                                                                                            i_ E
                                                                                C_0t„ R T OF APPEALS
                                                                                       i:1NISIM411

                                                                               2013 DEC - 3        AM 9: 23

                                                                                SlAtTE OF WASHf 1GTM

                                                                                B-
                                                                                       90T.-
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

STATE OF WASHINGTON,                                                     No. 43453 -9 -II


                                  Respondent,


         V.



CHASE E. CUTTS,                                        I           UNPUBLISHED OPINION




         JOHANSON, J. —     Chase E. Cutts appeals his conviction for second degree trafficking in

stolen   property.   He claims that the State failed to present sufficient evidence to support his

conviction and that the trial court erred in admitting irrelevant and unfairly prejudicial evidence.

Because the State sufficiently proved Cutts' s conviction and the trial court did not err in

admitting relevant evidence, we affirm.

                                                     FACTS


         In October 2011,       someone stole chain saws and weed -
                                                                  eaters from Skamania Lodge.

Kevin Bligh,     a   mechanic    responsible   for   keeping inventory   at   Skamania Lodge,        provided




Skamania County Sheriff' s Deputy Michael Hepner with a list of the stolen power tools and their

serial or inventory numbers.

         In   January   2012,   Chad Hayes, a confidential informant working with the Skamania

County    Sheriff' s Office, informed Detective       Tracy   Wyckoff that he believed Cutts       was   selling
No. 43453 -9 -II



some of     the                          weed- eaters.
                   stolen chain saws and -                              Detective Wyckoff instructed Hayes to arrange


to   purchase some of            the tools.       Hayes called Cutts, and Cutts offered to sell one chain saw and


two        eaters
      weed -              to Hayes for $ 300.           Hayes agreed to the price and told Cutts that he was going

to   make    an    extra $       50    by   reselling the tools.           Cutts also suggested that they complete the

transaction       at    Cutts'   s    girlfriend' s   father'   s—   Brian Nicklaus'   s—    house, where Cutts stored the


tools.   When Hayes went inside Nicklaus' s home to purchase the chain saw and two weed -
                                                                                        eaters


for $300, Cutts gave Hayes an extra chain saw at no additional cost.


         After Hayes turned over the tools to the deputies, Deputy Hepner compared the tools'

serial numbers          to the       serial numbers      Bligh had      reported    stolen   in October.          Three of the four


serial numbers matched; the fourth power tool matched the Skamania Lodge' s records by a

number "     59"       inventory       sticker.   2 Verbatim Report         of   Proceedings ( VRP)         at   207.   Subsequently,
                                                                                                                        I
the State    charged       Cutts      with one count of         first degree trafficking in       stolen   property.


          Before trial, the State sought to admit testimony that Hayes had told deputies that Cutts

was    selling "   stolen"       power      tools from Skamania Lodge.              1 VRP    at   39 -43.    Over Cutts' s hearsay

objection, the trial court granted the State' s motion because the testimony was not offered for its

truth and was " clearly relevant" because Hayes' s statement led " the officers to do other things."

 1 VRP at 46.


          At trial, the State offered Nicklaus' s testimony regarding statements Cutts made to

Nicklaus     about        the    chain saws.          The State asked Nicklaus if Cutts had made any connection




 1 The State also charged Cutts with one count of second degree possession of stolen property;
 however, the State moved to dismiss that count before trial.


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No. 43453 -9 -II



between the chain saws Cutts was storing in Nicklaus' s garage and the chain saws Cutts used

during      the   summer of       2011 to    carve wood.           After Nicklaus           answered, "   No," the State reminded


Nicklaus of the written statement he signed under the penalty of perjury which said that Cutts

had told him the chain saws stored in Nicklaus' s garage were the same chain saws Cutts used the

previous summer             to   carve wood.      2 VRP       at   221.       Nicklaus then testified that Cutts had indeed


said that these chain saws were the ones Cutts had used to carve wood during the summer of

        2
2011.


            The State also offered testimony from Hayes and the deputies about the sale' s

circumstances.             Hayes testified that             when    he       called       Cutts to    arrange    the     purchase,    Cutts


suggested         the $   300 price for a chain saw and two weed -eaters, and Hayes accepted, saying he

would make an extra $              50   by   reselling the        power      tools.       Hayes also testified that when he met


Cutts to purchase the tools, Cutts gave him an extra chain saw at no additional charge. Detective

             testified that the                tools   were   the high -
                                                                       end            "   Stihl" brand. 2 VRP          at   169.   Detective
Garrity                                power




Garrity and Deputy Hepner testified that the burglary occurred in Skamania County in October
of   2011,        and that the sale to Hayes occurred in Skamania County in January of 2012.

                                                 Hepner testified that the                            power     tools'      serial numbers
Additionally,         Bligh      and   Deputy                                                stolen




 matched the serial numbers on the tools Skamania Lodge reported stolen, and that one of the

 chain saws still had a " 59" inventory sticker on it. 2 VRP at 207; 3 VRP at 258.




 2 Cutts later called Nicklaus as a witness, and Nicklaus testified that the connection between the
 chain saws in the garage and the chain saws Cutts used to carve wood the previous summer was
 something Nicklaus had deduced                        on   his    own.       On cross -examination, the State impeached
 Nicklaus with his testimony from the previous day and his inconsistent written statement.

                                                                         3
No. 43453 -9 -II



        The trial court instructed the jury on first degree trafficking in stolen property and the

lesser included offense of second degree trafficking in stolen property. The jury convicted Cutts

of second degree trafficking in stolen property.

                                                              ANALYSIS


                                                   I. SUFFICIENT E. IDENCE
                                                                  v


         Cutts first argues the State offered insufficient evidence to support his second degree

trafficking in stolen property conviction. We disagree.

         We   review    claims        of   insufficient        evidence    to determine    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.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).         We


draw all reasonable inferences from the evidence in favor of the State and against the defendant.

Salinas, 119 Wn.2d        at   201.   A sufficiency challenge admits the truth of the State' s evidence and

all reasonable     inferences from it.         State v. Theroff, 25 Wn. App. 590, 593, 608 P. 2d 1254, affd,

95 Wn.2d 385, 622 P. 2d 1240 ( 1980).                    We leave credibility determinations to the fact finder and

do   not review    them    on   appeal.       State      v.   Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).


         To prove second degree trafficking in stolen property, the State needed to prove beyond a

reasonable    doubt that Cutts recklessly trafficked in                   stolen   property. RCW 9A. 82. 055.   A person


acts recklessly if he or she knows of and disregards a substantial risk that a wrongful act may

occur and his or her disregard of that risk is a gross deviation from what a reasonable person

would    do in the   same situation.           RCW 9A.08. 010( c).           Stolen property is property that has been

obtained   by   theft, robbery,        or    extortion.         RCW 9A. 82. 010( 16).       To " traffic" means to sell,


 distribute, or otherwise dispose of stolen property to another person. RCW 9A.82. 010( 19).



                                                                   0
No. 43453 -9 -II



         Here, the State offered sufficient evidence to convince any rational trier of fact that Cutts

knew of and disregarded a substantial risk that the chain saws and weed -eaters he sold to Hayes

were stolen.      Nicklaus testified that Cutts had told him that the chain saws Cutts was storing in

Nicklaus' s garage were the same chain saws Cutts used the previous summer to carve wood.


But, it was impossible that the chain saws Cutts sold to Hayes were the same ones Cutts used to

carve wood in the summer of 2011 because they were in the Skamania Lodge' s possession until

someone stole      them in October of 2011.          Thus, the State demonstrated that Cutts lied to Nicklaus


about the chain saws' origins, and the jury could reasonably infer from that lie that Cutts knew

the tools were stolen.


                                                                                                      Someone stole the
          In   addition,   the   timing, location,   and price of    the sale were      suspicious.




tools from Skamania Lodge less than three months before Cutts sold them to Hayes in the same

county in      which   the   burglary   occurred.    Cutts   suggested $        300 for one high -
                                                                                                 end brand chain saw


and            end brand
      two high -                  weed -eaters, and   Hayes told Cutts that Hayes           was   going to   make $   50 by

reselling the tools at a higher cost. Further, Cutts gave Hayes an extra high - nd chain saw at the
                                                                              e

end of    the transaction at no         additional cost.     Although there was no testimony about the actual

retail value of Stihl power tools, the jury could reasonably infer, from Hayes' s testimony that by

including an extra power tool at no cost and Hayes' s ability to resell the tools at a markup, that

 Cutts significantly       undervalued      the tools to quickly         sell   them.   Finally, one of the power tools

 Cutts   sold still   had Skamania Lodge'        s number "        59"   inventory sticker on it, and the jury could

 rationally conclude from common sense and experience that new power tools do not contain

 inventory stickers. 2 VRP at 207.




                                                               9
No. 43453 -9 -II



         When all the evidence is viewed in the light most favorable to the State, any rational trier

of fact could have concluded Cutts recklessly knew of and disregarded a substantial risk the tools

were   stolen.       Accordingly, the State presented sufficient evidence to convict Cutts of second

degree trafficking in stolen property.

                                             II. STOLEN PROPERTY TESTIMONY


         Cutts next argues that the trial court abused its discretion by allowing Hayes and the

deputies to testify          over   Cutts'    objection,   that Cutts     possessed "    stolen      property" because the


testimony      was   irrelevant     and   unfairly   prejudicial.   Br.   of   Appellant   at   8.   Because the trial court


did not abuse its discretion, we disagree and this argument fails.

         We review evidentiary rulings for an abuse of discretion. State v. Briefer, 172 Wn. App.

209, 223, 289 P. 3d 698 ( 2012).              A trial court abuses its discretion when it exercises its discretion

on untenable grounds or for untenable reasons. Briefer, 172 Wn. App. at 223.

         Generally,      relevant evidence         is   admissible, and    irrelevant    evidence      is inadmissible. ER


402.    Relevant evidence is any evidence that has a tendency " to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it

would    be    without   the   evidence."       ER 401.     Relevant evidence may be excluded, however, if its

probative value is substantially outweighed by the danger of unfair prejudice. ER 403. .

         A trial court may admit testimony as res gestae evidence to complete the story of the

crime   for the      jury.   State   v.   Grier, 168 Wn.     App.   635, 644, 278 P. 3d 225 ( 2012).            Trial courts


weigh    the   probative      value of res     gestae evidence under           ER 403.     Grier, 168 Wn. App. at 649.

For example, in Grier, a witness testified that earlier in the evening before Grier shot someone,

Grier had      waived a gun around and said she could shoot someone                        if   she wanted.   168 Wn. App.




                                                                2
No. 43453 -9 -II



at   642.    We held that the witness' s testimony was relevant and admissible as res gestae evidence

because it foreshadowed the shooting later that evening. Grier, 168 Wn. App. at 648.

            Here, the trial court permitted the testimony because it found that the evidence was

relevant to show why the sheriff' s office arranged for Hayes to purchase the property from Cutts.

While the truth of Hayes' s belief was not relevant, Hayes' s belief that Cutts possessed stolen

property was relevant as res gestae evidence because, like Grier, the testimony set the stage for
what    came     later.    Hayes' s testimony explained why the sheriff' s office arranged for Hayes to

purchase the tools from Cutts.


            Moreover, the probative value of the testimony was not substantially outweighed by the

danger      of unfair prejudice.    The State never implied nor argued that because Hayes believed the

property was stolen, Cutts must have stolen the property himself or Cutts knowingly trafficked in
stolen                    The testimony simply   completed   the story   for the   jury.   For these reasons, we
            property.


cannot say that the trial court abused its discretion.

            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.




We




                 Hunt, J.



               Worswick, C. J.



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