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State v. Michielli

May 29, 1997

THE STATE OF WASHINGTON, PETITIONER,
v.
JOSEPH ROBERT MICHIELLI, RESPONDENT.



Appeal from Superior Court, Spokane County. 93-1-01123-8. Honorable Kathleen O'Connor, Judge.

Authored by James M. Dolliver. Concurring: Barbara Durham, Charles Z. Smith, Barbara A. Madsen, Richard B. Sanders. Dissenting: Gerry L. Alexander, Philip A. Talmadge, Charles W. Johnson, Richard P. Guy.

The opinion of the court was delivered by: Dolliver

En Banc

DOLLIVER, J.--The State claims the lower courts erred in dismissing three counts of trafficking in stolen property prior to Defendant's trial. We affirm the trial court, although on different grounds than those stated by the Court of Appeals.

Joseph Robert Michielli (Defendant) allegedly took a rifle, an Impulse fish-finder, and a Uniden Bearcat 100-channel scanner from the house in which he was a tenant. The record does not specify whether Defendant merely rented a room in the house or rented the entire house, and the record does not reveal where the property had been stored in the house. The stolen property belonged to a previous tenant of the residence, who had been storing the property in the residence with the homeowner's permission.

Defendant allegedly pawned the three items on three different days at two different pawnshops. When the owner of the property discovered the items were not where he had stored them in the residence, he confronted Defendant. Within the week, Defendant repurchased the rifle from the pawnshop and returned it to the owner. The police recovered the fish- finder and scanner and returned those items to the owner. Defendant apparently has reimbursed the pawnshops for the money which he had received by pawning the items.

In May 1993 the State filed a complaint in district court. The complaint was accompanied by a probable cause affidavit which described all the facts concerning the missing items and Defendant's alleged pawning of the items. Defendant was arrested on the complaint in June 1993. On July 9, 1993, the State filed an information in superior court charging Defendant with one count of second degree theft for taking the rifle from the residence. The potential sentencing range on the single charge is 0 to 60 days.

Defendant was arraigned on September 2, 1993. He appeared without the benefit of counsel and entered a not guilty plea. At arraignment, trial was set for November 1, 1993. Within three weeks of arraignment, Defendant retained an attorney, who advised Defendant to plead guilty to the theft charge. According to defense counsel, the State refused to accept a guilty plea. On October 27, 1993, three business days before Defendant's scheduled trial date, the prosecutor moved to amend the information to include four additional counts: one count of second degree theft for taking the fish-finder and three counts of first degree trafficking in stolen property for pawning the rifle, fish-finder, and scanner. The sentencing range for the charges in the amended information is 15 to 20 months. Over Defendant's objection, Judge Richard J. Schroeder allowed the amended information. Because the defense attorney was unprepared to go to trial on the four new charges, Defendant was forced to waive his speedy trial right and request a continuance.

After having time to prepare an argument, Defendant moved to dismiss the amended counts. The motion was heard before Judge Kathleen M. O'Connor. Defendant's attorney accuses the State of adding the charges as retaliation for Defendant's refusing to plead guilty to the initial theft count. A deputy prosecutor allegedly told Defendant's attorney "if the State had to go to trial . . . Mr. Michielli would have to do jail time since the State would need to exact something for the added work." Clerk's Papers at 21. The State disputes the content of the conversation. After conducting a pretrial hearing, the trial court entered a written order finding "the ends of Justice will be met by dismissing" the four amended counts. Clerk's Papers at 27. Although the written order does not explicitly mention any procedural rule allowing for the dismissal, it is clear from the verbatim report of proceedings on February 28, 1994, that the trial court dismissed the counts under CrR 8.3(b). CrR 8.3(b) authorizes a court to dismiss charges when dismissal is "in the furtherance of Justice."

The State appealed the dismissal of the amended counts. The Court of Appeals' majority ignored CrR 8.3(b) and used different reasoning to uphold dismissal of the three trafficking charges. The court held the crime of trafficking was not intended to apply to persons who had stolen the property trafficked. State v. Michielli, 81 Wash. App. 773, 778, 916 P.2d 458 (1996). The court also noted that Defendant's theft and pawning of the items constituted one course of conduct. Michielli, 81 Wash. App. at 778. The court reinstated the theft count for the fish-finder and upheld the dismissal of the three trafficking counts. Chief Judge Sweeney Dissented in the dismissal of the trafficking counts. The State petitioned this court for review, which was granted. 130 Wash. 2d 1007 (1996). Defendant has not yet been tried on any of the charges. First Issue: Can a defendant who steals property and later sells it be charged with theft and trafficking in stolen property?

The Court of Appeals reinstated the theft charge for the fish-finder, but upheld the trial court's dismissal of the three trafficking charges. Michielli, 81 Wash. App. at 779. The court, citing a Florida case, held the trafficking statute was intended to apply only to fences or middlemen, not to individuals who stole the property. Michielli, 81 Wash. App. at 778 (citing Florida v. Camp, 579 So. 2d 763 (Fla. Dist. Ct. App. 1991), aff'd, 596 So. 2d 1055 (Fla. 1992)). We do not believe Camp supports the court's holding.

The defendant in Camp had stolen blank checks from her workplace and negotiated them to pay off her personal credit card debt. Florida v. Camp, 596 So. 2d 1055, 1056 (Fla. 1992). The Supreme Court of Florida determined that the defendant's forging checks did not qualify as trafficking in stolen property. Camp, 596 So. 2d at 1057 (trafficking statute "was designed to dismantle the criminal network of thieves and fences who knowingly redistribute 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).

Camp does not support the proposition that a person who steals property cannot also be charged with trafficking in that stolen property; rather, the case holds that negotiating stolen checks merely involves personal conversion of stolen property. The point is illustrated by Camp's citation to Bailey v. Florida, 559 So. 2d 742 (Fla. Dist. Ct. App. 1990), which upheld a trafficking conviction where a defendant's attempt to sell a stolen typewriter "was neither a personal use nor a necessary incident of personal use and thus constituted dealing in stolen property[.]" Camp, 596 So. 2d at 1057.

In contrast to the facts in Camp, Michielli's selling three stolen items to a pawnshop qualifies as trafficking. The trafficking statute provides, in part:

A person who knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others, or who knowingly traffics in stolen property, is guilty of trafficking in stolen property in the first degree. RCW 9A.82.050(2). Stolen property is defined as "property that has been obtained by theft, robbery, or extortion." RCW 9A.82.010(9). To traffic is defined as:

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(10).

Under the alleged facts, Defendant stole three items from the residence where he was a renter by "wrongfully obtaining . . . the property . . . of another . . . with intent to deprive him of such property[.]" RCW 9A.56.020(a) (definition of theft). Knowing these items were stolen, he sold them to pawnshops. Selling "stolen property to another person" meets the definition of trafficking. RCW 9A.82.010(10). Defendant "knowingly trafficked in stolen property[.]" RCW 9A.82.050(2).

The Court of Appeals distinguished Defendant's actions from the facts in State v. Strohm, 75 Wash. App. 301, 879 P.2d 962 (1994), which appears to be the only case in this jurisdiction addressing the theft/trafficking issue. Strohm headed an organized auto theft ring where he supplied the car keys and paid drug addicts to steal new vehicles. Strohm, 75 Wash. App. at 303. Strohm used parts from the new stolen cars on older cars, which he then sold at higher prices. The State charged Strohm with one count of theft and numerous counts of trafficking in stolen property. Strohm claimed he could not be convicted of both theft and trafficking on the basis of the same stolen property. Strohm, 75 Wash. App. at 310. The court disagreed, pointing out that a thief's transferring stolen property to another, an element of trafficking, is a distinct act from the thief's stealing the property. Strohm, 75 Wash. App. at 310. The theft and trafficking convictions were upheld.

The Court of Appeals below distinguished Strohm on the basis that Strohm "paid others to steal motor vehicles." Michielli, 81 Wash. App. at 778 n.1. The court stated:

The crime of trafficking envisions a person who steals and then sells to a middleman (fence) who, in turn, buys the stolen property with the intent to resell it to a third person. It suggests at least a two-party transaction and reflects legislative intent to punish those who knowingly deal in property stolen by others. There is no indication the Legislature intended to convert all second-degree thefts into first-degree felonies when the accused sells or pawns the items taken.

Michielli, 81 Wash. App. at 777-78. On the contrary, nothing in the trafficking statute precludes the statute from applying to the thief who initially stole the property. Legislative intent is derived first and foremost from the language of the statute. See Electric Lightwave, Inc. v. Utilities & Transp. Comm'n, 123 Wash. 2d 530, 536, 869 P.2d 1045 (1994). When the words in a statute are clear and unequivocal, this court must apply the statute as written. See King County v. Taxpayers of King County, 104 Wash. 2d 1, 5, 700 P.2d 1143 (1985). Under the plain language of the trafficking statute, one who knowingly sells stolen property can be charged with trafficking, regardless of whether that person is the one who stole the property, and regardless of whether the person sells the property to a fence or an unsuspecting purchaser.

Second Issue: Prior to conviction, can a trial court merge counts on the theory that the Legislature intended only one punishment?

The Court of Appeals also tried to support its dismissal of the trafficking charges by referring to Florida cases which hold a person cannot be convicted of both theft and trafficking when the crimes arise from the same course of conduct. Michielli, 81 Wash. App. at 778-79 (citing Huffman v. Florida, 642 So. 2d 40 (Fla. Dist. Ct. App. 1994) and Burrell v. Florida, 601 So. 2d 628 (Fla. Dist. Ct. App. 1992)). The court did not mention the ...


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