Category Archives: Possession of Stolen Property

Credit Card Value

Image result for cancelled credit card

In State v. Sandoval, the WA Court of Appeals held that an access device (credit card) need not be able to obtain something of value at the time it is found on a defendant. The access device need only be able to obtain something of value at the time it was last in the possession of its lawful owner.

BACKGROUND FACTS

Ms. Sandoval entered into an agreement with a car dealership. The agreement allowed Sandoval to take home and use a vehicle for three days to determine whether she wanted to purchase it. After three days, the dealership lost contact with Sandoval and made unsuccessful attempts to retrieve the vehicle. The dealership reported the vehicle stolen.

Eventually, the police found Sandoval and her husband in the stolen vehicle at the address
listed in the agreement. The police arrested Sandoval for possession of a stolen vehicle and
searched her incident to that arrest. In Sandoval’s purse, the police found a credit card with somebody else’s name on it, Sandoval’s sister’s birth certificate, and a pipe with methamphetamine residue.

The credit card had been stolen in early February. At that time, the card was active and could have been used to buy goods. Shortly thereafter, the card’s owner cancelled the card.

The State charged Sandoval with possession of a stolen vehicle, possession of stolen property in the second degree, identity theft in the second degree, and possession of a controlled substance.

At trial, the court instructed the jury on the elements of possession of stolen property in the second degree. The court told the jury that the State had to prove beyond a reasonable doubt that the stolen property was an access device.

The court defined an access device as, “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. In the same instruction, the court stated, “The phrase ‘can be used’ refers to the status of the access device when it was last in possession of its lawful owner, regardless of its status at a later time.

The jury convicted Sandoval on all charges except identity theft in the second degree. The
State dismissed that charge.

Sandoval appealed on the argument that an access device must be able to obtain something of value at the time it is found on a defendant, not at the time it was last in the possession of its lawful owner.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that RCW 9A.56.010(1) defines “access device” as 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.

Here, the Court of Appeals upheld the trial court’s definition containing the phrase “can be
used,” a phrase which is not statutorily defined. It reasoned that under State v. Schloredt, it was irrelevant whether a victim cancelled his or her account prior to a defendant’s arrest in determining whether stolen credit cards were “access devices” under the statute. Similar to the facts in Schloredt, it was irrelevant that the credit cards Ms. Sandoval possessed were cancelled by its lawful owner.

Also, the Court of Appeals rejected Sandoval’s argument that she received ineffective assistance of counsel when her attorney failed to request a jury instruction for unwitting possession as an affirmative defense for her possession of a controlled substance charge.

The Court reasoned that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the right to effective assistance of counsel. Furthermore, in an ineffective assistance of counsel claim, prejudice exists if there is a reasonable probability that, except for counsel’s errors, the results of the proceedings would have differed.

Here, the Court reasoned that Sandoval testified that she obtained the credit card and methamphetamine pipe at the same time, and both items were found on Sandoval in the same location. Therefore, if the jury found that the State carried its burden in showing beyond a reasonable doubt that Sandoval knowingly possessed the credit card, then it is doubtful that Sandoval could have carried her burden to show, by a preponderance of the evidence, that she unwittingly possessed the methamphetamine pipe.

“Thus, we conclude that it was not reasonably probable that the jury would have found Sandoval not guilty of possession of a controlled substance if they had been instructed on the unwitting possession defense.”

Therefore, the Court reasoned that Sandoval was not prejudiced by her counsel’s failure to request the instruction. Because Sandoval has not met her burden to prove prejudice, her ineffective assistance of counsel claim fails.

Please contact my office if you, a friend or family member are charged with a crime. Hiring a competent and effective defense attorney is the first and best step toward getting justice.

Victim Restitution

Image result for bobcat tractor

In State v. Romish, the WA Court of Appeals held that a defendant’s obligation to pay a victim’s restitution in possession of stolen property cases is only limited to damage that the State can prove was caused by the defendant’s conduct.

BACKGROUND FACTS

Mr. Romish pled guilty to possession of stolen property of a Bobcat tractor. In his guilty plea statement, Mr. Romish admitted to knowingly possessing stolen property, but he denied altering the condition of any of the property in his possession. He also did not indicate when he came into possession of the stolen property.

At the plea and sentencing hearing, Mr. Romish’s attorney agreed that restitution could be ordered if the State showed a causal connection between the damage to the Bobcat and Mr. Romish’s possession of it, but expressed doubts that the State could establish such a connection. Mr. Romish denied altering the condition of the Bobcat. Counsel also disputed the amount of claimed damages and requested a separate hearing on restitution.

A restitution hearing was held October 12, 2017. The only witness to testify was the owner of the stolen property. He described the damage that was sustained by the Bobcat as a result of the theft. He also explained that the Bobcat had been repainted in a haphazard manner and that a taillight had been broken. Although there did not appear to be any functional damage, the owner had the Bobcat serviced it, just to make sure.

Receipts showed the service, repair and repainting costs totaled $4,897.42. In addition to having the Bobcat repaired and serviced, the owner testified he had to rent replacement equipment during the period that the Bobcat was unavailable for use in his excavation business. Rental fees were incurred not only for the period that the Bobcat was missing as stolen, but also for the time the Bobcat was out of commission for service and repairs. The total rental cost was $4,928.46.

On cross-examination, the property owner denied knowing who stole the Bobcat or
who had repainted it. The owner testified that the paint on the Bobcat was neither fresh
nor wet when it was recovered. And the property owner denied seeing any paint at the
location where the Bobcat was recovered.

After the close of evidence, the trial court ordered Mr. Romish to pay restitution for all costs associated with the disappearance, repair and repainting of the Bobcat. Although the court recognized Mr. Romish had not been convicted of stealing the Bobcat, it nevertheless reasoned it could find at least by a preponderance of the evidence that the damage to the Bobcat had occurred while it was in Mr. Romish’s possession. The total amount of restitution was set at $9,825.88.

Mr. Romish appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals took Mr. Romish’s side. It vacated the trial court’s restitution order and remanded Romish’s matter for a new restitution hearing.

“The law of restitution relies on causation . . .” said the Court of Appeals, ” . . . and that reliance creates a distinction between theft and possession of stolen property.” Furthermore, the Court reasoned that culpability for possession of stolen property does not necessarily include culpability for the stealing of the property. “The actual thief is guilty of a different crime.”

The Court further reasoned that when a defendant has been convicted of possessing—but not the theft of—stolen property, sentencing courts must ensure a true causal connection links the defendant’s conduct to the victim’s losses. The mere fact that property was recently stolen does not permit inferring causation. “Instead, we require more specific evidence tying the defendant’s conduct to the victim’s losses,” said the Court.

Here, the Court held that no such evidence was presented in Mr. Romish’s case:

“Although the Bobcat was found in a barn at Mr. Romish’s residence, there was no evidence of painting supplies or recent painting activities at that location. Nor were there shards of glass or plastic that might signify the tail light had been broken at Mr. Romish’s
residence. In addition, the paint on the Bobcat was not fresh. This suggests that at least some time had passed between the repainting of the Bobcat and the date of its recovery by law enforcement.”

Additionally, the evidence presented at the hearing doidnot link Mr. Romish’s criminal conduct to many of the victim’s claimed damages. “No evidence was presented that might lead one to believe the Bobcat would not have been repainted or the taillight broken ‘but
for’ Mr. Romish’s possession,” said the Court of Appeals. “In like manner, there is no reason to think Mr. Romish’s possession of the Bobcat was the ‘but for’ cause of the victim’s rental fee expenses prior to the offense conduct date of August 23, 2016. Given these circumstances, the order of restitution must be reversed.”

My opinion? This case presented an interesting question regarding causation and damages in a criminal law context. Although the victim’s plight is sympathetic, and although there was substantial evidence that Mr. Romish stole the Bobcat, the Court was correct in its ruling that the State lacked evidence showing that Mr. Romish actually damaged the stolen Bobcat. Theft and property damage require two different levels of proof.

Please contact my office if you, a friend or family member face criminal charges. A defendant’s obligation to pay restitution to the victim of a crime is a huge issue in criminal law. Hiring competent and experienced defense attorney is a step in the right direction.