State v. McPhee

156 Wash. App. 44
CourtCourt of Appeals of Washington
DecidedMay 11, 2010
DocketNo. 37610-5-II
StatusPublished
Cited by21 cases

This text of 156 Wash. App. 44 (State v. McPhee) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McPhee, 156 Wash. App. 44 (Wash. Ct. App. 2010).

Opinion

Quinn-Brintnall, J.

¶1 The State charged Jeffrey D. McPhee with one count of residential burglary, four counts of possession of stolen firearms, and one count of second degree possession of stolen property. A jury acquitted him of residential burglary and two counts of possession of stolen firearms. But the jury was unable to reach a verdict on the remaining two counts of possession of stolen firearms and one count of second degree possession of stolen property. The trial court declared a mistrial and the State recharged McPhee. In a second trial, the trial court dismissed the second degree possession of stolen property count at the end of the State’s case. The jury then convicted McPhee of two counts of possession of stolen firearms. McPhee appeals, alleging various double jeopardy and evidentiary insufficiency challenges to his convictions. The State cross appeals, challenging the trial court’s dismissal of the possession of stolen property count. We affirm McPhee’s two convictions of possession of stolen firearms. We reverse the order dismissing the possession of stolen property other than a firearm and remand for a new trial as to that charge.

FACTS

¶2 On June 8, 2007, the State charged McPhee with various crimes arising out of a burglary in Pacific County, Washington. Count I alleged that McPhee committed residential burglary on or between January 28 and January 29, [50]*502007, in violation of RCW 9A.52.025.1 Count II alleged that McPhee knowingly possessed a stolen Weatherby rifle on or about January 31, 2007, in violation of RCW 9A.56.310.2 Count III alleged that McPhee knowingly possessed a stolen Benelli shotgun between January 28 and February 2, 2007, in violation of RCW 9A.56.310. Count IV alleged that McPhee knowingly possessed a stolen Remington shotgun on or about February 9, 2007, in violation of RCW 9A.56-.310. Count V alleged that he knowingly possessed a stolen Enfield rifle on or about February 9, 2007, in violation of RCW 9A.56.310. And count VI alleged that McPhee knowingly possessed stolen property other than a firearm, to-wit: field binoculars and ivory tusks in violation of former RCW 9A.56.160(l)(a) (1995).3

First Jury Trial

¶3 On November 27, 2007, McPhee’s jury trial on the original charges commenced. During that trial, Ronald Miller testified that he returned from an overnight trip on January 29, 2007, to discover his home had been burgled. That day, Miller reported that four guns and one set of field binoculars had been stolen. The guns included one hunting rifle with a scope, one Benelli shotgun, one Remington shotgun, and an Enfield military rifle. Miller later discovered that a pair of tusks was also missing from his home.

¶4 Nicholas Herrick testified that in January or February, McPhee contacted him to ask if he was interested in buying a gun. Around January 31, 2007, McPhee brought four guns to Herrick’s job site on Willows Road in Ilwaco. At [51]*51the time, McPhee had the guns in his car. Herrick was suspicious of the guns, asked McPhee if they were legitimate, and informed McPhee that he planned to call the sheriff to confirm that they were not stolen. According to Herrick, McPhee denied that the weapons were stolen. During the encounter, Herrick took possession of the Weatherby rifle. He subsequently turned it over to Pacific County Sheriff’s Deputy Larry Clark.

¶5 Jeremy Baker testified that Herrick informed him that McPhee had some guns for sale. Baker met with McPhee on the same day that McPhee met with Herrick. Baker believed that date was on or about February 2, 2007. They met at 2815 Willows Road in Seaview. Baker was interested in purchasing the Benelli shotgun from McPhee for a couple hundred dollars. Baker took the Benelli shotgun into his possession that day.

¶6 Steve Neva testified that McPhee contacted him about a week before February 9, 2007, to ask if he was interested in purchasing some guns. Neva and McPhee had previously worked together at a jobsite next to Miller’s residence. While working on that site, McPhee had gone to Miller’s residence to use the electrical power. According to Neva, approximately one week before McPhee contacted him about purchasing the guns, McPhee asked to borrow Neva’s truck to “unload a house.” 1 Report of Proceedings (RP) (Nov. 27, 2007) at 132. Neva came to believe that the guns McPhee was attempting to sell had come from Miller’s house.

¶7 Meanwhile, Miller placed an advertisement in the local newspaper, the Chinook Observer, in which he listed the missing items4 and offered a $500 reward for their return. The advertisement was published on February 7, 2007. A few days later, David Kochis contacted Miller about the missing items. After speaking with Kochis, Miller contacted his old friends, Steve Neva and Dale McGinnis, to help him recover the guns, the binoculars, and the tusks. Miller [52]*52also contacted Pacific County Sheriff’s Deputy Daree Smith to inform him he had devised a plan to recover his property.

¶8 Neva testified that he, McGinnis, Kochis, and another man went to confront McPhee at McPhee’s girl friend’s residence on the morning of February 9, 2007. McPhee led the group to the place where he had stored the guns and other property. According to Neva, the guns were under some brush without covering for protection. The tusks and the binoculars were in the same location.

¶9 Deputy Clark testified that he apprehended McPhee as the men were leaving the property. Clark had been waiting in the area after law enforcement personnel had alerted him that there was a suspicious vehicle in that area en route to retrieve some stolen guns.

¶10 Deputy Smith testified that when he arrived, Mc-Phee was sitting in the back of Deputy Clark’s patrol car. McPhee told Smith that he knew he was in a lot of trouble and he wanted to cooperate. He explained that he had obtained the guns in Ilwaco from a guy named Bill. McPhee related a conversation that he had had with Bill during which McPhee told Bill about a house on the bay with a big screen television and some guns. Bill later approached McPhee to ask if he was interested in purchasing some guns, binoculars, and tusks. McPhee said that Bill wanted $100 for everything. At that point, Smith asked McPhee if he thought it was odd that Bill wanted to sell four guns, binoculars, and tusks for a mere $100. McPhee responded that he did think it was odd but that he believed Bill was attempting to get some quick cash. McPhee was not interested in the guns; however, he did want the tusks because he thought they were interesting and that he could sell them for a profit. McPhee claimed to have purchased all the items for $100.

¶11 McPhee testified on his own behalf. He confirmed that he transported the guns to Herrick and Baker in his car.

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Cite This Page — Counsel Stack

Bluebook (online)
156 Wash. App. 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcphee-washctapp-2010.