        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                     DIVISION ONE                      cr->

                       Respondent,                                                     C3""1

                                                                                           <~~.
                                                     No. 73113-1-1
           v.                                                                                1




JOHN HENRY JOHNSON,                                  UNPUBLISHED OPINION



                      Appellant.                     FILED: June 6, 2016


        Dwyer, J. — Following a jury trial, John Henry Johnson was convicted of

second degree theft of an access device. He now appeals, contending that

insufficient evidence was adduced at trial to support his conviction. We affirm his

conviction, but remand for correction of a scrivener's error in the judgment.

                                              I


        On August 22, 2013, Kendra Farmer1 and her family were shopping at the

Pottery Barn store at Alderwood Mall in Lynnwood. Her husband, Ryan, was

with one of their children near the front of the store, while Kendra and another

child were near a cash register in a different part of the store. Kendra left her

purse on a couch near this cash register while she talked with a sales clerk

approximately three to five feet away. Her purse contained numerous personal

items, including her wallet, personal credit and debit cards, and business credit

        1To avoid confusion, we refer to Kendra and her husband, who share a surname, by
their first names.
No. 73113-1-1/2



and debit cards.


       The purse had a heavy gauge chain that made a distinct sound when

moved. Ryan heard the sound of the purse being picked up and looked toward

the source of the sound. He saw Johnson attempting to place the purse in a thin

plastic shopping bag while moving toward the front entrance of the store. Ryan

approached Johnson and told Johnson that the purse did not belong to him.

       Johnson returned the purse to Ryan, then turned and walked through the

back of the store, out into the parking lot. Ryan brought the purse back to

Kendra, then called 911 and followed Johnson. Ryan pursued Johnson until the

police arrived.

       Johnson was charged with one count of second degree theft of an access

device pursuant to RCW 9A.56.040(1)(d). A jury found him guilty.

                                         II


                                        A.


       Johnson contends that insufficient evidence supports the jury's verdict.

This is so, he asserts, because the State did not establish that Johnson intended

to deprive Kendra of an access device. We disagree.

       The due process clauses of the federal and state constitutions require that

the State prove every element of a crime beyond a reasonable doubt. U.S.

Const, amend. XIV; Wash. Const, art. I, § 3; Apprendi v. New Jersey, 530 U.S.

466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). "[T]he critical inquiry on

review of the sufficiency of the evidence to support a criminal conviction must be

... to determine whether the record evidence could reasonably support a finding
No. 73113-1-1/3



of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318, 99

S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-22, 616

P.2d 628 (1980). A claim of evidentiary insufficiency admits the truth of the

State's evidence and all reasonable inferences from that evidence. State v.

Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). Thus, "the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." Jackson, 443 U.S. at 319.

       The specific criminal intent of the accused may be inferred from conduct

where it is plainly indicated as a matter of logical probability. State v. Delmarter,

94 Wn.2d 634, 638, 618 P.2d 99 (1980). However, intent may not be inferred

from evidence that is patently equivocal. State v. Vasquez, 178 Wn.2d 1,14,

309 P.3d 318 (2013). Circumstantial evidence and direct evidence can be

equally reliable. Delmarter, 94 Wn.2d at 638. We defer to the jury on questions
of conflicting testimony, credibility of witnesses, and persuasiveness of the

evidence. State v. Killinqsworth, 166 Wn. App. 283, 287, 269 P.3d 1064 (2012).

        Johnson was charged with second degree theft of an "access device."2
The pertinent statute provides that "[a] person is guilty oftheft in the second
degree if he or she commits theft of. . . (d) An access device." RCW
9A.56.040(1 )(d). "Theft" means "[t]o wrongfully obtain or exert unauthorized


       2An "access device" is "any card, plate, code, account number, or other means of
account access that can be used alone or in conjunction with another access device to obtain
money, goods, services, or anything else of value, or that can be used to initiate a transfer of
funds, other than a transfer originated solely by paper instrument." RCW 9A.56.010(1).
No. 73113-1-1/4



control over the property or services of another or the value thereof, with intent to

deprive him or her of such property or services." RCW 9A.56.020(1)(a). The

terms "wrongfully obtain" and "exert unauthorized control" in the statute are

sometimes referred to together as "theft by taking." State v. Linehan, 147 Wn.2d

638, 644, 56 P.3d 542 (2002).

       The parties' dispute regards the mens rea element of the crime. Whereas

Johnson asserts that the State was required to prove that he acted with the

specific intent to take an access device, the State contends that it was required

to prove that he intended to take property and, separately, that the property

constituted an access device.

       The State is correct. The intent to take property and the nature of the

property taken constitute two separate, essential elements. Our Supreme Court
has made clear that the statute attaches no additional mens rea requirement to

the nature of the property taken. Thus, for example, when the relevant statute

requires the property taken to exceed a certain value, the State is not required to
prove "that the defendant either know the value ofthe property he has taken or
intend to acquire a particular dollar amount of property." State v. Holmes, 98
Wn.2d 590, 596, 657 P.2d 770 (1983). Indeed, "[njeither factor is an element of

theft even though 'intent to deprive' is a necessary element." Holmes, 98 Wn.2d
at 596 (citing Delmarter, 94 Wn.2d at 634).

       Thus, pursuant to the statute under which Johnson was charged, the State
was required to prove that he intended to deprive Kendra of her purse and its
contents and, separately, that the property taken, or some part thereof,

                                         -4-
No. 73113-1-1/5



constituted an access device. At trial, the State presented evidence that, after he

took Kendra's purse, Johnson attempted to conceal it by folding the purse into

another bag and quickly leaving the store. From this evidence, a reasonable jury

could find that Johnson intended to deprive Kendra of the purse and its

contents.3

                                                     B.


        Johnson next contends that, based on the specific to-convict instruction

given herein, the State was required to prove that he "intended to deprive

[Kendra] of the access device."4 Jury Instruction 7. This is so, he asserts,

because the law of the case doctrine requires that the State, in order to satisfy

the Fourteenth Amendment's proof beyond a reasonable doubt requirement,

prove the elements of the charged crime as set forth in the to-convict instruction.


        3Johnson incorrectly cites State v. Lust. 174 Wn. App. 887, 300 P.3d 846 (2013), to
argue that when a person steals a purse and is charged with second degree theft, based on the
theft of the credit or debit cards inside, the State must separately prove that the defendant
intended to deprive the ownerof the credit or debitcards. However, in Lust we held that when
the defendant stole a woman's purse and separately removed credit and debit cards from inside,
the defendant's distinct actions supported convictions for both third and second degree theft,
charges which did not merge nor violate double jeopardy prohibitions. 174 Wn. App. at 892.
Nothing in Lust supports Johnson's present assertions.
        4 The to-convict instruction stated:
                 To convict the defendant of the crime of theft in the second degree, each
        of the following four elements of the crime must be proved beyond a reasonable
        doubt:
                (1) That on or about the 22nd day of August, 2013, the defendant
        wrongfully obtained or exerted unauthorized control over property of another;
                 (2) That the property was an access device;
                 (3) That the defendant intended to deprive the other person of the
        access device; and
                 (4) That this act occurred in the State of Washington. If you find from the
        evidence that each of these elements has been proved beyond a reasonable
        doubt, then it will be your duty to return a verdict of guilty.
                 On the other hand, if, after weighing all of the evidence, you have a
        reasonable doubt as to any one of [sic] elements, then it will be your duty to
        return a verdict of not guilty.
No. 73113-1-1/6



Johnson's argument is directly foreclosed by the United States Supreme Court's

recent decision in Musacchio v. United States, 577 U.S.        , 136 S. Ct. 709,

193 L. Ed. 2d 639 (2016).

      In this recent decision, the Supreme Court considered and rejected a

claim identical to the one now advanced by Johnson. In doing so, the Supreme

Court clarified that a Fourteenth Amendment evidentiary sufficiency challenge

must be assessed against the elements of the charged crime, not against the

erroneously heightened elements set forth in a jury instruction. Musacchio, 136

S. Ct. at 715. The law of the case "doctrine does not bear on how to assess a

sufficiency challenge when a jury convicts a defendant after being instructed—

without an objection by the Government—on all charged elements of a crime

plus an additional element." Musacchio, 136 S. Ct. at 716. Indeed, an

evidentiary sufficiency review "does not rest on how the jury was instructed."
Musacchio, at 136 S. Ct. at 715. Rather, an appellate court must consider

"'whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier offact could have found the essential elements of
the crime beyond a reasonable doubt.'" Musacchio, 136 S. Ct. at 715 (quoting

Jackson, 443 U.S. at 319). "The Government's failure to introduce evidence of

an additional element does not implicate the principles that sufficiency review

protects." Musacchio, 136 S. Ct. at 715.

       Our sufficiency inquiry is based on the Fourteenth Amendment's due




                                           6-
No. 73113-1-1/7



process clause and the Jackson standard.5 Because the United States Supreme

Court is the final arbiter on the meaning and interpretation of the United States

Constitution, Musacchio supersedes all inconsistent interpretations by the courts

of this state.6 See, e.g., State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900

(1998).

        Because sufficient evidence was adduced that Johnson acted with the

mens rea required by the statute—namely, that he intended to deprive Kendra of

her purse and its contents—Johnson's evidentiary sufficiency challenge fails.

                                               Ill


        Johnson additionally contends that his trial counsel provided him with

constitutionally ineffective assistance because the attorney did not object to the

State's second motion in limine, seeking to exclude Johnson's hearsay

statements.7 We disagree.

          To demonstrate ineffective assistance of counsel, a defendant must make

two showings: (1) defense counsel's representation was deficient, meaning that it

fell below an objective standard of reasonableness based on consideration of all

the circumstances; and (2) defense counsel's deficient representation prejudiced

the defendant, meaning that there is a reasonable probability that except for

counsel's unprofessional errors, the result of the proceeding would have been

        5 In State v. Green, 94 Wn.2d at 221-22, our Supreme Court made clear that the Jackson
standard controls appellate evidentiary sufficiency review in Washington.
        6 State v. Hess, 12 Wn. App. 787, 792, 532 P.2d 1173 (1975), affd, 86 Wn.2d 51, 541
P.2d 1222 (1975): accord S.S. v. Alexander. 143 Wn. App. 75, 92, 177 P.3d 724 (2008)
(explaining that the United States Supreme Court is the ultimate authority concerning the
interpretation of the federal constitution).
          7The State requested that the court"keep out [Johnson's] hearsay statements unless we
take it out of the presence of the jury."

                                               -7-
No. 73113-1-1/8



different. State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)

(citing Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984)).

        Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted. ER 801. Hearsay is not admissible except as provided by the

evidence rules, by other court rules, or by statute. ER 802.

       Herein, the State sought to exclude Johnson's out of court statements.

These statements were hearsay. Johnson does not point to a hearsay exception

that would have allowed their admission. The trial court properly granted the

State's motion to exclude them. Because any objection by Johnson's counsel

would have been misplaced and futile, counsel's representation was not deficient

and Johnson's claim of ineffective assistance fails.

                                               IV


       Johnson next contends that the court erred when it granted the State's

motion to exclude testimony that Johnson entered guilty pleas to the charges

constituting his prior convictions.8 This is so, Johnson asserts, because ER

608(b) does not preclude such evidence. We disagree.

       Specific instances of the conduct of a witness, offered for the purpose of
attacking or supporting the witness's credibility, may not be proved through
extrinsic evidence. ER 608(b). Johnson sought to admit extrinsic evidence that


       8The State requested that the court "exclude testimony that [Johnson] pleaded guilty as
opposed to being convicted regarding his prior crimes."

                                              -8-
No. 73113-1-1/9



he pled guilty to his prior crimes. He sought to then use this evidence to suggest

that, because he did not also plead guilty in this case, he is likely innocent in this

instance. However, such extrinsic evidence is inadmissible for the proposed

purpose. Thus, the court properly granted the State's motion to exclude

evidence that Johnson pled guilty to his prior charges.

                                               VI


          Johnson also asserts that there was a scrivener's error in the judgment

and sentence that must be corrected.9 The State does not dispute that this error

exists.


          Notwithstanding the fact that the better procedure would have been to file

a motion in the trial court, see CrR 7.8(a); RAP 7.2(e), because the error is clear,

in the interests of judicial economy, we remand the matter to the superior court

for the error to be corrected.10

          Affirmed.

                                                    \    L^<-Wj (

We concur:




                                                        <Clls^a^
                                                                       >
                                                                        X

        9The judgmentand sentence incorrectly states that Johnson was convicted of second
degree theft under RCW 9A.56.040(1 )(c), when he was actually convicted under RCW
9A.56.040(1)(d).
        10 Because this is a clerical, rather than substantive, endeavor, Johnson need not be
present when this change is effectuated.
