Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       No. 65456-0-I
                  v.                        )
                                            )       PUBLISHED OPINION
JASON NOEL KILLINGSWORTH                    )
                                            )
                      Appellant.            )       FILED:  January 30, 2012
________________________________)

       Dwyer, C.J.  --  When evaluating the adequacy of jury instructions, courts

must read them as would an ordinary, reasonable juror.  Reading the 

instructions at issue in this case in that manner, we conclude they were 

adequate. We also conclude that the prosecutor did not commit misconduct in 

closing argument and that the conviction for trafficking in stolen property is 

supported by sufficient evidence.  We therefore affirm.

                                            I

       Around 10:00 p.m. on July 12, 2009, Trista Lemmons' brother, Stephen 

Hendrickson, looked outside Lemmons' house and noticed that the dome light 

was on in her family's truck.  Hendrickson also noticed two people standing 

under a street light.  When he went downstairs to investigate, the two people ran 

off.  Lemmons found nothing missing from the truck but did not check to see if a 

key to her Volkswagen Jetta was still in the truck's center console.     

No. 65456-0-I/2

       Just before midnight, Lemmons' neighbor, Michael Hayslip, saw 

Lemmons' Jetta parked in front of her home.  

       About 5:30 the next morning, Lemmons discovered that the Jetta key and 

the Jetta were gone.  A short time later, they found the Jetta in a nearby field.  

The front end, passenger side, and lights were smashed, one of the tires was 

flat, grass was imbedded in parts of the car, ashes were spread around the 

inside of the car, and an iPod and global positioning system (GPS) were 

missing.  There was a receipt from Haggen's grocery in the passenger side door 

pocket.  The receipt was for a can of "Steel High Gravity" beer and a pack of 

cigarettes, purchased at 12:38 a.m. on July 13, 2009.  A Haggen's grocery bag 

with a can of "Steel" beer inside it was found next to the car.  

        Information on the receipt led police to Catherine Bowen.  She testified 

that she was living in Killingsworth's home in July 2009 and owned a Haggen's 

loyalty card.  

       Surveillance video from the Haggen's store showed a man purchasing 

beer and cigarettes between 12:33 and 12:39 a.m.  After viewing still photos 

from the video, Bowen identified the man as Jason Killingsworth.  A detective 

then ran Killingsworth's name through a pawn shop transaction database.  The 

detective learned from that database that the defendant had pawned an iPod 

and a GPS unit at a pawn shop.  Lemmons identified the pawned devices as the

iPod and GPS taken from her Jetta.  

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No. 65456-0-I/3

       Susan Thompson, an employee of the pawn shop, identified Killingsworth

as the person who pawned the devices.  A pawn slip signed by Killingsworth

showed that the devices were pawned at 1:30 p.m. on July 13, 2009.

       The State charged Killingsworth with theft of a motor vehicle, first degree 

trafficking in stolen property, and second degree taking a motor vehicle without 

permission.  The trial court denied his midtrial motion to dismiss the charges for 

insufficient evidence.  The jury found Killingsworth not guilty of taking or theft of 

a motor vehicle, but convicted him of trafficking in stolen property.  

                                           II

       Killingsworth first contends that his conviction is not supported by 

sufficient evidence.   Specifically, he contends that there was insufficient 

evidence that he knew the property he pawned was stolen.  Evidence is 

sufficient if, when viewed in a light most favorable to the State, it permits any 

rational trier of fact to find the elements of the crime beyond a reasonable doubt.  

State v.Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of 

insufficient evidence admits the truth of the evidence and all reasonable 

inferences that can be drawn from that evidence.  Salinas, 119 Wn.2d at 201.

Circumstantial evidence and direct evidence are equally reliable, State v. 

Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980), and we must defer to the 

trier of fact on issues of conflicting testimony, credibility of witnesses, and the 

persuasiveness of the evidence.  State v. Camarillo, 115 Wn.2d 60, 71, 794 

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No. 65456-0-I/4

P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533

(1992).  Applying these principles here, we conclude the evidence was sufficient 

to prove Killingsworth's knowledge beyond a reasonable doubt.

       To prove that Killingsworth trafficked in stolen property, the State had to 

prove he knew the property he pawned was stolen. RCW 9A.82.050; RCW 

9A.82.010(19); State v. Hermann, 138 Wn. App. 596, 604, 158 P.3d 96 (2007) 

("[T]he legislature clearly intended to prohibit any commercial transaction 

involving property known to be stolen."); State v. Michielli, 132 Wn.2d 229, 236, 

937 P.2d 587 (1997) (defendant knowingly trafficked in stolen property because 

"[k]nowing [certain] items were stolen, he sold them to pawnshops").  The State 

submitted substantial circumstantial evidence of such knowledge.  

       The two people seen near the Jetta before it was stolen fled in the 

direction of Killingsworth's house.  The Haggen's store video tied Killingsworth 

to the receipt found inside the Jetta and the Haggen's bag and beer can found 

next to it.  The car was heavily damaged and abandoned in a field only a few 

blocks from Killingsworth's house.  Viewed in a light most favorable to the State, 

this evidence supports inferences that Killingsworth was in the car sometime 

after 12:40 and was still in it when it was abandoned.  Considering the condition 

of the car and its abandonment in a field, the jury could also infer that 

Killingsworth knew the car and its contents were stolen.  The evidence was thus 

sufficient to support the knowledge element of the offense.  

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No. 65456-0-I/5

                                           III

       Killingsworth next contends the instructions on the trafficking count 

relieved the State of its burden of proof.  "'Jury instructions are sufficient when 

they allow counsel to argue their theory of the case, are not misleading, and 

when read as a whole properly inform the trier of fact of the applicable law.'"  

State v. Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627 (2007) (internal quotation 

marks omitted) (quoting State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d

1012 (2005)). The "to convict" instruction must contain all elements essential to 

the conviction and its adequacy is reviewed de novo.  State v. Mills, 154 Wn.2d 

1, 7, 109 P.3d 415 (2005).  When reviewing a challenge to the adequacy of a 

jury instruction, we read it as an ordinary, reasonable juror would.  State v. Noel, 

51 Wn. App. 436, 440-41, 753 P.2d 1017 (1988); State v. Hanna, 123 Wn.2d 

704, 719, 871 P.2d 135 (1994); State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 

(1997); State v. Walden, 131 Wn.2d 469, 477, 932 P.2d 1237 (1997).  

       Killingsworth contends the court's "to convict" and "knowledge"

instructions relieved the State of its burden to prove that he knew the property 
he pawned was stolen.1 The instructions stated in pertinent part:

           To convict the defendant of the crime of trafficking in stolen 
       property in the first degree, as charged in Count II, each of the 
       following elements of the crime must be proved beyond a 
       reasonable doubt: 
           (1) That on or about the 13th day of July, 2009, the defendant 
       knowingly trafficked in stolen property; and 
           (2)That the acts occurred in the State of Washington. 

       1 A jury instruction that relieves the State of its burden of proof is reversible error.  State 
v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).

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No. 65456-0-I/6

Clerk's Papers (CP) at 46 (Instruction 9).

           A person knows or acts knowingly or with knowledge with 
       respect to a fact when he or she is aware of that fact.  It is not 
       necessary that the person know that the fact is defined by law as 
       being unlawful or an element of a crime. 

CP at 55 (Instruction 18).  Killingsworth claims the "to convict" instruction "failed 

to require proof that [he] knew the property in question was stolen," Br. of 

Appellant at 11, and the "knowledge" instruction exacerbated this problem 

because it "affirmatively indicated . . . that the defendant must be found guilty 

even if he did not know of the fact that the items were stolen . . . ." Br. of 

Appellant at 14.  We disagree.  

       The "to convict" instruction required the jury to find that Killingsworth 

"knowingly trafficked in stolen property." The most natural reading of the adverb 

"knowingly," as used in this instruction, is that it modifies the verb phrase 

"trafficked in stolen property." See State v. J.M., 144 Wn.2d 472, 480-81, 28 

P.3d 720 (2001) (most natural reading of statute was that "knowingly" modified 

verb phrase it preceded).  Read this way, "knowingly" modifies both "trafficked"

and "stolen."  This reading is reinforced by the fact that the instruction tracks the 
language of the statute.2  The statute's intent is plain: to criminalize the 

trafficking of property known to be stolen.  Indeed, to read "knowingly" as 

modifying only the word "trafficked" would lead to the absurd result that a person 

       2 RCW 9A.82.050(1) states in part that a person "who knowingly traffics in stolen 
property" is guilty of first degree trafficking in stolen property.     

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No. 65456-0-I/7

could be convicted for selling or disposing of property they did not know, or have 
reason to know,3 was stolen.  No ordinary, reasonable juror would read the 

instruction this way.

       Contrary to Killingsworth's assertions, the instruction defining "knowingly"

does not support a different conclusion.  That instruction stated in part that a

person "acts knowingly or with knowledge with respect to a fact when he or she 

is aware of that fact.  It is not necessary that the person know that the fact is 

defined by law as being unlawful or an element of a crime."  CP at 55 (Instruction 

18) (emphasis added).  For the first time on appeal, Killingsworth contends the 

emphasized language suggested the jury did not have to find that he knew the
trafficked property was stolen.4 He misreads the instruction. Read correctly, it 

simply indicates that a defendant need not know that trafficking in stolen property

is unlawful or an element of a crime. 

       In short, we hold that the "to convict" instruction did not relieve the State 

of its burden of proof.  However, while the instruction was adequate, a preferable

instruction would be one stating: "That on or about _____, the defendant 

knowingly sold, transferred, distributed, dispensed, or disposed of property to 

another person, knowing that the property was stolen." Trial courts may well 

       3 The jury was also instructed on the lesser offense of second degree trafficking in stolen 
property, which proscribes reckless trafficking in stolen property.  RCW 9A.82.055.
       4 We assume, without deciding, that this argument may be raised for the first time on 
appeal.  See State v. Stein, 144 Wn.2d 236, 240-41, 27 P.3d 184 (2001) (jury instruction that 
relieves the State of proving any element is a manifest constitutional error that may be reviewed 
for the first time on appeal); State v. Williams, 136 Wn. App. 486, 492-93, 150 P.3d 111 (2007)
(if instructions incorrectly define an element of a crime, the State is impermissibly relieved of its 
burden to prove that the defendant committed all the essential elements of the offense).  

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No. 65456-0-I/8

wish to consider the use of such language in future cases.

                                           IV

       Last, Killingsworth contends that the prosecutor's closing argument 

shifted the burden of proof and impermissibly commented on his failure to testify 

in his defense.   He points to several instances where the prosecutor argued that 

there was no "reasonable explanation" for the events other than Killingsworth's 
guilt.5  Because the defense did not object to these remarks below, we will 

review the alleged misconduct only if it was so flagrant and ill-intentioned that no 

       5 The challenged remarks are as follows: 
              Now, if it wasn't Jason Killingsworth taking  [the car] back, and it was 
       another thief, why would they go back to within half a block of the victim's 
       house?  They might get caught. The victim would see the car.  The only
       reasonable explanation for the car being found there is that this guy took it.  And 
       you don't have to be smart to commit a crime.  He was trying to make it home, 
       didn't make it, left the car there.  No one else who was in that car would come 
       back to the location of the scene of the theft. . . . So somebody took this wrecked 
       car, and instead of fleeing, immediately drove it back to that location.  This guy.  
       There's no other reasonable explanation.    
       . . . .
              Now, you have to ask yourself, how would he innocently get the iPod 
       and the GPS?  Think about this.  It's 12:30 at night.  Then he buys the beer.  So 
       is there a one-armed man in this store?  Is he in the store with the one-armed 
       man?  Does he buy an iPod?  What reasonable explanation could there be?  
       Does he buy an iPod in the middle of the night to pawn the next morning for a 
       fairly paltry sum, the iPod and the GPS?  It's probably on the exhibit here.  The
       amount of cash given to you, $50.  Boy, that must thrill Trista Lemmons that for 
       50 bucks he pawned this.  Somebody sell it to him in the middle of the night?  
       Not the pawner for $50.  He wouldn't buy it and pawn it for $50, because he 
       wouldn't buy it for less than that unless you knew it was stolen, wouldn't you?  If
       somebody offers you those two things for something less than $50, you know 
       darn well it's stolen, and that's why you pawn it real fast.  You don't buy 
       something to pawn it.  Nobody gives it to you in the middle of the night.  There's 
       no reasonable explanation for why -- for how he would get this without knowing
       that it was stolen, either buying it too cheaply or stealing it himself or knowing it 
       was stolen in a stolen car and pawning it.  That's trafficking.  
Report of Proceedings (May 11, 2010) at 171-73 (emphasis added).

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No. 65456-0-I/9

curative instruction could have obviated any prejudice it engendered.  State v. 

French, 101 Wn. App. 380, 386-88, 4 P.3d 857 (2000) (absent an objection, 

even comments touching indirectly on a constitutional right will not be reviewed 

unless they were so flagrant and ill-intentioned as to be incurable); State v. 

Smith, 144 Wn.2d 665, 679, 30 P.3d 1245, 39 P.3d 294 (2001); State v. Klok, 99 

Wn. App. 81, 85-86, 992 P.2d 1039 (2000). We conclude there was no 

misconduct and that any improper comments were neither flagrant and ill-

intentioned nor incurable. 

       The prosecutor did not argue or imply that the defense had failed to offer 

other reasonable explanations or comment on Killingsworth's failure to testify.  

Rather, he simply argued that the evidence did not support any other reasonable 

explanation.  A prosecutor is entitled to argue inferences from the evidence and 

to point out improbabilities or a lack of evidentiary support for the defense's 

theory of the case.  State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994); 

State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).  Moreover,

even if the remarks could be interpreted as indirectly commenting on silence or a 

lack of defense evidence, they could have been easily addressed by a curative 

instruction from the court.  

       Affirmed. 

We concur:

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No. 65456-0-I/10

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