Fearing, C. J.
appeal measures the sufficiency of evidence for purposes of
the State establishing the value of stolen property. We also
address under what circumstances a trial court may deny a
drug offender sentencing alternative (DOSA) sentence. We hold
that the State lacked sufficient evidence to convict
appellant Lelbert Williams of second degree possession of
stolen property because the victim presented testimony of a
rough estimate of value without identifying the basis for the
estimate. We further hold that the trial court properly
denied a request for a DOS A sentencing alternative because
of the lack of any substance abuse. We remand for
resentencing, however, based on the vacation of one of
Williams' four convictions. We dismiss Williams'
related personal restraint petition.
prosecution of Lelbert Williams arose from a series of
furtive behavior by Williams. In May 2014, the Spokane Police
Department received calls complaining of a man stalking
through backyards in a west Spokane neighborhood. On May 6,
2014, one caller, Brad Dawson, observed the man carrying two
sports duffel bags and possibly a screwdriver. Also on May 6,
2014, someone burglarized the home of David and Joan Nelson.
Joan Nelson's brother, John Johnston, drove through the
neighborhood in an attempt to apprehend the burglar. After
inspecting five homes, Johnston espied a kneeling gentleman,
with two duffels bags astride, employing a screwdriver to pry
open a lock on a storage facility. The man fled when Johnston
yelled. Johnston called 911 and tracked the fleer as the
fleer scattered from yard to yard and hid in changing
locations. Johnston kept contact on his cellphone with
police officers arrived and apprehended the burglar, Lelbert
Williams. Law enforcement officers found a duffle bag, a
Bluetooth speaker, a laptop, running shoes, a jacket, and two
rings belonging to Adam Macomber in the possession of
Williams. Days earlier Macomber had discovered the property
missing from his apartment.
State of Washington charged Lelbert Williams with five
crimes: (1) residential burglary, (2) second degree burglary,
(3) attempted second degree burglary, (4) attempted theft of
a motor vehicle, and (5) possession of stolen property in the
second degree. The State added the final charge near the date
trial, Adam Macomber identified those items missing from his
apartment. The State then asked Macomber to value his stolen
Q. Show the jury again. Were you able to assess a value of an
amount that all that property was worth at the time it was
A. I could give a rough estimate.
Q. And I know that you stated there was a laptop computer.
Q. A mobile hotspot.
Q. And number of other items including your rings, the
Bluetooth speaker, and the miscellaneous items you work out
in, including your tennis shoes there.
Q. What value would you total your loss at being?
A. I would say roughly $800.
of Proceedings (RP) at 278. The State presented no other
testimony of the value of stolen goods. The trial court
denied a request by Lelbert Williams for a lesser included
offense instruction with regard to second degree possession
of stolen property. The jury found Williams guilty of first
degree criminal trespass, attempted second degree burglary,
vehicle prowling, and second degree possession of stolen
property. The jury acquitted Williams of residential
burglary. Our appeal concerns the possession of stolen
sentencing, Lelbert Williams requested a DOSA. He claimed he
committed his last violent offense over ten years earlier.
The trial court denied the DOSA on the basis that the court
lacked any information of Lelbert Williams abusing controlled
substances. The trial court sentenced Williams to the
standard range for his crimes and ran the sentences for all
crimes concurrently. Our appeal also addresses the denial of
a DOSA sentence.
court consolidated an appeal and a personal restraint
petition filed by Lelbert Williams.
Williams challenges his conviction for second degree
possession of stolen property. We agree that the State
presented insufficient evidence to convict Williams of second
degree possession and thus reverse this conviction.
suffices for a conviction if a rational trier of fact could
find each element of the crime beyond a reasonable doubt.
State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628
(1980). Both direct and indirect evidence may support the
jury's verdict. State v. Brooks, 45 Wn.App. 824,
826, 727 P.2d 988 (1986). This court draws all reasonable
inferences in favor of the State. State v. Partin,
88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Only the trier of
fact weighs the evidence and judges the credibility of
witnesses. State v. Carver, 113 Wn.2d 591, 604, 781
P.2d 1308, 789 P.2d 306 (1989).
State charged Lelbert Williams with second degree possession
of stolen property under RCW 9A.56.140 and .160. The former
statute defines possessing stolen property. The latter
statute reads, in relevant part:
(1) A person is guilty of possessing stolen property in the
second degree if:
(a) He or she possesses stolen property, other than a firearm
as defined in RCW 9.41.010 or a motor vehicle, which
exceeds seven hundred fifty dollars in value but
does not exceed five thousand dollars in value;
(Emphasis added.) RCW 9A.56.010(21) defines "value"
for purposes of the crime, as: (a) "Value" means
the market value of the property or services at the time and
in the ...