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Washington v. Atterton

filed: April 29, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
STEPHEN LEROY ATTERTON, APPELLANT.



Superior Court County: King. Superior Court Cause No: 93-1-03640-6. Date filed in Superior Court: December 16, 1993. Superior Court Judge Signing: Faith Enyeart Ireland.

Written by: Judge Webster, Concurred by: Judge Grosse, Judge Baker

Author: Webster

WEBSTER, J. -- Stephen Atterton appeals his conviction for first degree theft, contending that the trial court improperly aggregated eight thefts from different victims into a single count of first degree theft. Atterton reasons that, because aggregation was impermissible under these facts, the evidence was insufficient. We vacate the first degree theft conviction, but remand for entry of judgment and sentence on one count of second degree theft.

FACTS

Atterton solicited orders and accepted advance payments for plastic cup holders from eight car dealerships, claiming to be a representative of Premiere Concepts, his former employer. He had no authority to represent the manufacturer or any other business associated with the cup holders. The checks from the dealerships totaled $1,850.36, the individual amounts being $219.36, $228.00, $150.00, $279.00, $279.00, $270.00, $239.00, and $186.00.

The State charged Atterton with one count of first degree theft, based on the aggregated amount of the eight checks, and the trial court found him guilty.

Discussion

Atterton contends that there was not sufficient evidence to convict him of theft in the first degree because the thefts were improperly aggregated. Sufficiency of the evidence is a question of constitutional magnitude which a

defendant may raise for the first time on appeal.*fn1 State v. Alvarez, 128 Wash. 2d 1, 9, 904 P.2d 754 (1995). In reviewing the sufficiency of the evidence, we examine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the State. State v. Green, 94 Wash. 2d 216, 221-22, 616 P.2d 628 (1980).

First degree theft is theft of property which exceeds $1,500.00 in value. RCW 9A.56.030(a). Aggregation of individual transactions to meet the threshold for a particular degree of theft is allowed by common law and by statute. State v. Barton, 28 Wash. App. 690, 694, 626 P.2d 509, review denied, 95 Wash. 2d 1027 (1981).

The common law allows aggregation of a series of thefts, so long as the thefts are from the same owner and the same place and result from a single criminal impulse pursuant to a general larcenous scheme. State v. Vining, 2 Wash. App. 802, 808, 472 P.2d 564 (1970). The common law also allows aggregation of thefts from the same victim over a period of time or from several victims at the same time and place, if the takings are part of a common scheme or plan. State v. Meyer, 26 Wash. App. 119, 124, 613 P.2d 132 (1980). But, the common law does not allow aggregation of thefts from different victims at different times and places. Meyer, 26 Wash. App. at 124; see also Wayne R. LaFave, Criminal Law § 87, at 635 (1972); Charles E. Torcia, Wharton's Criminal Law § 347, at 372 (1995).

As with common law aggregation, statutory aggregation is impermissible unless the thefts to be aggregated are part of a common scheme or plan. RCW 9A.56.010(12)(c). Washington courts have interpreted the common scheme requirement as being consistent with that of ...


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