Ritchey appeals from his conviction for theft of a motor
vehicle, arguing that the trial court erred by failing to
give a limiting instruction and in refusing to give a lesser
included offense instruction. In the published portion of
this opinion, we conclude that second degree taking a motor
vehicle without permission (TMV) is not an included offense
of theft of a motor vehicle. In the remainder of the opinion,
we conclude that Mr. Ritchey has not established prejudicial
error and affirm.
Ritchey was charged in the Spokane County Superior Court with
one count of theft of a motor vehicle, RCW 9A.56.065. At
trial, the defense sought an instruction on the lesser crime
of second degree taking a motor vehicle without permission,
RCW 9A.56.075. The trial court declined to give the
Ritchey had been arrested by Spokane Police Department
Officer Stephanie Kennedy, who was undercover driving a
minivan and posing as a soccer mom at a park in an area well
known for abandoning stolen vehicles. When initially
contacted by the officer, Mr. Ritchey claimed to have
permission to use the vehicle. After the officer explained
that it had been reported stolen, he told the officer,
"I'll tell you the truth" and advised the
officer that he had stolen the key for the vehicle from a
friend's key ring the previous evening.
asked to describe Mr. Ritchey's demeanor at the time of
this admission, the officer answered "he appeared
truthful." Defense counsel objected and asked for a
limiting instruction. The court sustained the objection and
struck the statement at the request of the prosecutor, but
declined to give a limiting instruction.
Ritchey took the stand in his own defense and claimed to have
permission to use the vehicle, which he stated he was in the
midst of returning. He was impeached by' nine convictions
for dishonesty. During cross-examination by the prosecutor,
Mr. Ritchey admitted that he was willing to lie if it would
help him out.
jury convicted Mr. Ritchey as charged. He timely appealed to
this court, where a panel considered the matter without oral
first address the contention that the trial court erred in
failing to include an instruction on the offense of second
degree taking a motor vehicle without permission before
turning to an argument that the trial court erred in failing
to give a limiting instruction.
Ritchey argues that second degree taking a motor vehicle
without permission is an included offense of the crime of
theft of a motor vehicle and that there was a factual basis
for instructing on the lesser crime. We conclude that the two
offenses do not stand in a lesser included relationship.
governing this issue is very well settled. By statute, either
party in a criminal case is entitled to an instruction on a
lesser included offense in appropriate circumstances. RCW
10.61.006. In order to instruct on an included
offense, the crime actually must be an included offense and
there must be a factual basis for believing that the lesser
crime was committed. State v. Workman, 90 Wn.2d 443,
447-48, 584 P.2d 382 (1978). These are known as the
"legal" and "factual" prongs. State
v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997).
factual prong is satisfied when there is affirmative evidence
showing that only the lesser crime actually was
committed. State v. Speece,115 Wn.2d 360, 362-63,
798 P.2d 294 (1990); State v. Fowler,114 Wn.2d 59,
67, 785 P.2d 808 (1990). The factual prong is not established
merely by the fact that the jury might disregard some of the
evidence in the case. "Instead, some evidence must be
presented which affirmatively establishes the ...