                                                               FILED 

                                                           DECEMBER 3, 2013 

                                                        In the Office of the Clerk of Court 

                                                      W A State Court of Appeals, Division III 




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 30921-5-III
                                             )
                    Respondent,              )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
LAMAR JAY LOOMIS,                            )
                                             )
                    Appellant.               )

      KULIK, J. - Lamar Loomis appeals his conviction for first degree trafficking in

stolen property contending that the evidence is insufficient to establish the knowledge

element of his alleged crime. We affirm the conviction.

                                         FACTS

      On May 4,2010, Mr. Loomis sold two aluminum truck wheels mounted with tires

(mounted wheels) to Kelly Hellewell of J&K Recycling. Mr. Hellewell paid $450 for the

mounted wheels. Mr. Loomis also offered to sell approximately 15 to 20 aluminum

wheels without tires (unmounted wheels) to Mr. Hellewell. Mr. Hellewell could not use

the unmounted wheels and declined the offer.
No.30921-5-II1
State v. Loomis


       A few months later, Mark Mizer visited J&K Recycling. Mr. Mizer was looking

for property that was taken from his farm sometime around April 28. Among the missing

property were 26 aluminum truck wheels. Two of those truck wheels were mounted with

steer tires. Mr. Mizer located the two truck wheels with tires at J&K Recycling. Mr.

Hellewell identified the wheels as the same mounted wheels that he purchased from Mr.

Loomis.

       Mr. Loomis was arrested and charged by amended information with trafficking in

stolen property in the first degree or, in the alternative, trafficking in stolen property in the

second degree, and possessing stolen property in the third degree.

       At trial, Mr. Hellewell testified that Mr. Loomis was the person who sold him the

mounted wheels. Mr. Loomis was a regular customer who typically sold Mr. Hellewell

scrap steel, copper, and aluminum. Mr. Hellewell testified that the only item that he ever

bought from Mr. Loomis that was not scrap was the pair of mounted tires.

       Mr. Hellewell testified that when he went to look at the tires in the back of Mr.

Loomis's van, he saw quite a few aluminum truck wheels, about 15 to 20. Mr. Hellewell

said that he did not buy the wheels because they were not the right size. Mr. Hellewell

said, "Most everything I had was 22.5, and if I remember correctly, they were all 24.5s."

Report of Proceedings (RP) at 155. Mr. Hellewell said that he bought large quantities of



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No.30921-5-II1
State v. Loomis


rims from commercial companies, but had never bought a quantity of 15 to 20 rims from

a private person.

        Mr. Hellewell said that Charles "Chuck" Leivan accompanied Mr. Loomis. Mr.

Hellewell asked Mr. Loomis how he came to possess the mounted wheels. Mr. Hellewell

testified that, "I believe that they told me they were Chuck's uncle's, but 1 can't-I

don't-I believe that's what I remember. I'm not total 100 percent on that." RP at 153.

        Mr. Leivan also testified at trial. He agreed to drive Mr. Loomis to J&K Recycling

in Mr. Loomis's van because Mr. Loomis did not have a driver's license. When Mr.

Leivan arrived at Mr. Loomis's farm to begin the trip, the Mr. Leivan saw four mounted

tires in the back of the van, but did not get a close look. He did not help load the mounted

wheels in the van. He testified that he did not know where the mounted wheels came

from.

        Following the close of the State's case, Mr. Loomis moved for a directed verdict

on the grounds that there was insufficient evidence to satisfy the knowledge element of

the trafficking charge. The trial court denied Mr. Loomis's motion. The court concluded

that there was circumstantial evidence of Mr. Loomis's knowledge that the items were

stolen. The court noted that there was an unusual amount of property sold by a private

individual within six days from the theft.


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No. 30921-5-111
State v. Loomis


       Mr. Loomis presented his defense. Mr. Loomis's father testified that Mr. Loomis

scrapped old vehicles for a living and often had wheels left over. Mr. Loomis's mother

testified that Mr. Loomis scrapped some of the used farm trucks on her property and that

those trucks had aluminum wheels. She did not know what happened to the aluminum

wheels after they were removed from the trucks. She did not recognize the mounted

wheels that were sold to J&K Recycling.

       The jury was instructed on the elements of the charged offenses. The jury was also

instructed that a person could not be convicted of both possessing and trafficking the

same item of property. Any property found to have been possessed by the defendant for

count 3 must be different from any property used to establish the possession element of

counts 1 or 2.

       The jury found Mr. Loomis guilty of first degree trafficking and third degree

possession of stolen property. Mr. Loomis filed a motion for arrest ofjudgment. Mr.

Loomis contended that the evidence was insufficient to support the possession of stolen

property charge and to establish the knowledge element of the trafficking charge.

       The trial court granted the motion for the possession of stolen property charge.

The court found that this charge addressed the unmounted wheels. The court concluded

that it was impossible from the evidence to determine that these wheels were stolen. The



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No.30921-5-III
State v. Loomis


unmounted wheels reported stolen by Mr. Mizer were not the same size unmounted

wheels that Mr. Loomis attempted to sell Mr. Hellewell. The court dismissed the jury's

verdict as to the possession of stolen property.

       However, the court declined to grant the motion for the trafficking in stolen

property charge. The court addressed this charge in relation to the mounted wheels. The

court found that the mounted wheels were sold within a relatively short time after the

theft and that this fact with some other corroborating evidence was sufficient evidence to

support the jury's finding. The court relied on Mr. Hellewell's testimony that one of the

men represented that the tires belonged to Mr. Leivan's uncle and, to the extent that Mr.

Leivan made this statement, he did so as an agent of Mr. Loomis. This combined

evidence was enough corroborating evidence to support the jury's finding of guilt on the

trafficking charge.

       Mr. Loomis appeals his conviction. He contends that the court erred in denying

his motion to arrest judgment on the first degree trafficking in stolen property charge

because sufficient evidence does not support the knowledge element of the crime.

                                        ANALYSIS

       Under erR 7.4(a), a defendant may file a motion for arrest ofjudgment when there

is insufficient proof of a material element of the crime charged. "A motion in arrest of


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No. 30921-5-II1
State v. Loomis


judgment challenges the sufficiency of the evidence to take the case to the jury." State v.

Randecker, 79 Wn.2d 512,515,487 P.2d 1295 (1971). The function of this court is to

review the evidence and determine whether it is legally sufficient to support the jury's

findings. Id. (quoting State v. Long, 44 Wn.2d 255, 259, 266 P.2d 797 (1954)).

       Evidence is sufficient if, after viewing all the evidence in the light most favorable

to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.

State v. Hermann, 138 Wn. App. 596,602, 158 P.3d 96 (2007). The defendant admits the

truth of the State's evidence and all inferences that can reasonably be drawn from it,

giving equal weight to circumstantial and direct evidence. Id. "The State bears the

burden of proving all the elements of the crime charged beyond a reasonable doubt." Id.

We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses,

and persuasiveness ofthe evidence. State v. Killingsworth, 166 Wn. App. 283, 287, 269

P.3d 1064, review denied, 174 Wn.2d 1007 (2012).

       A person commits the crime of trafficking in stolen property in the first degree

when he or she knowingly traffics in stolen property. RCW 9A.82.050. The State bears

the burden of proving beyond a reasonable doubt that the defendant knew the property

was stolen. Killingsworth, 166 Wn. App. at 287.




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No. 30921-5-III
State v. Loomis


       The mere possession of stolen property is not sufficient to sustain a conviction.

State v. Douglas, 71 Wn.2d 303, 306, 428 P.2d 535 (1967) (quoting State v. Portee, 25

Wn.2d 246, 253, 170 P.2d 326 (1946». "However, possession of recently stolen property

in connection with other evidence tending to show guilt is sufficient." State v. Couet, 71

Wn.2d 773, 775-76, 430 P.2d 974 (1967). There must be some slight evidence

corroborating the defendant's guilt. [d. (quoting Portee, 25 Wn.2d at 253-54). When

possession of recently stolen property is supplemented by the giving of a false or

improbable explanation of its possession, the jury may determine that the evidence is

sufficient to support a conviction. [d. at 776 (quoting Portee, 25 Wn.2d at 254).

       The trial court did not err by denying Mr. Loomis's motion for arrest ofjudgment.

Substantial evidence supports the jury's finding of guilt. The jury could infer from the

circumstantial evidence that Mr. Loomis knew that the two mounted wheels were stolen.

First, Mr. Loomis possessed recently stolen property. He sold the mounted wheels within

one week after they were stolen. Second, the sale of the two mounted wheels was

unusual for Mr. Hellewell. The sale was the first time Mr. Loomis had ever sold anything

other than scrap to Mr. Hellewell, despite being a regular customer. Last, the jury could

infer that Mr. Loomis misrepresented the original ownership of the mounted wheels. Mr.

Hellewell testified that either Mr. Loomis or Mr. Leivan told him that the mounted wheels


                                             7

No. 30921-5-111
State v. Loomis


belonged to Mr. Leivan's uncle. However, Mr. Leivan testified that he did not speak to

Mr. Hellewell and that he did not know where the tires and wheels came from. The

evidence established that the unmounted wheels belonged to Mr. Mizer.

      The evidence is sufficient to establish that Mr. Loomis knew that the unmounted

wheels were stolen. Mr. Loomis's possession of the recently stolen property in

connection with other evidence tending to show guilt is sufficient to support his

conviction.

       We affirm.

      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: 





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