State Of Washington, V Jared Alfons Heminger ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
July 25, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49271-7-II
Respondent,
v.
JARED ALFONS HEMINGER, UNPUBLISHED OPINION
Appellant.
LEE, J. — Jared Alfons Heminger appeals his conviction for first degree trafficking in
stolen property after a bench trial on stipulated facts. Heminger argues the trial court erred by not
specifically addressing the element of “knowledge” in its findings of fact and conclusions of law.
We hold that the trial court erred by failing to specifically address the “knowledge”
element, but that the error was harmless. Therefore, we affirm.
FACTS
The State charged Heminger with first degree trafficking in stolen property and second
degree theft. Heminger agreed to enter into a drug court contract. Pursuant to the drug court
contract, Heminger stipulated that if he were terminated from the program, the trial court would
determine Heminger’s guilt on the pending charges based solely upon a summary of the evidence
that formed the basis for the probable cause statement. Heminger was not successful in following
the terms of the drug court contract and agreed to be terminated from the program.
No. 49271-7-II
Heminger proceeded to a bench trial on stipulated findings of fact. Heminger said he
believed there was sufficient evidence to convict him of first degree trafficking of stolen property
but argued there was insufficient evidence in the stipulated findings to convict him of second
degree theft. The State conceded that there were no facts besides those in the stipulated findings
but argued that circumstantial evidence supported finding Heminger guilty of second degree theft.
The trial court concluded that there was sufficient evidence to establish the goods were
stolen but found there was not enough evidence to convict Heminger of second degree theft. Thus,
the trial court entered the following stipulated findings of fact, conclusions of law, and order:
FINDINGS OF FACT
1.1 On December 8, 2015, Detective Adam Haggerty arrested John Burkett for
drug charges, and obtained a search warrant for his belongings, which included the
ability to view text messages on his cell phone. In Burkett’s cell phone, Detective
Haggerty located a series of text messages between Burkett and Jared Heminger
exchanged on December 7, wherein Heminger was selling Burkett security
equipment. These text messages depict pictures of the security equipment from a
person whose entry into the phone is listed as “Jared Heminger” with a phone
number of 360-970-[XXXX]. The value requested by Heminger for the security
equipment was approximately $3[,]500.00[.]
1.2 On December 14, Detective Haggerty met with Heminger’s parents and
asked them about the security equipment their son was selling. Heminger’s father
indicated that he worked for a security installation company and that his son must
have taken the items depicted in the text messages from his work truck.
1.3 Detective Haggerty learned that Jason Cane was the owner of the security
company Heminger’s father worked for and that he was the actual owner of the
security equipment. Cane was contacted and agreed to cooperate with the
prosecution of Heminger for selling his security equipment.
2
No. 49271-7-II
1.4 Based upon the foregoing Findings of Fact, the Court makes the following:
CONCLUSIONS OF LAW
2.1 The Court has jurisdiction over the Defendant and the present subject
matter.
2.2 The Defendant, Jared Alfons Heminger, is guilty beyond a reasonable doubt
of the crime of Trafficking in Stolen Property in the First Degree, as alleged in the
Information.
2.3 The Defendant, Jared Alfons Heminger, is guilty beyond a reasonable doubt
of the crime of Theft in the Second Degree, as alleged in the information.
ORDER
3.1 Based upon the foregoing Findings of Fact and Conclusions of Law, the
Defendant, Jared Alfons Heminger, is guilty beyond a reasonable doubt of the
crime of Trafficking in Stolen Property in the First Degree, as alleged in the
Information.
3.2 Based upon the foregoing Findings of Fact and Conclusions of Law, the
Defendant, Jared Alfons Heminger, is guilty beyond a reasonable doubt of the
crime of Theft in the Second Degree, as alleged in the information.
3.3 A judgment and sentence consistent with these findings shall enter.
Clerk’s Papers at 22-24 (strikethrough in original).
The trial court found Heminger guilty of first degree trafficking in stolen property and
sentenced him to 9 months. Heminger appeals.
ANALYSIS
A. TRAFFICKING IN STOLEN PROPERTY
Heminger argues the trial court erred by not specifically addressing the element of
“knowledge” in its findings of fact and conclusions of law for the first degree trafficking in stolen
3
No. 49271-7-II
property conviction. Br. of Appellant at 2. We agree that the trial court erred, but the error was
harmless.
1. Findings of Fact Failed to Specifically Address “Knowledge” Element
“The criminal rules for superior court judges require that, following a bench trial, the judge
enter findings of fact and conclusions of law.” State v. Banks, 149 Wash. 2d 38, 43, 65 P.3d 1198
(2003). CrR 6.1(d) states:
In a case tried without a jury, the court shall enter findings of fact and conclusions
of law. In giving the decision, the facts found and the conclusions of law shall be
separately stated. The court shall enter such findings of fact and conclusions of law
only upon 5 days’ notice of presentation to the parties.
“Each element must be addressed separately, setting out the factual basis for each conclusion of
law,” and the findings must specifically state that each element has been met. Banks, 149 Wash. 2d
at 43. Where the trial court fails to meet these requirements, appellate review is subject to a
harmless error analysis. Id.
“A person who knowingly initiates, organizes, plans, finances, directs, manages, or
supervises the theft of property for sale to others, or who knowingly traffics in stolen property, is
guilty of trafficking in stolen property in the first degree.” RCW 9A.82.050(1). Thus, the essential
elements for a conviction for first degree trafficking in stolen property are (1) the defendant
knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of property
for sale to others, or (2) the defendant knowingly traffics stolen property. RCW 9A.82.050(1).
4
No. 49271-7-II
A person acts knowingly or with knowledge when:
(i) he or she is aware of a fact, facts, or circumstances or result described by a statute
defining an offense; or
(ii) he or she has information which would lead a reasonable person in the same
situation to believe that facts exist which facts are described by a statute defining
an offense.
RCW 9A.08.010(1)(b). “‘Traffic’ means to sell, transfer, distribute, dispense, or otherwise dispose
of stolen property to another person, or to buy, receive, possess, or obtain control of stolen
property, with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to
another person.” RCW 9A.82.010(19).1 “Possession of recently stolen property coupled with
slight corroborative evidence is sufficient to prove guilty knowledge.” State v. Womble, 93 Wn.
App. 599, 604, 969 P.2d 1097, review denied, 138 Wash. 2d 1009 (1999).
Here, the State concedes that the findings of fact do not specifically address the element of
“knowledge.” Br. of Resp’t at 4. We accept the State’s concession and hold that it was error not
to specifically address the “knowledge” element for first degree trafficking in stolen property.
2. Error was Harmless
Although the State concedes that the “knowledge” element was not specifically addressed,
the State argues that the error was harmless. Br. of Resp’t at 3. We agree that the error was
harmless.
Under the harmless error analysis, we determine “‘whether it appears beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.’” Banks, 149 Wash. 2d
at 44 (quoting State v. Brown, 147 Wash. 2d 330, 341, 58 P.3d 889 (2002)). The test is whether
1
Whether the element of “trafficking” was addressed in the findings of fact and conclusions of
law is not at issue in this appeal.
5
No. 49271-7-II
“‘there is a reasonable probability that the outcome of the trial would have been different had the
error not occurred. . . . A reasonable probability exists when confidence in the outcome of the trial
is undermined.’” Id. (quoting State v. Powell, 126 Wash. 2d 244, 267, 893 P.2d 615 (1995)).
Here, Heminger conceded that there was sufficient evidence in the stipulated facts to
convict him of first degree trafficking of stolen property. The stipulated facts established that in
text messages from “Jared Heminger,” Heminger was selling security equipment that was taken
from Heminger’s father’s work truck and that belonged to Cane, Heminger’s father’s employer.
CP at 23. Heminger’s father indicated that Heminger must have taken the security equipment.
This evidence shows that the security equipment was stolen, and Heminger’s knowledge that it
was stolen can be inferred. Also, the record shows that the trial court concluded that the evidence
was not sufficient to convict Heminger of the second degree theft charge, evidencing the trial court
was considering the elements of each crime charged based on the stipulated facts. On this record,
we hold that there is no reasonable probability that the outcome of the trial would have been
different had the trial court made a specific finding addressing the element of knowledge.
Therefore, we hold the error was harmless.
B. APPELLATE COSTS
Heminger requests that we decline to impose appellate costs against him if the State
prevails on this appeal and makes a proper request. The State responds by stating that it will not
be seeking appellate costs. We accept the State’s assertion and do not impose appellate costs.
6
No. 49271-7-II
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Lee, J.
We concur:
Johanson, J.
Maxa, A.C.J.
7