State v. George
State v. George
Opinion of the Court
¶1 — Tommy and John George advertised a truck for sale. Police thought their ad sounded too good to be true. After a sting operation, the Georges were convicted of attempted first degree theft by deception. They challenge the sufficiency of the evidence, emphasizing the absence of proof of the market value of the truck. They also contend that two of the governing definitional statutes are unconstitutionally vague. We hold that the evidence was sufficient to establish the deprivation required for theft; that the degree of theft by deception is determined by looking to the value of the property obtained, not the net benefit to the thief or net loss to the victim; and that the statutes are not unconstitutional as applied. We therefore affirm.
FACTS
¶2 In June 2003, John George and his son, Tommy, bought a 1974 Chevrolet Cheyenne Super pickup truck from Jerome Potter. At the time, the truck was inoperable due to a problem with the rear wheel differential and had been parked in Potter’s yard for more than two years. Potter disclosed the mechanical problem, and also disclosed that the truck had 185,000 miles on it. Potter also said he had replaced the original 350 engine with a more powerful 400 engine. The Georges paid Potter $1,800 for the truck.
¶3 After performing some repairs and rendering the truck operable, the Georges advertised the truck for sale in
¶4 A Seattle Police Department detective read the ad and suspected it was fraudulent. After locating and identifying the truck, the detective confirmed with Potter the truck’s actual specifications. Two other detectives then posed as buyers. The Georges told them that John George was the original owner and that the truck had always been garaged and had 70,000 miles on it. After examining the truck and starting the engine, one of the detectives arranged to purchase it for the asking price. Tommy delivered the truck, and the undercover detective offered him a valid cashier’s check for $5,500. Both Georges were then arrested.
¶5 The State charged the Georges with attempted first degree theft by deception. They were tried together. The State presented the evidence described above but presented no evidence of the market value of the truck at the time of the attempted sale. At the close of the State’s evidence, the Georges moved for dismissal, contending that absent proof of the value of the truck, there was no evidence of any loss and certainly no evidence to support theft in the first degree. The court denied the motion. The jury returned verdicts of guilty.
ANALYSIS
¶6 Evidence is sufficient if it would permit any rational trier of fact, viewing the evidence in the light most favorable to the State, to find the essential elements of the offense beyond a reasonable doubt.
¶7 Theft by deception means “[b]y 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.”
¶8 Actual Loss. The Georges point out that proof of a deprivation to the victim is required to support a theft conviction and contend that because the State failed to prove the truck was worth less than the detective agreed to pay, there was no evidence their deception would have resulted in any loss. Thus, they first contend the evidence established no crime at all.
¶9 The Georges rely on State v. Lee.
¶10 Here, the putative buyer of the truck did not get what he bargained for. The Georges repeatedly claimed the truck had been driven only 70,000 miles by its only owner and had always been garaged. None of this was true. The Georges object that according to the State’s evidence, whether the truck had only one owner or was always
¶11 Theft in the First Degree. The degree of theft depends upon the value of the property deceptively obtained. To establish attempted theft in the first degree, the State must prove the attempted theft of ££[p]roperty or services which exceed(s) one thousand five hundred dollars in value.”
¶12 The Georges contend the State failed to prove theft in the first degree because there was no evidence of the truck’s market value. Relying on State v. Kleist
¶14 We are mindful that in Lee the court stated, “it appears that the loss to the victim, rather than the benefit to the offender, is key in determining the existence and the value of a deprivation.”
¶16 The evidence was sufficient to establish the value element of attempted theft in the first degree.
¶17 Definitions of Value and Theft. The Georges next argue that the controlling definitional statutes, RCW 9A-.56.010(18) and RCW 9A.56.020, are unconstitutionally void for vagueness as applied here.
¶18 “The due process clause of the Fourteenth Amendment requires that citizens be afforded fair warning of proscribed conduct.”
¶19 Vagueness challenges not involving the First Amendment are evaluated in light of the particular facts of each case.
¶21 The Georges next contend the definition of theft by deception in RCW 9A.56.020(l)(b) is unconstitutionally vague as applied to them because it ensnares those who merely engage in “inequitable sales techniques”
¶22 We hold that neither statute is unconstitutionally vague as applied to the Georges.
¶23 Affirmed.
Reveiw granted at 159 Wn.2d 1004 (2007).
Clerk’s Papers at 7.
State v. Kleist, 126 Wn.2d 432, 435, 895 P.2d 398 (1995).
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
RCW 9A.56.020(1)(b).
128 Wn.2d 151, 904 P.2d 1143 (1995).
Id. at 154. The State did not charge Lee with theft from the owner of the house.
Id. at 163 (emphasis added).
Because the charge was an attempt crime, the State had to prove only deception, intent, and a substantial step, not that the victim was fooled or actually suffered a loss. See State v. Wellington, 34 Wn. App 607, 611, 663 P.2d 496 (1983) (citing RCW 9A.28.020(1)).
RCW 9A.56.030(1)(a).
RCW 9A.56.010(18)(a).
126 Wn.2d 432, 435, 895 P.2d 398 (1995).
120 Wn. App. 847, 86 P.3d 823 (2004).
RCW 9A.56.010(18)(e).
Kleist, 126 Wn.2d at 440 (prosecution and defense permitted to introduce price tags to establish the price of stolen items); Shaw, 120 Wn. App. at 852 (evidence of a stolen car’s Blue Book price sufficient to establish the car’s value).
The definition of theft by taking is “[t]o 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.” RCW 9A.56.020(l)(a).
RCW 9A.56.010(5)(a).
RCW 9A.56.020(1)(b) (emphasis added).
RCW 9A.56.010(4) (emphasis added).
Lee, 128 Wn.2d at 163 (emphasis added).
City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990) (citing Rose v. Locke, 423 U.S. 48, 49, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975)).
Id.
Id. at 182.
Id. at 182-83.
RCW 9A.56.010(18)(a) defines value as “the market value of the property or services at the time and in the approximate area of the criminal act.”
Lee, 128 Wn.2d at 163.
Appellant’s Br. at 18.
Reference
- Full Case Name
- The State of Washington v. John S. George
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- Published