State Of Washington, Respondent V. Jeramie David Owens, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JERAMIE DAVID OWENS,
Appellant.
No. 67867-1-1
DIVISION ONE
UNPUBLISHED OPINIOf^
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FILED: April 29, 2013 	t/i 	5H
Grosse, J. — Where the State charges an alternative means crime, the trial
court instructs the jury on each means, and no way exists to determine which
means served as the basis for the conviction, sufficient evidence must support
each means. 	Because the State did not meet this burden, we reverse Jeramie
Owens's conviction 	for first degree trafficking in stolen 	property. 	In all other
respects, we affirm.
FACTS
On July 2, 2010, Michael Cassida was working as a salesman at Motor
City, 	a 	used 	car dealership 	in 	Mount Vernon, 	Washington, 	when 	Owens and
another man expressed interest in a solid blue 1967 Volkswagen Beetle with a
high-performance engine and a surfboard attached to a roof rack. 	Owens closely
examined the car's frame, 	engine compartment and interior and even crawled
underneath the body. 	Cassida accompanied Owens on a short test drive of the
car. 	Owens told Cassida that he restored Volkswagens for a living and even had a
tattoo that said "Volkswagen" on his back. 	Owens and Cassida drove back to the
dealership and Owens said he would get in touch.
The next morning, when Cassida was opening the dealership for business,
he noticed that a lock on the fence had been cut and the 1967 Beetle, which had

No. 67867-1-1/2
been parked at the edge of the lot, was missing. 	Cassida also noticed the ignition
key for the Beetle was missing from his key ring.
On 	July 	6, 	2010, 	Owens 	filed 	an 	application 	with the 	Department of
Licensing for title to a black 1971 Volkswagen.
On July 28, 2010, Owens posted a 	Craigslist advertisement for a "1971
Volkswagen Beetle." 	The "1971 Beetle" was painted blue and white and did not
have a high-performance engine, a roof rack or a surfboard. 	Craig Sauvageau
responded 	to 	the 	advertisement, 	went 	to 	Owens's 	address, 	and 	agreed 	to
purchase the Beetle for $2,800. 	Owens claimed he had lost the title to the Beetle
but had completed an affidavit of lost title which Sauvageau could present to the
Department of Licensing to obtain a new title.
On August 3, 2010, Sauvageau brought the Beetle to Conaway Motors, a
repair shop specializing in European automobiles, for a tune-up. 	A mechanic,
Alberto Ruiz, 	noticed that the 	rivets attaching the 	public VIN1 	plate were 	not
fastened tightly and were shiny and 	new despite the fact that the 	Beetle was
approximately 40 years old. 	Based on this fact, Ruiz believed that the original
public VIN plate had been removed and another VIN plate put on. 	Ruiz also knew
that the Beetle could not be from the 1971 model year because 1971 parts did not
fit.
1 "VIN" stands for "vehicle identification number," a number that uniquely identifies
an automobile. 	Most cars have both a "public" VIN, which is stamped on a metal
plate that is affixed to a visible location such as the dashboard, and a "confidential"
VIN, which is stamped in a hidden location determined by the car's manufacturer.

No. 67867-1-1/3
Detective Paul Ryan of the Monroe Police Department and the Snohomish
County Auto Theft Task Force was called to investigate. 	Detective Ryan located
the Beetle's confidential VIN and determined that it did not match the public VIN,
but that it did match the VIN for the 1967 Beetle stolen from Motor City. The public
VIN matched the 1971 Volkswagen to which Owens obtained title on July 6, 2010.
Searching 	online 	using 	the 	phone 	number 	Owens 	gave 	Sauvageau,
Detective 	Ryan 	discovered 	other Craigslist advertisements 	posted 	by Owens.
One of the advertisements was for a yellow 1956 Beetle with a roof rack and the
identical type of high-performance engine missing from Motor City's 1967 Beetle.
On that basis, Detective Ryan obtained a search warrant for Owens's property. 	In
Owens's garage, officers found a rivet gun, a paint sprayer, and the surfboard from
the 1967 Beetle. 	Owens admitted that the 1967 Beetle he sold to Sauvageau was
the same Beetle that he test-drove at Motor City on July 2. 	He claimed he bought
the Beetle from a private seller on Craigslist, but could not provide any information
about the 	purchase. 	The 	Department of Licensing 	had 	no 	bill 	of sale from
Owens's purported purchase of the 1967 Beetle.
The State charged Owens with one count of possession of a stolen vehicle,
one count of first degree trafficking in stolen property, and one count of first degree
taking 	a 	motor 	vehicle 	without 	permission. 	The 	State 	later 	amended 	the
information to include a charge of bail jumping after Owens failed to appear for a
court 	hearing 	and 	a 	warrant 	was 	issued. 	A jury convicted 	Owens 	on 	the

No. 67867-1-1/4
possession, trafficking, and bail jumping charges but acquitted 	him of taking a
motor vehicle. 	Owens timely appeals.
ANALYSIS
1. 	Sufficiency of the Evidence
Owens makes several challenges to the sufficiency of the evidence. 	To
evaluate a challenge to the sufficiency of the evidence, we view the evidence in
the light most favorable to the State and determine whether any rational trier of
fact 	could 	have found 	the essential elements of the charged crime 	beyond a
reasonable doubt.2 	A challenge to the sufficiency of the evidence admits the truth
of the State's evidence and all reasonable inferences must be drawn in favor of
the State and interpreted against the defendant.3 	We defer to the trier of fact to
weigh 	the 	evidence, 	resolve 	conflicts 	in 	testimony, 	and 	evaluate 	witness
credibility.4 	Circumstantial evidence is no less reliable than direct evidence and is
sufficient to prove any element of the crime.5
a. 	First Degree Trafficking in Stolen Property
Owens contends that the crime of first degree trafficking in stolen property
is an alternative means crime and the State failed to present sufficient evidence to
support each of the means. We agree.
2 State v. Wentz, 149 Wn.2d 342, 347, 68 P.2d 282 (2003).
3 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
4 State v. Stewart. 141 Wn. App. 791, 795, 174 P.3d 111 (2007).
5 State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

No. 67867-1-1/5
Criminal defendants have a right to an expressly unanimous jury verdict.6
A general verdict of guilty on a crime that can be committed by alternative means
will be upheld only if sufficient evidence supports each means.7
RCW 9A.82.050 provides that a person is guilty of first degree trafficking in
stolen 	property 	"who 	knowingly 	initiates, 	organizes, 	plans, 	finances, 	directs,
manages, or supervises the theft of property for sale to others, or who knowingly
traffics 	in stolen property." This 	definition 	identifies 	eight alternative means of
committing the offense: knowingly (1) initiating, (2) organizing, 	(3) planning, (4)
financing, (5) directing, (6) managing, or (7) supervising the theft of property for
sale to others, or (8) knowingly trafficking in stolen property.8
Owens 	argues 	that 	the 	State 	failed 	to 	present 	substantial 	evidence
supporting at least one of the alternative means of first degree trafficking in stolen
property, specifically: that Owens "supervised" the theft of the 1967 Beetle. As this
court relied upon in Strohm. the definition of "supervise" is "to coordinate, direct,
and inspect continuously and at first hand the accomplishment of: oversee with the
powers of direction and decision the implementation of one's own or another's
intentions."9 	Inherent in the definition of "supervise" is the involvement of another
6 Wash. Const, art. I, § 21; State v. Ortega-Martinez. 124 Wn.2d 702, 707, 881
P.2d231 (1994).
7 Orteoa-Martinez. 124 Wn.2d at 708.
8 State v. Strohm. 75 Wn. App. 301, 307, 879 P.2d 962 (1994) (quoting RCW
9A.85.050(2)).
9 Strohm, 75 Wn. App. 	at 305 (quoting Webster's Third 	New International
Dictionary 2296 (1986)).

No. 67867-1-1/6
person. 	Although the State presented testimony that Owens was accompanied by
a friend at Motor City, there was no evidence that anyone other than Owens was
involved in the theft or trafficking of the Beetle.
If one or more of the alternative means is not supported by substantial
evidence, the verdict will stand only if we can determine that the "Verdict was
based 	on 	only one 	of the 	alternative 	means 	and 	that 	substantial 	evidence
supported that alternative means.'"10 	That is not possible here. The information
charging 	Owens 	with 	first degree trafficking 	in stolen 	property 	listed the 	full
statutory language and did not limit or specify a means. 	The trial court instructed
the jury to consider all eight of the means.11 	The trial court did not instruct the jury
that it must reach a unanimous agreement as to the alternative means, nor was
there a special verdict form specifying the means relied upon. 	As a result, it is
unclear based on the verdict alone which means the jury relied upon to support the
10 State v. Howard. 127 Wn. App. 862, 872, 113 P.3d 511 (2005) (quoting State v.
Rivas. 97 Wn. App. 349, 351-52, 984 P.2d 432 (1999)).
11 There is no pattern instruction for first degree trafficking in stolen property. The
"to convict" instruction for first degree trafficking in stolen property proposed by the
State and given by the trial court read:
To 	convict 	the 	defendant 	of 	the 	crime 	of 	Trafficking 	in Stolen
Property in the First Degree, as charged in Count II, each of the
following 	elements 	of 	the 	crime 	must 	be 	proved 	beyond 	a
reasonable doubt:
(1) That on or about the 28th day of July, 2010, the defendant
did knowingly initiate, organize, 	plan, 	finance, 	direct, 	manage or
supervise the theft of a motor vehicle for sale to others;
(2) That the defendant did knowingly traffic in stolen property;
and
(3) That any of these acts occurred in Snohomish County.

No. 67867-1-1/7
conviction. Owens's first degree trafficking in stolen property conviction must be
reversed.
b. 	Possession of a Stolen Vehicle
To convict Owens of possession of a stolen vehicle, the State had to prove
beyond a reasonable doubt that he knowingly possessed a stolen motor vehicle
and that he knew the vehicle was stolen.12 	Owens contends that the State failed
to present sufficient evidence of the "knowledge" element.13
Possession of stolen property alone does not create a presumption that the
person 	knew 	the 	property 	was 	stolen, 	but 	that 	fact, 	together 	with 	"slight
corroborative evidence of other inculpatory circumstances tending to show guilt"
will support a conviction.14 	Examples of such corroborative evidence include the
absence of a plausible explanation and flight.15
12 RCW 9A.56.068(1), .140(1). RCW 9A.56.068(1) states that "[a] person is guilty
of possession of a stolen vehicle if he or she possess [possesses] a stolen motor
vehicle." 	RCW 9A.56.140(1) defines possession of stolen property in part as
"knowingly" receiving, 	retaining, 	possessing, concealing, or disposing of stolen
property 	"knowing 	that 	it 	has 	been 	stolen." 	The 	jury 	was 	instructed 	that
"[possessing a stolen motor vehicle means knowingly to receive, retain, possess,
conceal, or dispose of a stolen motor vehicle knowing that it has been stolen and
to withhold or appropriate the same to the use of any person other than the true
owner or person entitled thereto."
13 Owens also claims there was insufficient evidence of the "knowledge" element
to support his first degree trafficking in stolen property conviction. 	Because we
reverse that conviction, we do not address this issue, nor do we address his claim
that the "to convict" instruction for first degree trafficking in stolen property relieved
the State of the burden to prove knowledge.
14 State v.Ford. 33 Wn. App. 788, 790, 658 P.2d 36 (1983).
is gee, e^, State v. Hudson. 56 Wn. App. 490, 495, 784 P.2d 533 (1990) ("[t]he
absence of any explanation for [the defendant's] use of what appears to have

No. 67867-1-1/8
Here, 	viewing the evidence in the light most favorable to the State and
drawing all reasonable inferences therefrom, the evidence was sufficient to sustain
the conviction. 	The Beetle was stolen less than 24 hours after Owens test-drove
it. 	A few days after the theft, Owens registered the title to a 1971 Volkswagen.
Roughly three weeks later, Owens sold the stolen 1967 Beetle to Sauvageau.
Owens misrepresented to Sauvageau that the car was actually a 1971 	Beetle,
despite the fact that Owens worked on Volkswagens for a living, was extremely
knowledgeable about Volkswagens, and even had a Volkswagen tattoo stretching
across his back. 	Owens told Sauvageau he had "lost" the title. The Beetle Owens
sold 	to 	Sauvageau 	had 	a 	fake 	VIN 	plate 	that 	corresponded 	to 	the 	1971
Volkswagen to which Owens registered title. 	The surfboard attached to the 1967
Beetle at 	Motor City was found 	in Owens's garage, 	as were a 	rivet gun and
painting supplies. 	Owens admitted the car was the same one that he had test-
driven at Motor City immediately before it was stolen. 	He claimed he bought it
from a private individual on Craigslist but there was no evidence to support this
claim. 	Prior to trial, Owens jumped bail. 	A rational jury could infer from the facts
that Owens knew the 1967 Beetle was stolen and that he knowingly possessed it.
2. 	Prosecutorial Misconduct
Owens 	contends 	that 	the 	deputy 	prosecutor 	committed 	misconduct 	by
misstating the 	law regarding 	the 	element of knowledge. 	We 	review alleged
been a recently stolen automobile . . . and his flight provide ample evidence from
which to infer guilty knowledge.").
8

No. 67867-1-1/9
misconduct in the context of the entire argument, the issues in the case, the
evidence addressed in the argument, and the instructions given to the jury.16 	To
prevail on 	a 	claim 	of 	prosecutorial 	misconduct, 	a 	defendant must show both
improper conduct and prejudicial effect.17 	If the defendant failed to object to the
misconduct 	at 	trial, 	appellate 	review 	is 	only 	appropriate 	if the 	prosecutorial
misconduct is so "flagrant and ill intentioned" that no curative instruction could
have obviated the prejudice engendered by the misconduct.18
"A person knows or acts knowingly or with knowledge when: (i) he or she is
aware of a fact, facts, or circumstances or result described by a statute defining an
offense; or (ii) he or she has information which would lead a reasonable person in
the same situation to believe that facts exist which facts are described by a statute
defining an 	offense."19 	However, this definition 	"must be 	interpreted 	as only
permitting, rather than directing, the jury to find that the defendant had knowledge
if it finds 	that 	the 	ordinary 	person 	would 	have 	had 	knowledge 	under 	the
circumstances."20 	In accordance with this interpretation, the jury was given the
pattern instruction on "knowledge":
A 	person 	knows 	or 	acts 	knowingly 	or 	with 	knowledge 	with
respect to a fact, circumstance or result when he or she is aware of that
fact, circumstance or result. 	It is not necessary that the person know
16 State v.Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
17 State v. Roberts. 142 Wn.2d 471, 533, 14 P.3d 713 (2000).
18 State v. Emery. 174 Wn.2d 741, 761-62, 278 P.3d 653 (2012).
19RCW9A.08.010(b)
20 State v.Shipp. 93 Wn.2d 510, 516, 610 P.2d 1322 (1980).

No. 67867-1-1/10
that the fact, circumstance or result is defined by law as being unlawful
or an element of a crime.
If a person has information that would lead a reasonable person
in the same situation to believe that a fact exists, the jury is permitted
but not required to find that he or she acted with knowledge of that fact.
When acting knowingly is required to establish an element of a
crime, the element is also established if a person acts intentionally.1211
Owens contends that the deputy prosecutor improperly instructed the jury
that they were 	required 	to find that Owens 	knew 	the 	Beetle was stolen 	if a
"reasonable person" would have done so.22 	We disagree. 	The deputy prosecutor
correctly quoted the law, informing the jury that they were allowed to presume
Owens's 	knowledge 	based 	on 	a 	"reasonable 	person" standard, 	but 	were 	not
required to do so. 	The jury was so instructed, and we presume jurors follow the
instructions they are given.23
Moreover, 	because 	Owens 	failed 	to 	object to 	the 	deputy 	prosecutor's
statements, 	he must show that it was so "flagrant and ill intentioned" that no
curative instruction could 	have obviated the prejudice. 	Owens does not show
21 11 Washington Practice: Washington Pattern Jury Instructions: Criminal
10.02 (3d ed. 2008).
22 Owens cites to the following portion of the State's closing argument:
Knowingly isn't a subjective standard. What that describes, if you look
at the second paragraph on Instruction Number 6, "If a person has
information that would lead a reasonable person in the same situation
to believe that a fact exists, the jury is permitted but not required to
find that she acted with knowledge."
The 	reasonable 	person 	standard 	is this. 	It's a 	reasonable
person. 	It's an objective standard. 	It means, what would a common,
everyday person say, Hey, this clearly is suspicious. 	It's not what was
that person thinking, what was that specific person thinking. 	It's the
general knowledge, what an average person should know.
23 State v. Grisbv. 97 Wn.2d 493, 509, 647 P.2d 6 (1982).
10

No. 67867-1-1/11
incurable prejudice. 	Even without the permissive inference, there was sufficient
evidence 	from 	which 	the 	jury 	could 	find 	that 	Owens 	had 	actual, 	subjective
knowledge that the Beetle was stolen. 	Owens attempted to 	resell the Beetle
immediately after he claimed he purchased it; he misrepresented the model year
to Sauvageau; 	and 	he 	could 	not explain 	how the 	Beetle came to 	possess a
fraudulent 	VIN 	plate 	belonging 	to 	another 	Volkswagen 	he 	possessed.
Accordingly, Owens fails to prove misconduct that undercuts the validity of the
verdict.
We reverse and remand for resentencing, striking the first degree trafficking
in stolen property conviction. We affirm Owens's remaining two convictions.
s"w^ ^
WE CONCUR:
11