  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                            No. 67867-1-1
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JERAMIE DAVID OWENS,                                                      IH


                       Appellant.               FILED: April 29, 2013    t/i    5H


      Grosse, J. — Where the State charges an alternative means crime, the trial

court instructs the jury on each means, and no way exists to determine which

means served as the basis for the conviction, sufficient evidence must support

each means.        Because the State did not meet this burden, we reverse Jeramie

Owens's conviction for first degree trafficking in stolen property.     In all other

respects, we affirm.

                                       FACTS

       On July 2, 2010, Michael Cassida was working as a salesman at Motor

City, a used car dealership in Mount Vernon, Washington, when Owens and

another man expressed interest in a solid blue 1967 Volkswagen Beetle with a

high-performance engine and a surfboard attached to a roof rack. Owens closely

examined the car's frame, engine compartment and interior and even crawled

underneath the body. Cassida accompanied Owens on a short test drive of the

car. Owens told Cassida that he restored Volkswagens for a living and even had a

tattoo that said "Volkswagen" on his back. Owens and Cassida drove back to the

dealership and Owens said he would get in touch.

       The next morning, when Cassida was opening the dealership for business,

he noticed that a lock on the fence had been cut and the 1967 Beetle, which had
No. 67867-1-1/2


been parked at the edge of the lot, was missing. Cassida also noticed the ignition

key for the Beetle was missing from his key ring.

       On July 6, 2010, Owens filed an application with the Department of

Licensing for title to a black 1971 Volkswagen.

       On July 28, 2010, Owens posted a Craigslist advertisement for a "1971

Volkswagen Beetle." The "1971 Beetle" was painted blue and white and did not

have a high-performance engine, a roof rack or a surfboard. Craig Sauvageau

responded to the advertisement, went to Owens's address, and agreed to

purchase the Beetle for $2,800. Owens claimed he had lost the title to the Beetle

but had completed an affidavit of lost title which Sauvageau could present to the

Department of Licensing to obtain a new title.

       On August 3, 2010, Sauvageau brought the Beetle to Conaway Motors, a

repair shop specializing in European automobiles, for a tune-up. A mechanic,

Alberto Ruiz, noticed that the rivets attaching the public VIN1 plate were not

fastened tightly and were shiny and new despite the fact that the Beetle was

approximately 40 years old. Based on this fact, Ruiz believed that the original

public VIN plate had been removed and another VIN plate put on. Ruiz also knew

that the Beetle could not be from the 1971 model year because 1971 parts did not

fit.




1 "VIN" stands for "vehicle identification number," a number that uniquely identifies
an automobile. Most cars have both a "public" VIN, which is stamped on a metal
plate that is affixed to a visible location such as the dashboard, and a "confidential"
VIN, which is stamped in a hidden location determined by the car's manufacturer.
No. 67867-1-1/3



       Detective Paul Ryan of the Monroe Police Department and the Snohomish

County Auto Theft Task Force was called to investigate. Detective Ryan located

the Beetle's confidential VIN and determined that it did not match the public VIN,

but that it did match the VIN for the 1967 Beetle stolen from Motor City. The public

VIN matched the 1971 Volkswagen to which Owens obtained title on July 6, 2010.

       Searching online using the phone number Owens gave Sauvageau,

Detective Ryan discovered other Craigslist advertisements posted by Owens.

One of the advertisements was for a yellow 1956 Beetle with a roof rack and the

identical type of high-performance engine missing from Motor City's 1967 Beetle.

On that basis, Detective Ryan obtained a search warrant for Owens's property. In

Owens's garage, officers found a rivet gun, a paint sprayer, and the surfboard from

the 1967 Beetle. Owens admitted that the 1967 Beetle he sold to Sauvageau was

the same Beetle that he test-drove at Motor City on July 2. He claimed he bought

the Beetle from a private seller on Craigslist, but could not provide any information

about the purchase.      The Department of Licensing had no bill of sale from

Owens's purported purchase of the 1967 Beetle.

       The State charged Owens with one count of possession of a stolen vehicle,

one count of first degree trafficking in stolen property, and one count of first degree

taking a motor vehicle without permission.          The State later amended the

information to include a charge of bail jumping after Owens failed to appear for a

court hearing and a warrant was issued.           A jury convicted Owens on the
No. 67867-1-1/4


possession, trafficking, and bail jumping charges but acquitted him of taking a

motor vehicle. Owens timely appeals.

                                    ANALYSIS

1.    Sufficiency of the Evidence

      Owens makes several challenges to the sufficiency of the evidence. To

evaluate a challenge to the sufficiency of the evidence, we view the evidence in

the light most favorable to the State and determine whether any rational trier of
fact could have found the essential elements of the charged crime beyond a

reasonable doubt.2 A challenge to the sufficiency of the evidence admits the truth
of the State's evidence and all reasonable inferences must be drawn in favor of

the State and interpreted against the defendant.3 We defer to the trier of fact to
weigh the evidence, resolve conflicts in testimony, and evaluate witness
credibility.4 Circumstantial evidence is no less reliable than direct evidence and is
sufficient to prove any element of the crime.5
       a. First Degree Trafficking in Stolen Property

       Owens contends that the crime of first degree trafficking in stolen property

is an alternative means crime and the State failed to present sufficient evidence to

support each of the means. We agree.




2 State v. Wentz, 149 Wn.2d 342, 347, 68 P.2d 282 (2003).
3 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
4 State v. Stewart. 141 Wn. App. 791, 795, 174 P.3d 111 (2007).
5 State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
No. 67867-1-1/5



       Criminal defendants have a right to an expressly unanimous jury verdict.6
A general verdict of guilty on a crime that can be committed by alternative means

will be upheld only if sufficient evidence supports each means.7

       RCW 9A.82.050 provides that a person is guilty of first degree trafficking in

stolen property "who knowingly initiates, organizes, plans, finances, directs,

manages, or supervises the theft of property for sale to others, or who knowingly

traffics in stolen property." This definition identifies eight alternative means of

committing the offense: knowingly (1) initiating, (2) organizing, (3) planning, (4)

financing, (5) directing, (6) managing, or (7) supervising the theft of property for

sale to others, or (8) knowingly trafficking in stolen property.8

       Owens argues that the State failed to present substantial evidence

supporting at least one of the alternative means of first degree trafficking in stolen

property, specifically: that Owens "supervised" the theft of the 1967 Beetle. As this

court relied upon in Strohm. the definition of "supervise" is "to coordinate, direct,

and inspect continuously and at first hand the accomplishment of: oversee with the

powers of direction and decision the implementation of one's own or another's

intentions."9 Inherent in the definition of "supervise" is the involvement of another




6 Wash. Const, art. I, § 21; State v. Ortega-Martinez. 124 Wn.2d 702, 707, 881
P.2d231 (1994).
7 Orteoa-Martinez. 124 Wn.2d at 708.
8 State v. Strohm. 75 Wn. App. 301, 307, 879 P.2d 962 (1994) (quoting RCW
9A.85.050(2)).
9 Strohm, 75 Wn. App. at 305 (quoting Webster's Third New International
Dictionary 2296 (1986)).
No. 67867-1-1/6


person. Although the State presented testimony that Owens was accompanied by

a friend at Motor City, there was no evidence that anyone other than Owens was

involved in the theft or trafficking of the Beetle.

       If one or more of the alternative means is not supported by substantial

evidence, the verdict will stand only if we can determine that the "Verdict was

based on only one of the alternative means and that substantial evidence

supported that alternative means.'"10 That is not possible here. The information

charging Owens with first degree trafficking in stolen property listed the full

statutory language and did not limit or specify a means. The trial court instructed

the jury to consider all eight of the means.11 The trial court did not instruct the jury
that it must reach a unanimous agreement as to the alternative means, nor was

there a special verdict form specifying the means relied upon. As a result, it is

unclear based on the verdict alone which means the jury relied upon to support the



10
  State v. Howard. 127 Wn. App. 862, 872, 113 P.3d 511 (2005) (quoting State v.
Rivas. 97 Wn. App. 349, 351-52, 984 P.2d 432 (1999)).
11 There is no pattern instruction for first degree trafficking in stolen property. The
"to convict" instruction for first degree trafficking in stolen property proposed by the
State and given by the trial court read:
       To convict the defendant of the crime of Trafficking in Stolen
       Property in the First Degree, as charged in Count II, each of the
       following elements of the crime must be proved beyond a
       reasonable doubt:
             (1) That on or about the 28th day of July, 2010, the defendant
       did knowingly initiate, organize, plan, finance, direct, manage or
       supervise the theft of a motor vehicle for sale to others;
             (2) That the defendant did knowingly traffic in stolen property;
       and
               (3) That any of these acts occurred in Snohomish County.
No. 67867-1-1/7



conviction. Owens's first degree trafficking in stolen property conviction must be

reversed.

       b.   Possession of a Stolen Vehicle

       To convict Owens of possession of a stolen vehicle, the State had to prove

beyond a reasonable doubt that he knowingly possessed a stolen motor vehicle

and that he knew the vehicle was stolen.12 Owens contends that the State failed

to present sufficient evidence of the "knowledge" element.13

       Possession of stolen property alone does not create a presumption that the

person knew the property was stolen, but that fact, together with "slight

corroborative evidence of other inculpatory circumstances tending to show guilt"

will support a conviction.14 Examples of such corroborative evidence include the

absence of a plausible explanation and flight.15


12 RCW 9A.56.068(1), .140(1). RCW 9A.56.068(1) states that "[a] person is guilty
of possession of a stolen vehicle if he or she possess [possesses] a stolen motor
vehicle." RCW 9A.56.140(1) defines possession of stolen property in part as
"knowingly" receiving, retaining, possessing, concealing, or disposing of stolen
property "knowing that it has been stolen." The jury was instructed that
"[possessing a stolen motor vehicle means knowingly to receive, retain, possess,
conceal, or dispose of a stolen motor vehicle knowing that it has been stolen and
to withhold or appropriate the same to the use of any person other than the true
owner or person entitled thereto."
13 Owens also claims there was insufficient evidence of the "knowledge" element
to support his first degree trafficking in stolen property conviction. Because we
reverse that conviction, we do not address this issue, nor do we address his claim
that the "to convict" instruction for first degree trafficking in stolen property relieved
the State of the burden to prove knowledge.
14 State v.Ford. 33 Wn. App. 788, 790, 658 P.2d 36 (1983).
is gee, e^, State v. Hudson. 56 Wn. App. 490, 495, 784 P.2d 533 (1990) ("[t]he
absence of any explanation for [the defendant's] use of what appears to have
No. 67867-1-1/8



       Here, viewing the evidence in the light most favorable to the State and

drawing all reasonable inferences therefrom, the evidence was sufficient to sustain

the conviction. The Beetle was stolen less than 24 hours after Owens test-drove

it. A few days after the theft, Owens registered the title to a 1971 Volkswagen.

Roughly three weeks later, Owens sold the stolen 1967 Beetle to Sauvageau.

Owens misrepresented to Sauvageau that the car was actually a 1971 Beetle,

despite the fact that Owens worked on Volkswagens for a living, was extremely

knowledgeable about Volkswagens, and even had a Volkswagen tattoo stretching

across his back. Owens told Sauvageau he had "lost" the title. The Beetle Owens

sold to Sauvageau had a fake VIN plate that corresponded to the 1971

Volkswagen to which Owens registered title. The surfboard attached to the 1967

Beetle at Motor City was found in Owens's garage, as were a rivet gun and

painting supplies. Owens admitted the car was the same one that he had test-

driven at Motor City immediately before it was stolen. He claimed he bought it

from a private individual on Craigslist but there was no evidence to support this

claim. Prior to trial, Owens jumped bail. A rational jury could infer from the facts

that Owens knew the 1967 Beetle was stolen and that he knowingly possessed it.

2.     Prosecutorial Misconduct

       Owens contends that the deputy prosecutor committed misconduct by

misstating the law regarding the element of knowledge.          We review alleged


been a recently stolen automobile . . . and his flight provide ample evidence from
which to infer guilty knowledge.").

                                         8
No. 67867-1-1/9



misconduct in the context of the entire argument, the issues in the case, the

evidence addressed in the argument, and the instructions given to the jury.16 To

prevail on a claim of prosecutorial misconduct, a defendant must show both

improper conduct and prejudicial effect.17 If the defendant failed to object to the

misconduct at trial, appellate review is only appropriate if the prosecutorial

misconduct is so "flagrant and ill intentioned" that no curative instruction could

have obviated the prejudice engendered by the misconduct.18

      "A person knows or acts knowingly or with knowledge when: (i) he or she is

aware of a fact, facts, or circumstances or result described by a statute defining an

offense; or (ii) he or she has information which would lead a reasonable person in

the same situation to believe that facts exist which facts are described by a statute

defining an offense."19   However, this definition "must be interpreted as only

permitting, rather than directing, the jury to find that the defendant had knowledge

if it finds that the ordinary person would have had knowledge under the

circumstances."20 In accordance with this interpretation, the jury was given the

pattern instruction on "knowledge":

              A person knows or acts knowingly or with knowledge with
      respect to a fact, circumstance or result when he or she is aware of that
      fact, circumstance or result. It is not necessary that the person know



16 State v.Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
17 State v. Roberts. 142 Wn.2d 471, 533, 14 P.3d 713 (2000).
18 State v. Emery. 174 Wn.2d 741, 761-62, 278 P.3d 653 (2012).
19RCW9A.08.010(b)
20 State v.Shipp. 93 Wn.2d 510, 516, 610 P.2d 1322 (1980).
No. 67867-1-1/10

       that the fact, circumstance or result is defined by law as being unlawful
       or an element of a crime.
              If a person has information that would lead a reasonable person
       in the same situation to believe that a fact exists, the jury is permitted
       but not required to find that he or she acted with knowledge of that fact.
              When acting knowingly is required to establish an element of a
       crime, the element is also established if a person acts intentionally.1211
       Owens contends that the deputy prosecutor improperly instructed the jury

that they were required to find that Owens knew the Beetle was stolen if a

"reasonable person" would have done so.22 We disagree. The deputy prosecutor

correctly quoted the law, informing the jury that they were allowed to presume

Owens's knowledge based on a "reasonable person" standard, but were not

required to do so. The jury was so instructed, and we presume jurors follow the

instructions they are given.23
       Moreover, because Owens failed to object to the deputy prosecutor's

statements, he must show that it was so "flagrant and ill intentioned" that no

curative instruction could have obviated the prejudice.        Owens does not show


21 11 Washington Practice: Washington Pattern Jury Instructions: Criminal
10.02 (3d ed. 2008).
22 Owens cites to the following portion of the State's closing argument:
       Knowingly isn't a subjective standard. What that describes, if you look
       at the second paragraph on Instruction Number 6, "If a person has
       information that would lead a reasonable person in the same situation
       to believe that a fact exists, the jury is permitted but not required to
       find that she acted with knowledge."
              The reasonable person standard is this.          It's a reasonable
       person. It's an objective standard. It means, what would a common,
       everyday person say, Hey, this clearly is suspicious. It's not what was
       that person thinking, what was that specific person thinking. It's the
       general knowledge, what an average person should know.
23 State v. Grisbv. 97 Wn.2d 493, 509, 647 P.2d 6 (1982).

                                           10
No. 67867-1-1/11



incurable prejudice. Even without the permissive inference, there was sufficient

evidence from which the jury could find that Owens had actual, subjective

knowledge that the Beetle was stolen.            Owens attempted to resell the Beetle

immediately after he claimed he purchased it; he misrepresented the model year

to Sauvageau; and he could not explain how the Beetle came to possess a

fraudulent   VIN   plate   belonging   to    another Volkswagen       he   possessed.

Accordingly, Owens fails to prove misconduct that undercuts the validity of the

verdict.

       We reverse and remand for resentencing, striking the first degree trafficking

in stolen property conviction. We affirm Owens's remaining two convictions.




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WE CONCUR:




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