State v. Hiatt

STATE OF WASHINGTON, Respondent, v. MICHAEL RODNEY HIATT, Appellant.

No. 37024-1-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

May 13, 2021

UNPUBLISHED OPINION

SIDDOWAY, J. — Michael Hiatt appeals his conviction of possession of a stolen motor vehicle. Evidence that he gave permission to a friend to chain a vehicle recognizable as stolen to the front bumper of Mr. Hiatt's own inoperable car was insufficient, without more, to establish Mr. Hiatt's constructive possession of the stolen vehicle. We reverse the conviction, dismiss the charge, and remand for resentencing.

FACTS AND PROCEDURAL BACKGROUND

Beginning on December 10, 2018, KC Chavez possessed and was using a Honda Accord owned by his brother. Mr. Chavez parked and left the Accord outside his home two weeks later, on Christmas Eve. The next morning, it was gone. A Spokane patrol officer responded to Mr. Chavez's report of a stolen vehicle. Mr. Chavez took the officer to the location where Mr. Chavez said he had parked the Accord and the officer observed broken glass on the ground. Mr. Chavez said he and his brother were the only two people with keys to the car, and that he (Mr. Chavez) had not given anyone permission to use it at the time it went missing.

On Christmas night, another officer, Ethan Wilke, was on patrol when he observed a Ford Expedition that met the description of an Expedition that had been reported as stolen.¹ He ran the Expedition's California license plate and learned that the plate, at least, was not associated with a stolen car. There was too much condensation on the Expedition's windows for him to read the vehicle identification number (VIN).

As Officer Wilke began to leave, he saw that a black Honda Accord, which was parked nose to nose with the Expedition, was actually chained and padlocked to theExpedition, through the cars' front bumpers. He also saw that the Accord had a broken driver's side window. He stopped to investigate and saw glass on the driver's seat of the Accord. It had a punch-out key stuck in its ignition that Officer Wilke was unable to remove. The Accord did not have a license plate, so Officer Wilke checked the Honda's VIN and learned that the car was Mr. Chavez's stolen Accord.

Officer Wilke and Officer Brian Blankenstein, who had joined him at the scene, wanted to see if there was anyone in the Expedition, so they approached it, knocked on the door, and announced themselves. Michael Hiatt, who had been sleeping inside, stepped out. Asked for his name and date of birth, he provided them. Officer Wilke ran Mr. Hiatt's name and learned he had misdemeanor warrants. He placed Mr. Hiatt under arrest and read him his Miranda² rights. Mr. Hiatt agreed to speak with the officers.

Mr. Hiatt told the officers the Expedition belonged to him, although it was not registered to him. He told them the Accord belonged to a friend, whose name he did not want to disclose. He said he had allowed his friend to chain the cars together. At trial, Officer Wilke provided the following testimony on this point:

Q. . . . Did you ask him if he had any idea who the Honda belonged to?

A. I did.

Q. Did he reply?

A. He told me it was a friend of his. He did not wish to tell me their name.

Q. Did you ask Mr. Hiatt why the sedan was chained to the Ford Expedition?

A. I did.

Q. Did he respond?

A. He told me his friend had asked him if he could keep his car attached to his car so that it didn't get stolen.

Q. Did you ask Mr. Hiatt where he was living at the time?

A. I did.

Q. Did he respond?

A. Yeah, he told me he was homeless and living out of the Expedition.

Report of Proceedings (RP) at 30.

Officer Wilke searched Mr. Hiatt incident to arrest and found three key rings with shaved keys in Mr. Hiatt's pants pocket.

When Mr. Chavez arrived to retrieve the Accord, officers cut the chain because no key to the padlock was found in Mr. Hiatt's possession or otherwise. On examining the Accord, Mr. Chavez told officers that several items that had been in it the day before were missing, including a toolbox, speakers and a stereo. He also claimed that the rims and tires now on the Accord were not the rims and tires on the Accord when it was stolen.

Officer Wilke later testified that Mr. Chavez recognized his rims and tires as being on a white sedan located in the vicinity. (Mr. Chavez testified it was actually his brotherwho claimed to have seen the rims and tires on a white sedan.) Officer Wilke ran the white sedan's plates and confirmed it had not been reported stolen. He did not attempt to contact that vehicle's owner.

None of Mr. Chavez's missing property was found in Mr. Hiatt's possession. When cross-examined about that at trial, Officer Wilke said he never obtained a warrant to search the Expedition. None of the missing items was otherwise recovered.

When cross-examined by the defense at trial, Officer Wilke acknowledged that a beer can had been found in the Accord that Mr. Chavez said was not his. The officer collected it as evidence to be checked for latent fingerprints, but never got the results back. He did not undertake fingerprint collection from the interior or exterior of the Accord. He admitted he did not see cuts on Mr. Hiatt's hands, broken glass on his clothing, or anything else that physically tied Mr. Hiatt to the inside of the Accord.

Officer Blankenstein was told by Mr. Hiatt that the Expedition was inoperable. Mr. Hiatt also told Officer Blankenstein that the chain connecting the cars was not his. Officer Blankenstein, like Officer Wilke, tried to remove the punch-out key in the Accord's ignition without success. When he tried the key, the Accord started up.

The State called Mr. Chavez as a trial witness. He testified that the persons who had permission to drive the Accord were his brother and his friends Boogie, Trevor, and Adam. In the prosecutor's redirect examination, she asked if he recognized Mr. Hiatt,and Mr. Chavez testified he knew him as his friend Boogie. He said that he had given him permission to use his car previously, "but not, not that specific day." RP at 77.

Mr. Hiatt was charged with possession of a stolen motor vehicle and making or possessing a motor vehicle theft tool. He waived his right to a jury trial and at his one-day bench trial, the State called as witnesses the three police officers involved in the investigation and Mr. Chavez. At the close of the State's case, Mr. Hiatt made a motion to dismiss the possession of a stolen motor vehicle charge for lack of evidence of actual or constructive possession. The motion was denied. The defense presented no evidence.

The trial court found Mr. Hiatt guilty of both charges. On the element of possession of the Accord that had been raised by the dismissal motion, the trial court concluded:

6. Mr. Hiatt had constructive possession of the Honda Accord because he had dominion and control over the Honda Accord.

7. Mr. Hiatt had the ability to saw off the padlock or make the Ford Expedition operable; the Honda Accord would then [have] been in Mr. Hiatt's actual possession.

Clerk's Papers (CP) at 86.

Mr. Hiatt appeals.

ANALYSIS

Mr. Hiatt contends that insufficient evidence supports his conviction for possession of a stolen motor vehicle.

A defendant commits the crime of possessing a stolen motor vehicle when he knowingly receives, retains, possesses, conceals, or disposes of a stolen motor vehicle, knowing it has been stolen, and withholds or appropriates the vehicle to the use of any person other than the true owner or person entitled thereto. RCW 9A.56.068, .140(1). To support a conviction, the State must prove "(1) actual or constructive possession of the stolen property with (2) actual or constructive knowledge that the property is stolen." State v. Summers, 45 Wn. App. 761, 763, 728 P.2d 613 (1986).

We view Mr. Hiatt's principal challenge as his assignment of error to the trial court's sixth and seventh conclusions of law: that Mr. Hiatt had constructive possession of the Accord and, by sawing off the padlock or making the Expedition operable, he could have reduced it to actual possession. While labeled as conclusions of law, they are findings of fact, which is how we treat them. Stastny v. Bd. of Trs. of Cent. Wash. Univ., 32 Wn. App. 239, 246, 647 P.2d 496 (1982) (We treat findings or conclusions for what they are, not how they are labeled.); Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986) (A finding of fact erroneously labeled as a conclusion of law is treated as a finding of fact.).

Following a bench trial, we review whether substantial evidence supports the challenged findings of fact, and whether findings that are supported by the evidence support the conclusions of law. State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014). "'Substantial evidence' is evidence sufficient to persuade a fair-minded personof the truth of the asserted premise." Id. at 106. While we defer to the trial court's resolution of conflicting evidence, see id., the material facts in this case were not in dispute.

To determine constructive possession a court examines whether, under the totality of the circumstances, the defendant exercised dominion and control over the item in question. State v. Davis, 182 Wn.2d 222, 234, 340 P.3d 820 (2014). There must be substantial evidence to show dominion and control. Id. at 234-35. Factors supporting dominion and control include ownership. Id. at 234. While ownership is not required, the fact that a defendant asserts no interest in the item is relevant. Id. at 235. The ability to immediately take actual possession of an item can establish dominion and control; mere proximity to the item cannot. Id. Frequent use of the item and the ability to exclude others are characteristics of constructive possession. State v. Edwards, 9 Wn. App. 688, 690, 514 P.2d 192 (1973).

Due process requires the State to prove all elements of a crime beyond a reasonable doubt. State v. Washington, 135 Wn. App. 42, 48, 143 P.3d 606 (2006). The test for...