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State v. Deleon

September 30, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
STEPHANIE LYNN DELEON, DOB: 08/03/80, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-03932-6. Date filed: 10/18/95. Judge signing: Hon. Michael S. Spearman.

PER CURIAM. -- Stephanie Lynn DeLeon appeals her juvenile court conviction for first degree theft. She challenges the sufficiency of the evidence and argues that the court's noncompliance with JuCR 7.11(c) requires reversal and dismissal of the conviction. We accelerate review under RAP 18.12 and remand to allow the trial court an opportunity to enter the omitted written findings on all elements of the crime.

Fact-Finding

The State charged Stephanie DeLeon with first degree theft of a jacket belonging to Magdelena Henderson-Ortiz. The following evidence was presented at a fact-finding hearing in juvenile court.

Henderson-Ortiz, a high school student, testified that as she walked to the school lunch room, she was stopped by two other students, Andrea Garcia and Stephanie DeLeon. Garcia accused Henderson-Ortiz of spreading rumors and challenged her to a fight.

Henderson-Ortiz did not want to fight, so she turned to leave. As she did, DeLeon grabbed her jacket and it fell to the floor. DeLeon put the coat on and said "Look, I have a new coat." Henderson-Ortiz asked DeLeon three times to return her jacket. DeLeon refused. On the third request, DeLeon challenged Henderson-Ortiz to a fight. In order to again avoid a fight, Henderson-Ortiz walked away.

Stephanie DeLeon denied committing theft. She admitted, however, that she pushed Henderson-Ortiz. As a result, Henderson-Ortiz's jacket fell to the floor. DeLeon denied taking the jacket or wearing it. Instead, she left the jacket lying on the floor.

The court rejected DeLeon's version of events. The court did not accept that the jacket accidentally fell to the ground. Instead, the court found that DeLeon grabbed the jacket and that she caused it to fall to the ground. Once it lay on the ground, DeLeon exerted control over the jacket.

Her control was evidenced by the fact that although the jacket belonged to her, Henderson-Ortiz asked DeLeon for the jacket's return. Further, when DeLeon refused to return the jacket, Henderson-Ortiz went to the school security officer and reported the theft of her jacket. The court found DeLeon guilty of first degree theft and entered written findings of fact and Conclusions of law.

The State Met its Burden of Proving a "Taking"

The State charged DeLeon with "wrongfully obtaining" the jacket by "taking" it from the person of Henderson-Ortiz. RCW 9A.56.010(7)(a). DeLeon challenges the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wash. 2d 216, 220, 616 P.2d 628 (1980).

DeLeon argues that the evidence does not support a finding that she grabbed the jacket. Instead, because Henderson-Ortiz had her back turned, she could only speculate that DeLeon grabbed the jacket, as opposed to only pushing her. This argument echoes DeLeon's trial testimony, which the court rejected. This type of credibility decision is not subject to appellate review and does not provide the basis for an appellate challenge to the sufficiency of the evidence. State v. Casbeer, 48 Wash. App. 539, 542-43, 740 P.2d 335, review denied, 109 Wash. 2d 1008 (1987).

DeLeon also argues that grabbing the jacket does not constitute a taking. Alternatively, she argues that if a taking occurred, it was from the floor, not from the person of Henderson-Ortiz. The arguments lack merit.

In a theft by taking, "take" has been defined as follows: "'to lay hold of; to gain or receive into possession; to seize; to deprive one of the use or possession of; to assume ownership.'" (Italics omitted.)

State v. Britten, 46 Wash. App. 571, 574, 731 P.2d 508 (1986); accord, State v. Jacobson, 74 Wash. App. 715, 721, 876 P.2d 916 (1994), review denied, ...


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