Washington Felony Theft Conviction for Taking Cell Phone

Washington domestic violence cases often involve allegations the defendant took or damaged the alleged victim’s phone.  Taking a phone in such circumstances may result in charges of interfering with reporting domestic violence, but it can also result in theft charges.  Given the ever-increasing price of mobile phones, those theft charges can be very serious.  In a recent unpublished case, a defendant challenged his second degree theft conviction, arguing the state had failed to prove the value of the phone.

After their romantic relationship ended, the defendant’s ex-girlfriend obtained a no-contact order against him in July 2020.

According to the appeals court’s opinion, the defendant saw her in her truck in a grocery store parking lot, opened her door, threw a drink at her, and struck her multiple times.  He also took her phone and the phone of her male friend.  A witness called 911.

The defendant was charged with felony violation of a no-contact order including assault, interfering with reporting domestic violence, two counts of second degree theft, and robbery in the first degree, including the infliction of bodily injury. All except one of the theft charges included an allegation of domestic violence.

The ex-girlfriend testified at the trial. She testified the defendant hit her in the face and the back of the head.  She also testified she had bought her phone within a month before the incident and had paid about $900 or $1000.

The friend testified he had bought his phone for around $200. The defendant moved to dismiss the second degree theft charge for the phone because the value did not meet the criteria for felony theft.  To be second degree theft, which is a class C felony, the stolen property must generally have a value between $750 and $5,000.  RCW § 9A.56.040. The court allowed the state to amend the charge to third degree theft.

The jury found the defendant guilty of four of the charges, but acquitted him of the first degree robbery charge.  The jury also found the defendant and ex-girlfriend were intimate partners and members of the same household.

The defendant appealed.  He argued there was not sufficient evidence of the value of the ex-girlfriend’s cell phone’s value.  To prove second degree theft, the state must show the market value of the phone at the time and location of the theft was at least $750.  Washington case law has held that the purchase price has great weight if it was not remote.  The ex-girlfriend testified she bought the phone within a month of the incident.  The appeals court found the jury could have rationally inferred the phone had not lost substantial value since its purchase.

The defendant argued the testimony of the purchase price spoke to replacement cost rather than market value.  He also argued the phone’s value had decreased because it had been unlocked and connected to the ex-girlfriend’s accounts.  The appeals court rejected both arguments, noting the jury could have inferred the phone kept a market value of over $750 when it had been purchase for $900 to $1000 just a few weeks earlier.  Additionally, the act of logging into accounts on a phone was not comparable to physical wear and tear over years.  The appeals court found a jury could have rationally found the market value remained greater than $750 at the time the defendant took the phone.

The appeals court affirmed the conviction, but remanded the case for resentencing due to insufficiency of evidence of his offender score and an error in his legal financial obligations.

If you are facing theft charges related to violation of a civil protection order, you need a skilled Washington criminal defense attorney on your side.  Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation.


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