Opinion
No. 35440-3-II.
February 5, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-00070-4, Sally F. Olsen, J., entered September 29, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Armstrong, J.
A jury found Richard Yanac guilty of first degree possession of stolen property for possessing a $3,500 telescope stolen from Pierce County's Narrows Park. The court imposed a 23-month standard range sentence. Yanac appeals, arguing that the trial court: (1) abused its discretion in excluding certain testimony and (2) violated his Sixth Amendment right of confrontation. He also argues that the evidence was insufficient to support his conviction. Because any evidentiary errors did not prejudice Yanac and sufficient evidence supports the jury's verdict, we affirm.
FACTS
Pierce County had installed a number of amenities at Narrows Park, including two telescopes from which people could view the construction of the second Tacoma Narrows Bridge. On May 6, 2005, somebody stole one of these telescopes, valued at approximately $3,500. Sometime after the theft, the Pierce County Sheriff's Department received an anonymous tip that the stolen telescope could be located in an old bus on Yanac's property in Kitsap County.
In response to the tip, Kitsap County Sheriff's Deputy Eric Janson contacted Yanac at his property. Janson asked Yanac if he had a telescope and Yanac replied that he had one bolted to the floor of his bus. Yanac showed Janson the telescope, which looked very new and matched the description of the stolen telescope.
Yanac then told Deputy Janson that he had obtained the telescope from "Mike." 1 Report of Proceedings (RP) at 78. But Yanac did not further identify "Mike" nor provide any contact information for "Mike." When Janson asked Yanac if he owed "Mike" something for the telescope, Yanac responded, "No." 1 RP at 78. Finally, when Janson asked Yanac if he thought the telescope might have been stolen, Yanac said, "Yes." 1 RP at 78. Yanac removed the telescope from the bus and allowed Janson to return it to the Pierce County Sheriff's Department. The State charged Yanac with one count of first degree possession of stolen property under RCW 9A.56.140(1) and former RCW 9A.56.150(1) (1995).
Before trial, Yanac's counsel advised the trial court that he intended to call the anonymous tipster, Vanessa Ann Hannagan, as a defense witness. Yanac's counsel argued:
The State responded by filing a motion in limine, seeking a ruling from the trial court on whether her testimony would be admissible under ER 402, which in part states, "Evidence which is not relevant is not admissible."
And with regard to the offer of proof, Ms. Hannagan would be able to testify that Mike Blithe, the individual that Mr. Yanac received the telescope from, told her that this telescope was at Mr. Yanac's property, and that it was stolen, and that she should call the police to get back at him. She was in a relationship with Mr. Yanac, and apparently there has been a falling out. He told her to call the police and tell them that there was a stolen telescope on his property to get him into trouble.
I believe that this is hearsay evidence clearly because it is a statement made by somebody who will not be testifying. However, I believe that — I'm not offering this statement for the truth of the matter asserted that there was a stolen telescope on Mr. Yanac's property. I'm offering this to show Ms. Hannagan's state of mind and the reason why she called the police, 911.
1 RP at 7-8.
Yanac's counsel then made an offer of proof, during which Hannagan testified that she gave the anonymous tip because she was "angry, jealous, mad . . . and I was told to." 1 RP at 14. Hannagan continued, "Mike Blithe suggested that I do that. It would be a good way for me to get even and him to kind of get even, too, because he was jealous also." 1 RP at 14. Finally, Hannagan testified that she "thought" Blithe was a friend to her and Yanac. 1 RP at 14.
After this offer of proof, the trial court ruled, "She may testify that she called 911. I think the jury has a right to know that that is how this got started. She called 911 and reported that the defendant had a stolen telescope." 1 RP at 18-19. The trial court clarified this ruling to Yanac's counsel by stating, "You can cross-examine and can examine her on the relationship, but I am just saying that you cannot ask her about what Mr. Blithe told her." 1 RP at 19. Yanac's counsel did not call Hannagan as a witness.
Yanac was the only witness called by the defense. During his testimony, Yanac admitted that he had five prior forgery convictions and one prior possession of stolen property conviction. Yanac testified that he was a mechanic, who "went to auctions and bought things and went to yard sales and bought things; bought things all over the place." 2 RP at 106. Yanac also testified that he obtained the telescope from "Mike," whom he did not know that well. But Yanac claimed to have worked on "Mike's" vehicles from time to time.
While over at "Mike's" house one day, Yanac noticed the telescope lying on the ground. Yanac asked "Mike" about the telescope. According to Yanac, "Mike" said, "Oh, it's just an old telescope that somebody left here." 2 RP at 107. "Mike" then offered the telescope to Yanac.
Yanac testified that he then asked "Mike," "Well, is it stolen?" 2 RP at 108. According to Yanac, "Mike" replied, "I have no idea." 2 RP at 108. The State objected to this portion of Yanac's testimony as hearsay. The trial court sustained the State's objection and instructed the jury to disregard it.
Yanac continued to testify about the telescope, saying that he looked for serial numbers on it. But the telescope had only a "mold number" on it. 2 RP at 109. Yanac testified that he was concerned about the telescope being stolen property. But after finding no serial numbers, he "felt that [he] was safe." 2 RP at 110. Yanac said, "[I]f I was to bring that into a pawn shop they would take it." 2 RP at 110. Finally, Yanac stated that he could not have known whether the telescope was stolen property.
The jury convicted Yanac as charged, and the trial court sentenced him to 23 months of confinement. Yanac timely appeals.
ANALYSIS
Hannagan's Testimony
A. In Limine Ruling
First, Yanac claims that the trial court erred when it ruled in limine that Hannagan could not testify about the statements Blithe made to her. We disagree.
The admission and exclusion of relevant evidence is within the sound discretion of the trial court. State v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991). And we will not disturb a trial court's rulings on a motion in limine or the admissibility of evidence absent an abuse of its discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). A trial court abuses its discretion if its decision is manifestly unreasonable, or based on untenable grounds or untenable reasons. Powell, 126 Wn.2d at 258.
Yanac argues that the statements Blithe made to Hannagan should have been admissible to describe Hannagan's then-existing state of mind. ER 803(a)(3) establishes an exception to the hearsay rule for statements offered to describe a declarant's then-existing state of mind. But by its terms, this hearsay exception includes only those statements describing the declarant's own emotions or feelings, not those of another person. 5C Karl B. Tegland, Washington Practice: Evidence Law and Practice § 803.11, at 33 (5th ed. 2007); see State v. Picard, 90 Wn. App. 890, 899-900, 954 P.2d 336, review denied, 136 Wn.2d 1021 (1998). Here, the declarant was Blithe, not Hannagan. And Blithe's then-existing state of mind was irrelevant, as he was not a witness. See ER 402.
Under ER 801(c), hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Under ER 802, hearsay is "not admissible except as provided by these rules, by other court rules, or by statute."
Similarly, State v. Spencer, 111 Wn. App. 401, 45 P.3d 209 (2002), review denied, 148 Wn.2d 1009 (2003), is inapposite here as Yanac was not trying to impeach Blithe's (the declarant's) credibility, but Hannagan's (the witness's) credibility.
Nevertheless, the statements Blithe made to Hannagan may have been admissible as circumstantial evidence of Hannagan's then-existing state of mind. 5C Tegland, supra § 803.15, at 48. At least one author has noted:
The result is usually based not upon the theory that any particular hearsay exception applies, but upon the theory that the statement is not hearsay in the first place. The statement is offered not to prove the truth of the matter asserted, but as circumstantial evidence of the state of mind of the hearer.
5C Tegland, supra § 803.15, at 48-49 (footnote omitted).
But here, the admission of Blithe's statements to Hannagan would have served no purpose other than to prove the truth of the matter asserted — that Blithe told Hannagan to give the anonymous tip. As such Blithe's statements were inadmissible hearsay. See ER 802. In addition, Blithe's statements to Hannagan were not relevant. See ER 401; ER 402. Nevertheless, the trial court still ruled that Hannagan could testify to her reasons for making the anonymous tip: that she was "angry, jealous, [and] mad." 1 RP at 14.
Therefore, the trial court did not abuse its discretion when it ruled that Hannagan could testify to her own motives for reporting the telescope to the police but could not testify to the substance of the statements Blithe made to her.
B. Sixth Amendment Right of Confrontation
Second, Yanac claims that the trial court violated his Sixth Amendment right to confrontation when it ruled that Hannagan could not testify about the statements Blithe made to her. But again, we disagree.
As the State correctly notes, the trial court made no ruling that precluded Yanac from calling Hannagan as a witness. Yanac's Sixth Amendment right to confront the witnesses against him was not denied. Moreover, the trial court made no ruling that precluded Hannagan from testifying about her relationship with Yanac. And the trial court made no ruling that precluded Hannagan from testifying about why she gave the anonymous tip. At most, the trial court simply precluded Hannagan from testifying about inadmissible hearsay. Most importantly, Yanac never called Hannagan as a witness, and he never asked the trial court for a final ruling on this issue.
Accordingly, we have no "ruling" to review. See ER 103; see also Mayekawa Mfg. Co. v. Sasaki, 76 Wn. App. 791, 796 n. 6, 888 P.2d 183 (court will not review an issue when there is no specific ruling below), review denied, 126 Wn.2d 1024 (1995).
Yanac's Testimony
Yanac claims that the trial court erred when it sustained the State's hearsay objection to his testimony that he asked "Mike" whether the telescope was stolen and "Mike" answered that he had "no idea." 2 RP at 108. Yanac argues, "This was prejudicial . . . because the struck testimony eliminated any testimony to the jury regarding [his] state of mind at the time of the exchange." Br. of Appellant at 16. We agree that Yanac's question ("Well, is it stolen?" 2 RP at 108) and "Mike's" statement ("I have no idea." 2 RP at 108) were admissible to show Yanac's state of mind. See ER 801(c); ER 803(a)(3); 5C Tegland, supra § 803.15, at 48-50. But we disagree with Yanac's claim that the exclusion of this testimony prejudiced him.
As previously stated, we review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Swan, 114 Wn.2d at 658.
Here, Yanac did not seek to offer "Mike's" statement ("I have no idea." 2 RP at 108) for the truth of the matter asserted, i.e., that "Mike" literally had no idea whether the telescope was stolen. Instead, Yanac sought to offer this statement as circumstantial evidence of his then-existing state of mind. See ER 801(c); 5C Tegland, supra § 803.15, at 48 ("An out of court statement offered to prove the mental or emotional effect upon the hearer or reader is not objectionable as hearsay. The result is usually based . . . upon the theory that the statement is not hearsay in the first place."). Here, Yanac sought to offer "Mike's" statement to demonstrate that he (Yanac) did not have a reason to believe that the telescope was stolen property. Thus, "Mike's" statement should have been admissible for the mental or emotional effect on Yanac, the hearer. And the trial court erred in sustaining the State's hearsay objection to "Mike's" statement.
In addition, the trial court erred in sustaining the State's hearsay objection to Yanac's question ("Well, is it stolen?" 2 RP at 108). The trial court's ruling improperly kept the jury from considering relevant evidence of Yanac's then-existing state of mind. Here, Yanac did not seek to offer this question for the truth of the matter asserted, but to prove "his state of mind at the time of the exchange." Br. of Appellant at 16. And ER 803(a)(3) clearly creates a hearsay exception for statements describing the declarant's then-existing state of mind, emotions, or feelings.
Nevertheless, evidentiary error is grounds for reversal only if it results in prejudice. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). "An error is prejudicial if, `within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.'" State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)). The error is harmless if the evidence is of minor significance in reference to the evidence as a whole. Neal, 144 Wn.2d at 611.
Here, contrary to what Yanac argues, his question ("Well, is it stolen?" 2 RP at 108) is actually circumstantial evidence that he believed that the telescope might have been stolen. "Mike's" statement ("I have no idea." 2 RP at 108) would not have bolstered Yanac's defense. "Mike's" "no idea" statement does not refute Yanac's basis for asking whether the telescope was stolen property. And Yanac nevertheless believed that unless someone told him that the telescope was stolen or unless he could find a serial number (and not just a model number) through which he could conclusively determine that the telescope had been reported to police as stolen property, "[he] was safe because if [he] was to bring [the telescope] into a pawn shop they would take it." 2 RP at 110.
Because Yanac's question proves that he thought the telescope might
have been stolen and "Mike's" "no idea" statement could not have dissuaded Yanac of that notion, the trial court's improper exclusion of this testimony did not prejudice Yanac. We conclude that the trial court's error in excluding this testimony from the jury's consideration was harmless. Sufficiency of the Evidence Yanac claims that the evidence was insufficient to support his conviction for first degree possession of stolen property. Specifically,
Yanac argues that the State failed to prove under RCW 9A.56.140(1) that: (1) he actually or constructively possessed the telescope, and (2) he actually or constructively knew the telescope was stolen property. We disagree.
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When a defendant challenges the sufficiency of evidence in a criminal case, we draw all reasonable inferences from the evidence in favor of the State and interpret all reasonable inferences from the evidence strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that we reasonably can draw from it. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980). Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). And we must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
By statute, a person acts knowingly or with knowledge when: (1) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (2) he has information that would lead an ordinary person in the same situation to believe that facts exist that are described by a statute as defining an offense. RCW 9A.08.010(1)(b). Under this statute, the jury may find that a defendant had actual knowledge if it finds that the ordinary person would have had knowledge under the circumstances. In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 838 n. 5, 39 P.3d 308 (2001) (citing State v. Shipp, 93 Wn.2d 510, 516, 610 P.2d 1322 (1980)).
Although possession alone is not enough to prove guilty knowledge, possession together with slight corroborating evidence of knowledge may be sufficient. See State v. Ladely, 82 Wn.2d 172, 175, 509 P.2d 658 (1973) (possession of stolen property, combined with slight corroborative evidence of other inculpatory circumstances tending to show guilt, is sufficient to warrant a conviction for grand larceny); State v. Douglas, 71 Wn.2d 303, 305-07, 428 P.2d 535 (1967) (possession of stolen property, in connection with other evidence tending to show guilt, is sufficient to warrant a conviction for burglary); see also State v. Scoby, 117 Wn.2d 55, 61-62, 810 P.2d 1358, 815 P.2d 1362 (1991); State v. Rockett, 6 Wn. App. 399, 402-03, 493 P.2d 321 (1972). "Thus, the giving of a false explanation or one that is improbable or is difficult to verify in addition to the possession is sufficient." Ladely, 82 Wn.2d at 175.
Here, the evidence was sufficient for the jury to find that Yanac actually possessed the telescope: he had it bolted to the floor of his bus. And the corroborating evidence was sufficient for the jury to find that Yanac actually or constructively knew that the telescope was stolen property. Yanac told Deputy Janson that he had obtained the telescope from "Mike." But Yanac did not further identify "Mike" nor provide any contact information for "Mike." Yanac knew that the telescope was new, not "old." 2 RP at 107. And Yanac admitted to Deputy Janson that he thought the telescope might have been stolen.
Therefore, we are satisfied that any reasonable trier of fact could find beyond a reasonable doubt that Yanac committed first degree possession of stolen property as charged.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. VAN DEREN, A.C.J., concur.