State of Washington v. Robert James Rogers

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
ROBERT JAMES ROGERS,
Appellant.
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No. 38221-4-III
UNPUBLISHED OPINION
PENNELL, J. — Robert Rogers appeals his convictions for first-degree trafficking in
stolen property and third-degree theft. We affirm.
FACTS
In January 2020, Nicole Sim advised the Stevens County Sheriff’s Office that
Robert Rogers had stolen a chainsaw from her porch on January 8. Ms. Sim lived, along
with her two daughters and her grandmother, at the Colville property where the chainsaw
was stored. On January 13, Ms. Sim informed Detective Travis Frizzell that she had been
in contact with Mr. Rogers. According to Ms. Sim, Mr. Rogers had told her on January 9
“that he would return the saw the following day,” but “that she had not heard from Rogers
since, and he had not returned the saw.” Clerk’s Papers (CP) at 9.
FILED
FEBRUARY 9, 2023
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 38221-4-III
State v. Rogers
2
There had been two chainsaws on the porch at the time of the theft: one belonging
to Tim Brauhn and one belonging to Joseph Hamilton. Mr. Brauhn and Mr. Hamilton,
apparently both woodsmen, were half-brothers and Ms. Sim’s uncles. At the time she
reported the chainsaw stolen, Ms. Sim believed that Mr. Hamilton’s chainsaw was the
one taken and advised law enforcement accordingly. In reality, the stolen chainsaw was
Mr. Brauhn’s.
The chainsaws were being stored on Ms. Sim’s porch because friends of Mr.
Brauhn had delivered the chainsaws, along with other personal effects, after Mr. Brauhn
fell ill. Mr. Brauhn had been hospitalized on Christmas Eve and would die less than two
months later. Mr. Brauhn apparently had his brother’s chainsaw in his possession as well
as his own at the time he was hospitalized, which is why both were being stored on the
porch of Ms. Sim’s residence.
Detective Frizzell contacted Joseph Hamilton, who lived in Airway Heights.
Mr. Hamilton told the detective that he did “not really know” Mr. Rogers, and described
Mr. Rogers as a friend of his brother, Tim Brauhn. Id. The next day, Detective Frizzell
learned that a chainsaw had been pawned at a shop in Colville.1 Detective Frizzell
1 An employee testified that everything pawned at this shop was automatically
reported to local law enforcement.

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State v. Rogers
3
responded to the pawn shop and obtained a copy of a slip confirming that Mr. Rogers had
pawned a Husqvarna 385XP chainsaw on January 8—the same day it went missing from
Ms. Sim’s porch—for $200. Detective Frizzell took photographs of the chainsaw and
texted them to Mr. Hamilton. Mr. Hamilton responded that he was 90 percent sure the
chainsaw was his. Mr. Hamilton said his nephew, who frequently used the chainsaw,
lived nearby and could identify the saw. The nephew positively identified the saw as
belonging to his uncle.
On January 24, 2020, the State charged Mr. Rogers by information with first-
degree trafficking in stolen property in violation of RCW 9A.82.050, and third-degree
theft in violation of RCW 9A.56.020(1)(a). The information identified the stolen and
trafficked property as a “Husqvarna 385XP chainsaw” taken on or around January 8,
2020, and identified Mr. Hamilton as the chainsaw’s owner. CP at 6-7. The information
accused Mr. Rogers of “wrongfully obtain[ing] control over” the chainsaw. Id. at 7.
The case proceeded to a two-day jury trial in March 2021. Before the jury was
seated, the trial court conferred with counsel about its “initial instructions that describe
the nature of the case.” 1 Report of Proceedings (RP) (Mar. 24, 2021) at 209. The court
previewed the instruction as follows: “It is alleged that on or about January 8, 2020, Mr.
Rogers wrongfully obtained and pawned a chainsaw belonging to Joseph Hamilton.” Id.

No. 38221-4-III
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4
The prosecutor told the court, “I don’t think we need the belonging to part.” Id. The court
asked Mr. Rogers’s counsel if he approved of taking out the language identifying Mr.
Hamilton as the chainsaw’s owner, and Mr. Rogers’s counsel agreed.
Detective Frizzell testified first. He described his investigation, as summarized
above, and explained that “[a]t the time” Ms. Sim reported the chainsaw stolen, she had
said the owner was Mr. Hamilton. Id. at 241.
Ms. Sim testified next. She explained:
• 	On January 8, 2020, she got home from work to discover the chainsaw missing.
• 	She apparently learned from her grandmother that “Robert Rogers showed up
and took one [chainsaw] off the porch and he just walked off and put it in the car
and took off.” Id. at 245.
• 	Ms. Sim knew Mr. Rogers as an acquaintance of her uncle, Mr. Brauhn.
• 	She contacted Mr. Brauhn before he died to get Mr. Rogers’s phone number,
and then attempted multiple times to contact Mr. Rogers to find out what happened
to the chainsaw.
• 	When Mr. Rogers “finally answered” Ms. Sim on January 9, she “told him that he
didn’t have permission to take the chainsaw[ ] or to come onto [her] property in
general and [she] wanted it back.” Id. at 246.

No. 38221-4-III
State v. Rogers
5
• 	Mr. Rogers replied that Mr. Brauhn had given him permission to “borrow” the
chainsaw and he promised to “bring it right back.” Id.
• 	She identified the pawned chainsaw in Detective Frizzell’s photographs as one
belonging to her uncle.
• 	Mr. Rogers did not tell Ms. Sim in their phone conversation that he had already
pawned the chainsaw.
On cross-examination, Ms. Sim clarified that the chainsaw Mr. Rogers took
belonged to Mr. Brauhn, not Mr. Hamilton. She also agreed with defense counsel that
Mr. Rogers had been helping Mr. Brauhn with his woodcutting operation that year.
At the time Mr. Brauhn fell ill, he was apparently living with Mr. Rogers at the home
of their mutual friend, Leroy Buchanan, who had recently died.
Mr. Hamilton also testified. He explained that in January 2020 he became aware
that a chainsaw had gone missing from Ms. Sim’s porch, and that he initially thought
it was his chainsaw that had gone missing. Mr. Hamilton testified that he contacted
Mr. Rogers, who told Mr. Hamilton that Mr. Brauhn had given him permission to borrow
the chainsaw. Mr. Rogers promised Mr. Hamilton he would bring the chainsaw back,
but said he needed it for a few days to clear trees. Mr. Rogers never told Mr. Hamilton
that he was going to pawn the chainsaw, or that he actually had already pawned it.

No. 38221-4-III
State v. Rogers
6
A pawn shop employee also testified and authenticated the pawn slip
memorializing that on January 8, 2020, Mr. Rogers pawned a Husqvarna 385XP chainsaw
matching the serial number of Mr. Brauhn’s chainsaw.
After the State rested, Mr. Rogers testified as the defense’s only witness. Mr.
Rogers said that Mr. Brauhn was his “best friend and business partner,” explaining that
they had lived and worked together. 1 RP (Mar. 25, 2021) at 305. Mr. Rogers testified
that Mr. Brauhn had purchased the Husqvarna chainsaw that he later took off Ms. Sim’s
porch. But Mr. Rogers characterized his work with Mr. Brauhn as a joint enterprise,
explaining that their tools became part of the enterprise, and that they did not hold their
tools as individual property. Mr. Rogers testified that the two men stored their tools at a
residence they shared and that neither of them needed the permission of the other to use
any of their tools.
Mr. Rogers testified that he took the chainsaw off Ms. Sim’s porch because he
needed it to clear fallen trees at his parents’ property. He said he initially intended only to
use the saw to clear the fallen trees, but he ended up pawning the chainsaw because
“finances got hard.” Id. at 320. Mr. Rogers explained that he believed he had the right
to pawn the chainsaw because “[i]t was community property with me and [Mr. Brauhn].”
Id. at 321. Mr. Rogers admitted he told Ms. Sim and Mr. Hamilton that he was going to

No. 38221-4-III
State v. Rogers
7
bring the chainsaw back. He said he told them that because Mr. Brauhn did not get along
with his brother or niece, and that he was putting off telling them the truth “until I could
converse with [Mr. Brauhn] and tell him the situation and he told me he was going to deal
with it.” Id. at 322.
On cross-examination, Mr. Rogers testified that he and Mr. Brauhn did “not really”
have a business, but rather, cutting trees was “just something that we do.” Id. at 324. He
also agreed that the men had no formal property agreement. Mr. Rogers testified that he
did not purchase the chainsaw, that it was “[t]echnically” Mr. Brauhn’s property, and that
he took it off Ms. Sim’s porch.2 Id. at 324-25. He also testified that he did not knock on
the door and tell Ms. Sim’s grandmother that he was going to take the saw, because he
did not believe he needed her permission. He confirmed he pawned the chainsaw the
same day he took it and that he later promised Ms. Sim and Mr. Hamilton that he would
return it.
The trial court instructed the jury. Unlike the information, which had named Mr.
Hamilton as the chainsaw’s owner, the to-convict instruction for the theft charge did not
name a victim. The instructions defined “[t]heft” as “wrongfully obtain[ing] or exert[ing]
2 The State also introduced Mr. Rogers’s prior convictions for theft and obtaining
control over stolen property as impeachment evidence.

No. 38221-4-III
State v. Rogers
8
unauthorized control over” the property of another, as opposed to the information, which
had conflated the two phrases. CP at 117 (emphasis added).
In closing argument, the prosecutor told the jury, “That was Mr. Brauhn’s
chainsaw and there’s really nothing to suggest otherwise.” 1 RP (Mar. 25, 2021) at 360.
The prosecutor expressed incredulity toward Mr. Rogers’s story of joint ownership,
positing that if he genuinely believed he was the chainsaw’s co-owner, he would not have
promised Ms. Sim and Mr. Hamilton that he would bring it back.
In his closing argument, Mr. Rogers’s trial counsel emphasized that his client and
Mr. Brauhn had had a “business relationship[ ] and personal relationship[ ].” Id. at 366-
67. Defense counsel invited the jury to conclude that the chainsaw was the joint property
of Mr. Brauhn and Mr. Rogers and asked, rhetorically, “Where is the evidence that my
client didn’t have a right to the chainsaw?” Id. at 371-72.
The jury found Mr. Rogers guilty of both charges. The trial court sentenced
Mr. Rogers to 84 months in prison, to run consecutively to sentences imposed in other
cases. Mr. Rogers timely appeals.

No. 38221-4-III
State v. Rogers
9
ANALYSIS
Good faith claim of title
Mr. Rogers contends his trial attorney rendered ineffective assistance of counsel
because he did not raise the defense of good faith claim of title or request an instruction
on that defense. In order to establish ineffective assistance of counsel, Mr. Rogers must
show counsel provided deficient performance that resulted in prejudice. State v.
Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Mr. Rogers cannot establish
ineffective assistance because defense counsel’s performance was not deficient.
Good faith claim of title is a statutory defense, which provides:
In any prosecution for theft, it shall be a sufficient defense that . . . [t]he
property or service was appropriated openly and avowedly under a claim of
title made in good faith, even though the claim be untenable . . . .
RCW 9A.56.020(2)(a). The rationale for the defense is that a good faith belief of title
“negates the requisite intent to steal.” State v. Hicks, 102 Wn.2d 182, 184, 683 P.2d 186
(1984). At trial, Mr. Rogers’s attorney argued Mr. Rogers had a legal interest in the
chainsaw, but as pointed out on appeal, counsel never argued that Mr. Rogers had
asserted his interest in the chainsaw in a way that would meet the criteria for good faith
claim of title.

No. 38221-4-III
State v. Rogers
10
We reject Mr. Rogers’s criticism of defense counsel’s trial performance because
good faith claim of title was not a viable defense. See State v. Calvin, 176 Wn. App. 1,
14, 316 P.3d 496 (2013) (failure to request a jury instruction not deficient performance
where defendant not entitled to the instruction). There is no evidence that Mr. Rogers
“openly and avowedly” asserted ownership over the chainsaw. RCW 9A.56.020(2)(a);
see State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995) (defendant not entitled to jury
instruction on his theory of the case when there is no evidentiary support for the theory).
Instead, Mr. Rogers appropriated the chainsaw from Ms. Sim’s porch without alerting
anyone to his actions. When Ms. Sim and Mr. Hamilton asked what Mr. Rogers had done
with the chainsaw, Mr. Rogers did not assert an ownership interest. Nor was he truthful.
When confronted with what happened to the chainsaw, Mr. Rogers deceptively claimed
the chainsaw would be returned instead of disclosing that he had already pawned it.
The defense of good faith claim of title does not apply in such circumstances. See State
v. Hull, 83 Wn. App. 786, 799, 924 P.2d 375 (1996) (good faith claim of title defense not
available when theft perpetrated through deception).
Counsel’s failure to move to dismiss charges
Mr. Rogers contends that his trial counsel rendered ineffective assistance by failing
to move to dismiss the charges after the prosecution’s case-in-chief. He argues that, at

No. 38221-4-III
State v. Rogers
11
that point, the State had failed to prove a chainsaw was stolen because it had not proved
the identity of the chainsaw’s owner. According to Mr. Rogers, had defense counsel made
a timely motion, his case would have been dismissed mid-trial and he would not have
been convicted. We are unpersuaded.
In a criminal case, a defendant may challenge the sufficiency of the evidence at the
end of the prosecution’s case-in-chief. State v. Jackson, 82 Wn. App. 594, 607-08, 918
P.2d 945 (1996). The trial court analyzes such a claim “using the most complete factual
basis available.” Id. at 608-09. The relevant inquiry would have been 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.”
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (plurality opinion) (quoting
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
Here, by the end of the State’s case-in-chief, it had presented testimony that
Mr. Rogers surreptitiously took a chainsaw from Ms. Sim’s porch, pawned it the same
day, all while reassuring Ms. Sim and Mr. Hamilton that he would return the saw. A
rational fact finder could appraise that evidence and conclude that Mr. Rogers
“wrongfully obtain[ed]” someone else’s property “with intent to deprive” them of that

No. 38221-4-III
State v. Rogers
12
property. RCW 9A.56.020(1)(a).3 And a rational fact finder could conclude, on the basis
of that evidence, that Mr. Rogers “knowingly initiate[d] . . . the theft of property for
sale to others.” RCW 9A.82.050(1). Thus, the trial court would have denied any
motion to dismiss the charges, and trial counsel’s failure to so move was not deficient
representation.
Discrepancies between jury instructions and charging document
Mr. Rogers claims he was convicted of an uncharged crime due to discrepancies
between the information and the jury instructions with respect to the charge of theft.
We disagree.
“[I]t is error to try and convict a defendant of a crime that is not charged.” State v.
Huyen Bich Nguyen, 165 Wn.2d 428, 434, 197 P.3d 673 (2008). This court reviews
charging documents “as a whole, according to common sense and including facts that are
implied, to see if [they] ‘reasonably apprise[ ] an accused of the elements of the crime
charged.’” State v. Nonog, 169 Wn.2d 220, 227, 237 P.3d 250 (2010) (quoting State v.
Kjorsvik, 117 Wn.2d 93, 109, 812 P.2d 86 (1991)). “[C]harging instruments which fail to
set forth the essential elements of a crime in such a way that the defendant is notified of
3 Contrary to Mr. Rogers’s arguments on appeal, the theft charge did not require
the State to prove who owned the chainsaw. See State v. Lee, 128 Wn.2d 151, 158-59,
904 P.2d 1143 (1995).

No. 38221-4-III
State v. Rogers
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both the illegal conduct and the crime with which he is charged are constitutionally
defective, and require dismissal.” State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775
(1992). By contrast, a charging document is sufficient if the “necessary facts appear . . . or
by fair construction can . . . be found” in it, so long as “inartful language” in the charging
document did not nonetheless “cause[ ] a lack of notice” of the charges. Kjorsvik,
117 Wn.2d at 105-06.4
The first discrepancy Mr. Rogers identifies pertains to the identity of the victim.
The information listed the owner of the chainsaw as Joseph Hamilton, while the jury
instructions did not name a victim.
The differences between the wording of the information and jury instructions did
not lead to an impermissible discrepancy. The identity of the victim is not an essential
element of a theft prosecution. State v. Lee, 128 Wn.2d 151, 158-59, 904 P.2d 1143
(1995). In fact, a jury need not necessarily unanimously agree on the victim’s identity for
a theft conviction to be valid. See id. at 156-59; see also State v. Jefferson, 74 Wn.2d 787,
788-90, 446 P.2d 971 (1968). Mr. Rogers does not claim the discrepancy regarding the
4 Mr. Rogers styles this claim as one of ineffective assistance of counsel, assigning
error to trial counsel’s “[f]ail[ure] to recognize” the discrepancies. Br. of Appellant at 1.
However, he does not identify what trial counsel should have done differently. Although
it is not entirely clear, it appears Mr. Rogers essentially assigns error to the purported
insufficiency of the information itself.

No. 38221-4-III
State v. Rogers
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identity of the victim misled him or impeded the preparation of his defense. The
information put Mr. Rogers on notice that he was charged with stealing a Husqvarna
chainsaw on January 8, 2020. The information was sufficient because it gave him “ample
opportunity to prepare his defense.” Lee, 128 Wn.2d at 160.
The second purported discrepancy involves the wording used to describe the crime
of theft. The information charged Mr. Rogers with “wrongfully obtain[ing] control” over
the chainsaw. CP at 7. Meanwhile, the jury instructions stated a defendant is guilty of
theft if they “wrongfully obtained or exerted unauthorized control” over another’s
property. Id. at 117, 121. Again, Mr. Rogers fails to point to an impermissible
discrepancy.
The theft statute, RCW 9A.56.020, lists different types of theft but nonetheless
“defines a single crime.” Lee, 128 Wn.2d at 157. Subsection (1)(a) of the statute
criminalizes theft by taking, subsection (1)(b) criminalizes theft by deception, and
subsection (1)(c) criminalizes appropriation of lost or misdelivered property. See Ager,
128 Wn.2d at 91. Theft by taking occurs when one “wrongfully obtain[s] or exert[s]
unauthorized control over the property or services of another . . . with intent to deprive.”
RCW 9A.56.020(1)(a); see also RCW 9A.56.010(23) (giving “[w]rongfully obtains” and
“exerts unauthorized control” the same definition). The information charged Mr. Rogers

No. 38221-4-III
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15
with theft by taking under RCW 9A.56.020(1)(a). And that is the provision he was
convicted of violating pursuant to the court’s instructions. There was no discrepancy.
Counsel’s failure to recognize a more specific alternative
Mr. Rogers argues trial counsel should have recognized he could have been
charged with a more specific crime, and cites RCW 9A.56.010(23). But as the State
rightly notes, that provision does not criminalize any behavior; it is merely a definitional
statute. This claim is without merit.
CONCLUSION
The judgment of conviction is affirmed.
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.
_________________________________
Pennell, J.
WE CONCUR:
______________________________ 	_________________________________
Lawrence-Berrey, A.C.J. 	Staab, J.