, J. and HOUGHTON, J., concur.