Brandon Cate

Brandon Cate

SPOKANE — An Omak man’s conviction for second-degree theft has been reduced by the state Court of Appeals to third-degree theft and the case has been sent back to Okanogan County Superior Court for resentencing.

The appeals court’s unpublished ruling was filed Feb. 26.

Brandon Cate appealed one of five convictions and the imposition of a sentence consecutive to a sentence imposed the same day for an unrelated prosecution.

“Because the evidence did not support a value above $750 of the stolen property, we reduce his conviction for second-degree theft to third-degree theft,” said the opinion, written by appeals Judge George Fearing. Judges Robert Lawrence-Berry and Rebecca Pennell concurred.

“Because the sentencing court sentenced Cate on the same day as sentencing for convictions in an unrelated prosecution, we hold that the trial court committed error by entering consecutive sentences without declaring an exceptional sentence,” the appeals court said.

The prosecution arose from burglaries two days apart in Omak. The first was at the home of Kevin Bowling and the second was at Omak Marine.

On Jan. 7, 2017, Omak Police Department Officer Shane Shaefer responded to Bowling’s home, where a tool shed window had been shattered. Several tools, including a chainsaw, three other saws, a drill, nail gun and other power tools were reported missing, court records said.

Bowling initially estimated the value at $1,700.

On Jan. 9, 2017, Shaefer responded to a burglary complaint at Omak Marine. Owner Frank Lay reported seeing footprints in the snow inside the fenced perimeter and gas caps taken off ATV tanks, according to court records.

A surveillance video showed someone jumping over the fence, siphoning gas and putting the gas into two jugs.

Cate was implicated by his former girlfriend, according to court records.

Cate was subsequently arrested on an unrelated warrant. Omak Police Officer Brien Bowling, Kevin Bowling’s son, saw a gas can in front of Cate’s home at the time of the arrest.

Officers read Cate his rights and questioned him at the police station. He admitted taking the tools and his involvement in the Omak Marine burglary. He also admitted to other burglaries, court records show.

He was charged with one count of second-degree burglary, one count of second-degree theft and one count of third-degree malicious mischief for the tool shed burglary.

He was charged with one count of second-degree burglary and one count of third-degree theft from the Omak Marine entry.

During trial, Kevin Bowling assessed the total value of replacing his tools at $1,149.24, based on researching the cost of replacement tools from online sources, court records said.

Shaefer testified that the tools’ value was “somewhere near $1,700,” according to court records.

The jury instruction given for second-degree theft from the shed informed the jury it must find beyond reasonable doubt that Cate obtained the tools, that the value exceeded $750, that Cate intended to deprive Bowling of the property and that the act occurred in Washington.

Another instruction included the lesser offense of third-degree theft.

On April 12, 2017, the jury convicted Cate of all five counts as charged.

Sentencing was scheduled for April 19, 2017, the same time as a previously scheduled sentencing for an unrelated case. That case involved convictions for second-degree burglary, second-degree malicious mischief and second-degree theft.

Cate disagreed with imposing consecutive sentences for the two cases and requested concurrent sentences. He asked that convictions in the unrelated prosecution not be included in the offender score for the Bowling/Omak Marine case “and presumably vice versa,” the court said.

The state asked that part of the sentence run concurrently and part consecutively.

Superior Court Judge Chris Culp opted for consecutive sentences because concurrent ones “would execute no punishment for the crimes committed” in the Bowling/Omak Marine case, according to the appeals court.

Cate was sentenced to 38 months for the first conviction and 50 months for the Bowling/Omak Marine conviction, to run consecutively. No boxes were checked for an exceptional sentence on the judgment and sentence form, the appeals court noted.

On appeal, Cate challenged the conviction for second-degree theft arising from the theft of Bowling’s tools and the consecutive sentences for the two cases.

He argued that evidence did not support a finding by the jury that the property stolen possessed a market value exceeding $750. The state responded that the prosecution may rely on the sale price or advertised price of tools when establishing market value.

The appeals court agreed with Cate that the state presented insufficient evidence to convict him of theft of tools exceeding $750 value. It reversed the conviction for second-degree theft and remanded the case to the trial court for judgment on a conviction of the lesser crime of third-degree theft.

Cate also challenged the consecutive sentencing.

“The state’s contention holds appeal,” said the court. “Nevertheless, we must follow the words enacted by the state Legislature in (state law). If the statute’s meaning is plain on its face, we usually give effect to that plain meaning as an expression of legislative intent.”

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