State v. AttertonState v. Atterton
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- Webster
Stephen Atterton appeals his conviction for first degree theft, contending that the trial court imprоperly aggregated eight thefts from different victims into a single count of first degree theft. Atterton reasons that, because aggregation was impermissible under these facts, the evidence was insufficient. We vacate the first degree theft conviction, but remand for entry of judgment and sentence on one count оf second degree theft.
FACTS
Atterton solicited orders and accepted advance paymеnts for plastic cup holders from eight car dealerships, claiming to be a representative оf Premiere Concepts, his former employer. He had no authority to represent the manufacturer or any other business associated with the cup holders. The checks from the dealerships totaled $1,850.36, the individual amounts being $219.36, $228.00, $150.00, $279.00, $279.00, $270.00, $239.00, and $186.00.
The State charged Atterton with one count of first degree theft, based on the аggregated amount of the eight checks, and the trial court found him guilty.
DISCUSSION
Atterton contends that there was not sufficient evidence to convict him of theft in the first degree because the thefts were improperly аggregated. Sufficiency of the evidence is a question of constitutional magnitude which a defendant may raise for the first time on appeal. 1 State v. Alvarez, 128 Wn.2d 1, 9, 904 P.2d 754 (1995). In reviewing the sufficiency of the evidence, we examine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the State. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).
First degree theft is theft of property which exceeds $1,500.00 in value.
The common law allows aggrеgation of a series of thefts, so long as the thefts are from the same owner and the same place and result from a single criminal impulse pursuant to a general larcenous scheme. State v. Vining, 2 Wn. App. 802, 808, 472 P.2d 564, 53 A.L.R.Sd 390 (1970). The common law also allows aggregation of thefts from the same victim over a period of time or from several victims at the same time and place, if the takings are part of a common scheme or plan. State v. Meyer, 26 Wn. App. 119, 124, 613 P.2d 132 (1980). But, the common law does not allow aggregation of thefts from different victims at different times and plаces. Meyer, 26 Wn. App. at 124; see also Wayne R. LaFave, Criminal Law 87, at 635 (1972); Charles E. Torcía, Wharton’s Criminal Law § 347, at 372 (1995).
As with common law aggregation, statutory aggregation is impermissible unless the thefts to be aggregated are part of a common scheme or plan.
In conclusion, Atterton’s eight thefts cannot be aggregated under the statute or the common law because each involved a different victim, place, and time.
The State, however, relies on
State v. Bonefield,
37 Wn. App. 878, 683 P.2d 1129,
review denied,
102 Wn.2d 1014 (1984). In that case, the defendant accepted deposits of $20.00 to $320.00 from approximately 79 people for cords of wood which he never delivered.
Id.
at 879. Division III affirmed his conviction for first degree theft, stating “[w]e note the State may aggregate the amounts lost in a series of transactions due to a common scheme or plan, ‘in determining the degree of theft involved.’ ”
Id.
at 881. Without further discussion, the court cited
Because the eight thefts cannot be аggregated, there was insufficient evidence of first degree theft. In order to reach $1,500.00, however, the trial court necessarily found at least two second degree thefts and three third degree thefts, both of whiсh are lesser degree offenses of first degree theft. When the evidence is insufficient to convict of the crime charged, but sufficient to support conviction of a lesser degree crime, an aрpellate court may remand for entry of judgment and sentence on the lesser degree. See State v. Plakke, 31 Wn. App. 262, 267-68, 639 P.2d 796 (1982), overruled on other grounds by State v. Davis, 35 Wn. App. 506, 667 P.2d 1117 (1983), affd, 101 Wn.2d 654, 682 P.2d 883 (1984). Because the State charged Atterton with only one count, we direct the trial court to enter judgment and sentence for one count of second degree theft. Cf. Meyer, 26 Wn. App. at 125.
We vacate the judgment and sentence fоr first degree theft and remand for entry of judgment and sentence on one count of second degreе theft.
Baker, C.J., and Grosse, J., concur.
Notes
Because Atterton may raise the argument on appeal, his counsel’s failure to do so at trial did not prejudice him. Therefore, we reject Atterton’s ineifective assistance of counsеl claim.
Furthermore, only transactions which would constitute third degree theft may be aggregated under the statute.