State of Washington v. Chantell Marie Graham, aka Simonton ( 2014 )

FILED
JUNE 26,2014
I n the Office ofthe Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31891-5-111
)
Appellant, )
)
V. )
)
CHANTELL M. (SIMONTON) GRAHAM, ) PUBLISHED OPINION
)
Respondent. )
BROWN, J. - The State of Washington appeals the dismissal of Chantell
Graham's trafficking in stolen property charge. The State contends sufficient evidence
showed Ms. Graham sold or transferred stolen property to another person. We
disagree, and affirm.
FACTS
Ms. Graham entered the Ephrata Walmart store with an empty shopping cart and
placed two television wall mount kits and a battery for a motorized toy-vehicle in her
cart. She then took the less expensive of the wall mount kits and the battery to
customer service and asked to return them, claiming to have recently purchased them.
Because she did not have a receipt, Walmart issued a gift card to Ms. Graham for the
value of the returned items. Ms. Graham used this gift card to purchase the more
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State v. Graham
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I expensive of the wall mount kits, which she returned to the store the next day in
exchange for approximately $100 in cash.
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The State charged Ms. Graham with second degree trafficking in stolen property.
Ms. Graham requested dismissal of the charge under CrR 8.3(c) and State v. Knapstad,
J 107 Wn.2d 346, 729 P.2d 48 (1986). The court agreed and dismissed the charge,
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1 finding there was no transfer or disposition of stolen property because U[t]he first
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I transaction ... consisted only of theft of a gift card by deception. . . . The second
I transaction ... consisted only of use ("negotiation") of that property in its intended
manner; using the gift card as cash." Clerk's Papers (CP) at 46.
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, The State appealed.
ANALYSIS
The issue is whether the trial court erred by granting Ms. Graham's motion to
dismiss. The State contends sufficient evidence existed to support the second degree
trafficking in stolen property charge.
We review Knapstad rulings de novo. State v. Conte, 159 Wn.2d 797,803, 154
P.3d 194 (2007). Knapstad created a pretrial process, akin to summary judgment
motions in civil cases, that allows the trial court to dismiss a criminal case when the
agreed upon facts show the prosecution's case is missing an element necessary to
prove the charged offense. Knapstad, 107 Wn.2d at 356-57. The procedure to be
followed for Knapstad motions is delineated by CrR 8.3(c).
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In a Knapstad motion, a defendant alleges by sworn affidavit that there are no
material disputed facts and that the undisputed facts do not establish a prima facie case
of guilt. Knapstad, 107 Wn.2d at 356. When evaluating a Knapstad challenge to the
sufficiency of the evidence, the trial court considers the evidence and reasonable
inferences therefrom in the light most favorable to the State. State v. Jackson, 82 Wn.
App. 594, 608, 918 P.2d 945 (1996).
"A person who recklessly traffics in stolen property is guilty of trafficking in stolen
property in the second degree." RCW 9A.82.055(1). '''Traffic' means to sell, transfer,
distribute, dispense, or otherwise dispose of stolen property to another person, or to
buy, receive, possess, or obtain control of stolen property, with intent to sell, transfer,
distribute, dispense, or otherwise dispose of the property to another person." RCW
9A.82.010(19). "A person is reckless or acts recklessly when he or she knows of and
disregards a substantial risk that a wrongful act may occur and his or her disregard of
such substantial risk is a gross deviation from conduct that a reasonable person would
exercise in the same situation." RCW 9A.08.010(1)(c). At issue is whether the wall
mount kit and battery that Ms. Graham took to the customer service counter and the
second wall mount kit that she returned for cash the next day were "stolen property"
and, if so, whether they were trafficked. RCW 9A.82.055(1).
'''Stolen property' means property that has been obtained by theft, robbery, or
extortion." RCW 9A.82.010(16). "Theft" requires intent to deprive the owner of such
property. RCW 9A.56.020(1).
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In granting the Knapstad motion, the trial court pointed out that the information in
the case did not specify which transaction, or which segment of the overall transaction
was alleged to constitute the trafficking crime. It therefore examined each phase of the
transaction. We, too, examine each phase.
In relying on the first segment of the overall transaction-Ms. Graham's
presentation of the less expensive wall mount kit and battery for "return," for which she
received a gift card-the State asks us to consider the kit and battery as "stolen
property" at the time Ms. Graham took them from Walmart's shelves and walked with
them to the customer service area, and to consider her tender of them for cash or credit
as the "trafficking" of stolen property. As the State correctly points out, a person may be
guilty of theft whether or not they have yet left the store if the person intended to deprive
the store of such property. See, e.g., State v. Britten, 46 Wn. App. 571,572-74,731
P.2d 508 (1986) (defendant put several jeans on under his own clothes and, although
he had not yet left the store, he was guilty of theft because he intended to deprive the
store of the items).
Britten is distinguishable, however, because "[t]here [was] no issue as to Britten's
intent" to deprive the store of the property Id. at 573. Mr. Britten had removed the tags
and concealed several pairs of jeans under his own clothing, evidencing his intent to
deprive the store of the jeans themselves. Id. at 572-74. Ms. Graham never intended
to deprive Walmart of the kit or battery. Since the merchandise that she intended to
proffer for cash or credit was not "stolen" when brought to the customer service counter,
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the first segment of the overall transaction did not amount to trafficking in stolen
property.
Grady v. State, 319 Ga. App. 894, 743 S.E.2d 22 (2013) involved more factual
similarities to this case than Britten, but the State charged a different crime. In Grady,
the defendant was convicted of theft by shoplifting after he entered a store, presented
two racquets to store personnel that he wished to return, received "return" stickers for
the racquets to present to a customer service employee, left those racquets on store
shelves and picked up two more expensive racquets, and then presented the more
expensive racquets for return, relying on the "return" stickers. Although the customer
service employee told the defendant there was a discrepancy between the barcode on
the return stickers and the expensive racquets presented, the defendant became '''kind
of hysterical' and angry" and, after consulting with loss prevention employees who in
turn consulted with police, the store's manager instructed the customer service
employee to issue the defendant a gift card in the full value of the expensive rackets.
Id. at 895. The fact that the defendant presented the merchandise for return and.
received a gift card was evidence that he had concealed or taken possession of
merchandise with the required statutory intent "to deprive the owner of possession
thereof or of the value thereof." Id. (emphasis added),
While Ms. Graham had dishonest intentions, the inexpensive kit and battery were
not obtained by theft when she brought them to the customer service counter and
requested cash or credit. She did not intend to deprive Walmart of those items; rather,
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her intent was to obtain their value. Rather than trafficking in stolen property, her
actions amount to theft, as recognized and appropriately charged in Grady.
Turning to the second segment of the overall transaction-Ms. Graham's return,
for cash, of the mount kit purchased with the gift card-the issue is whether that second
kit was "stolen property" that she trafficked by returning it. "Stolen property" is defined,
again, as "property that is obtained by theft, robbery, or extortion." RCW 9A.82.010(16).
In State v. Lillard, 122 Wn. App. 422, 425-27,93 P.3d 969 (2004), the defendant
participated in a fraudulent scheme of purchasing low-value Nordstrom gift cards and
then altering the number on the card's magnetic strip to match an account with a much
larger balance. The cards were used to purchase merchandise found in defendant's
possession, after which he was charged with possession of the stolen merchandise.
While a number of issues were raised on appeal, the defendant did not challenge the
characterization of the store's merchandise as stolen property. The decision therefore
assumes but does not hold that the merchandise was stolen. The case is
distinguishable from our facts because the altered cards in Lillard were not being
negotiated at Nordstrom's expense and according to the card's terms, they were being
negotiated contrary to the terms of the card, at the expense of an innocent account
holder. Given its distinct facts and the absence of any analysis of what qualifies as
"stolen property," Lillard is not helpful in deciding this case.
In State v. Michelli, 132 Wn.2d 229,937 P.2d 587 (1997), our Supreme Court
reversed a decision of this court and in the process discussed a Florida case, Florida v.
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t Camp, 579 SO.2d 763 (Fla. Dist. Ct. App. 1991), affd, 596 SO.2d 1055 (1992). The
1 defendant in Camp had stolen blank checks from her workplace and negotiated them to
I payoff personal debt, which the Florida Supreme Court determined did not qualify as
I trafficking. But as Michelli explained, the reasoning of the Florida court was not that a
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trafficker must be a middleman, it was that using stolen property does not amount to
trafficking in stolen property:
Negotiating stolen checks merely involved personal use of stolen property
and did not rise to the level of dealing, or trafficking, in stolen property.
The trafficking statute "was not designed to punish persons who steal for
personal use." Camp, 596 SO.2d at 1057 (footnote omitted). The court
noted, however, that its analysis "would not apply had [defendant] stolen
and sold blank checks for others to negotiate." Camp, 596 So.2d at 1057
n.3 (emphasis added).
132 Wn.2d at 234-35.
In granting the Knapstad motion in this case, the trial court reasoned that Ms.
Graham's use of the gift card to purchase the second wall mount kit did not amount to a
separate theft "since defendant used the gift card as 'cash"':
In other words, had defendant stolen $50 from her neighbor, using it to
purchase the bracket would not constitute theft of the bracket.
Furthermore, it does not constitute a "transfer" or "other disposition" of the
gift card, in the sense of the definition of "trafficking," for the same reason,
noted in Michielli, that the thiefs negotiation of stolen blank checks in
Florida v. Camp did not amount to a transfer of them. Had defendant sold
the Wal-Mart gift card to a third person, who then used it to acquire
property from Wal-Mart, a different conclusion would obtain.
But here, the gift card amounts to this representation from Wal-Mart
(even if fraudulently obtained): "You may use this card in exchange for
Wal-Mart property of your choice." That is exactly what defendant did; she
did not "transfer" the gift card to Wal-Mart or anyone else-rather, she
used it in the way intended by Waf-Mart.
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CP at 30.
In order for Ms. Graham's second return of a wall mount kit to fall within the
statutory definition, we would have to read the definition of "stolen property" to include
not only property that is itself stolen, but also property that was acquired in a legitimate
exchange but can be traced back through a series of exchanges to property that was
obtained by theft, robbery or extortion. The plain language of the statutory definition of
"stolen property" does not support such a reading nor could the legislature possibly
have intended it.
Viewing the evidence and reasonable inferences therefrom in the light most
favorable to the State, Ms. Graham did not sell or transfer stolen property to another
person. The trial court properly dismissed the second degree trafficking in stolen
property charge.
Affirmed.
Brown, J.
WE CONCUR:
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Siddowa~ Lawrence-Berrey, J.
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