State of Washington v. Shane Robert Malotte ( 2020 )

FILED
OCTOBER 6, 2020
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. 36836-0-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
SHANE ROBERT MALOTTE, )
)
Appellant. )
FEARING, J. — The State of Washington convicted Shane Malotte with five
crimes, from which he appeals only one conviction. He contends that the trial court
should have delivered a jury unanimity instruction because the to-convict instruction for
the crime of theft of a firearm allowed the jury to convict him on the basis of one of three
independent acts and the State only presented sufficient evidence to convict him for one
of the actions. We agree.
FACTS
This prosecution arises from Shane Malotte’s attack on and alleged theft of a
firearm owned by Todd Griffith. Griffith lived outside Republic. Malotte resided in a
nearby home.
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On November 20, 2018, Todd Griffith purchased a bottle of Jim Beam. He did not
desire to drink alone and visited the domicile of neighbor, Vera Hamilton, in order to
share the spirits. Those present at the Hamilton home on Griffith’s arrival included
Hamilton; Payton, Hamilton’s 14-year old son; Doris, Hamilton’s 17-year old daughter;
and the daughter’s boyfriend, defendant Shane Malotte. Payton and Doris are
pseudonyms. When he arrived, Griffith shared the Jim Beam with Shane Malotte. We
do not know the volume of the Jim Bean bottle or whether Malotte, Griffith, or one or
more others drank other liquor.
While imbibing in the neighboring residence, Todd Griffith joked with Doris and
Payton. At least, Griffith characterizes his remarks as jokes. Griffith teased Payton
about a neighbor missing money. Griffith asked the fourteen-year-old if he had “blown”
the neighbor for the missing money. Todd Griffith grabbed Payton’s head and pulled it
toward Griffith’s crotch. Vera Hamilton took offense to Griffith’s comment and behavior
and told Griffith to cease the lewd repartee. Payton left the gathering on the first level of
the residence and walked to the home’s second floor.
As the socializing progressed, Todd Griffith mentioned Doris’ pregnancy and
suggested that she be kicked in the stomach. Griffith then nudged Doris’ leg, but did not
kick her.
Shane Malotte and Todd Griffith played the entertaining game of body shots.
After a few exchanged punches, Malotte complained that Griffith struck him in the head,
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so Malotte hit Griffith harder. Malotte also complained that Griffith pulled a knife and
swung the instrument at Malotte. Payton, who had returned downstairs, noticed no
injuries on either of the game players. Griffith removed brass knuckles from his clothes
and invited Doris to hit him with the knuckles in order to rejoin his nudging of her leg.
Doris, Shane Malotte, and Todd Griffith spoke about firearms. Doris commented
that she had never shot a gun. Griffith volunteered to allow Malotte and Doris to utilize
his SKS rifle for target shooting on Vera Hamilton’s commodious rural land. Malotte,
Griffith, and Doris, shot the rifle at targets. Payton and Vera Hamilton remained indoors.
At some unidentified time after target shooting, Todd Griffith’s consciousness
grew “dark.” Report of Proceedings (RP) at 91-92. Payton, perhaps around the same
window of time, heard a “poof.” RP at 387. Payton peered out a window and saw a
white cloud. Payton and his mother walked outside to discover the cause of the noise.
Payton observed a chaotic scene that included a propane bottle and broken camping
torch, which he believed caused the poof.
Todd Griffith awoke from his fog to sense a male kicking his head and his being
struck with his rifle. An upset Doris stood nearby and commanded Griffith to lay on the
ground. Shane Malotte yelled: “Say you’re a bitch.” RP at 100. Malotte aimed the rifle
at Griffith. Griffith repeatedly sought to stand, but Malotte punched Griffith, kicked him
with steel toed boots, and yelled for Griffith to remain on the ground until law
enforcement arrived. Payton, from worry that Griffith might die, grabbed Malotte’s arm
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to attempt to stop him from striking Griffith. RP 394-95. Malotte told Payton to leave
the area, which Payton did.
Vera Hamilton returned to inside her home, dialed 911, and summoned law
enforcement. The struggle between Todd Griffith and Shane Malotte continued. Sheriff
deputies responded to the scene within ten minutes. The beating then stopped. Doris
handed Griffith’s rifle, which rested against Griffith’s truck, to Shane Malotte. Doris,
Vera Hamilton, and Shane Malotte directed Payton to tell the deputies that he did not
know Malotte’s name. Malotte grabbed the gun and ran from the house toward a tree
line.
As Ferry County Sheriff Deputy Matthew Kersten approached the Hamilton home,
he saw a man running away. Kersten stopped his patrol car and pursued the sprinter.
Doris, Vera Hamilton, and Payton yelled that Todd Griffith was attempting to steal
Kersten’s car. Deputy Kersten also heard gunshots. Because of the chaos, Deputy
Kersten ended his pursuit of the runner and went to speak with Griffith. A badly beaten
Griffith had a bloody face and swollen shut eyes. Kersten did not notice Griffith
attempting to purloin the deputy’s vehicle. Sheriff Deputy Kersten placed Griffith’s
hands in cuffs.
Ferry County Sheriff Deputies Talon Venturo and Christine Clark also arrived at
the Vera Hamilton property. Hamilton, Payton, and Doris informed the deputies that
each did not know the identity of the fleer. A groggy Todd Griffith also did not tell the
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officers at that point who had run away. Deputies Kersten, Venturo, and Clark searched
for the rifle, but could not find the weapon.
Shane Malotte, with Todd Griffith’s rifle, returned to Vera Hamilton’s house by
early the next morning. In the coming days, Malotte stored the rifle in the loft of the
home where he slept. Malotte sometimes carried the rifle with him outdoors. He
obtained ammunition for the firearm and placed markings on the rifle. Griffith never
spoke again to Malotte or any resident of the Hamilton home. During a search of Vera
Hamilton’s residence on November 29, 2018, sheriff deputies seized Todd Griffith’s SKS
rifle.
PROCEDURE
The State of Washington charged Shane Malotte with assault in the first degree,
theft of a firearm, possession of stolen property in the third degree, unlawful possession
of a firearm in the second degree, and possession of a controlled substance other than
marijuana. During trial, the prosecution introduced pictures of the rifle recovered from
the Hamilton residence. Todd Griffith identified the rifle as his gun. Griffith testified
that the clip in one of the pictures belonged to his gun, but that the ammunition in the clip
was not his. Griffith used brass ammunition, and the clip in the picture had green bullets.
He testified that white markings were added to the rifle by someone else.
The trial court instructed the jury on the crime of theft of a firearm using a to-
convict instruction that stated:
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To convict the defendant of the crime of theft of a firearm, each of
the following three elements of the crime must be proved beyond a
reasonable doubt:
(1) That on or about November 20, 2018, the defendant
(a) wrongfully obtained or exerted unauthorized control over a
firearm belonging to another; or
(b) by color or aid of deception, obtained control over a firearm
belonging to another; or
(c) appropriated a lost or misdelivered firearm belonging to another;
and
(2) That the defendant intended to deprive the other person of the
firearm; and
(3) That this act occurred in Ferry County in the State of
Washington
If you find from the evidence that elements (2) and (3), and any of
the alternative elements (1)(a), (1)(b), or (1)(c) have been proved beyond a
reasonable doubt, then it will be your duty to return a verdict of guilty. To
return a verdict of guilty, the jury need not be unanimous as to which of
alternatives (1)(a), (1)(b), or (1)(c) has been proved beyond a reasonable
doubt, as long as each juror finds that at least one alternative has been
proved beyond a reasonable doubt.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any of the elements (1), (2), or (3), then it will be
your duty to return a verdict of not guilty.
Clerk’s Papers (CP) at 132. Neither party objected to the instruction. The parties did not
propose, and the court did not give a unanimity instruction for the theft of a firearm
charge.
The jury acquitted Shane Malotte of assault in the first degree, but convicted him
on the lesser included offense of assault in the second degree. The jury found Malotte
guilty of the other charged crimes.
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LAW AND ANALYSIS
Shane Malotte assigns only one error on appeal. Malotte contends that the State
presented insufficient evidence of two of the three alternative means by which theft of a
firearm can occur. He argues that, because the trial court failed to instruct the jury in a
unanimity instruction, the conviction must be reversed. The State responds that sufficient
evidence supported all the means and, therefore, no such instruction was required.
The Washington Constitution guarantees criminal defendants the right to a
unanimous jury verdict. State v. Woodlyn, 188 Wash. 2d 157, 162, 392 P.3d 1062 (2017);
WASH. CONST. art. I, § 21. A trial implicates this right when a charged crime lists
alternative means for its commission. The court must then ask whether the jury must
unanimously rule on whether the accused committed one of the particular means listed by
the charging statute or whether the jury may adjudge the defendant guilty of the crime
despite not unanimously agreeing to the particular means.
When a crime has alternative means of commission, and sufficient evidence
supports each of the means, a defendant does not have a right to have the jury express
unanimity as to the method of commission. State v. Woodlyn, 188 Wash. 2d at 164 (2017).
If sufficient evidence does not support any of the alternative means, however, “a
‘particularized expression’ of jury unanimity as to the supported means is required.”
State v. Woodlyn, 188 Wash. 2d at 164. We must reverse a general verdict “if it is
impossible to rule out the possibility the jury relied on a charge unsupported by sufficient
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evidence.” State v. Woodlyn, 188 Wash. 2d at 165; State v. Wright, 165 Wash. 2d 783, 803
n.12, 203 P.3d 1027 (2009). Lack of evidence to support a charge does not demonstrate
that a member of the jury did not rely on that means. State v. Woodlyn, 188 Wash. 2d at
165-66.
The parties agree that theft of a firearm is an alternative means crime. We agree.
State v. Linehan, 147 Wash. 2d 638, 647, 56 P.3d 542 (2002); State v. Woodlyn, 188 Wash. 2d
at 163; State v. Lee, 128 Wash. 2d 151, 157, 904 P.2d 1143 (1995). Because theft of a
firearm incorporates the same alternative means of theft of other property, unanimity is
required for a conviction of theft of a firearm when insufficient evidence supports one of
the means submitted to the jury.
RCW 9A.56.300 declares, in relevant part:
(1) A person is guilty of theft of a firearm if he or she commits a
theft of any firearm.
....
(4) The definition of “theft” and the defense allowed against the
prosecution for theft under RCW 9A.56.020 shall apply to the crime of
theft of a firearm.
In turn, RCW 9A.56.020 reads:
(1) “Theft” means:
(a) To wrongfully obtain or exert unauthorized control over the
property or services of another or the value thereof, with intent to deprive
him or her of such property or services; or
(b) By color or aid of deception to obtain control over the property
or services of another or the value thereof, with intent to deprive him or her
of such property or services; or
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(c) To appropriate lost or misdelivered property or services of
another, or the value thereof, with intent to deprive him or her of such
property or services.
Shane Malotte’s trial court instructed the jury to convict Malotte of theft of a firearm
under any of the three definitions of theft.
We must determine if the State’s evidence supported all three alternative grounds
for committing theft of a firearm. Shane Malotte agrees that the State presented
sufficient evidence of his wrongfully obtaining control over Todd Griffith’s rifle. So we
address whether the State presented sufficient evidence under subsections (b) and (c) of
the theft statute.
A claim of insufficient evidence requires this court to determine whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact
could have found guilty beyond a reasonable doubt. State v. Salinas, 119 Wash. 2d 192,
201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State’s
evidence and all inferences that reasonably can be drawn therefrom. State v. Salinas, 119
Wash. 2d at 201.
RCW 9A.56.020(1)(b) references employing “color or aid of deception to obtain
control over the property” of another to constitute theft. “By color or aid of deception” is
defined by RCW 9A.56.010(4) to mean:
that the deception operated to bring about the obtaining of the
property or services; it is not necessary that deception be the sole means of
obtaining the property or services.
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An actor commits an act of deception when he or she knowingly, among
other things:
(a) Creates or confirms another’s false impression which the actor
knows to be false; or
(b) Fails to correct another’s impression which the actor previously
has created or confirmed; or
(c) Prevents another from acquiring information material to the
disposition of the property involved. . . .
RCW 9A.56.010(5).
The State presented no evidence that Shane Malotte sought to deceive Todd
Griffith or impose a false impression on him. The State identifies no information that
Malotte sought to conceal from Griffith in order to steal his rifle.
The State underscores that Shane Malotte told Payton Hamilton not to reveal his
identity, and then Malotte fled from Deputy Matthew Kersten. The State asserts that the
jury could infer that Malotte, by inducing Payton to conceal his identity, created a false
impression. He then used this impression to prevent Todd Griffith from obtaining
information related to the firearm.
Shane Malotte may have implored others to deceive law enforcement into
believing that they did not know the name of the individual fleeing the Hamilton
property. But the connection between this act of deception and the taking of the rifle is
tenuous. Doris handed Malotte the gun, and he ran. He did not gain possession of the
gun by deception of the sheriff deputies, let alone deception of Todd Griffith. The law
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supports a conviction for theft by deception if the owner of the property relied on false
representations, which operated to induce the victim to part with the property. State v.
Mehrabian, 175 Wash. App. 678, 701, 308 P.3d 660 (2013), abrogated on other grounds
by State v. Schwartz, 194 Wash. 2d 432, 450 P.3d 141 (2019). Griffith did not part with his
rifle because of any deception.
The State emphasizes that Shane Malotte secreted the SKS rifle in his loft and
scratched his own markings on the rifle. The State argues that, by doing so, Malotte
employed deception. The State forwards State v. Monk, 42 Wash. App. 320, 322-23, 711
P.2d 365 (1985) as standing for the proposition that, by obscuring identifying
information, one perpetrates theft by deception. In State v. Monk, this court found Mary
Monk guilty of theft by deception when she used her position as a utility clerk to move
her account into those files reserved for inactive accounts or bankruptcy accounts.
During this time, she received utility services without making payment. This court held
that, by hiding her account, she obtained control over the city’s right to payment.
Shane Malotte may have hid the SKS rifle, and he may have placed identifying
marks on the gun. But he did not hide or mark the rifle until after the appropriation of the
weapon. Many thieves hide stolen property or take steps to render recapture of the
purloined goods difficult. If we followed the State’s logic, most, if not all, thefts could be
classified as theft by deception.
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Although we must reverse the conviction of Shane Malotte if we resolve that the
State failed to present sufficient evidence for only one of the three alternative means, we
also conclude that the State presented insufficient evidence that Malotte appropriated lost
or misdelivered property of another under RCW 9A.56.020(1)(c). Under RCW
9A.56.010(2):
“Appropriate lost or misdelivered property or services” means
obtaining or exerting control over the property or services of another which
the actor knows to have been lost or mislaid, or to have been delivered
under a mistake as to identity of the recipient or as to the nature or amount
of the property.
Property is lost when the owner has parted with possession unwittingly and no longer
knows its location. State v. Kealey, 80 Wash. App. 162, 171, 907 P.2d 319 (1995).
Property is mislaid when the owner intentionally puts it in a particular place, then forgets
and leaves it. State v. Kealey, 80 Wash. App. at 171.
The State contends that the evidence established that Todd Griffith lost the
firearm. According to the State, Griffith, after setting the rifle aside, lost its location or
unwittingly forgot the rifle when he left the Hamilton property. We do not consider this
argument a reasonable interpretation of the facts. After target practice, Todd Griffith’s
firearm remained in Vera Hamilton’s yard. Shane Malotte then used the gun to assault
Griffith. When law enforcement arrived, Griffith lost the location of the gun because
Malotte ran with it. Griffith had not earlier lost the rifle. If we accepted the State’s
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contention, any theft would be the result of a lost or mislaid article of property. After the
purloining, the victim does not know the location of his property.
CONCLUSION
Because the State failed to provide sufficient evidence to support at least one of
the three alternative means of theft announced to the jury, we reverse Shane Malotte
conviction for theft of a firearm. We remand for a new trial on the charge.
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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Korsmo, A.C.J.
______________________________
Siddoway, J.
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