State of Washington v. Shane Robert Hughes ( 2016 )


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  •                                                                FILED
    OCTOBER 25, 2016
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                          )         No. 33573-9-111
    )
    Respondent,              )
    )
    V.                              )         UNPUBLISHED OPINION
    )
    SHANE R. HUGHES,                              )
    )
    Appellant.               )
    LAWRENCE-BERREY, A.CJ. -         Shane R. Hughes appeals his conviction for
    possession of a stolen motor vehicle, arguing the charging document was constitutionally
    insufficient for failure to allege that the defendant withheld or appropriated the vehicle
    for the use of a person other than the true owner. He also objects to several provisions of
    his judgment and sentence. We affirm.
    FACTS
    Shane Hughes admitted to taking a pickup truck parked at Otto Sieber's residence.
    He claimed he thought the truck was abandoned and that Mr. Sieber had died. The State
    subsequently charged Mr. Hughes by amended information with one count of possession
    No. 33573-9-III
    State v. Hughes
    of a stolen vehicle. Mr. Hughes did not challenge the sufficiency of the information. A
    jury found Mr. Hughes guilty as charged.
    At sentencing, the trial court struck all of Mr. Hughes' legal financial obligations
    (LFOs), including the deoxyribonucleic acid (DNA) fee, but did not strike the boilerplate
    language requiring Mr. Hughes to submit a DNA sample. The court did not impose a
    term of community custody, but an appendix to the sentence required him to report for
    postrelease Department of Corrections (DOC) supervision.
    ANALYSIS
    Sufficiency of the Information
    Mr. Hughes first argues that his conviction should be overturned because the
    amended information failed to allege an essential element of possession of a stolen
    vehicle-specifically, RCW 9A. 56 .140( 1)' s provision stating that possession means to
    "withhold or appropriate [stolen property] to the use of any person other than the true
    owner or person entitled thereto." The State responds that the information need not
    include the "withhold or appropriate" term because the term is a definition of an essential
    element, rather than an essential element itself. We review the sufficiency of a charging
    document de novo. State v. Siers, 
    174 Wash. 2d 269
    , 273-74, 
    274 P.3d 358
    (2012).
    2
    No. 33573-9-III
    State v. Hughes
    All essential elements of an alleged crime, both statutory and nonstatutory, must be
    included in the charging document. State v. Johnson, 
    180 Wash. 2d 295
    , 300, 
    325 P.3d 135
    (2014). The primary purpose of this rule is to give the accused notice of the nature of the
    allegations so that a defense may be properly prepared. 
    Id. Charging documents
    need
    contain only the essential elements of a crime, not the definitional elements. 
    Id. at 298.
    Charging documents challenged for the first time on appeal will be more liberally
    construed in favor of validity than those challenged before or during trial. State v.
    Kjorsvik, 
    117 Wash. 2d 93
    , 102-03, 
    812 P.2d 86
    (1991).
    Mr. Hughes was charged with possession of a stolen vehicle under RCW
    9A.56.068, which reads: "A person is guilty of possession of a stolen vehicle ifhe or she
    possess [possesses] a stolen motor vehicle." (Alteration in original.) The information at
    issue here reads as follows:
    He, the said, SHANER. HUGHES, in the State of Washington, on or about
    the month of January, 2014, did knowingly possess a stolen vehicle, to wit:
    Dodge Ram, license plate #B80949H, belonging to Otto Sieber; thereby
    committing the felony crime of POSSESSION OF A STOLEN VEHICLE;
    contrary to Revised Code of Washington 9A.56.068.
    Clerk's Papers (CP) at 1.
    Mr. Hughes argues that the information is constitutionally deficient because it does
    not contain RCW 9A.56.140(1)'s definition of"possess." Mr. Hughes cites State v.
    3
    No. 33573-9-III
    State v. Hughes
    Satterthwaite, 186 Wn. App. 359,344 P.3d 738 (2015), disapproved of by State v. Porter,
    
    186 Wash. 2d 85
    , 
    375 P.3d 664
    (2016), where Division Two of this court held that the
    "withhold or appropriate" language ofRCW 9A.56.140(1) is an essential element of
    possession of a stolen vehicle, Mr. Hughes argues that his conviction must be reversed
    because the information lacked this essential element of the charged crime. See
    
    Satterthwaite, 186 Wash. App. at 364-65
    ("It is the withholding or appropriation of a stolen
    [motor vehicle] to the use of someone other than the owner that ultimately makes the
    possession illegal.").
    After Mr. Hughes filed his opening brief, our Supreme Court expressly
    disapproved of Satterthwaite, ruling that the language ofRCW 9A.56.140(1) is merely
    definitional and does not set forth essential elements of the offense of possession of a
    stolen vehicle. 
    Porter, 186 Wash. 2d at 92
    . It reasoned:
    Satterthwaite is erroneously premised on the notion that the illegality of the
    conduct proscribed in RCW 9A.56.068 is withholding a stolen motor
    vehicle from the true owner. But that is contrary to RCW 9A.56.068's plain
    terms. . . . The fact that "possession" is more precisely defined in a way
    that might vindicate someone who unwittingly possesses the stolen property
    and thus does not withhold it from the true owner does not add to the
    essential elements of RCW 9A.56.068. Instead, it limits and defines the
    scope of the essential element, which the State is not required to allege ....
    
    Porter, 186 Wash. 2d at 92
    .
    4
    No. 33573-9-111
    State v. Hughes
    Applying Porter, we conclude the information here is constitutionally sufficient. It
    alleged all the essential elements of the crime, rendering a definition of possession
    unnecessary.
    Sentencing Issues
    Mr. Hughes next argues that the trial court abused its discretion by ordering him to
    submit to a DNA collection because the record establishes he previously submitted a
    sample. RCW 43.43.754(l)(a) requires collection of a biological sample when an
    individual is convicted of a felony offense. However, RCW 43.43.754(2) provides: "If
    the Washington state patrol crime laboratory already has a DNA sample from an
    individual for a qualifying offense, a subsequent submission is not required .... " Here,
    paragraph 4.4 stated, "[t]his paragraph does not apply if it is established that the
    Washington State Patrol crime laboratory already has a sample from the defendant for a
    qualifying offense." CP at 10.
    The parties agree that Mr. Hughes has been convicted of numerous adult and
    juvenile felonies. Presumably, DNA testing occurred on at least one of these sentencings.
    The language of the judgment and sentence accurately notifies DOC that the DNA
    collection does not apply if Mr. Hughes has already provided a sample. There is no error.
    5
    No. 33573-9-III
    State v. Hughes
    Mr. Hughes also challenges the appendix called "Payment of Legal Financial
    Obligations" and appendix 4.6, which requires Mr. Hughes to report to DOC within 72
    hours of the commencement of community supervision. CP at 16. We conclude neither
    appendix applies to Mr. Hughes: the court did not order community custody or impose
    LFOs.
    APPELLATE COSTS
    Finally, Mr. Hughes asks us to decline to impose the appellate costs authorized in
    RCW 10.73.160 and RAP 14.2. Under RCW 10.73.160(1), courts have discretion to
    require a criminal defendant to pay appellate costs. The State may request recoupment of
    fees for the court-appointed counsel and the expenses incurred in producing the report of
    proceedings and clerk's papers. RCW 10.73.160(2), (3). RAP 14.2 states that a
    commissioner or clerk of the appellate court will award costs to the party that
    substantially prevails on appeal unless the appellate court directs otherwise.
    In this case, the State asserts that it will not seek appellate costs. Consequently,
    the issue is moot and no continuing or substantial public interest requires a ruling. See
    State v. Hunley, 175 Wn.2d 901,907,287 P.3d 584 (2012).
    6
    No. 33573-9-III
    State v. Hughes
    Affirmed.
    A majority of the panel has determined this opinion will not be printed in the
    Washington Appellate Reports, but it will be filed for public record pursuant to RCW
    2.06.040.
    (e,v-JCL"~'l- ~ ~ / , ~- C.~.
    Lawrence-Berrey, A.CJ. I
    WE CONCUR:
    Pennell, J.
    7
    

Document Info

Docket Number: 33573-9

Filed Date: 10/25/2016

Precedential Status: Non-Precedential

Modified Date: 4/17/2021