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State v. Lindsey

Court of Appeals of Washington, Division 2

October 15, 2013

STATE of Washington, Respondent,
v.
Gary Lee LINDSEY, Jr., Appellant.

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Eric H. Bentson, Cowlitz County Prosecutor, Kelso, WA, for Respondent.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

MAXA, J.

[177 Wn.App. 236] ¶ 1 Gary Lee Lindsey, Jr., appeals his conviction for trafficking in stolen property under RCW 9A.82.050(1). He argues that this statute identifies eight alternative means of committing the crime, and based on this alternative means argument claims that (1) the charging document was factually deficient because it did not state facts supporting each alternative means, (2) he was denied a fair trial because the trial court instructed the jury on an uncharged alternative means of committing the offense, and (3) he was denied his constitutional right to an unanimous verdict because there was insufficient evidence to support conviction on several of the alternative means. Lindsey also argues that the trial court improperly refused [177 Wn.App. 237] to appoint new counsel when conflicts arose with his trial counsel, thereby violating his constitutional right to counsel.

¶ 2 We hold that RCW 9A.82.050(1) identifies only two alternative means, and on that basis reject Lindsey's arguments regarding the information and sufficiency of the evidence. We do not consider Lindsey's challenge to the jury instruction because he did not object below. We also hold that the trial court did not abuse its discretion in refusing to appoint new counsel. We affirm.

FACTS

Charged Crime

¶ 3 Earl Teel had possession of a large, 470-pound stainless steel tank that he hoped to sell on Craigslist. Teel placed the tank near a scrap bin where he deposited recyclable metals disposed of in his business.

¶ 4 On July 6, 2011, Teel observed a pickup truck drive onto his business property and then saw the driver— Lindsey— start looking through the scrap bin. Teel approached and asked Lindsey what he was doing, and Lindsey responded that he needed some cables to pull a log over an embankment for his firewood business. Teel told him to take the cables but not to return or take anything else without permission.

¶ 5 On July 10, Teel discovered that the tank was gone. Teel immediately called the police. The next morning Cowlitz County Deputy Sheriff Lorenzo Gladson went to GT Metals and Salvage and asked the owner to keep an eye out for anyone trying to scrap a stainless steel tank. One of GT Metals' employees later reported that someone was trying to scrap the lid to a stainless steel tank and would be returning with the rest of the tank. Gladson waited until Lindsey arrived with the tank and arrested him.

¶ 6 Gladson asked Lindsey how he got the tank. Lindsey responded that he had purchased it from someone known to [177 Wn.App. 238] him as a thief and that he knew the tank was stolen. Later, while sitting in the patrol car waiting for Teel to arrive, Lindsey remarked, " ‘ I might as well be honest with you. I took it.’ " Report of Proceedings (RP) at 82. After matching the serial numbers on the tank with those Teel had given him earlier, Gladson showed Teel a photograph of Lindsey. Teel identified Lindsey as the same man who had been at his business going through his scrap bin.

¶ 7 The State charged Lindsey with first degree trafficking in stolen property.[1] The amended information charged the following:

TRAFFICKING IN STOLEN PROPERTY IN THE FIRST DEGREE
The defendant, in the County of Cowlitz, State of Washington, on, about or between July 08, 2011, and July 11, 2011, did knowingly organize, plan, finance, direct, manage and/or supervise the theft of property, to-wit: steel tank and/or cover, for sale to

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others, or did knowingly traffic in stolen property, to wit: steel tank and/or cover, contrary to RCW 9A.82.050(1) and against the peace and dignity of the State of Washington.
Clerk's Papers (CP) at 1. This amended information omitted the word " initiate" before " organize", which is contained in the statutory language.

Conflict with Counsel

¶ 8 At three separate hearings before trial, the issue arose as to whether Lindsey and his appointed counsel had a conflict entitling Lindsey to a change of attorney. The trial court held a hearing on November 2, 2011, because of Lindsey's concerns. At that hearing, Lindsey expressly waived counsel's conflict of interest.

¶ 9 On November 30, Lindsey asked for a new attorney, asserting that his counsel was not doing enough to get the [177 Wn.App. 239] charges reduced and that his counsel was not helping him. The trial court denied his request. On December 8, Lindsey again requested new counsel, explaining that poor communication and lack of trust undermined his attorney-client relationship. Defense counsel explained that they had engaged in heated arguments over getting a lesser charge from the prosecutor, but that these ...


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