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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 )         No. 66174-4-I
                      Respondent,                )
                                                 )         DIVISION ONE
              v.                                 )
                                                 )         UNPUBLISHED OPINION
HUONG TAN VAN,                                   )
                                                 )
                      Appellant.                           FILED: June 11, 2012
                                                 )
                                                 )

                                                 )

       Appelwick, J.  --  Van appeals his conviction for theft in the first degree, 

arguing there was insufficient evidence that he took the property from Phan's 

person.  We affirm.

                                        FACTS

       Huong Van and four friends were hanging out when they decided to steal 

some pizzas from Dominos.        They ordered over one hundred dollars worth of 

food including pizzas, chicken wings, and soda, to be delivered to an apartment 

building they knew had a security entrance.  Van and another accomplice went 

out of the building to the gate to meet the delivery driver, Hieu Phan.  Some of 

the accomplices waited inside the building to let the others back in.  Van and his  

No. 66174-4-I/2

friend told Phan they wanted to check the pizzas to make sure the order was 

correct.  According to Van, Phan handed the             pizzas to Van's friend, who 

checked each one.  By contrast, Phan testified the boys grabbed the pizzas from 

him.  He also testified he did not agree to let them check the pizzas, because it 

was Dominoes' policy that customers must pay before receiving their food.  

When Van and his accomplices had the food in their possession, they ran back 

inside without paying, closing the door before Phan could follow.  They ran 

through the building and out the other side to a waiting car, left the scene, and 

ate the pizza.  Afterwards, they drove past the Dominoes they had ordered from, 

dropping off an empty box with "thank you" written on it.  

       Phan also testified that after the boys ran with the pizzas, two suspects 

came up behind him and told him to leave his money, cell phone, and wallet on 

the ground.  He believed one suspect appeared to be holding a gun at his side.  

Phan left his belongings, including about $20 cash, and ran.  He returned shortly 

thereafter and recovered his phone and wallet, but his money was gone.  He 

called his manager and then called 911.  

       The apartment complex where the theft took place has surveillance 

cameras at the gates, in the stairwells, and in the parking garage.  Cheryl 

Collins, an employee in the building, reviewed footage from that night and was 

able to observe part of the incident.  Video of the gated entrance shows two 

people at the gate at 10:37 p.m.  Video in the garage captured a group of people 

running through at 10:40 p.m.  And, a camera at the entrance on the other side 

of the building shows a group of people leaving the building.  The manager 

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No. 66174-4-I/3

provided that footage to police.  

       The State charged Van with two separate counts.  One was for theft in the 

first degree, for taking food and money from Phan's person.  The jury found him 

guilty of that count.  The other count was for robbery in the first degree.  The jury 

acquitted Van of robbery in the first degree, instead finding him guilty of the 

lesser included offense of theft in the third degree on that count.  After the State 

dismissed the theft in the third degree conviction, the trial court imposed a 

standard range sentence for only theft in the first degree.  Van moved to vacate 

the theft in the first degree charge, and the trial court denied his motion.  He 

timely appeals.  

                                    DISCUSSION

       Van argues there was insufficient evidence to support his conviction for 

theft in the first degree, specifically contending the State's evidence did not 

support the conclusion that he had taken property from the person of another.  In 

a challenge to the sufficiency of the evidence, the court views the evidence in 

the light most favorable to the State, deciding whether any rational trier of fact 

could have found the elements of the crime beyond a reasonable doubt.  State v. 

McKague, 172 Wn.2d 802, 805, 262 P.3d 1225 (2011).  A defendant challenging 

the sufficiency of the evidence admits the truth of the State's evidence, and all 

reasonable inferences therefrom are drawn in favor of the State.  State v. 

Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).  Credibility determinations 

are for the trier of fact and are not subject to review.  State v. Camarillo, 115 

Wn.2d 60, 71, 794 P.2d 850 (1990).  This court defers to the trier of fact on 

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No. 66174-4-I/4

issues of conflicting testimony, credibility of witnesses, and the persuasiveness 

of the evidence.  State v. Thomas, 150 Wn.2d 821, 874-75, 83, P.3d 970 (2004), 

abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 

1354, 158 L. Ed. 2d 177 (2004).

       "Theft" is defined at RCW 9A.56.020(1) as meaning, in relevant part:

              (a) To 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; or

              (b) By 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.

As courts have noted, "Subsection (a) is known as theft by taking while 

subsection (b) is known as theft by deception."  State v. Smith, 115 Wn.2d 434, 

438, 798 P.2d 1146 (1990).  First degree theft, as charged here, is committed if 

a person commits theft of property of any value, "taken from the person of 

another."   RCW 9A.56.030(1)(b).  The jury instruction was consistent with this 

statute, providing that to convict Van of theft in the first degree, it must be proved 

beyond a reasonable doubt that, in relevant part, "the defendant wrongfully took 

property from the person of another."  

       The term, "taken from the person of another," is not defined in the statute.  

The parties state that the only Washington case addressing this definition is 

State v. Chamroeum Nam, 136 Wn. App. 698, 705, 150 P.3d 617 (2007), where 

this court was considering statutory language for robbery that uses the same 

term.  The court reasoned, in part:

       The literal interpretation of taking something from another's person 

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No. 66174-4-I/5

       would be to take something on the person's body or directly 
       attached to someone's physical           body or clothing.  That is 
       consistent with one legal scholar's definition.  3 Wayne R. LaFave, 
       Substantial Criminal Law § 20.3(c) at 179 (2d ed. 2003) ("Property 
       is on the victim's person if it is in [her] hand, the pocket of the 
       clothing [she] wears, or is otherwise attached to [her] body or [her] 
       clothing.")

Id. (alterations in original).  Nam went on to hold that a purse situated next to the 

victim on the passenger seat of her car was not taken from her person.  Id. at 

707.  

       Van concedes that he committed theft, having used deception to obtain 

the food.  But, he asserts he did not commit first degree theft because he did not 

take the food and money from Phan's person.  

       Applying the definition in Nam, we hold that the evidence was sufficient to 

support the jury's conclusion that Van took property from Phan's person.  As 

discussed above, the testimony of Van and the other perpetrators was 

contradictory to Phan's testimony.  Van and his accomplices testified that they 

simply tricked Phan into willingly handing the food over for their inspection.  But, 

Phan, by contrast, stated unambiguously and numerous times that the boys took 

the food from his hands and ran:

              Q And when the young men wanted to check the pizza what 
       did you think about that?

              A Well, the other guys grab the pizza and ran.  That's all.

       . . . .

              A   Well, when the two persons who wanted to check the 
       pizza I say you pay me first or I come to your apartment you pay 
       me and then I'll let you check the pizza.

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No. 66174-4-I/6

              Q Why was it important that they pay you first?

              A   That's our rule.  They have to pay before they have hold 
       on their pizza.

       . . . .

              Q  Did they give you any money?

              A   No.  They did - - they took it pretty quick.  They just grab 
       it and ran pretty quick.

       . . . .

              [Q]    Now, when      the pizza was grabbed, where was it 
       grabbed from?

              A  From my hand.

Van's insufficiency of the evidence argument            admits the truth of Phan's 

testimony and all of the State's evidence, and it supports the jury's conclusion 

that Van and his accomplice took the food from Phan's person.  As the Nam

court contemplated, property is on the victim's person if it is in his hand, and the 

pizzas were in Phan's hand when they were taken.  Id. at 705.  

       Van contends the video contradicts Phan's testimony, and conclusively 

reflects that Phan handed the pizzas over voluntarily, with no one taking them 

from his person.  But, the video is incomplete.  It appears to show Van's 

accomplice taking two pizzas, one at a time, as Phan hands them over, but it 

does not show the entire transaction.  Thus, the video cannot conclusively rebut 

Phan's verbal testimony, nor can it support Van's assertion that no rational trier 

of fact could have found the taking of the food from Phan's person.  Because the 

video is not sufficiently conclusive independently, it             requires additional 

explanation from witnesses and was subject to different interpretations at trial.  

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No. 66174-4-I/7

The matter thus became one of conflicting testimony, credibility of the witnesses, 

and persuasiveness of the evidence -- areas where we necessarily defer to the 

jury.  Thomas, 150 Wn.2d at 874-75.

       Looking at the evidence in the light most favorable to the State and 

drawing all reasonable inferences in the State's favor, we hold that there was 

sufficient evidence to support the jury's conclusion that Van took the food from 

Phan's person, and thus committed theft in the first degree.

       We affirm.

WE CONCUR:

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