                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           February 9, 2016
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 46540-0-II

                                Respondent,

         v.

 CHAD COLTON BASS,                                              UNPUBLISHED OPINION

                                Appellant.

       MAXA, J. − Chad Bass appeals his convictions of second degree burglary, third degree

theft, and first degree trafficking in stolen property relating to his removal of wire from a vacant

house. We hold that (1) the evidence was sufficient to support these convictions even though the

house’s former occupant gave him permission to remove recyclables from the house, (2) the trial

court erred in refusing to give Bass’s proposed jury instructions on the inferior degree offense of

second degree trafficking in stolen property because there was evidence that Bass acted

recklessly and not intentionally, and (3) the trial court did not err in refusing to give Bass’s

proposed jury instruction on abandonment of the house. Accordingly, we affirm Bass’s

convictions for second degree burglary and third degree theft, but reverse his conviction for first

degree trafficking in stolen property and remand for a new trial on that charge.

                                               FACTS

       On December 19, 2013, Peter Steockler, a city of Centralia employee, investigated a

residential power meter that had gone off line in the middle of the night. He found a live service

wire from a power pole and wire missing between it and the adjacent residence. The city

installed and owns the service wire. Burns and markings on the end of the wire suggested that
No. 46540-0-II



someone had cut the wire with a hatchet or machete. Steockler contacted the police and a local

recycler.

       Two days later, the recycler called Steockler to tell him that someone had brought in wire

similar to that missing from the residence. Steockler was able to match a sample end of wire he

had taken from the residence with wire that had been brought into the recycler. The recycler

identified Bass as the person who brought in the wire and explained that Bass had been bringing

in wire regularly from a place Bass was cleaning up. The recycler said that Bass used his real

name and address and spoke freely about where he was getting the wire.

       Lewis County Sheriff’s Deputy Brady Taylor investigated. He went to the residence

Steockler identified and noted that one of the doors had a realtor’s key box. Another door was

ajar, so he went into the residence. He saw that sheetrock and insulation had been torn from the

walls and the wiring was missing.

       Taylor met with Bass the next day, and Bass admitted that he went into the house and

removed the wiring. Bass told Taylor that David Boss, the house’s owner, had given him

permission to take the wire in June 2013 before he moved away. The State charged Bass with

second degree burglary, third degree theft, and first degree trafficking in stolen property.

       At trial, Taylor confirmed that Bass told him that he removed the wire because he had

received permission from Boss. Taylor testified that Bass told him that Boss said he could take

whatever he wanted from the house because “they” were taking the house. Report of

Proceedings (RP) (June 5, 2014) at 81. Taylor asked Bass if he knew who owned the property

now and Bass responded, “‘No, probably a bank. . . . I have no idea. Like I said, I was stupid.’”




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RP (June 5, 2014) at 106. Bass also told Taylor that he had “‘screwed up.’” RP (June 5, 2014)

at 98. Finally, Bass admitted that he cut the power line to the house with a machete at 3:00 AM.

        The State also presented evidence that Northwest Trustee Services, Inc. had foreclosed on

Boss’s house on July 23, 2013. There was no evidence that Bass had specific knowledge of this

fact.

        Bass testified on his own behalf. He emphasized that he did not think that he was doing

anything wrong because Boss, the original house owner, had given him permission to remove

recyclables from the house. Bass stated that Boss gave him permission in June 2013, when Boss

moved out of the house. Bass admitted that this permission five or six months before he was

arrested was the reason he took the property. He also admitted that nobody gave him permission

in December 2013 to remove the wiring.

        Regarding ownership of the house, Bass testified that he thought that Boss owned the

wire in the house that he was cutting. He admitted that he had not seen Boss since he moved out

on June 2, 2013. Nevertheless, he was acting under the assumption that Boss still owned the

house. He also was not aware when he cut the power line to the house that Boss might not own

that line. Bass did not see any signs indicating that a bank might own the house. He explained

that he told Taylor that a bank probably owned the house only after Taylor told him that Boss no

longer owned the house.

        Bass testified that he thought Boss still owned the house even though he had been gone

for six months because of the condition of the property. He said the place was a dump. The

house and yard were full of animal carcasses, garbage, and dog feces, and the interior walls were




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covered with black mold. In addition, the ceiling was falling out and the floors were rotting

through.

       Jeffrey Wallis lived across from the residence. He testified the residence was covered in

litter, animal feces, and junk. He also testified that the first time he saw a real estate sign was in

January or February 2014, after the residence had been demolished.

       Bass proposed instructions on second degree trafficking in stolen property, an inferior

degree offense of the charged crime of first degree trafficking in stolen property. The trial court

rejected these instructions, ruling that Bass’s conduct was intentional and not reckless.

       The trial court instructed the jury on first degree criminal trespass, which is a lesser

included offense of the charged crime of second degree burglary. Bass proposed an instruction

that it is a defense to the crime of criminal trespass that the building involved in the offense was

abandoned. The trial court rejected this instruction, ruling that there was no evidence to support

it.

       The jury found Bass guilty of the charged offenses. He appeals.

                                             ANALYSIS

A.     SUFFICIENCY OF THE EVIDENCE

       Bass argues that the State presented insufficient evidence to convict him of second degree

burglary, third degree theft, and first degree trafficking in stolen property because Boss gave him

permission to enter the house and remove recyclables. We disagree.




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       1.    Standard of Review

       The test for determining sufficiency of the evidence is 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. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). In a

sufficiency of the evidence claim, the defendant admits the truth of the State’s evidence and all

reasonable inferences drawn from that evidence. Id. at 106. Credibility determinations are made

by the trier of fact and are not subject to our review. State v. Miller, 179 Wn. App. 91, 105, 316

P.3d 1143 (2014). Circumstantial and direct evidence are equally reliable. Id.

       2.    Second Degree Burglary

       To convict Bass of second degree burglary, the State needed to prove that Bass between

December 16 and 20, 2013 entered or remained unlawfully in a building or a dwelling with

intent to commit a crime against a person or property therein. RCW 9A.52.030.

       Bass argues that there was insufficient evidence of second degree burglary because there

was uncontroverted evidence that Boss gave him permission to enter the house and remove

anything he wanted. Bass points out that permission to enter a building negates the unlawful

entry element of burglary. See State v. Ponce, 166 Wn. App. 409, 416-17, 269 P.3d 408 (2012)

(holding that the trial court did not err in refusing to give permissive entry instruction when other

instructions adequately informed the jury of the applicable law and allowed the defendant to

argue his theory of the case).

       However, Boss gave Bass permission to enter the house in June 2013, as he was moving

out. Bass was charged with burglary for his conduct in December 2013. The State presented




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evidence that a bank foreclosed on the house in July and that in December Bass admitted that the

bank probably owned the house. Bass also admitted that no one gave him permission between

December 16 and 20, 2013, to go into the house and remove the wiring. Finally, Bass stated that

Boss gave him permission to remove materials from the house because “they” were taking it. RP

(June 5, 2014) at 81. The jury could infer from this evidence that Bass knew that someone other

than Boss owned the house by December 2013.

       Viewed in the light most favorable to the State, this evidence supports a finding that Bass

knew in December 2013 that he no longer had permission from the current owner to enter the

house. Accordingly, we hold that the State presented sufficient evidence for the jury to conclude

that Bass committed second degree burglary in December.

       3.   Third Degree Theft/First Degree Trafficking in Stolen Property

       To convict Bass of third degree theft, the State had to prove beyond a reasonable doubt

that Bass wrongfully obtained or exerted unauthorized control over the property of another not

exceeding $750 in value between December 16 and 20, 2013, with the intent to deprive that

person of such property. RCW 9A.56.020(1), .050.

       To convict Bass of first degree trafficking in stolen property, the State had to prove

beyond a reasonable doubt that Bass knowingly initiated, organized, planned, financed, directed,

managed or supervised the theft of property for sale to others, or knowingly trafficked in stolen

property between December 16 and 20, 2013. RCW 9A.82.050. “Traffic” means to sell,

transfer, distribute, dispense, or otherwise dispose of stolen property to another person, or to buy,




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No. 46540-0-II



receive, possess, or obtain control of stolen property, with intent to sell, transfer, distribute,

dispense, or otherwise dispose of the property to another person. RCW 9A.82.010(19).

        Bass argues that there was insufficient evidence of both third degree theft and first degree

trafficking in stolen property because there was uncontroverted evidence that Boss gave him

permission to remove all the recyclables from the house, and therefore he did not steal the wiring

he removed. Bass asserts the statutory affirmative defense that he appropriated the property

“openly and avowedly under a claim of title made in good faith, even though the claim be

untenable.” RCW 9A.56.020(2)(a). Bass argues that the State did not meet its burden of

disproving this defense by proving beyond a reasonable doubt that he did not take the property

openly and avowedly under a good faith claim of title.

        However, as stated above the State presented evidence that although Bass may have

received initial permission to remove recyclables from Boss, by December 2013, Bass knew that

someone else owned the property. Further, the State presented evidence that Bass told Taylor

that he had “screwed up,” which a jury could find demonstrated an awareness that he had

unlawfully removed the wiring. RP (June 5, 2014) at 98. Finally, Bass’s act of climbing up on

the roof at 3:00 AM to chop the live power line from the house with a machete indicates

surreptitious behavior from which a jury could conclude that Bass knew that he was taking

someone else’s property.

        Viewed in the light most favorable to the State, this evidence supports a finding that Bass

knew in December 2013 that he no longer had permission from the house’s owner to remove the

wiring from the house. The evidence is undisputed that Bass removed the wiring and sold it.




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Accordingly, we hold that the State presented sufficient evidence for the jury to conclude that

Bass committed third degree theft and first degree trafficking in stolen property in December.

B.     INFERIOR DEGREE OFFENSE JURY INSTRUCTIONS

       Bass argues that the trial court erred in refusing to give Bass’s proposed jury instructions

on second degree trafficking in stolen property, which is an inferior degree offense of the

charged crime of first degree trafficking in stolen property. We agree.

       1.    Legal Principles

       In general, we review a trial court’s choice of jury instructions for an abuse of discretion.

State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). Jury instructions are

appropriate if they allow counsel to argue their theories of the case, are not misleading, and when

read as a whole properly state the applicable law. State v. Aguirre, 168 Wn.2d 350, 363-64, 229

P.3d 669 (2010). However, a defendant is entitled to an instruction regarding his or her theory of

the case if there is evidence to support the theory. State v. Werner, 170 Wn.2d 333, 336, 241

P.3d 410 (2010). The trial court’s refusal to give an appropriate instruction is reversible error if

the absence of the instruction prevents the defendant from arguing his or her case. State v.

Harvill, 169 Wn.2d 254, 259, 234 P.3d 1166 (2010).

       RCW 10.61.003 provides that a jury may find a defendant not guilty of the charged

offense but guilty of an offense with an inferior degree. Under this statute, both parties have a

statutory right to an inferior degree offense instruction. State v. Corey, 181 Wn. App. 272, 276,

325 P.3d 250, review denied, 181 Wn.2d 1008 (2014). The party requesting an instruction on an

inferior degree offense must show




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       “(1) the statutes for both the charged offense and the proposed inferior degree
       offense ‘proscribe but one offense’; (2) the information charges an offense that is
       divided into degrees, and the proposed offense is an inferior degree of the charged
       offense; and (3) there is evidence that the defendant committed only the inferior
       offense.”

State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson,

133 Wn.2d 885, 891, 948 P.2d 381 (1997)).

       The third requirement is the factual component of the test. When determining whether

the evidence was sufficient to support an inferior degree offense instruction, we view the

evidence in the light most favorable to the party that requested the instruction. Id. at 455-56. In

addition, we must consider all the evidence presented at trial, not just the defendant’s testimony.

Id. at 456. A jury instruction on an inferior degree offense should be given if the evidence would

permit the jury rationally to acquit on the greater offense and convict on the inferior defense. Id.

However, the evidence must affirmatively establish the defendant’s theory of the case, not

merely allow the jury to disbelieve evidence of guilt. Id.

       2.    Factual Analysis

       Here, the parties agree that the first two requirements of the test for giving an inferior

degree offense instruction are satisfied. Second degree trafficking in stolen property is an

inferior degree offense to first degree trafficking in stolen property. RCW 9A.82.050, .055;

Fernandez-Medina, 141 Wn.2d at 454-55. The only question involves the factual prong –

whether there is evidence that Bass committed only the inferior offense of second degree

trafficking in stolen property.

       The difference between the two degrees of trafficking in stolen property is the mens rea.

First degree trafficking requires the State to prove that the defendant knowingly trafficked in


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stolen property. Second degree trafficking requires the State to prove that the defendant

recklessly trafficked in stolen property. “A person is reckless or acts recklessly when he or she

knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard

of such substantial risk is a gross deviation from conduct that a reasonable person would exercise

in the same situation.” RCW 9A.08.010(1)(c). This definition contains both a subjective and an

objective knowledge component. State v. Hovig, 149 Wn. App. 1, 9, 202 P.3d 318 (2009).

Determining whether a defendant acted recklessly depends on what that defendant knew and

how a reasonable person would have acted knowing the same facts. Id.

       Here, there is evidence in the record that Bass acted recklessly instead of intentionally,

and therefore committed only the inferior degree offense of second degree trafficking in stolen

property. According to Bass, he thought that Boss still owned the home and his removal of the

wire was permissive. However, he admitted that he received the permission six months before

his activities in December 2013 and that he had not seen Boss since then. He also admitted that

he did not really know who owned the house and that he was stupid for removing the wire.

       Based on this evidence and other evidence presented at trial, a jury could infer that

(1) Bass initially had permission from Boss, the house owner; (2) Bass did not know that a bank

owned the house by December 2013 and therefore had no intent to steal the wiring, and (3) Bass

was reckless in assuming that Boss was still the owner and his permission remained valid after

Boss moved out of the house and had not been seen for six months. As a result, the evidence

was sufficient to support an inferior degree offense jury instruction.




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       We hold that the trial court erred in refusing to give Bass’s proposed jury instructions on

second degree trafficking in stolen property. Accordingly, we reverse Bass’s conviction for first

degree trafficking in stolen property and remand for a new trial of that charge.

C.     ABANDONMENT JURY INSTRUCTION

       The trial court instructed the jury on first degree criminal trespass, which is a lesser

included offense of the charged crime of second degree burglary. Bass argues that the trial court

erred in refusing to give a jury instruction stating that abandonment of the house entered is a

defense to first degree criminal trespass. We hold that even if the trial court erred in refusing to

give an abandonment instruction, that error was harmless because the jury never considered

whether Bass was guilty of first degree criminal trespass.

       Abandonment is a statutory defense to first degree criminal trespass. RCW

9A.52.090(1). However, the abandonment defense does not apply to second degree burglary.

State v. Jensen, 149 Wn. App. 393, 400-01, 203 P.3d 393 (2009).

       Here, the trial court instructed the jury that it could consider first degree criminal trespass

only if it found that Bass was not guilty of second degree burglary. The jury did find Bass guilty

of second degree burglary. Therefore, under the court’s instruction, the jury could not consider

first degree criminal trespass. We presume the jury followed this instruction. State v. Perez-

Valdez, 172 Wn.2d 808, 818-19, 265 P.3d 853 (2011). Therefore, whether abandonment was a

defense to first degree criminal trespass was immaterial.

       We hold that even if the trial court erred in refusing to give an abandonment instruction,

that error was harmless because the jury never considered first degree criminal trespass.




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        We affirm Bass’s convictions for second degree burglary and third degree theft, but

reverse his conviction for first degree trafficking in stolen property and remand for a new trial on

that charge.

        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.



                                                      MAXA, J.



 We concur:




 WORSWICK, J.




 JOHANSON, C.J.




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