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State v. Ritchey

Court of Appeals of Washington, Division 3

November 21, 2017

STATE OF WASHINGTON, Respondent,
v.
WILLIE C. RITCHEY, Appellant.

          KORSMO, J.

         Willie 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.

         FACTS

         Mr. 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 instruction.

         Mr. 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.

         When 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.

         Mr. 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.

         The jury convicted Mr. Ritchey as charged. He timely appealed to this court, where a panel considered the matter without oral argument.

         ANALYSIS

         We 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.

         Included Offense

         Mr. 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.

         The law 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.[1] 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).

         The 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 ...


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