State Of Wash. v. Mcphee

156 Wash.App. 44

230 P.3d 284

STATE of Washington, Respondent and Cross-Appellant,v.Jeffrey D. McPHEE, Appellant and Cross-Respondent.

No. 37610-5-II.

Court of Appeals of Washington Division 2.

May 11, 2010.

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Peter B. Tiller, The Tiller Law Firm, Centralia, WA, for Appellant/Cross-Respondent.

David Bustamante, Attorney at Law, Raymond, WA, for Respondent/Cross-Appellant.

QUINN-BRINTNALL, J.

¶ 1 The State charged Jeffrey D. McPhee with one count of residential burglary, four counts of possession of stolen firearms, and one count of second degree possession of stolen property. A jury acquitted him of residential burglary and two counts of possession of stolen firearms. But the jury was unable to reach a verdict on the remaining two counts of possession of stolen firearms and one count of second degree possession of stolen property. The trial court declared a mistrial and the State recharged McPhee. In a second trial, the trial court dismissed the second degree possession of stolen property count at the end of the State's case. The jury then convicted McPhee of two counts of possession of stolen firearms. McPhee appeals, alleging various double jeopardy and evidentiary insufficiency challenges to his convictions. The State cross-appeals, challenging the trial court's dismissal of the possession of stolen property count. We affirm McPhee's two convictions of possession of stolen firearms. We reverse the order dismissing the possession of stolen property other than a firearm and remand for a new trial as to that charge.

FACTS

¶ 2 On June 8, 2007, the State charged McPhee with various crimes arising out of a burglary in Pacific County, Washington. Count I alleged that McPhee committed residential burglary on or between January 28 and January 29 2007, in violation of RCW 9A.52.025.¹ Count II alleged that McPhee knowingly possessed a stolen Weatherby rifle on or about January 31, 2007, in violation of RCW 9A.56.310.² Count III alleged that McPhee knowingly possessed a stolen Benelli shotgun between January 28 and February 2, 2007, in violation of RCW 9A.56.310. Count IV alleged that McPhee knowingly possessed a stolen Remington shotgun on or about February 9, 2007, in violation of RCW 9A.56.310. Count V alleged that he knowingly possessed a stolen Enfield rifle on or about February 9, 2007, in violation of RCW 9A.56.310. And count VI alleged that McPhee knowingly possessed stolen property other than a firearm, to-wit: field binoculars and ivory tusks in violation of former RCW 9A.56.160(1)(a) (1995).³

First Jury Trial

¶ 3 On November 27, 2007, McPhee's jury trial on the original charges commenced. During that trial, Ronald Miller testified that he returned from an overnight trip on January 29, 2007, to discover his home had been burgled. That day, Miller reported that four guns and one set of field binoculars had been stolen. The guns included one hunting rifle with a scope, one Benelli shotgun, one Remington shotgun, and an Enfield military rifle. Miller later discovered that a pair of tusks was also missing from his home.

¶ 4 Nicholas Herrick testified that in January or February, McPhee contacted him to ask if he was interested in buying a gun. Around January 31, 2007, McPhee brought four guns to Herrick's job site on Willows Road in Ilwaco. At the time, McPhee had the guns in his car. Herrick was suspicious of the guns, asked McPhee if they were legitimate, and informed McPhee that he planned to call the sheriff to confirm that they were not stolen. According to Herrick, McPhee denied that the weapons were stolen. During the encounter, Herrick took possession of the Weatherby rifle. He subsequently turned it over to Pacific County Sheriff's Deputy Larry Clark.

¶ 5 Jeremy Baker testified that Herrick informed him that McPhee had some guns for sale. Baker met with McPhee on the same day that McPhee met with Herrick. Baker believed that date was on or about February 2, 2007. They met at 2815 Willows Road in Seaview. Baker was interested in purchasing the Benelli shotgun from McPhee for a couple hundred dollars. Baker took the Benelli shotgun into his possession that day.

¶ 6 Steve Neva testified that McPhee contacted him about a week before February 9, 2007, to ask if he was interested in purchasing some guns. Neva and McPhee had previously worked together at a job site next to Miller's residence. While working on that site, McPhee had gone to Miller's residence to use the electrical power. According to Neva, approximately one week before McPhee contacted him about purchasing the guns, McPhee asked to borrow Neva's truck to “unload a house.” 1 Report of Proceedings (RP) (Nov. 27, 2007) at 132. Neva came to believe that the guns McPhee was attempting to sell had come from Miller's house.

¶ 7 Meanwhile, Miller placed an advertisement in the local newspaper, the Chinook Observer, in which he listed the missing items ⁴ and offered a $500 reward for their return. The advertisement was published on February 7, 2007. A few days later, David Kochis contacted Miller about the missing items. After speaking with Kochis, Miller contacted his old friends, Neva and Dale McGinnis, to help him recover the guns, the binoculars, and the tusks. Miller also contacted Pacific County Sheriff's Deputy Daree Smith to inform him he had devised a plan to recover his property.

¶ 8 Neva testified that he, McGinnis, Kochis, and another man went to confront McPhee at McPhee's girl friend's residence on the morning of February 9, 2007. McPhee led the group to the place where he had stored the guns and other property. According to Neva, the guns were under some brush without covering for protection. The tusks and the binoculars were in the same location.

¶ 9 Deputy Clark testified that he apprehended McPhee as the men were leaving the property. Clark had been waiting in the area after law enforcement personnel had alerted him that there was a suspicious vehicle in that area en route to retrieve some stolen guns.

¶ 10 Deputy Smith testified that when he arrived, McPhee was sitting in the back of Deputy Clark's patrol car. McPhee told Smith that he knew he was in a lot of trouble and he wanted to cooperate. He explained that he had obtained the guns in Ilwaco from a guy named Bill. McPhee related a conversation that he had with Bill during which McPhee told Bill about a house on the bay with a big screen television and some guns. Bill later approached McPhee to ask if he was interested in purchasing some guns, binoculars, and tusks. McPhee said that Bill wanted $100 for everything. At that point, Smith asked McPhee if he thought it was odd that Bill wanted to sell four guns, binoculars, and tusks for a mere $100. McPhee responded that he did think it was odd but that he believed Bill was attempting to get some quick cash. McPhee was not interested in the guns; however, he did want the tusks because he thought they were interesting and that he could sell them for a profit. McPhee claimed to have purchased all the items for $100.

¶ 11 McPhee testified on his own behalf. He confirmed that he transported the guns to Herrick and Baker in his car. He further testified that he was unaware that the weapons were stolen until February 9, 2007, when the four men confronted him at his girl friend's home. McPhee explained that he had placed the items in the brush on his friend's property for safe keeping. He had no other place to store them; he was aware that the guns would be exposed to the elements while they were stored outside in the brush, but he believed any damage could be repaired. He wrapped the items in plastic in an attempt to minimize the damage. McPhee admitted that the items had been lying in the brush for approximately two or three days before his arrest.

¶ 12 The jury acquitted McPhee of residential burglary and two counts of possession of stolen firearms for the Weatherby rifle and the Benelli shotgun. The jury left the remaining verdict forms as to the remaining counts blank because it was deadlocked. The trial court declared a mistrial as to the remaining counts: possession of a stolen firearm, to-wit: Remington shotgun (count IV); possession of a stolen firearm, to-wit: Enfield shotgun (count V); and second degree possession of stolen property, to-wit: field binoculars and tusks (count VI).

Second Jury Trial

¶ 13 Following the mistrial, the State amended the information a second time, such that counts I, II, and III corresponded to counts IV, V, and VI from the first jury trial. A second jury trial commenced on March 17, 2008.

¶ 14 Defense counsel moved in limine to exclude evidence of the Miller residence burglary, evidence of the items stolen from the Miller residence, and testimony relating to any conversation or statement made about the burglary or relating to knowledge of the Miller home, its location, and that McPhee had once worked on a house next to the Miller residence. Defense counsel argued that the evidence was “irrelevant, misleading, inflammatory, and prejudicial given the rejection of the State's charge of residential burglary in the first trial.” 1 Clerk's Papers (CP) at 19. Defense counsel specifically sought to exclude any evidence of McPhee's conversation with Deputy Smith regarding Bill.

¶ 15 The State argued against exclusion of the evidence. It maintained that the evidence concerning the conversation with Bill provided circumstantial evidence of the essential element of knowledge. In its briefing and argument, the State emphasized its burden to prove the weapons and property were stolen to support the charges. The State further suggested that any prejudicial effect would be cured with a limiting instruction.

¶ 16 The trial court denied McPhee's motion in limine. It determined that any prejudicial effect could be cured through a limiting instruction. The trial court, the State, and defense counsel then crafted an instruction....