State Of Washington, V. Joseph Mast ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
September 28, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54343-5-II
Respondent,
v.
JOSEPH BUD MAST, UNPUBLISHED OPINION
Appellant.
CRUSER, J. – Joseph Mast was convicted of second degree burglary and second degree
theft. He appeals his conviction of second degree theft, arguing that the evidence was insufficient
to prove that he stole property that exceeded $750 in value.
We hold there was sufficient evidence to prove Mast stole property that exceeded $750 in
value. Accordingly, we affirm Mast’s conviction for second degree theft.
FACTS
Ryan Vonderau and Clay Watkins, employees at the City of Sumner’s wastewater
treatment facility, arrived at work early in the morning and discovered that a security alarm had
been activated. Watkins went to investigate, when he turned on the lights, he heard someone inside
yawn. Upon hearing the yawn, Watkins decided to wait outside for another employee before
investigating further.
No. 54343-5-II
When the coworker arrived, Watkins and the coworker swept the building but did not find
anyone. However, several items, including a wagon, were missing. Footage from a security camera
showed an individual pulling a wagon away from the building early in the morning. Other
employees, who had begun to arrive at the facility, had noticed someone pulling a wagon down a
nearby trail. Watkins was able to locate the wagon nearby. Inside the wagon there was property
that was missing from the facility, which included propane tanks, a heater, electrical tools,
electrical wire, torque wrenches, and a condenser.
Meanwhile, Vonderau noticed there was a suspicious individual in a dark rain suit near the
building and contacted law enforcement. It was unusual for someone to be in the area that early in
the morning. Officer Joseph Boulay responded. As Officer Boulay and Vonderau were talking,
they noticed the same suspicious individual close to the building again.
Officer Boulay stopped the individual for questioning and identified the individual as Mast.
Officer Boulay noticed that the sole of Mast’s shoes matched the shoe prints left in the snow next
to the wagon and the wagon’s trail from the building. A search of Mast’s person revealed a bicycle
inner tube that matched a bicycle inner tube found in the building.
The State charged Mast with second degree burglary and second degree theft.
At trial, Vonderau estimated the total value of the stolen items was approximately $3,000
and provided the jury with individual estimates for each item. However, Vonderau did not explain
how he reached those estimates or whether the estimates were the cost of the items when they were
bought, the fair market value of the items, or replacement costs.
When Watkins was asked what he estimated the total value of the stolen items was, Watkins
responded, “There was a guesstimate of 7, $800.” 3 Verbatim Report of Proceedings at 342
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(emphasis added). But Watkins made clear that was not his personal estimate because he then
clarified that the electrician’s tool bag alone was worth $1,500. Watkins explained that an
electrician had just been hired and that the electrician had spent $1,500 on brand new tools.
The jury found Mast guilty of second degree burglary and second degree theft.
Mast appeals.
SUFFICIENCY OF THE EVIDENCE
Mast contends that the State failed to prove that the market value of the property that Mast
stole exceeded $750.
Taking the evidence in the light most favorable to the State, we hold that the evidence is
sufficient to prove that that the market value of the property that Mast stole exceeded $750.
A. LEGAL PRINCIPLES
The State must prove, beyond a reasonable doubt, every element of a crime. State v.
Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014). When reviewing challenges to the sufficiency
of the evidence to sustain a conviction, we ask “whether any rational fact finder could have found
the elements of the crime beyond a reasonable doubt.” Id. at 105. A challenge to the sufficiency of
the evidence admits the truth of the State’s evidence and all reasonable inferences arising from
that evidence. Id. at 106. Direct and circumstantial evidence are equally reliable. State v. Cardenas-
Flores, 189 Wn.2d 243, 266, 401 P.3d 19 (2017). “[I]nferences based on circumstantial evidence
must be reasonable and cannot be based on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309
P.3d 318 (2013). Appellate courts defer to the trier of fact on issues of “conflicting testimony,
credibility of witnesses, and persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821,
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No. 54343-5-II
874-75, 83 P.3d 970 (2004). We review de novo a challenge to the sufficiency of the evidence.
State v. Frahm, 193 Wn.2d 590, 595, 444 P.3d 595 (2019).
Under RCW 9A.56.040(1)(a) a person is guilty of second degree theft if that person
commits theft of property, other than a firearm or motor vehicle, that exceeds $750 in value but
does not exceed $5,000 in value. The value of the property is the market value of the property in
the approximate area of the theft and at the time of the theft. RCW 9A.56.010(21)(a). “Market
value is the price a well-informed buyer would pay to a well-informed seller, when neither is
obliged to enter the transaction.” State v. Jussila, 197 Wn. App. 908, 934, 392 P.3d 1108 (2017).
Evidence of the price paid for the property is entitled to great weight, but the purchase “must not
be too remote in time.” Id.B. ANALYSIS
Mast relies on State v. Williams, 199 Wn. App. 99, 398 P.3d 1150 (2017), to argue that the
employees’ testimony was insufficient to establish the value of the stolen items. In Williams, the
court reversed a conviction for second degree possession of stolen property because there was
insufficient evidence to establish that the value of the stolen property met the minimum value
requirement. Id. at 111. At trial, the owner of the stolen property testified that the value of stolen
property was around $800. Id.at 103, 105. The court noted that the owner’s estimate was close to
the required minimum of $750, and that the owner did not provide a description of the property’s
condition, the purchase price, or the purchase date. Id. at 111. Additionally, the owner was only
asked about the “value” of the property, not the “market value.” Id. The court emphasized that
because the State did not ask the owner about the market value, it did not know whether the
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No. 54343-5-II
owner’s $800 estimate was based on the purchase price, replacement costs, or some intrinsic value
to the owner. Id.
Mast also relies on State v. Ehrhardt, 167 Wn. App. 934, 944-47, 276 P.3d 332 (2012),
where the court reversed a second degree theft conviction because there was insufficient evidence
to establish that the value of the stolen property met the required minimum. The State introduced
photos of the stolen property and called a witness to establish the value of the stolen property. Id.
at 938. Two of the stolen items, the air compressor and pressure washer, “were essentially new,”
allowing the jury to find current market value based on the testimony regarding the cost of the
items. Id. at 945. However, the witness’ testimony about the cost of the rotary hammers and nail
guns was inadequate to establish the value of those items. Id. at 945-46. The witness did not testify
about the condition of the rotary hammers and nail guns, which had been used in a professional
construction for approximately three years, so the current value of the used items was unknown.
Id. Because the value of the rotary hammers and nail guns could not be established, the State was
unable to meet the $750 minimum required. Id. at 946.
Williams and Ehrhardt do not support Mast’s position that there was insufficient evidence.
Unlike the witness in Williams, Watkins explained how he arrived at a certain value for the items;
he used the recent purchase price. 199 Wn. App. at 111. Additionally, unlike Williams, $1,500 is
not close the required minimum of $750. Id. Furthermore, Ehrhardt actually supports the State’s
position. In Ehrhardt, because the air compressor and pressure washer “were essentially new,” the
court noted that the jury would be able to find that the cost of those items to be their current market
value. 167 Wn. App. at 945. Because the electrician’s tools that Mast stole were brand new, the
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No. 54343-5-II
jury here would have been able to find that the cost of the tools, $1,500, was the current market
value. Id.Here, there was sufficient evidence to establish that Mast stole property of a value that
exceeded $750. Watkins testified that the electrician’s tools were worth $1,500 and explained that
he knew the value of the tools because $1,500 is how much the electrician spent on the tools.
Watkins also explained that the electrician had just been hired and that all the tools were brand
new. Because Watkins’ testimony is evidence of the purchase price that is “not [ ] too remote in
time” it is entitled to great weight. Jussila, 197 Wn. App. at 934. Based on the value of the
electrician tools alone, there was sufficient evidence that Mast stole property that was at least $750
in value.1 We conclude, taking the evidence in the light most favorable to the State, the
evidence is sufficient to support the jury’s verdict.
1
Mast also challenges Watkins’ testimony by claiming that “the basis for [Watkins’] knowledge
is at best second hand.” Br. of Appellant at 12. However, the record does not support Mast’s
contention that Watkins’ knowledge was second hand. To the extent Mast is arguing that the jury
should not have found Watkins to be credible, we decline to consider it. It is not our role to make
credibility determinations or weigh the evidence; we defer to the jury’s judgment on these matters.
Thomas, 150 Wn.2d at 874-75.
Additionally, Mast may be trying to raise an ER 602 challenge, lack of personal knowledge,
if so, we decline to consider it. Mast failed to preserve it for appeal by not raising this objection
below. RAP 2.5(a). Additionally, Mast did not assign error on appeal and he does not provide any
ER 602 argument or legal citations on appeal. A party must provide “argument in support of the
issues presented for review, together with citations to legal authority and references to relevant
parts of the record.” RAP 10.3(a)(6). “Passing treatment of an issue or lack of reasoned argument”
does not merit our consideration. Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290(1998).
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CONCLUSION
We hold that the evidence is sufficient to show that the market value of the property that
Mast stole exceeded $750.
Accordingly, 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.
CRUSER, J.
We concur:
GLASGOW, A.C.J.
VELJACIC, J.
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