                                                                                                      FILED
                                                                                             COURT OF APPEALS
                                                                                                    DIVISION 11

                                                                                           2015 APR - 7 AN 9: 25
      IN THE COURT OF APPEALS OF THE STATE
                                                                                          OFS.iW           N        n
                                                       DIVISION II                          BY
                                                                                                          PUTY
 STATE OF WASHINGTON,                                                                   No. 45749 -1 - II


                                          Respondent,


          v.



 BRYAN PATRICK BEST,                                                            UNPUBLISHED OPINION


                                          Appellant.




         LEE, J. —        Bryan Patrick Best appeals his convictions of residential burglary and second

degree possession of stolen property, arguing that the evidence of value was insufficient to support

his possession of stolen property conviction and that the trial court violated his constitutional right

to   a public   trial   by taking     peremptory      jury   challenges at sidebar.     We hold that the evidence was


sufficient    to   prove    that Best    possessed stolen       property that   exceeded $    750 in value and that his


right to a public trial was not violated, and we affirm his convictions.

                                                              FACTS


          On January 4, 2013, William Dotson returned to his home after work and discovered that

his house, barn,          and   two   outbuildings    had been burglarized.       Property belonging to him and his

                Sakson,                     throughout the       house, the            buildings,   and   the   yard.   Dotson
wife,   Amy                 was strewn                                         other




called 911, and Deputy Sheriff Richard Ramirez responded. The couple gave him a list of missing

property.


          At about 1: 00 a.m. on January 5, Elizabeth Miller was driving home from work when she

saw    four   or   five   people      pushing   a   truck in front   of   her property.    She   called   911,    and   Deputy
No. 45749 -1 - II



Ramirez    responded.        Ramirez found Best, Matthew Smith, and Susie Wren standing beside a

loaded   pick -
              up    truck.    When Ramirez looked into the open truck bed, he saw many items that

Dotson and Sakson had listed as missing.

         Best told Ramirez that he owned the truck and had run out of gas. Best explained that the


televisions were from a friend and that the rest of the property in the truck was from his deceased

grandfather' s storage unit. Best could not provide a specific location or key for the storage unit.

         In response to Ramirez' s call, Dotson and Sakson arrived and recognized much of what


was in the truck as their property. Ramirez then arrested Best, Smith, and Wren and took them to

jail. Best asked to speak to Ramirez at the jail. After waiving his Miranda' rights, Best provided

a written statement explaining what had happened.

         Best stated that he had been providing transportation to Smith and Wren in exchange for

drugs.   On the morning of January 4, Smith directed Best to the Dotson home and had him park

some distance away. About an hour later, Smith called Best and told him to drive to the house and

park   behind the barn.      Smith had some property stacked up, and Best helped him load it into the

truck. Best stated that the property from the Dotson home was in his truck, except for two laptop

computers that Smith sold shortly after the burglary.

         The State charged Best by amended information with residential burglary and second

degree   possession of stolen     property.   Following the jury voir dire, the attorneys approached the

bench and exercised their peremptory challenges by alternately striking names from the jury list.

The court then announced the jurors selected.




1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1062, 16 L. Ed. 2d 694 ( 1966).


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No. 45749 -1 - II




         At trial, Miller       and   Deputy   Ramirez testified to the facts        cited above.      Dotson added that


when he looked through his house and adjoining property after the burglary, he discovered that the

missing items included two sets of golf clubs, a Dyson vacuum cleaner, two television sets, two

laptop   computers, and some            lawn   ornaments.   The State introduced photographs of the vacuum


cleaner, a golf bag and clubs, two television sets, and the lawn ornaments found in the truck.

Dotson said that he paid $900 for the 10- year -old set of graphite shaft Cleveland clubs, and $400

and $200 -250 for the television sets. The television sets were three or four years old.

         Sakson testified that         she paid $2, 000   for the   stolen   Dell   laptop   in 2008   and $   1, 400 for the


stolen   Hewlett Packard         laptop   in 2010. She testified that she used one computer in her bedroom


and   had   another   in   a   back   room.    She paid $ 399 for her Dyson vacuum cleaner in 2011 and had


been using it for two years. She added that she paid $70 -75 for the recovered lawn ornaments.

         Best moved to dismiss the possession of stolen property charge at the end of the State' s

case,   arguing that there       was   insufficient   evidence   to   prove   the   value of   the   stolen   property. The


court denied his motion but ordered additional briefing on the issue of value if the jury returned a

guilty verdict. The court instructed the jury as follows on the elements of second degree possession

of stolen property:


            1)   That on or about January 4, 2013, the defendant knowingly possessed stolen
         property;
            2)   That the defendant acted with knowledge that the property had been stolen;
            3)   That the defendant withheld or appropriated the property to the use of someone
          other than the true owner or person entitled thereto;
            4)   That the stolen property had a value in excess of $750. 00; and
            5)   That the above acts occurred in the State of Washington.


Suppl. Clerk' s Papers at 18 ( Instruction 5).




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          The jury found Best guilty as charged. The trial court then considered the parties' briefing

and argument and concluded that the evidence was sufficient to prove the required value. The trial

court imposed sentences of 12 months for the burglary and 90 days for the possession conviction.

Best appeals both convictions.


                                                            ANALYSIS


A.        SUFFICIENCY OF THE EVIDENCE: POSSESSION OF STOLEN PROPERTY


          Best argues that the evidence was insufficient to prove that the stolen property he possessed

exceeded $ 750 in value. 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 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, witness credibility, and the persuasiveness of the

evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).


          To convict Best of possession of stolen property in the second degree, the State had to

prove    that he   possessed stolen            property that     exceeded $ 750   in   value   but did   not exceed $   5, 000 in


value.    RCW 9A.56. 160( 1)(            a).    As the trial     court   instructed the   jury, " Value     means the market


value of   the property at the time               and   in the   approximate area of      the   act."    Clerk' s Papers at 19;


RCW 9A.56. 010( 21).          Market value is based on an objective standard and is the price that a well -


informed buyer       would    pay to           a well- informed seller.      State v. Kleist, 126 Wn.2d 432, 438, 895


P. 2d 398 ( 1995);    State v. Ehrhardt, 167 Wn. App. 934, 944, 276 P. 3d 332 ( 2012).



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No. 45749 -1 - II




         Best argues that the only evidence of the stolen property' s value was the price paid for the

items.   Evidence of price paid is entitled to great weight in determining the value of an item, but

that   price cannot    be too     remote       in time. State v. Longshore, 141 Wn.2d 414, 430, 5 P. 3d 1256


 2000); State   v.   Melrose, 2 Wn.           App.   824, 831, 470 P. 2d 552 ( 1970). Best contends that the prices


paid for the Dotson property were too remote in time to establish market value.

         In Longshore, evidence of the price paid for clams taken from a private beach the evening

before the theft of more clams from the same beach was sufficient to prove the market value of the


stolen clams.      141 Wn.2d           at   430. In Melrose, evidence of the price paid for a camera five years


before its theft, combined with consideration of the camera itself, was sufficient to establish market

value.    2 Wn.      App.   at   830 -32.       The jury could consider the camera and allow for changes in

condition   that   affected      its   market value.     Id. at 831.   The Melrose court reasoned that even if the


State had introduced expert testimony about the camera' s market value, the jury could have

rejected that testimony and determined value from the other evidence by " using the judgment of

persons of   ordinary       experience and        knowledge." Id.. at 832; see also State v. Hermann, 138 Wn.


App.    596, 602, 158 P. 3d 96 ( 2007) ( value           need not be proven by direct evidence because jury may

draw reasonable inferences from the evidence).


          We relied on the trade value of stolen property as well as the jury' s judgment in finding

sufficient evidence of market value in State v. McPhee, 156 Wn. App. 44, 230 P. 3d 284, review

denied, 169 Wn.2d 1028 ( 2010). In McPhee, the owner of stolen binoculars and tusks testified


that he traded two salmon charter license permits, each worth $750, for the binoculars, and the

court admitted       both the binoculars         and   tusks into   evidence.   156 Wn. App. at 65 -66. The trade




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No. 45749 -1 - II




value was essentially the price paid for the binoculars. We cited no testimony about the timing

of the trade.


            Here, the State introduced evidence of the price that the owners paid for the stolen items,


mostly within the past two to five years. The total retail price for these items exceeded $ 5, 000. In

addition, the jury saw photographs of the golf clubs, vacuum cleaner, television sets, and lawn

ornaments,        and   it   could   infer their   current value   from those    photographs.         Under McPhee and


Melrose, there was sufficient evidence that the stolen property exceeded $ 750 in value.

            Best maintains, however, that our decision in Ehrhardt shows that this evidence of value

was insufficient. The victim in Ehrhardt testified about the value of two rotary hammers and two

nail guns stolen        from his     garage.   167 Wn.    App.    at   938. He testified that the hammers belonged


to   his   employer, cost      about $ 450, and      were about    three   years old.   Id.   at   938. He added that the


nail guns also belonged to his employer, cost around $ 230 each, and were about three years old.


Id.   at   938.   He identified these items from          photographs      the State admitted        into   evidence.   Id. at


938.       We held that testimony from a non -owner about the tools' original cost, and photographs

showing them from one angle, was insufficient to establish market value. Id.. at 947. We reasoned

that the jury could not infer from the photographs whether the tools worked or what effect their

condition had on their value. Id. at 947.


            We found the facts in Ehrhardt analogous to those in State v. Morley, 119 Wn. App. 939,

83 P. 3d 1023 ( 2004).          167 Wn. App. at 945 -46. At issue in Morley was the market value of a used

rental generator that had been purchased for a substantial discount from its $ 2, 000 price. 119 Wn.


App. at 944. The generator' s retail value was not evidence of fair market value where the generator

was obtained at less than retail price and was not offered for sale before its theft. Morley, 119 Wn.



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No. 45749 -1 - II



App. at 943. In both Morley and Ehrhardt, the State presented no direct evidence and insufficient
circumstantial evidence of the condition or depreciation of the stolen property from which the jury

could infer market value. Ehrhardt, 167 Wn. App. at 946.

           The facts in Ehrhardt           and   Morley      are   distinguishable from those   presented   here. Dotson


and his wife testified about the prices they paid for the stolen property, which together exceeded

 5, 000.      Although the golf clubs were 10 years old, most of the remaining property was 2 to 5

years old. In addition, much of the property came from inside the home and was being used. The

jury could infer from the testimony and photographs that the current market value of this property

exceeded $         750.    We find the evidence sufficient to support Best' s conviction of second degree


possession of stolen property.


B.         PUBLIC TRIAL VIOLATION


           Best also argues that the trial court violated his right to a public trial when it conducted


peremptory         jury    challenges at a sidebar conference.            The Sixth Amendment to the United States


Constitution and article 1, section 22 of the Washington State Constitution guarantee a defendant

the   right   to   a public    trial. State     v.   Dunn,   180 Wn. App. 570, 574, 321 P. 3d 1283 ( 2014),       review




denied, 181 Wn.2d 1030 ( 2015).                      In addressing an alleged violation of the public trial right, the

threshold determination is whether the proceeding at issue implicates that right. Dunn, 180 Wn.

App. at 574.

           The Supreme Court recently held that sidebars do not implicate the public trial right. State

v.   Smith, 181 Wn.2d 508, 511, 334 P. 3d 1049 ( 2014).                    The decision in Smith confirms our holding

in Dunn that allowing attorneys to exercise peremptory challenges during a sidebar does not violate

a    defendant'     s   public trial   right.   180 Wn. App. at 574. We need not address this issue further.


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No. 45749 -1 - II



        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 in accordance with RCW 2. 06.040,

it is so ordered.




                                                                        Lee, J.
 We concur:




                              J7
                    Bjorgen, A. C. J.




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