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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 67228-2-I
                      Respondent,           )
                                            )       DIVISION ONE
       v.                                   )
                                            ) 
M.G. (D.O.B.: 8/25/1994),                   )       UNPUBLISHED OPINION
                                            ) 
                      Appellant.            )       FILED:  April 30, 2012

       Spearman, A.C.J.  --  M.G. was adjudicated guilty of theft of a motor 

vehicle and reckless driving following a hearing. M.G. appeals his conviction for 

theft of a motor vehicle, claiming that (1) theft of a motor vehicle and taking a 

motor vehicle without permission in the second degree are concurrent offenses, 

so the State should have charged him with the latter and (2) insufficient 

evidence supports his conviction. Because a defendant can commit the crime of 

taking a motor vehicle without permission in the second degree without 

committing theft of a motor vehicle, we hold that these crimes are not concurrent 

and therefore the State properly charged M.G. We also find that sufficient 

evidence supports M.G.'s conviction for theft of a motor vehicle. We therefore 

affirm.

                                        FACTS 

No. 67228-2-I/2

       On January 24, 2011 at approximately 4:00 p.m. Steven Rubey left his 

maroon 1996 Toyota Tacoma pickup truck at the Lopez Island ferry terminal 

parking lot, with the doors unlocked and the keys inside the center console. The 

next day at approximately 5:19 p.m. Anna Lease was walking her dog when she 

saw a maroon or red Toyota Tacoma pickup truck heading in her direction and 

travelling, in her estimation, 50 miles per hour (mph) in a 25-mph zone. She 

jumped out of its way. Lease looked through the windshield as the truck passed 

and recognized the driver as M.G., whom she had known for several years and 

saw around the island on a regular basis. She returned home and told her 

fiancé, Luke MacKinnon, that she had almost been hit by a maroon Toyota 

Tacoma, although she did not tell him that M.G. was the driver. 

       MacKinnon immediately left in search of the truck. MacKinnon soon saw a 

truck matching the one described by Lease and attempted to signal it to stop. 

When it did not, Lease followed it on a number of roads going as fast as 65 mph 

in 35-mph zones. MacKinnon also recognized the driver as M.G. Eventually 

MacKinnon gave up, and as he passed a school, he saw a patrol car in the 

parking lot. He went inside the school to find the deputy to explain what had 

happened. Deputy Scott Taylor then searched for the truck, including at the ferry 

terminal parking lot, but did not find it. MacKinnon also continued to look for the 

truck and saw it at one point, but stopped at his home to get his cell phone. He 

went out again in his car and looked for the truck at several places, including the 

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No. 67228-2-I/3

ferry terminal parking lot. He did not see the truck. 

       Around 10:00 a.m. on January 27, 2011, Rubey returned to Lopez Island 

and found his truck in the ferry terminal parking lot where he had left it, but with 

two floor mats missing and mud smeared on the side of the truck and the 

dashboard. Rubey's truck, which gets approximately 18-20 miles to the gallon on 

Lopez Island, was missing more than a gallon of gas. On February 2, Lease was 

at home when she saw the same maroon truck drive by. This time the driver was 

an older man. She and MacKinnon went to the market on Lopez Island, where 

they saw the truck and spoke to the driver, Rubey, about what had happened 

with his truck on January 25. Deputy Taylor was called and interviewed the 

witnesses. 

       The State charged M.G. with one count of theft of a motor vehicle and one 

count of reckless driving. Following testimony by Rubey, Lease, MacKinnon, and 

Taylor, the trial court adjudicated M.G. guilty on both counts.

                                    DISCUSSION

       M.G. makes two claims on appeal: (1) theft of a motor vehicle and taking 

a motor vehicle without permission in the second degree are concurrent 

offenses, so the State should have charged him with the latter, more specific 

offense and (2) insufficient evidence supports his theft of a motor vehicle 

conviction. In connection with the second claim, he challenges the trial court's 

findings of fact related to his intent to deprive Rubey of the use of his truck. We 

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No. 67228-2-I/4

hold that the theft and taking statutes are not concurrent and conclude that there 

is sufficient evidence to support M.G.'s conviction. We therefore affirm. 

                    Concurrency of Theft of a Motor Vehicle and
                   Taking a Motor Vehicle in the Second Degree

       We review de novo the question of whether two statutes are concurrent. 

State v. Wilson, 158 Wn. App. 305, 314, 242 P.3d 19 (2010). When a more 

specific statute is concurrent with a general statute, the defendant must be 

prosecuted under the more specific statute. Id. at 313-14. This is to promote 

equal protection of the laws by subjecting persons committing the same 

misconduct to the same potential punishment. State v. Cann, 92 Wn.2d 193, 

196, 595 P.2d 912 (1979). We determine if two statutes are concurrent by 

examining whether someone can violate a specific statute without violating the 

general statute. Two statutes are not concurrent if there are any situations in 

which the specific statute can be violated without violating the general statute. 

State v. Chase, 134 Wn. App. 792, 800, 142 P.3d 630 (2006). 

       Under RCW 9A.56.065, "A person is guilty of theft of a motor vehicle if he 

or she commits theft of a motor vehicle." "Theft" is defined, in pertinent part, in 

RCW 9A.56.020(1)(a) as "[t]o 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; . . ." RCW 9A.56.075(1) defines 

the offense of taking a motor vehicle without permission in the second degree, 

as follows: 

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No. 67228-2-I/5

       A person is guilty of taking a motor vehicle without permission in 
       the second degree if he or she, without the permission of the owner 
       or person entitled to possession, intentionally takes or drives away 
       any automobile or motor vehicle, whether propelled by steam, 
       electricity, or internal combustion engine, that is the property of 
       another, or he or she voluntarily rides in or upon the automobile or 
       motor vehicle with knowledge of the fact that the automobile or 
       motor vehicle was unlawfully taken.

       In State v. Walker, 75 Wn. App. 101, 879 P.2d 957 (1994), we addressed 

the similar issue of whether taking a motor vehicle without permission is 
concurrent with theft in the first degree.1 In Walker, the defendant was convicted 

of theft in the first degree after taking a Lincoln Town Car valued at $6,300 that 

belonged to his boss, Joe Velasquez. Velasquez occasionally gave Walker 

permission to use the Lincoln, but on the Friday in question he refused Walker's 

repeated requests to borrow it. Velasquez noticed the car was missing after 

Walker visited his home and reported it stolen when Walker did not return it the 

following Monday. Walker was pulled over while driving the Lincoln in Los 

Angeles the following day and was charged with taking a motor vehicle without 

1 In 1990 when the crime in Walker occurred, taking a motor vehicle without permission was not 
divided into degrees. The statute at the time read:
           (1) Every person who shall without the permission of the owner or person 
       entitled to the possession thereof intentionally take or drive away any automobile 
       or motor vehicle, whether propelled by steam, electricity, or internal combustion 
       engine, the property of another, shall be deemed guilty of a felony, and every 
       person voluntarily riding in or upon said automobile or motor vehicle with 
       knowledge of the fact that the same was unlawfully taken shall be equally guilty 
       with the person taking or driving said automobile or motor vehicle and shall be 
       deemed guilty of taking a motor vehicle without permission.
           (2) Taking a motor vehicle without permission is a class C felony.

Former RCW 9A.56.070 (1975)(2003).This statute is effectively identical to the current crime of 
taking a motor vehicle without permission in the second degree as codified by RCW 9A.56.075, 
which M.G. contends is concurrent with theft of a motor vehicle.
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No. 67228-2-I/6

permission. The charge was later amended to theft in the first degree. Upon 

conviction, Walker appealed, arguing that the two crimes were concurrent. Id. at 

103-105. We held that taking a motor vehicle without permission was not 

concurrent with theft in the first degree because (1) theft required the value of 
the stolen property to exceed $1,500,2 and (2) "the intent elements [of the two 

crimes] differ based on the duration of deprivation." Id. at 106, 107 (emphasis 

added).

       Here we address the question of whether taking a motor vehicle in the 

second degree is concurrent with theft of a motor vehicle. M.G. argues that 

Walker is not dispositive because there is not a fixed dollar amount under the 

theft of a motor vehicle statute. However, the second distinction drawn in Walker

between the crimes of taking a motor vehicle without permission and theft in the 

first degree is applicable here. As in Walker,  the theft of a motor vehicle statute 

requires "intent to deprive," whereas the taking a motor vehicle without 

permission statute requires only that a defendant intentionally take or drive away 

a motor vehicle without the owner's permission. Thus, a person who takes a car 

for a brief joyride or spin around the block has taken a motor vehicle without 

permission, but has not committed theft of a motor vehicle due to the lack of 

intent to deprive, as shown by the brevity of the taking. Accordingly, we conclude 

that it is possible to commit the offense of taking a motor vehicle without

2 This value was amended to $5,000 in 2009. RCW 9A.56.030.
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No. 67228-2-I/7

permission in the second degree without committing theft of a motor vehicle. 

       Because the more specific statute can be violated without violating the 

more general statute, the two crimes are not concurrent. The State was not 

required to charge M.G. with taking a motor vehicle without permission in the 

second degree.

                             Sufficiency of the Evidence

       We review a claim of insufficient evidence to determine whether, after 

viewing the evidence in the light most favorable to the State, any rational trier of 

fact could have found guilt beyond a reasonable doubt. State v. Brown, 162 
Wn.2d 422, 428, 173 P.3d 245 (2007). The trial court's undisputed findings3

establish that Rubey did not give anyone permission to use his truck from 

January 24 to January 27, 2011 and that M.G. drove Rubey's truck a distance of 

at least 18 miles sometime during that period. Although the evidence does not 

establish the specific amount of time that M.G. drove the truck, MacKinnon gave 

chase over a significant distance and in his own brief M.G. claims he had the 

truck for "several hours." The Walker court clarified the theft statue as 

proscribing "the continued or permanent unauthorized use of a vehicle." Walker, 

75 Wn. App. at 108 (emphasis omitted). Viewing the evidence in a light most 

favorable to the State, the evidence of M.G.'s unauthorized use of Rubey's truck 

over a distance of at least 18 miles and during a period of several hours was 

3 Unchallenged findings of fact are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 
P.2d 313 (1994).

                                           7 

No. 67228-2-I/8

sufficient to show that such use was continued and supports the trial court's 

finding that M.G. acted with intent to deprive. Thus, there was sufficient evidence 
to support M.G.'s conviction for theft of a motor vehicle.4

       Affirmed. 

WE CONCUR:

4 M.G. argues that the State had the burden to prove that he had the intent to permanently 
deprive Rubey of his truck, citing common law doctrine. But as we held in State v. Crittenden, 
146 Wn. App. 361, 370, 189 P.3d 849 (2008), "The common law element of intent to 
permanently deprive has been purposefully omitted by the Legislature and is no longer required."
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