                                                                          FILED 

                                                                       JUNE 26,2014 

                                                                I n the Office ofthe 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. 31891-5-111
                                              )
                        Appellant,            )
                                              )
              V.                              )
                                              )
 CHANTELL M. (SIMONTON) GRAHAM,               )         PUBLISHED OPINION
                                              )
                        Respondent.           )

      BROWN, J. - The State of Washington appeals the dismissal of Chantell

Graham's trafficking in stolen property charge. The State contends sufficient evidence

showed Ms. Graham sold or transferred stolen property to another person. We

disagree, and affirm.

                                         FACTS

      Ms. Graham entered the Ephrata Walmart store with an empty shopping cart and

placed two television wall mount kits and a battery for a motorized toy-vehicle in her

cart. She then took the less expensive of the wall mount kits and the battery to

customer service and asked to return them, claiming to have recently purchased them.

Because she did not have a receipt, Walmart issued a gift card to Ms. Graham for the

value of the returned items. Ms. Graham used this gift card to purchase the more
     No. 31891-5-11'
     State v. Graham

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I    expensive of the wall mount kits, which she returned to the store the next day in

     exchange for approximately $100 in cash. 


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            The State charged Ms. Graham with second degree trafficking in stolen property. 


     Ms. Graham requested dismissal of the charge under CrR 8.3(c) and State v. Knapstad,

J    107 Wn.2d 346, 729 P.2d 48 (1986). The court agreed and dismissed the charge,
.~



1    finding there was no transfer or disposition of stolen property because U[t]he first
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I    transaction ... consisted only of theft of a gift card by deception. . . . The second


I    transaction ... consisted only of use ("negotiation") of that property in its intended

     manner; using the gift card as cash." Clerk's Papers (CP) at 46.

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,           The State appealed.

                                              ANALYSIS

             The issue is whether the trial court erred by granting Ms. Graham's motion to

     dismiss. The State contends sufficient evidence existed to support the second degree

     trafficking in stolen property charge.

            We review Knapstad rulings de novo. State v. Conte, 159 Wn.2d 797,803, 154

     P.3d 194 (2007). Knapstad created a pretrial process, akin to summary judgment

     motions in civil cases, that allows the trial court to dismiss a criminal case when the

     agreed upon facts show the prosecution's case is missing an element necessary to

     prove the charged offense. Knapstad, 107 Wn.2d at 356-57. The procedure to be

     followed for Knapstad motions is delineated by CrR 8.3(c).




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  '   No. 31891-5-111
      State v. Graham


             In a Knapstad motion, a defendant alleges by sworn affidavit that there are no

      material disputed facts and that the undisputed facts do not establish a prima facie case

      of guilt. Knapstad, 107 Wn.2d at 356. When evaluating a Knapstad challenge to the

      sufficiency of the evidence, the trial court considers the evidence and reasonable

      inferences therefrom in the light most favorable to the State. State v. Jackson, 82 Wn.

      App. 594, 608, 918 P.2d 945 (1996).

             "A person who recklessly traffics in stolen property is guilty of trafficking in stolen

      property in the second degree." RCW 9A.82.055(1). '''Traffic' means to sell, transfer,

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

      buy, 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). "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). At issue is whether the wall

      mount kit and battery that Ms. Graham took to the customer service counter and the

      second wall mount kit that she returned for cash the next day were "stolen property"

      and, if so, whether they were trafficked. RCW 9A.82.055(1).

             '''Stolen property' means property that has been obtained by theft, robbery, or

      extortion." RCW 9A.82.010(16). "Theft" requires intent to deprive the owner of such

      property. RCW 9A.56.020(1).
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No. 31891-5-111
State v. Graham


       In granting the Knapstad motion, the trial court pointed out that the information in

the case did not specify which transaction, or which segment of the overall transaction

was alleged to constitute the trafficking crime. It therefore examined each phase of the

transaction. We, too, examine each phase.

       In relying on the first segment of the overall transaction-Ms. Graham's

presentation of the less expensive wall mount kit and battery for "return," for which she

received a gift card-the State asks us to consider the kit and battery as "stolen

property" at the time Ms. Graham took them from Walmart's shelves and walked with

them to the customer service area, and to consider her tender of them for cash or credit

as the "trafficking" of stolen property. As the State correctly points out, a person may be

guilty of theft whether or not they have yet left the store if the person intended to deprive

the store of such property. See, e.g., State v. Britten, 46 Wn. App. 571,572-74,731

P.2d 508 (1986) (defendant put several jeans on under his own clothes and, although

he had not yet left the store, he was guilty of theft because he intended to deprive the

store of the items).

       Britten is distinguishable, however, because "[t]here [was] no issue as to Britten's

intent" to deprive the store of the property Id. at 573. Mr. Britten had removed the tags

and concealed several pairs of jeans under his own clothing, evidencing his intent to

deprive the store of the jeans themselves. Id. at 572-74. Ms. Graham never intended

to deprive Walmart of the kit or battery. Since the merchandise that she intended to

proffer for cash or credit was not "stolen" when brought to the customer service counter,



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 l   No. 31891-5-111
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     the first segment of the overall transaction did not amount to trafficking in stolen

     property.

            Grady v. State, 319 Ga. App. 894, 743 S.E.2d 22 (2013) involved more factual

     similarities to this case than Britten, but the State charged a different crime. In Grady,

     the defendant was convicted of theft by shoplifting after he entered a store, presented

     two racquets to store personnel that he wished to return, received "return" stickers for

     the racquets to present to a customer service employee, left those racquets on store

     shelves and picked up two more expensive racquets, and then presented the more

     expensive racquets for return, relying on the "return" stickers. Although the customer

     service employee told the defendant there was a discrepancy between the barcode on

     the return stickers and the expensive racquets presented, the defendant became '''kind

     of hysterical' and angry" and, after consulting with loss prevention employees who in

     turn consulted with police, the store's manager instructed the customer service

     employee to issue the defendant a gift card in the full value of the expensive rackets.

     Id. at 895. The fact that the defendant presented the merchandise for return and.

     received a gift card was evidence that he had concealed or taken possession of

     merchandise with the required statutory intent "to deprive the owner of possession

     thereof or of the value thereof." Id. (emphasis added),

           While Ms. Graham had dishonest intentions, the inexpensive kit and battery were

     not obtained by theft when she brought them to the customer service counter and

     requested cash or credit. She did not intend to deprive Walmart of those items; rather,



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No. 31891-5-111
State v. Graham


her intent was to obtain their value. Rather than trafficking in stolen property, her

actions amount to theft, as recognized and appropriately charged in Grady.

       Turning to the second segment of the overall transaction-Ms. Graham's return,

for cash, of the mount kit purchased with the gift card-the issue is whether that second

kit was "stolen property" that she trafficked by returning it. "Stolen property" is defined,

again, as "property that is obtained by theft, robbery, or extortion." RCW 9A.82.010(16).

       In State v. Lillard, 122 Wn. App. 422, 425-27,93 P.3d 969 (2004), the defendant

participated in a fraudulent scheme of purchasing low-value Nordstrom gift cards and

then altering the number on the card's magnetic strip to match an account with a much

larger balance. The cards were used to purchase merchandise found in defendant's

possession, after which he was charged with possession of the stolen merchandise.

While a number of issues were raised on appeal, the defendant did not challenge the

characterization of the store's merchandise as stolen property. The decision therefore

assumes but does not hold that the merchandise was stolen. The case is

distinguishable from our facts because the altered cards in Lillard were not being

negotiated at Nordstrom's expense and according to the card's terms, they were being

negotiated contrary to the terms of the card, at the expense of an innocent account

holder. Given its distinct facts and the absence of any analysis of what qualifies as

"stolen property," Lillard is not helpful in deciding this case.

       In State v. Michelli, 132 Wn.2d 229,937 P.2d 587 (1997), our Supreme Court

reversed a decision of this court and in the process discussed a Florida case, Florida v.



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    No. 31891-5-111
    State v. Graham

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t   Camp, 579 SO.2d 763 (Fla. Dist. Ct. App. 1991), affd, 596 SO.2d 1055 (1992). The
1   defendant in Camp had stolen blank checks from her workplace and negotiated them to

I   payoff personal debt, which the Florida Supreme Court determined did not qualify as


I   trafficking. But as Michelli explained, the reasoning of the Florida court was not that a




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    trafficker must be a middleman, it was that using stolen property does not amount to

    trafficking in stolen property:

           Negotiating stolen checks merely involved personal use of stolen property
           and did not rise to the level of dealing, or trafficking, in stolen property.
           The trafficking statute "was not designed to punish persons who steal for
           personal use." Camp, 596 SO.2d at 1057 (footnote omitted). The court
           noted, however, that its analysis "would not apply had [defendant] stolen
           and sold blank checks for others to negotiate." Camp, 596 So.2d at 1057
           n.3 (emphasis added).

    132 Wn.2d at 234-35.

           In granting the Knapstad motion in this case, the trial court reasoned that Ms.

    Graham's use of the gift card to purchase the second wall mount kit did not amount to a

    separate theft "since defendant used the gift card as 'cash"':

           In other words, had defendant stolen $50 from her neighbor, using it to
           purchase the bracket would not constitute theft of the bracket.
           Furthermore, it does not constitute a "transfer" or "other disposition" of the
           gift card, in the sense of the definition of "trafficking," for the same reason,
           noted in Michielli, that the thiefs negotiation of stolen blank checks in
           Florida v. Camp did not amount to a transfer of them. Had defendant sold
           the Wal-Mart gift card to a third person, who then used it to acquire
           property from Wal-Mart, a different conclusion would obtain.
                   But here, the gift card amounts to this representation from Wal-Mart
           (even if fraudulently obtained): "You may use this card in exchange for
           Wal-Mart property of your choice." That is exactly what defendant did; she
           did not "transfer" the gift card to Wal-Mart or anyone else-rather, she
           used it in the way intended by Waf-Mart.



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No. 31891-5-111
State v. Graham


CP at 30.

       In order for Ms. Graham's second return of a wall mount kit to fall within the

statutory definition, we would have to read the definition of "stolen property" to include

not only property that is itself stolen, but also property that was acquired in a legitimate

exchange but can be traced back through a series of exchanges to property that was

obtained by theft, robbery or extortion. The plain language of the statutory definition of

"stolen property" does not support such a reading nor could the legislature possibly

have intended it.

       Viewing the evidence and reasonable inferences therefrom in the light most

favorable to the State, Ms. Graham did not sell or transfer stolen property to another

person. The trial court properly dismissed the second degree trafficking in stolen

property charge.

       Affirmed.


                                                   Brown, J.
WE CONCUR:


 ~~
Siddowa~                                           Lawrence-Berrey, J.




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