                                                                          FILED
                                                                        JAN 20, 2015
                                                                In the Office of the 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. 31S02-9-III
                       Respondent,              )
                                                )
       v.                                       )
                                                )
BENJAMIN EARL GARFIELD,                         )      UNPUBLISHED OPINION
                                                )
                       Appellant.               )

       FEARING, J. -    A jury convicted Benjamin Garfield of one count of possession of

a stolen firearm. On appeal, Garfield argues that the evidence was insufficient to prove

that he knowingly possessed a stolen firearm. We agree. We reverse the conviction and

direct the trial court to dismiss the charge.

                                            FACTS

       The State of Washington accused Benjamin Garfield of possessing a stolen .30-06

Eddy Stone rifle. In November 2008, Grant County residents James and Kathleen

Lecocq reported the theft of tools and guns, including the Eddy Stone rifle from their

home. The State has never identified the thief.
No. 31502-9-111
State v. Garfield


       In 2010 or 2011, Benjamin Garfield purchased a .30-06 Eddy Stone rifle from a

Hispanic man at the Quik Stop in Quincy, Washington. Garfield first overheard the man

unsuccessfully attempt to sell the rifle to three other men dressed in camouflage clothing.

He approached the man and expressed interest in purchasing the rifle, after which the

man took Garfield to his car and showed him the rifle in his trunk. The man told Garfield

that he wished to sell the rifle for gas money to drive to Mexico. Garfield, then age 19,

paid the man between $120 and $140 for the rifle.

       On September 11,2012, Benjamin Garfield pawned the Eddy Stone rifle for $75

to the Olde World Trading Company pawnshop in Ephrata. Garfield had previously

pawned the same rifle to the Moses Lake Olde World Trading Company. When pawning

the rifle in Ephrata, Garfield provided an Olde World employee with his full name,

physical information, date of birth, driver's license number, a description of the rifle, and

his current address. As required for any pawn transaction, Olde World Trading Company

forwarded the rifle's serial number and description to the Ephrata Police Department.

The serial number matched the Eddy Stone rifle stolen from the Lecocq residence.

       The Ephrata Police Department determined that the Eddy Stone rifle was one of

the guns reported stolen by James and Kathleen Lecocq in November 2008. Grant

County Sheriff Deputy Michael Earney contacted Benjamin Garfield at his residence near

George, in rural Grant County. Garfield explained to Earney that he bought the gun

several years earlier from a man who needed money for gas, and Garfield volunteered

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    No. 31502-9-111
    State v. Garfield


    that he did not know the gun was stolen. Earney considered Garfield "more than

    cooperative" and Garfield agreed to speak with a detective. Report of Proceedings (RP)

    at 185. Garfield rode with Deputy Earney to the Ephrata police station for more

    questioning.

           At the station, Benjamin Garfield repeated his story to Detective Todd Hufman,

    with whom he spoke for 36 minutes. Garfield again denied knowing the Eddy Stone rifle

    to be stolen. Garfield told Hufman that a Department of Fish and Wildlife agent

    investigated the gun's background during Garfield's hunting trip to Colockum Pass in

    November 2009. Garfield stated he was "pretty certain" the agent concluded the gun was

    not stolen. RP at 221. Later Garfield told Hufman he was only 70 to 75 percent sure that

    the agent researched the status of the .30-06 rifle.

           Fish and Wildlife game warden Chad McGary testified at trial about a November

    2009 encounter with Benjamin Garfield at Colockum Pass. McGary stopped the vehicle

    in which Garfield traveled to check to see if any gun inside the vehicle was loaded.

    McGary could not remember ifhe checked the status of the Eddy Stone rifle, although he

    routinely checks on all firearms he encounters on patrol. He could not remember ever

    seeing any Eddy Stone rifle on a hunter. Ifhis research finds a gun to be stolen,

    registered to someone else, or involved in a legal violation, he issues a citation and

    generates a report. Agent McGary created a report from his encounter with Garfield, not

    because he discovered a stolen weapon, but because he cited Garfield for possession of

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No. 3IS02-9-III
State v. Garfield


marijuana and use of drug paraphernalia. The trial court granted Garfield's motion in

limine to exclude the drug-related information from trial.

                                      PROCEDURE

       The State of Washington charged Benjamin Garfield with one count of possession

of a stolen firearm in violation of RCW 9A.S6.31 0, a class B felony. During closing

argument, the State pointed to Benjamin Garfield's inconsistent statements regarding the

review of the Eddy Stone rifle by the game warden and Garfield's inability to identity the

year he purchased the gun. In his closing statement, Garfield explained that the events

occurred years before and his misremembering of details is not evidence that he knew the

gun was stolen.

       The jury found Benjamin Garfield guilty.

                                 LA W AND ANALYSIS

       RCW 9A.S6.310, under which the State charged Benjamin Garfield, reads, in

relevant part:

              (1) A person is guilty of possessing a stolen firearm if he or she
       possesses, carries, delivers, sells, or is in control of a stolen firearm.

             (4) The definition of "possessing stolen property" and the defense
       allowed against the prosecution for possessing stolen property under RCW
       9A.S6.140 shall apply to the crime of possessing a stolen firearm.

RCW 9A.S6.l40 provides, in tum:

              (1) "Possessing stolen property" means knowingly to receive, retain,
       possess, conceal, or dispose of stolen property knowing that it has been

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No. 31502-9-II1
State v. Garfield


       stolen and to withhold or appropriate the same to the use of any person
       other than the true owner or person entitled thereto.
              (2) The fact that the person who stole the property has not been
       convicted, apprehended, or identified is not a defense to a charge of
       possessing stolen property.

       Under the modern criminal code, the crime of possession of stolen property is

separated from theft and is found in RCW 9A.56.140 through .170. There is no theft

component to the crime and it is no longer categorized as larceny. State v. Hawkins, 157

Wn. App. 739, 749, 238 P.3d 1226 (2010). The essence of the crime is possession of

stolen property, knowing it to be stolen. RCW 9A.56.l40(1). The State need not prove

actual knowledge. It is satisfactory to show the accused knew facts sufficient to put him

on notice that the property was stolen. State v. Rockett, 6 Wn. App. 399,402,493 P.2d

321 (1972); State v. Rye, 2 Wn. App. 920, 471 P .2d 96 (1970).

       Benjamin Garfield contends the State failed to prove knowledge. To resolve this
                                             .
contention we review principles of sufficiency of evidence and case law of possession of

stolen personal property.

       Evidence is sufficient if, after viewing it in the light most favorable to the State, 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); see also State v.

Witherspoon, 180 Wn.2d 875,883,329 P.3d 888 (2014). A defendant challenging

sufficiency of the evidence at trial admits the truth of the State's evidence and all

reasonable inferences therefrom. Witherspoon, 180 Wn.2d at 883. This court defers to

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No. 31502-9-III
State v. Garfield


the fact finder's determination of the persuasiveness of the evidence. State v. Davis, 176

Wn. App. 849, 861, 315 P.3d 1105 (2013), rev'd on other grounds, No. 89448-5, slip op.

(Wash. Dec. 24,2014). A verdict may be supported by either circumstantial or direct

evidence, as both may be equally reliable. State v. Brooks, 45 Wn. App. 824, 826, 727

P.2d 988 (1986).

       A jury may draw inferences from evidence so long as those inferences are

rationally related to the proven facts. State v. Jackson, 112 Wn.2d 867, 875, 774 P.2d

1211 (1989). A rational connection must exist between the initial fact proven and the

further fact presumed. Jackson, 112 Wn.2d at 875. An inference should not arise when

other reasonable conclusions follow from the circumstances. State v. Bencivenga, 137

Wn.2d 703, 711,974 P.2d 832 (1999). The jury may infer from one fact the existence of

another essential to guilt, if reason and experience support the inference. Tot v. United

States, 319 U.S. 463, 467, 63 S. Ct. 1241,87 L. Ed. 1519 (1943). Nevertheless, essential

proofs of guilt cannot be supplied by a pyramiding of inferences. State v. Bencivenga,

137 Wn.2d at 711; State v. Weaver, 60 Wn.2d 87, 89, 371 P.2d 1006 (1962).

       Benjamin Garfield argues a jury could not reasonably infer that he had actual or

constructive knowledge that the rifle was stolen for numerous reasons: (1) the Lecocqs

reported the theft several years before he pawned the rifle; (2) the State presented no

evidence that Garfield was familiar with the location of the theft; (3) the price at which he

purchased the rifle was not unreasonably low; and (4) the State introduced no direct

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No. 31502-9-III
State v. Garfield


evidence of "guilty knowledge" on his part. The State responds that the jury could

reasonably infer that the circumstances under which Garfield purchased the rifle put him

on constructive notice that the rifle was stolen. Those circumstances include: (1)

Garfield's purchase of the rifle from a man at a gas station, (2) the seller retrieving the

gun from the trunk of the car, (3) Garfield's lack ofa receipt for the purchase of the rifle,

and (4) Garfield's revision of answers he gave the Ephrata police. The State does not

identify purchasing the gun from a Hispanic man wanting gas money for a trip to Mexico

as a relevant circumstance. Nor does the State rely on the age of Benjamin Garfield.

       Washington case law assists in determining what facts are rationally related to a

finding of constructive knowledge of stolen goods. Mere possession of stolen property is

not enough to justify a conviction. State v. Couet, 71 Wn.2d 773, 775, 430 P.2d 974

(1967); State v. Withers, 8 Wn. App. 123, 128,504 P.2d 1151 (1972). Ifa defendant

possesses recently stolen property, usually from a few hours to a few months, slight

corroborative evidence of other inculpatory circumstances tending to show guilt will

allow a trier of fact to infer that the defendant had constructive know~edge of the theft.

State v. Portee, 25 Wn.2d 246,254-55,170 P.2d 326 (1946); State v. McPhee, 156 Wn.

App. 44, 62, 230 P.3d 284 (2010); State v. Withers, 8 Wn. App. at 128. Possession ofa

recently stolen item is strong evidence that a defendant either knew it to be stolen or

participated in the theft. Portee, 25 Wn.2d at 253 (citing 1 WHARTON'S CRIMINAL

EVIDENCE, 11th ed., 198, § 191).

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     No. 31502-9-111
     State v. Garfield
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            No Washington decision establishes a dividing line between a recent theft and an
I
i    old or earlier theft. At least 13 months, and likely more time, passed between the time of


I    the theft of the Eddy Stone rifle and Benjamin Garfield's purchase of the rifle. Three


I    years and 10 months elapsed between the theft and Garfield pawning the rifle. None of


I    Washington's reported decisions show the accused gaining possession of the stolen

     property more than several months after the theft.

            A conflicting or unreliable story of how the defendant came into possession of the

     stolen property may provide slight corroborative evidence. State v. Ladely, 82 Wn.2d

     172,175,509 P.2d 658 (1973); State v. Douglas, 71 Wn.2d 303,307,428 P.2d 535

     (1967); State v. Mevis, 53 Wn.2d 377,381,333 P.2d 1095 (1959); State v. Pisauro, 14

     Wn. App. 217, 221, 540 P.2d 447 (1975); State v. Beck, 4 Wn. App. 306, 310,480 P.2d

     803 (1971). Behavior indicating guilty knowledge may inculpate a defendant, such as:

     giving a fictitious name to a potential buyer of the stolen goods, State v. Tollett, 71

     Wn.2d 806, 810,431 P.2d 168 (1967); having a past history of transactions involving

     stolen goods, State v. Hatch, 4 Wn. App. 691, 693,483 P.2d 864 (1971); or hiding the

     stolen property. McPhee, 156 Wn. App. at 63.

            The State presented no such evidence against Benjamin Garfield. Reading the

     evidence in a glow most favorable to the State, Garfield presented an inconsistent story

     about an encounter with a game warden, but offered only a mildly inconsistent story

     about the purchase of the ritle. He gave his correct name an:d other personal information

                                                   8

No. 31502-9-III
State v. Garfield


to a pawnshop and never hid the gun. He did not mar the serial number on the firearm.

The State presented no history of Garfield handling stolen property.

       A defendant's knowledge of, or proximity to, the place from which the property

was recently stolen can corroborate a charge of possession of stolen property. State v.

Killingsworth, 166 Wn. App. 283,288,269 P.3d 1064, review denied, 174 Wn.2d 1007,

278 P.3d 1112 (2012); McPhee, 156 Wn. App. at 63. So too can purchasing or selling the

stolen property at an unreasonably low price. See State v. Smyth, 7 Wn. App. 50, 53, 499

P.2d 63 (1972). The State did not present evidence of the proximity between the Quik

Stop station and the Lecocq home, other than both are in the same county. The State

presented no testimony of Benjamin Garfield having familiarity with the location of the

Lecocq home, or that Garfield purchased the Eddy Stone rifle at a price below its value.

       We are reluctant to overturn a jury verdict of guilt. Therefore, we review many

Washington decisions in order to discern parameters for evidence relevant to proving

knowingly possessing stolen property and to understand what inferences might be drawn

from the evidence. We review the cases in chronological order.

       In State v. Rathbun, 139 Wash. 502,247 P. 947 (1926), no one saw anyone steal

the subject boom chains. Merton Rathbun acquired them and sold 10 chains to one dealer

and 12 to another. Someone attempted to destroy the brands on the chains by heating and

hammering. Rathbun owned a blacksmith shop near the booming grounds from which

the chains were taken. After his arrest, Rathbun told an officer that he knew the chains

                                            9

No. 3l502-9-III
State v. Garfield


had been stolen, but denied that he stole them. At trial, he testified he had no knowledge

of the chains being stolen. The Supreme Court affirmed Rathbun's conviction.

       In State v. Portee, 25 Wn.2d 246, 170 P.2d 326 (1946), the State appealed the trial

court's dismissal of the case after the conclusion of the State's evidence. Jeanette Pahl

arrived in Seattle by train and left eight pieces of baggage in storage at the railroad depot

for delivery to her home later by a transfer company. Four days later the transfer

company delivered the baggage, with a suitcase missing, to Pahl's home. The company's

loading dock was accessible to persons other than its employees. Two days later police

arrested Henry Portee on an unrelated charge. Police grabbed a pawn ticket found among

Portee's personal effects. The ticket indicated that Portee pawned a suitcase at the

Empire Loan Company the same day that the transfer company delivered the baggage to

Pahl. Pah! identified the article represented by the pawn ticket as her missing suitcase.

The gentleman who pawned the suitcase signed his name on the pawnshop records as

"Jame Hermon," whose address was "Fremon Hotel." Portee claimed he purchased the

suitcase from a man in a tavern for $4. The pawnshop owner testified the case's value to

be $40. The trial court dismissed the charges, while commenting that the State only

provided evidence of Portee's possession of the suitcase. The Supreme Court agreed that

a long series of Washington decisions supported the proposition that possession of stolen

goods alone is insufficient. Possession must be personal, recent, and unexplained, and

must involve a distinct and conscious assertion of property by the defendant. The

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No. 31502-9-III
State v. Garfield


inference is stronger if the explanation involves use of a false identity or other fabricated

evidence. The Supreme Court concluded that the State established facts beyond mere

possession. Portee pawned the suitcase the same day as its theft. He gave a fictitious

name and a false address at the pawnshop. The Supreme Court reversed the dismissal of

charges and remanded for a new trial.

       In State v. Razey, 54 Wn.2d 422, 341 P.2d 149 (1959), Stanley Razey and three

other prisoners at the Adams County jail escaped the jail by attacking the deputy sheriff

Marvin Collier, locking him in a jail cell, and relieving him of $400. Within hours of the

jailbreak, someone stole a 1958 Buick automobile from Rogel Motor Company located

across the street from the jail. Later that night, a law enforcement officer stopped the

Buick. Two of the prisoners sat in the front seat and Razey sat in the backseat. The

arresting officers relieved the other prisoners of a total sum of $394. Razey had no

money on his person. At trial, Deputy Collier testified that two of the prisoners stuck a

respective hand in his pockets but he could not identify which of the two did so. Since

Collier was unable to testify whether Razey hit him or whether Razey stuck his hands in

Collier's pocket, the Supreme Court reversed convictions against Razey for robbery and

assault. The State urged that the circumstances proved in this case strongly indicated that

the three men engaged in a concerted effort. The Supreme Court agreed with this

argument as to possessing the stolen Buick, but not the money. In addition to being

inside the car and in possession of the car, Razey was in the vicinity of Rogel Motor

                                             11 

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II   No. 31502-9-111
     State v. Garfield
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I
     Company at a time during which the burglary could have been committed, and was inside
I    the car minutes after the jail escape. 


I           In State v. Tollett, 71 Wn.2d 806, 431 P.2d 168 (1967), someone forcibly entered a 


I    construction shed and took a Homelite chain saw, electric drill, electric skill saw, chain, 


     and a hoist. Henry Tollett sold the tools to Ralph Morton the following day for $60. The

     value ofthe tools was between $112 and $300. When questioned by police, Tollett

     provided a fictitious name. The Supreme Court held the evidence justified a finding of

     guilty knowledge on the part of Tollett.

            In State v. Rye, 2 Wn. App. 920, 921, 471 P.2d 96 (1970), thieves ransacked Harry

     Martin's Longview home, while he vacationed in Hawaii, and stole many personal

     belongings. A police search of Neuman Rye's Longview home in May of the same year

     uncovered the items taken from Martin's house, including men's suits with Harry

     Martin's name inside, sweaters, white shirts, women's furs, dresses, purses, jewelry, a

     mink coat, bedspread, a floor polisher, coffee urn, hair dryer, and candlestick holders.

     Rye claimed he was only storing these articles for Mr. Wettle. Evidence showed Wettle

     was a close friend of Rye and a former cellmate for 18 months at the Walla Walla State

     Penitentiary. Rye knew that Wettle had been convicted of four burglaries. According to

     Rye, Wettle told Rye that Wettle purchased the goods from a pawnshop in California and

     that he wanted Rye to store them. This court considered Wettle's account so unusual that

     a reasonable person would have been put on notice of the goods being stolen. The goods

                                                  12 

No. 31S02-9-III
State v. Garfield


were not the type found in a pawnshop. Instead of storing the goods, Rye placed the

candlestick holders on the mantle in his home. He placed the jewelry on the dressing

table in his bedroom and applied the bedspread to his bed. Rye wore some ofthe dress

shirts and stored them in his dresser drawers. This court also deemed the jury could

question Neuman Rye's credibility in view of his five earlier convictions for burglary.

       In State v. Beck, 4 Wn. App. 306, 480 P.2d 803 (1971), someone lifted copper and

brass wire from the Atlas Mine and Mill Supply Company on November 26, 1968. On

the same day, Michael Beck and William Luckenbill sold the wire, after its covering was

burned, to Pacific Hide and Fur Company in Spokane. One of the young men signed the

name "Ron Jacobson" on an invoice, together with the address "1923 South Freya,"

which did not exist. A law enforcement officer traveled to the Luckenbill's home, and

with permission of Luckenbill's mother, took samples of partially burned electric cable

wire from the site of a backyard bonfire. The remnants were comparable to the stolen

wire. Michael Beck denied any involvement in the theft or sale of the wire. He argued a

lack of evidence linking him to the theft of the wire. He contended that his mere

presence with Luckenbill at the time of sale to Pacific Hide was insufficient to establish

him as a possessor of stolen goods. Beck testified Lukenbill and he were in Coulee City

with his uncle on November 26, 1968. To the contrary, cross-examination indicated they

were in Coulee City the evening before or evening of November 27 or 28. This court

concluded that Beck's false alibi and evidence of his presence at the time of sale created

                                            13 

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     sufficient indicatory points to justify submission of the question of Beck's guilt to the

     jury. We mentioned that there might have been insufficient evidence had Beck not

     testified.

             In State v. Hatch, 4 Wn. App. 691, 483 P .2d 864 (1971), police found, at Marvin

     Hatch's business, shakes stolen from a shingle mill on the previous day. Hatch told the

     arresting officer he bought the shakes from a man whose name he could not remember.

     Investigating officers made plaster casts of tire impressions found at the victimized

     shingle mill. The casts matched plaster casts from Hatch's truck. Someone affixed

     another manufacturer's label to some of the bundles of shakes traced to Hatch. Evidence

     was admitted that Hatch had sold shakes and shingles similarly mislabeled. This court

     ruled sufficient evidence supported the guilty verdict against Hatch.

             In State v. Smyth, 7 Wn. App. 50,499 P.2d 63 (1972), Elaine Hughes, Charles

     Smyth's mother-in-law, observed stereo equipment in Smyth's residence, and, knowing

     he lacked money, suspected that he possessed the equipment illegally. Hughes gave a

     close description of other items in Smyth's possession to a law enforcement officer that

     matched property recently reported as stolen. At trial, Smyth testified that he purchased

     the stereo equipment for $200 from Ed Ross. Smyth stated he met Ross in a tavern, Ross

     was being evicted from his apartment, and Ross wished to sell the equipment so that he

     could return to California. Smyth admitted the equipment was worth well in excess of

     $200 and also testified that he received a bill of sale, but had lost it. He admitted that he

                                                   14 

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I!   No. 31502-9-111
     State v. Garfield
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II   visited two or three times the residence from which the equipment was stolen. Hughes

     testified that she found and read a letter handed to her by her daughter, Smyth's wife, that

     Smyth wrote while in j ail, in which he expressed a desire for a bill of sale for the

     equipment. Harold Sheridan, a friend of Smyth, testified that he and Smyth's wife

     traveled to obtain a fictitious bill of sale. This court did not address the sufficiency of the

     evidence for a conviction, but reversed because of the trial court's refusal to instruct the

     jury on the defense of open appropriation of the goods under a claim of title.

            In State v. Withers, 8 Wn. App. 123, 504 P.2d 1151 (1972), this court affinned a

     conviction for possession of stolen goods. In September 1970, someone pilfered many

     items from the freighter, Don Jose Figueras, while the freighter docked in the Port

     Angeles harbor. Weston Withers worked as a longshoreman at the harbor. In October

     1970, Withers sold, from his house and a car at the harbor, a large quantity of new

     sweaters, jackets, shirts, transistor radios and inflatable vinyl furniture to residents of the

     area, all of which the freighter had transported. One buyer purchased a huge box of new

     clothing from Withers on credit. Another buyer purchased $70 worth of goods for $38

     from Withers at the harbor dock.

            The closest case on point is State v. Ladely, 82 Wn.2d 172,509 P.2d 658 (1973),

     where police discovered a stolen revolver in the home of David Ladely after responding

     to a call from Ladely claiming his home was burglarized. The owner of the revolver

     reported it stolen three years earlier. After detennining the revolver was stolen, law

                                                   15 

No. 31502-9-III
State v. Garfield


enforcement returned to Ladely's home with a search warrant and found other stolen

items, including a film checked out from the public library with the gun theft victim's

library card. Ladely told three different stories about how he came into possession of the

stolen revolver. Despite the long period of time elapsing between the theft of the

revolver and Ladely's possession of it, the Washington Supreme Court found sufficient

evidence that Ladely knew the item was stolen.

       In State v. McPhee, 156 Wn. App. 44, 230 P.3d 284 (2010), the State charged

Jeffrey McPhee with possessing a stolen Weatherby rifle, Benelli shotgun, Remington

shotgun, Enfield rifle, field binoculars and ivory tusks. Ronald Miller returned from an

overnight trip on January 29,2007, to discover his home had been burgled and the items

stolen. Two days after the theft, Jeffrey McPhee contacted Nicholas Herrick to ask ifhe

was interested in buying a gun. Herrick took possession of the Weatherby rifle, and

subsequently delivered it to the sheriffs office. Herrick informed Jeremy Baker that

McPhee had some guns for sale. Baker met with McPhee on the same day that McPhee

met with Herrick, and told McPhee he was interested in purchasing the Benelli shotgun

for a couple hundred dollars. He took the Benelli shotgun into his possession that day.

Jeffrey McPhee contacted Steve Neva in early February 2007 and asked ifhe was

interested in purchasing guns. Neva and McPhee previously worked together at a job site

next to Miller's residence. While working on that site, McPhee went to Miller's

residence to use the electrical power. One week before McPhee contacted him about

                                            16 

No. 31502-9-111
State v. Garfield


purchasing guns, McPhee asked to borrow Neva's truck to "unload a house."

Meanwhile, Miller placed an advertisement in the local newspaper, in which he listed the

missing items and offered a $500 reward for their return. A few days later, David Kochis

contacted Miller about the missing items. After speaking with Kochis, Miller contacted

his old friends, Neva and Dale McGinnis, to help him recover the stolen property. Neva,

McGinnis, Kochis, and another man went to confront McPhee at McPhee's girlfriend's

residence on the morning of February 9,2007. McPhee led the group to some brush,

under which lay the guns, the tusks, and the binoculars. Police arrested McPhee. While

in custody, McPhee told one officer that he knew he was in a lot of trouble and he wanted

to cooperate. He explained that he obtained the guns in a nearby town from a guy named

Bill. McPhee said he told Bill about a house on the bay with a big screen television and

some guns. Bill later approached McPhee to ask ifhe was interested in purchasing some

guns, binoculars, and tusks. McPhee bought all of the guns, binoculars, and tusks for

$100. McPhee told the officer that he considered the low price unusual but that he·

believed Bill needed quick cash. At trial, McPhee claimed to have first learned the

property was stolen on February 9. He explained that he placed the items in the brush on

his friend's property for safe keeping, despite being aware that the guns would be

exposed to the elements. Surprisingly, a first jury acquitted McPhee of two counts of

possession of stolen firearms for the Weatherby rifle and the Benelli shotgun. A second




                                            17 

No. 31502-9-111
State v. Garfield


jury convicted McPhee on possessing other stolen items. Not surprisingly, the Court of

Appeals affirmed the convictions.

       The evidence against Benjamin Garfield falls short of evidence against all of the

accused in the reviewed Washington decisions. Ladely, which includes the most analogs,

contains significant differences to the prosecution of Benjamin Garfield. Law

enforcement found no other stolen goods in Garfield's custody and Garfield never

changed his story about how he acquired the rifle. The State did not show that Garfield

knew the Lecocqs or was familiar with their residence. Benjamin Garfield had in his

control only one item stolen from the Lecocq home. Other than the accused in Ladely, all

other accused held possession of the stolen goods within weeks of their theft and under

suspicious circumstances.

       Washington reports contain numerous other decisions addressing the sufficiency

of evidence in charges for possessing stolen property. None of the other decisions

supports a finding of constructive knowledge in Benjamin Garfield of the Eddy Stone

rifle's stolen status.

       The State emphasizes the fact that Garfield "changed" his story about whether or

not the Eddy Stone rifle had been checked by a Fish and Wildlife officer and "come back

clear," and the number of guns he owned. RP at 210. The State forwards no rational

connection between these facts and constructive knowledge that the rifle was stolen.

Assuming Garfield gave inconsistent stories, the subject matter did not concern the

                                            18 

No. 31502-9-II1
State v. Garfield


circumstances under which he gained possession of the Eddy Stone rifle.

       We are mindful of the Latin maxim "falsus in uno, falsus in omnibus," meaning

false in one, false in all. The jury, if satisfied that a witness testified falsely in any

particular, might disregard all of the testimony of such witness except as it was

corroborated by other evidence in the case. Maytown Lumber Co. v. Maytown Mill Co.,

136 Wash. 534, 537, 240 P. 902 (1925). The State might argue that, since Benjamin

Garfield told a fib about a game warden investigating the status of the rifle, the jury could

conclude the story regarding the purchase of the rifle to also be untrue. Nevertheless, we

are also mindful of the well-settled rule that a witness cannot be impeached by showing

the falsity of his testimony concerning facts collateral to the issues. State v. Taylor, 39

Wn.2d 751, 754, 238 P.2d 1189 (1951). Benjamin Garfield's report to the police officers

of the encounter with the game warden is collateral, and any change in his story was

minimal. He first said the warden reviewed the status of the rifle and later said he was 75

percent sure of the warden checking the rifle's status. This minimal difference does not

render it more likely that Benjamin Garfield knew the Eddy Stone rifle was stolen.

       Another problem arises in the State's use of the purported inconsistent statement

of Benjamin Garfield. Although the game warden testified he had not seen an Eddy

Stone rifle used by a hunter before, the game warden never denied that he checked the

stolen status of the gun. Warden McGary could not remember if he checked the status of

the Eddy Stone rifle, although he routinely checks on all firearms he encounters on patrol.

                                               19 

No. 31502-9-III
State v. Garfield


If his research finds a gun to be stolen, registered to someone else, or involved in a legal

violation, he issues a citation and generates a report. He never reported the Eddy Stone

rifle as stolen.

       The State emphasizes that Benjamin Garfield did not follow the procedures that

society imposes on one who purchases a gun and uses these purported facts as

circumstantial evidence that Garfield knew the gun was stolen. Nevertheless, the State

does not identify the procedures Garfield should have followed. Ifhe violated any such

law, the State should have identified the law, ifnot prosecuted Garfield under the law.

       To our knowledge, Benjamin Garfield broke no laws when he purchased the rifle

from a private individual. The minimum age for purchase or possession of a firearm is

18 years old. RCW 9.41.040(2)(a)(iv). Garfield was 19 when he purchased the rifle.

Washington State did not require, at either the time Garfield purchased the rifle or at the

time of his arrest, that the firearm purchase be registered with a state or federal authority.

See WASHINGTON STATE DEP'T OF LICENSING, http://www.dol.wa.gov/business/firearms/

firchart.html (last visited Nov. 5, 2014).

       Benjamin Garfield would have had to submit to a background check before

purchasing the rifle, if the person from whom he purchased the rifle was a dealer. RCW

9.41.090. A "dealer" for the purpose of Washington's firearm laws is:

               a person engaged in the business of selling firearms at wholesale or
       retail who has, or is required to have, a federal firearms license under 18
       U.S.C. Sec. 923(a). A person who does not have, and is not required to

                                              20
No. 31502-9-III
State v. Garfield


       have, a federal fireanns license under 18 U.S.C. Sec. 923(a), is not a dealer
       if that person makes only occasional sales, exchanges, or purchases of
       fireanns for the enhancement of a personal collection or for a hobby, or
       sells all or part of his or her personal collection of fireanns.

RCW 9.41.010(4). The State provided no evidence that the person from whom Garfield

purchased the rine qualified as a dealer.

       Rifles are exempt from Washington's concealed pistol license requirements. See

generally RCW 9.41.070, .073, .075. A "pistol" is "any firearm with a barrel less than

sixteen inches in length, or is designed to be held and fired by the use of a single hand."

RCW 9.41.01 O( 15). The State did not claim the Eddy Stone firearm was a pistol.

Therefore, Garfield was under no obligation to obtain a permit for the concealed

possession of his rifle. In short, contrary to the State's contention, Washington State had

no fonnal purchase or registration procedures in place for private sales at the time that

Benjamin Garfield purchased and possessed the rifle.

       The State also focuses on the seller having retrieved the gun from a car trunk. The

State shows no logical connection between the storage location of the gun and it being

stolen. The seller stated he was on his way to Mexico and placement of the gun in the

trunk is as logical as any other spot for storing the gun.

       In this criminal prosecution, the evidence must be sufficient to establish the crime

beyond a reasonable doubt, not just a preponderance of the evidence. No Washington

decision discusses this question, but we assume the evidence in a criminal case must be


                                              21 

I
t
i!
I

I      No. 31502-9-III
       State v. Garfield


I; 
   stronger to survive a motion to dismiss than to survive a summary judgment motion in a 



I      civil suit. 



I              When excluding the facts unrelated to knowledge that the rifle was            stolen~   we are 


       left with mere possession of a stolen gun. In essence~ the State posits that anyone who

       purchases a firearm other than at a flea   market~    at a garage   sale~   from a friend, or from a

       "reputable business~" can be convicted of possession ofa stolen firearm, if the firearm

       was stolen prior to his coming into possession of it. Case law does not support this

       proposition. None of the facts described in Washington decisions as indicia of

       knowledge of stolen property is present here. There is no smoking gun.

               lfthe reviewing court finds insufficient evidence to prove the elements of the

       crime charged, reversal is required. State v. Bailey, 67 Wash. 336, 342, 121 P. 821

       (1912). We dismiss the charge of possession of stolen property filed against Benjamin

       Garfield.

               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.



       WE CONCUR:


        ~(c6t= Slddoway~    ..
                                                             ~I                Ii· 

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