FILED NOVEMBER 8, 2022 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STATE OF WASHINGTON, ) No. 38167-6-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) STACY ANDREW HAINES, ) ) Appellant. )
PENNELL, J. — Stacy Haines appeals a felony judgment and sentence pertaining
to his convictions for first degree trafficking in stolen property and first degree malicious
mischief. Mr. Haines does not assign error to three related convictions for second degree
burglary. We affirm Mr. Haines’s stolen property conviction but reverse the first degree
malicious mischief conviction as the State failed to prove the requisite amount of damage
to property. We remand for resentencing.
FACTS
Shortly after midnight on December 26, 2019, Stacy Haines broke into a
convenience store in Bridgeport, Washington, and stole several packs of cigarettes.
The store was closed at the time of the break-in but video surveillance captured No. 38167-6-III State v. Haines
Mr. Haines’s activities. Among other things, the video showed Mr. Haines placing
multiple packs of cigarettes into a shoulder bag.
About an hour later, Mr. Haines went to a second convenience store located
less than a mile away. The second store was open to the public and Mr. Haines entered
without incident. Once inside the second store, Mr. Haines took five packs of cigarettes
out of his bag and traded them with the store clerk. Mr. Haines’s actions in the second
store were also recorded on video.
Mr. Haines returned to the first convenience store two more times within the
next few hours. During these later entries, Mr. Haines stole additional items and caused
extensive property damage.
Witnesses recognized Mr. Haines from the store surveillance videos, leading to
his arrest on December 28. During a post-arrest statement, Mr. Haines denied any
involvement in the break-in of the first store. He claimed the cigarettes traded at the
second store had been given to him as a Christmas present.
The State charged Mr. Haines with three counts of second degree burglary, one
count of first degree trafficking in stolen property, one count of first degree theft, and
one count of first degree malicious mischief. At trial, the State presented evidence that
the store lost over $10,000 in stolen and damaged items, but for the most part failed to
2 No. 38167-6-III State v. Haines
differentiate between stolen and damaged property. The State presented evidence of only
$4,412.01 in damaged property. Mr. Haines was convicted of all charges except theft.
Mr. Haines was sentenced to a total term of 84 months in prison, and ordered
to pay a $500 crime victim penalty assessment and $100 DNA (deoxyribonucleic acid)
collection fee. The judgment and sentence form noted the $100 DNA collection fee had
been “previously collected.” Clerk’s Papers at 200.
Mr. Haines has filed a timely appeal.
ANALYSIS
Sufficiency of the evidence
Mr. Haines challenges the evidentiary sufficiency for his stolen property and
malicious mischief convictions. The State concedes Mr. Haines’s challenge as to
malicious mischief, but argues sufficient evidence supports the stolen property
conviction. We agree with the State.
A challenge to the sufficiency of the evidence is reviewed de novo with the State’s
evidence presumed to be true. State v. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014).
Circumstantial evidence can support a conviction so long as it does not consist solely of
speculation or conjecture. See Lamphiear v. Skagit Corp., 6 Wn. App. 350, 356, 493 P.2d
1018 (1972).
3 No. 38167-6-III State v. Haines
First degree trafficking in stolen property
RCW 9A.82.050 defines first degree trafficking in stolen property as:
(1) 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. (2) Trafficking in stolen property in the first degree is a class B felony.
“‘Stolen property’ means property that has been obtained by theft, robbery, or extortion.”
RCW 9A.82.010(16).
Ample circumstantial evidence supported Mr. Haines’s conviction for first degree
trafficking in stolen property. Video evidence showed Mr. Haines breaking into the first
convenience store and placing packs of cigarettes into his bag. A recording from the
second store showed Mr. Haines with a bag full of Marlboro cigarette packs. Video also
showed Mr. Haines at the second store taking cigarette packs out of his bag and trading
them with the store clerk. Law enforcement subsequently recovered the five packs of
Marlboro cigarettes received by the store clerk. A reasonable inference from the
foregoing evidence is that the cigarettes provided to the store clerk had been stolen an
hour earlier from the first store. While it is possible Mr. Haines had additional cigarettes
in his bag that were not purloined through theft, this speculative possibility is not
sufficient to defeat the circumstantial evidence supporting the State’s case.
4 No. 38167-6-III State v. Haines
Sufficient evidence supports Mr. Haines’s conviction for first degree trafficking in
stolen property.
First degree malicious mischief
RCW 9A.48.070 defines first degree malicious mischief as:
(1) A person is guilty of malicious mischief in the first degree if he or she knowingly and maliciously: (a) Causes physical damage to the property of another in an amount exceeding five thousand dollars; .... (2) Malicious mischief in the first degree is a class B felony.
“‘Damages,’ in addition to its ordinary meaning . . . shall include any diminution in the
value of any property as the consequence of an act.” RCW 9A.48.010(1)(b). “‘Physical
damage’ also includes . . . the cost to repair any physical damage.” RCW 9A.48.100(1).
The amount of damage involved in a malicious mischief charge is a fact necessary
for punishment that must be proved beyond a reasonable doubt. State v. Timothy K., 107
Wn. App. 784, 789, 27 P.3d 1263 (2001). The amount of damage may be shown through
proof of repair costs or diminution of value. RCW 9A.48.010(1)(b); RCW 9A.48.100(1);
State v. Newcomb, 160 Wn. App. 184, 192, 246 P.3d 1286 (2011). But proof of damage is
not by itself sufficient to prove the amount of damage sustained. See State v. Claybourne,
14 Wn. App.
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FILED NOVEMBER 8, 2022 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. 38167-6-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) STACY ANDREW HAINES, ) ) Appellant. )
PENNELL, J. — Stacy Haines appeals a felony judgment and sentence pertaining
to his convictions for first degree trafficking in stolen property and first degree malicious
mischief. Mr. Haines does not assign error to three related convictions for second degree
burglary. We affirm Mr. Haines’s stolen property conviction but reverse the first degree
malicious mischief conviction as the State failed to prove the requisite amount of damage
to property. We remand for resentencing.
FACTS
Shortly after midnight on December 26, 2019, Stacy Haines broke into a
convenience store in Bridgeport, Washington, and stole several packs of cigarettes.
The store was closed at the time of the break-in but video surveillance captured No. 38167-6-III State v. Haines
Mr. Haines’s activities. Among other things, the video showed Mr. Haines placing
multiple packs of cigarettes into a shoulder bag.
About an hour later, Mr. Haines went to a second convenience store located
less than a mile away. The second store was open to the public and Mr. Haines entered
without incident. Once inside the second store, Mr. Haines took five packs of cigarettes
out of his bag and traded them with the store clerk. Mr. Haines’s actions in the second
store were also recorded on video.
Mr. Haines returned to the first convenience store two more times within the
next few hours. During these later entries, Mr. Haines stole additional items and caused
extensive property damage.
Witnesses recognized Mr. Haines from the store surveillance videos, leading to
his arrest on December 28. During a post-arrest statement, Mr. Haines denied any
involvement in the break-in of the first store. He claimed the cigarettes traded at the
second store had been given to him as a Christmas present.
The State charged Mr. Haines with three counts of second degree burglary, one
count of first degree trafficking in stolen property, one count of first degree theft, and
one count of first degree malicious mischief. At trial, the State presented evidence that
the store lost over $10,000 in stolen and damaged items, but for the most part failed to
2 No. 38167-6-III State v. Haines
differentiate between stolen and damaged property. The State presented evidence of only
$4,412.01 in damaged property. Mr. Haines was convicted of all charges except theft.
Mr. Haines was sentenced to a total term of 84 months in prison, and ordered
to pay a $500 crime victim penalty assessment and $100 DNA (deoxyribonucleic acid)
collection fee. The judgment and sentence form noted the $100 DNA collection fee had
been “previously collected.” Clerk’s Papers at 200.
Mr. Haines has filed a timely appeal.
ANALYSIS
Sufficiency of the evidence
Mr. Haines challenges the evidentiary sufficiency for his stolen property and
malicious mischief convictions. The State concedes Mr. Haines’s challenge as to
malicious mischief, but argues sufficient evidence supports the stolen property
conviction. We agree with the State.
A challenge to the sufficiency of the evidence is reviewed de novo with the State’s
evidence presumed to be true. State v. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014).
Circumstantial evidence can support a conviction so long as it does not consist solely of
speculation or conjecture. See Lamphiear v. Skagit Corp., 6 Wn. App. 350, 356, 493 P.2d
1018 (1972).
3 No. 38167-6-III State v. Haines
First degree trafficking in stolen property
RCW 9A.82.050 defines first degree trafficking in stolen property as:
(1) 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. (2) Trafficking in stolen property in the first degree is a class B felony.
“‘Stolen property’ means property that has been obtained by theft, robbery, or extortion.”
RCW 9A.82.010(16).
Ample circumstantial evidence supported Mr. Haines’s conviction for first degree
trafficking in stolen property. Video evidence showed Mr. Haines breaking into the first
convenience store and placing packs of cigarettes into his bag. A recording from the
second store showed Mr. Haines with a bag full of Marlboro cigarette packs. Video also
showed Mr. Haines at the second store taking cigarette packs out of his bag and trading
them with the store clerk. Law enforcement subsequently recovered the five packs of
Marlboro cigarettes received by the store clerk. A reasonable inference from the
foregoing evidence is that the cigarettes provided to the store clerk had been stolen an
hour earlier from the first store. While it is possible Mr. Haines had additional cigarettes
in his bag that were not purloined through theft, this speculative possibility is not
sufficient to defeat the circumstantial evidence supporting the State’s case.
4 No. 38167-6-III State v. Haines
Sufficient evidence supports Mr. Haines’s conviction for first degree trafficking in
stolen property.
First degree malicious mischief
RCW 9A.48.070 defines first degree malicious mischief as:
(1) A person is guilty of malicious mischief in the first degree if he or she knowingly and maliciously: (a) Causes physical damage to the property of another in an amount exceeding five thousand dollars; .... (2) Malicious mischief in the first degree is a class B felony.
“‘Damages,’ in addition to its ordinary meaning . . . shall include any diminution in the
value of any property as the consequence of an act.” RCW 9A.48.010(1)(b). “‘Physical
damage’ also includes . . . the cost to repair any physical damage.” RCW 9A.48.100(1).
The amount of damage involved in a malicious mischief charge is a fact necessary
for punishment that must be proved beyond a reasonable doubt. State v. Timothy K., 107
Wn. App. 784, 789, 27 P.3d 1263 (2001). The amount of damage may be shown through
proof of repair costs or diminution of value. RCW 9A.48.010(1)(b); RCW 9A.48.100(1);
State v. Newcomb, 160 Wn. App. 184, 192, 246 P.3d 1286 (2011). But proof of damage is
not by itself sufficient to prove the amount of damage sustained. See State v. Claybourne,
14 Wn. App. 314, 315, 541 P.2d 1230 (1975).
5 No. 38167-6-III State v. Haines
The evidence at Mr. Haines’s trial included the value of stolen property as well
as damaged property. When it came to the damaged property, the State’s evidence showed
at most $4,412.01 in damages. This does not meet the $5,000 threshold for first degree
malicious mischief. The State concedes Mr. Haines’s argument and agrees sufficient
evidence does not support the conviction for first degree malicious mischief.
Citing In re Personal Restraint of Heidari, 174 Wn.2d 288, 294, 274 P.3d 366
(2012), Mr. Haines asserts his malicious mischief conviction must be dismissed with
prejudice because the jury was not instructed on a lesser included offense. The State does
not disagree with this interpretation of Heidari and asks that Mr. Haines be resentenced
without regard to the malicious mischief conviction. We accept the State’s agreed
disposition.
DNA collection fee
Mr. Haines contends, and the State agrees, that the trial court should not have
imposed a $100 DNA collection fee because Mr. Haines’s DNA had previously been
collected by the State as a result of a prior conviction. See RCW 43.43.7541. The
sentencing transcript indicates the trial court included the $100 DNA fee just in case
one had not been previously collected. On remand for resentencing, the trial court shall
not impose a DNA fee.
6 No. 38167-6-III State v. Haines
CONCLUSION
Mr. Haines’s conviction for trafficking in stolen property (count 2) is affirmed.
The conviction for first degree malicious mischief (count 6) is reversed with prejudice.
This matter is remanded for resentencing as to counts 1, 2, 4, and 5. At resentencing
the court shall not impose a $100 DNA fee.
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.
_________________________________ Pennell, J.
WE CONCUR:
______________________________ Lawrence-Berrey, A.C.J.
______________________________ Staab, J.