Opinion
No. 52351-1-I.
Filed: June 14, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-8-00605-1. Judgment or order under review. Date filed: 04/10/2003. Judge signing: Hon. Patricia H Clark.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Dana M Nelson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Anna Barbara Bosch, King County Pros Attorney's Office, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Zachary Tinker challenges his conviction for third degree theft, arguing that the information was constitutionally deficient because it did not allege the property's value. A charging document must allege all essential elements of a crime to give the accused notice of the charges and allow the accused to prepare a defense. Value is not an essential element of third degree theft. Because the information contained all the essential elements of third degree theft, we affirm the conviction.
FACTS
The State charged Tinker with third degree theft in juvenile court. The information alleged:
That the respondent . . . in King County, Washington, on or about 17 December 2002, with intent to deprive another of property, to-wit: merchandise, did wrongfully obtain such property belonging to Play it Again Sports;
Contrary to RCW 9A.56.050 and 9A.56.020(1)(a), and against the peace and dignity of the State of Washington.
At the adjudicatory hearing, defense counsel moved to dismiss the charge, alleging that the information was deficient under State v. Moavenzadeh, 135 Wn.2d 359, 956 P.2d 1097 (1998). The trial court determined that Moavenzadeh was not directly on point and denied the motion. The court found Tinker guilty, and Tinker appeals.
ANALYSIS
A charging document must include all essential elements of a crime. State v. Kjorsvik, 117 Wn.2d 93, 97, 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 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). When an accused challenges the sufficiency of the information prior to verdict, the charging document is strictly construed to determine whether all the elements of the crime are included. State v. Vangerpen, 125 Wn.2d 782, 788, 888 P.2d 1177 (1995).
Tinker argues that value is an essential element of third degree theft, and therefore, the information was constitutionally deficient. Tinker relies on State v. Moavenzadeh, 135 Wn.2d 359, 956 P.2d 1097 (1998), where the defendant was convicted of various crimes, including six counts of theft, three counts in the second degree and three counts in the third degree. The information did not contain the value of the property taken. In an unpublished opinion, the Court of Appeals held that the information was sufficient. The Supreme Court reversed, holding that the information was not constitutionally sufficient:
As for the second and third degree theft counts, the term "theft" is arguably adequate to convey an intentional, wrongful taking of the property of another. But the property value elements of these crimes do not appear in any form in the information. Those charges are therefore constitutionally defective even assuming the "intent to deprive" element was adequately charged.
Moavenzadeh, 135 Wn.2d at 364. Tinker argues that Moavenzadeh controls, and therefore, information was constitutionally deficient. This case, however, is distinguishable. In Moavenzadeh, the defendant was charged with three counts of second degree theft and three counts of third degree theft, along with twelve other charges. Because of the multiple theft charges with differing degrees, the value of the property would be important to distinguish the charges. Here, the State charged Tinker with only one crime — third degree theft. Thus, there was no need to distinguish between different degrees of theft and Moavenzadeh does not apply.
Additionally, value is not an essential element of third degree theft. "A person is guilty of theft in the third degree if he or she commits theft of property or services which . . . does not exceed two hundred and fifty dollars in value[.]" RCW 9A.56.050(1)(a). "The State must present evidence of fair market value only when the State seeks to convict a defendant of an offense relating to property having a value greater than a specific amount." State v. Rogers, 30 Wn. App. 653, 655, 638 P.2d 89 (1981) (holding that value is not an essential element of second degree possession of a motor vehicle having a value less than $1,500). Here, it is not necessary for the State to prove that the item had a value of less than two hundred and fifty dollars. Requiring the State to prove value in this case would put a defendant in the awkward position of arguing that he actually committed a higher degree of theft. See State v. Ward, 148 Wn.2d 803, 812-13, 64 P.3d 640 (2003).
Because value is not an essential element of third degree theft, we affirm Tinker's conviction.
ELLINGTON and COX, JJ.