                                                                          FILED
                                                                       JULY 19, 2016
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 33645-0-111
                    Respondent,              )
                                             )
       v.                                    )
                                             )
JILL J. FERGUSON, also known as JILL         )         UNPUBLISHED OPINION
J. FLECK,                                    )
                                             )
                    Appellant.               )

       FEARING, C.J. -Jill Fleck appeals her conviction for second degree possession of
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stolen property. We reject her contention that insufficient evidence supported her

conviction. We agree with her contention that her trial counsel was ineffective for failing
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                                                                                                        I
to object to opinion testimony regarding the value of the stolen property. We remand for

a new trial.

                                         FACTS                                                          I
       On January 20, 2014, someone broke the back window of Janet Bressler's car and

stole a 2012 MacBook Air laptop computer. Bressler's husband, David Ulane, activated

an Apple security feature through the iCloud that locked the laptop to prevent its use

without an additional pin code. The security feature also sent Bressler an e-mail showing
No. 33645-0-111
State v. Ferguson aka Fleck


the laptop's location if the current possessor turned on the computer in the area of a Wi-

Fi network.

       On January 21, Janet Bressler received an e-mail from Apple notifying her of the

laptop's location at 2322 North Haven Street in Spokane. Bressler and Ulane researched

the address on another computer and found the address to be an apartment complex. The

two forwarded information about the stolen laptop to police.

       On January 23, Jill Fleck brought the laptop to Strong Solutions, a computer repair

store. Fleck told Strong Solutions that her daughter locked the laptop's password. As

proof of purchase for determination of warranty information, Fleck provided the store

with an August 12, 2013, Best Buy receipt for the purchase of a MacBook Pro laptop

computer for $1,134.99. The receipt did not match the computer. Strong Solutions

determined the laptop was remotely locked, not mistakenly locked by the daughter.

       On January 23, Janet Bressler received another e-mail from Apple showing her

laptop's location to be Strong Solutions. On January 24, David Ulane called Strong

Solutions, confirmed that the store possessed the laptop, and informed the store that the

laptop was stolen. Ulane informed the police of the new location of the laptop. On

January 24, Spokane police officers journeyed to Strong Solutions, took the laptop,

recorded the laptop as police evidence, and returned it to Janet Bressler.

       On January 27, at law enforcement's request, Strong Solutions telephoned Jill

Fleck to encourage her to retrieve the laptop from the store premises. Fleck returned to

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Strong Solutions, where Spokane Police Detective Stacey Carr asked her questions about

the laptop. Fleck claimed she purchased the laptop from her neighbor for $500 cash.

Detective Carr never examined the laptop.

                                         PROCEDURE

         On September 3, 2014, the State of Washington charged Jill Fleck with one count

of possession of stolen property in the second degree. Conviction of the crime requires

evidence that the stolen property's value exceeds $750 and does not exceed $5,000. A

key issue at trial was the value of the MacBook Air laptop computer at the time of its

theft.

         During trial, laptop owner Janet Bressler testified:

                 Q Is it fair to say you've had that computer for some time before
         this incident?
                 A Well, depending on what you mean by some time, but-
                 Q Like, for more than a year?
                 A Yes.
                 Q Okay. So was it-it was a used computer-
                 A Yeah.
                 Q -at that point? Okay. And is it fair to say you don't know the
         exact value of the computer?
                 A I do not, no.

Report of Proceedings (RP) at 23.

         During trial, Detective Stacey Carr testified:

               Q All right. In the course of your investigation were you able to
         determine the value of the stolen computer?
               A Yes.
               Q And what is that value-or, what was that value in 2014?

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             A When I researched it, I believe it was between [$]800 and $1,500
       depending on which site I went through, eBay, Craigslist, some Apple
       websites.

RP at 51. Jill Fleck's trial counsel did not object to Carr's testimony concerning the

value of the computer.

       During its closing argument, the State said:

             We also know, secondly, that the computer was worth between $800
       and $1,500 because Detective Carr investigated that by calling for fair
       mark[et] value. She checked Craigslist. She checked eBay. And, most
       importantly, she checked the Apple site, which gives up-to-date
       information on used computers as to what the price would be.

RP at 127.

       The trial court instructed the jury on the crime of possession of stolen property in

the second degree. The trial court did not instruct on possession of stolen property in the

third degree as a lesser included offense. The jury found Jill Fleck guilty.

                                 LAW AND ANALYSIS

       On appeal, Jill Fleck challenges the sufficiency of evidence and her attorney's

performance in failing to object to Detective Stacey Carr's testimony concerning the

value of the stolen laptop computer. Ifwe agreed that the jury heard insufficient

evidence to convict, we would dismiss the charge rather than remand for a new trial.

Therefore, we address the sufficiency of evidence first.

                                 Sufficiency of Evidence

       Jill Fleck contends the State of Washington failed to prove the value of the stolen

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property exceeded $750 as required for second degree possession of stolen property. She

requests that this court reverse her conviction and remand for the trial court to enter

judgment on the lesser included offense of possessing stolen property in the third degree.

The State responds that sufficient evidence supported the conviction because the value of

Apple computers is within the ordinary experience and knowledge of the jury, Detective

Stacey Carr testified that the laptop was valued between $800 and $1,500, and Fleck told

Detective Carr she purchased the laptop for $500. Because of Detective Carr's

testimony, we agree with the State that sufficient evidence supports the conviction.

       Evidence is sufficient if a rational trier of fact could find each element of the crime

beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).

Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn.

App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor

of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Only the trier

of fact weighs the evidence and judges the credibility of witnesses. State v. Carver, 113

Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).

       "A person is guilty of possessing stolen property in the second degree if: (a) He or

she possesses stolen property, other than a firearm as defined in RCW 9.41.010 or a

motor vehicle, which exceeds seven hundred fifty dollars in value but does not exceed

five thousand dollars in value." RCW 9A.56.160. '"Value' means the market value of

the property or services at the time and in the approximate area of the criminal act."

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RCW 9A.56.010(21 ). Market value is the price a well-informed buyer would pay to a

well-informed seller when neither party is obliged to enter the transaction. State v. Kleist,

126 Wn.2d 432,435, 895 P.2d 398 (1995). Direct evidence is not necessary to prove

value, rather a jury may draw reasonable inferences from the evidence, including changes

in the condition of the property that affect its value. State v. Ehrhardt, 167 Wn. App.

934, 944, 276 P.3d 332 (2012).

       Jill Fleck objects to the testimony of Detective Stacey Carr on the basis of hearsay.

Nevertheless, in reviewing for sufficiency of evidence, the court does not ignore evidence

erroneously admitted at trial or evidence which could have been excluded as, for

example, inadmissible hearsay. State v. Hamdan, 13-0113 (La. Ct. App. 4th Cir.

12/11/13) 131 So. 3d 197, 203, writ denied, 140 So. 3d 1188 (La. 2014); State v. Castillo-

Sanchez, 1999-NMCA-085, 127 N.M. 540,984 P.2d 787, 795; State v. Knuckles, 196 W.

Va. 416,473 S.E.2d 131, 140 (1996); People v. Bailey, 1 Cal. Ct. App. 4th 459, 463, 2

Cal. Rptr. 2d 204 (1991). Carr's testimony sufficiently established the value of the stolen

goods to be at least $750.

                              Ineffective Assistance of Counsel

                                         Deficiency

       Jill Fleck contends she received ineffective assistance of counsel at trial when her

counsel failed to object to Detective Stacey Carr's hearsay testimony of the value of the

laptop. The State responds that Fleck's attorney was not ineffective because Carr's

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No. 33645-0-III
State v. Ferguson aka Fleck


testimony was permissible hearsay. We agree with Fleck.

       To prevail on an ineffective assistance of counsel claim, a defendant must show

his attorney was not functioning as guaranteed by the Sixth Amendment. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.

Thiefault, 160 Wn.2d 409,414, 158 P.3d 580 (2007). A claim of ineffective assistance of

counsel requires a showing that (1) counsel's performance was deficient, and (2) the

deficient performance prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 225-

26, 743 P.2d 816 (1987). We presume that counsel was effective. Strickland v.

Washington, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322,335, 899 P.2d 1251

(1995).

       Deficient performance occurs when trial counsel's performance falls below an

objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d

1239 (1997). The defendant bears the burden to show deficient performance. State v.

Grier, 171 Wn.2d 17, 33, 246 P .3d 1260 (2011 ). To rebut a strong presumption that

counsel's performance was effective, the defendant must establish the absence of any

conceivable legitimate tactic explaining counsel's failure to object to testimony. State v.

Hamilton, 179 Wn. App. 870, 879-80, 320 P.3d 142 (2014). When counsel's alleged

error is failure to object to evidence, the defendant must also show that the trial court

would have sustained an objection. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d

364 (1998).

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       Jill Fleck claims that Detective Stacey Carr's testimony on the value of the laptop

was inadmissible hearsay and no conceivable strategic reason existed for her counsel's

failure to object to the testimony. Fleck emphasizes that Carr's hearsay testimony

comprised the entirety of the State's evidence of the value element of the crime and thus

counsel's failure to object effectively conceded an element that the State needed to prove.

The State of Washington responds that counsel was not deficient because Detective

Carr's testimony fell within the market reports exception to hearsay. The State does not

forward any reason why trial counsel legitimately failed to object to the testimony,

assuming the market report exception did not apply.

       Hearsay is a statement made outside of trial or a hearing that is offered in evidence

to prove the truth of the matter asserted. ER 801(c). Hearsay is inadmissible unless a

hearsay exception applies. ER 802. The market reports exception to hearsay applies to:

              Market Reports, Commercial Publications. Market quotations,
       tabulations, lists, directories, or other published compilations, generally
       used and relied upon by the public or by persons in particular occupations.

ER 803(a)(l 7).

       Detective Stacey Carr's testimony of the value of the laptop being between $800

and $1,500 constituted hearsay. Carr relied on out of court statements she read on eBay,

Craigslist, and some Apple websites. Since the State introduced the evidence to prove

the value of the stolen laptop, the State sought to use the testimony to establish the truth
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of the extrajudicial statements.                                                               f
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       We rule that the market reports exception to hearsay did not apply because the

State presented no evidence that the websites entered by Detective Stacey Carr were

publications on which the public relied when purchasing a used Macbook Air laptop.

The State relies on State v. Shaw, 120 Wn. App. 847, 86 P.3d 823 (2004) to support the

market report exception. In Shaw, the State charged Jeremy Shaw with possession of

stolen property in the first degree for his possession of a stolen vehicle. The State needed

to prove the vehicle's value exceeded $1,500. At trial, the investigating detective

testified that he used the Kelly Blue Book Internet site to research the vehicle's value.

The detective described the methodology employed by Kelly Blue Book to value a

vehicle and mentioned that the site provided two values for vehicles, retail value· and

private party value. This court affirmed the admission of testimony finding the Kelley

Blue Book site admissible as a market report under ER 803(a)(l 7). We reasoned that the

trial court did not abuse it discretion in admitting the evidence because:

              As the foundation laid by the detective's testimony showed, it is a
       publication used to determine what a person might expect to pay when buying .a
       used car, or to receive when selling one. Other jurisdictions have recognized the
       Blue Book as a standard and reliable reference for valuation of vehicles.

Shaw, 120 Wn. App. at 852.

       Important differences distinguish this appeal from State v. Shaw. Detective Stacey

Carr provided no foundation for the public's use of Craigslist, eBay, and the various

Apple websites for determining value. Carr did not describe the methodology she used


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when researching the laptop's value or the data required by any of the websites for

determining value. Kelley Blue Book is designed to provide reliable valuation

information. The websites viewed by Carr facilitate the purchase or sale of items and

may reflect a high asking price.

       Jill Fleck's trial counsel performed deficiently by failing to raise a hearsay

objection to Detective Stacey Carr's valuation testimony because the evidence was

inadmissible and there is no strategic reason to allow the State to prove an element of the

crime solely through inadmissible evidence.

                                         Prejudice

       Prejudice occurs, for purposes of ineffective assistance of counsel, when the

outcome would have differed with effective assistance. In re Pers. Restraint of Pirtle,

136 Wn.2d 467, 487, 965 P.2d 593 (1998); State v. McFarland, 127 Wn.2d at 337

(1995). We hold that Jill Fleck shows prejudice because she likely would have avoided

conviction upon an objection to the valuation evidence.

       The jury relied on nominal evidence when determining the value of the laptop

exceeded $750. The evidence included testimony as to the computer's year of purchase,

its used nature, Jill Fleck's probably false assertion that she purchased the laptop for

$500, and Detective Stacey Carr's valuation testimony. During closing argument, the

State proffered only Stacey Carr's testimony to support the value element of the crime.

Without Carr's valuation testimony, the jury heard no evidence to sustain a finding of a

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    State v. Ferguson aka Fleck


    value exceeding $750.

                            Statement of Additional Grounds for Review

           A criminal defendant may submit a pro se statement of additional grounds for

    review "to identify and discuss those matters related to the decision under review that the

    defendant believes have not been adequately addressed by the brief filed by the

    defendant's counsel." RAP 10.lO(a). Jill Fleck raises two additional grounds for review.

                                          Due Process

           In her first additional ground, Jill Fleck contends in a lengthy sentence:

                   Finding me guilty of a gross misdemeanor violates my due process
           rights besides a gross misdemeanor can not be prosecuted after 2 years of
           its commission according to RCW 9A.04.080 finding me guilty of this
           crime without a trial in the appropriate court would be a violation of due
           process my right to be tried in the proper court would be ignored finding
           me guilty of a crime [without] a trial is a miscarriage of Justice.

    Statement of additional grounds for review at 1. Fleck's first challenge may be to a

    purported conviction for a gross misdemeanor on the ground of the statute of limitations.

    We reject this challenge.

           Second degree possession of stolen property is a class C felony, with a statute of

    limitations of three years. RCW 9A.04.080(h). The theft of the laptop computer

    occurred on January 20, 2014, and the State charged Jill Fleck by information on

    September 3, 2014. Thus, the State did not violate the statute of limitations.

                                Ineffective Assistance of Counsel


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       In her second additional ground, Jill Fleck alleges:

              The fact that my Public Defender was ineffective is grounds enough
       for dismissal. A public records request was made by Reporter Anne Block
       in June 2015 & it was not fulfilled by the P.D. office. This implies
       misconduct & Ms. Block intends on filing suit regarding this request so do I
       especially after the conduct from several court employees that occurred.
       See attached emails evidence of [ex parte] communication and retaliation
       which is brazen & offensive!

Statement of additional grounds for review at 1. We reject this claim because the

assertion lacks relevance to her criminal trial. The claim apparently concerns an alleged

failure by counsel to respond to a public records act request after her conviction.

                                      CONCLUSION

       We reverse Jill Fleck's conviction and remand for a new trial.

       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.
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                                                                                            t

                                              Fearing,

WE CONCUR:




                                              Pennell, J.




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