No. 35650-3-II.The Court of Appeals of Washington, Division Two.
February 12, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 06-1-00374-8, Toni A. Sheldon, J., entered December 1, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton, C.J., and Armstrong, J.
QUINN-BRINTNALL, J.
A jury found Floyd Dahman Jr. guilty of two counts of theft and two counts of second degree burglary. The trial court imposed sentences at the top of the standard range for each count. In addition, based on the jury’s finding that Dahman had been convicted of seven prior offenses and that a standard range sentence would result in his receiving no punishment on counts I and III, the court imposed an exceptional sentence and ordered that Dahman serve a 68-month sentence for each of these counts. Dahman appeals, arguing that the evidence was insufficient to support his convictions and that his counsel was ineffective for failing to object to Shelton Police Officer Tasesa Maiava’s testimony that he recognized Dahman from past contacts. We affirm.
Facts
In the early morning of September 3, 2006, Officer Maiava and his partner noticed Dahman’s pick-up truck parked, with its hood open, on a city street. Even though the engine was warm, Maiava did not observe anyone in or around the vehicle. Maiava noticed that the bed of the pick-up truck contained several items. He described these items as:
[S]yrups, items that consistent — would be consistent that would belong to an espresso stand, basically. There was a computer that I saw in there; a modem with a screen, flat-panel screen; I remember seeing a couple gallons of milk that were unopened; biscotti breads that were in — still in packages. Basically, items from an espresso stand.
Report of Proceedings (RP) at 39. Thereafter, Officer Maiava called in a “suspicious complaint” with the Shelton Police and asked them whether anyone had reported any overnight burglaries in Mason County. RP at 40. But the Shelton Police reported no overnight burglaries in Mason County.
About 20 minutes later, Officer Maiava and his partner saw Dahman driving this pick-up truck. After making a note of this sight, the officers returned to the Shelton Police station where Maiava completed a report regarding the suspicious occurrences.
While at the station, Officer Maiava heard a call from Shelton Police Sergeant Jeffrey Rhoades, who identified a possible burglary site at a nearby espresso stand. Rhoades and his partner noticed that the Coffee Creek Espresso stand “appeared to be as if it was open for business.” RP at 80. But Rhoades noticed that “the window to the business was wide open, . . . [and he] found what appeared to be fresh pry marks on the sill of the window, that indicated there was forced entry.” RP at 81. Looking around inside the espresso stand, Rhoades saw many items that had been displaced.
While waiting for additional officers to arrive, Deputy Rhoades walked across the parking lot to the nearby Prudential Northwest Real Estate office. A cleaning woman greeted Rhoades and then told him that she believed someone had burglarized the office. She walked Rhoades through the office, showing him an open window, displaced items, and a table where she believed a computer had been present.
Meanwhile, Mason County Sheriff’s Deputies William Reed and Doug Smith decided to drive to Dahman’s residence and “reference the items that were observed in his vehicle.” RP at 93. As they approached his residence, the deputies saw an individual sitting in the driver’s seat of the pick-up truck that Officer Maiava had observed earlier in the morning.[1] Reed walked to the driver’s side of the pick-up truck and knocked on the door. Dahman looked up. Reed then opened the door and placed Dahman into handcuffs, so that the scene was “controlled.” RP at 95. But while escorting Dahman to the patrol car, he attempted to escape. Reed then ran after Dahman, tackled him, and ultimately subdued him. After learning that some of the items in the bed of the pick-up truck matched the description of items stolen from the Coffee Creek Espresso stand, Reed arrested Dahman.
The officers did not recover any fingerprints from either the Coffee Creek Espresso stand or the Prudential Northwest Real Estate office. But they noticed “pry marks” on both a Coffee Creek Espresso stand window and a Prudential Northwest Real Estate office window. RP at 108, 112, 113. And from within a tote that contained two computer screens from the Prudential Northwest Real Estate office, the officers recovered, and then photographed, a tire iron that had “little white flakes” on it.[2] RP at 114. Deputy Reed agreed that the “little white flakes” were consistent with the color and texture of a vinyl window. RP at 114. Moreover, Reed observed that many of the “pry marks” on the Coffee Creek Espresso stand window were consistent in size and shape with one end of the tire iron, while “other marks looked as if they’d been twisted and/or shaped.” RP at 123.
Ultimately, the State charged Dahman with: (1) two counts of second degree burglary, (2) one count of first degree theft, and (3) one count of second degree theft. For each count, the State also sought an exceptional sentence. At trial, the owner of the Coffee Creek Espresso stand agreed that the value of the items stolen from the espresso stand exceeded $250. And the branch manager for the Prudential Northwest Real Estate office estimated that the value of the items stolen from his office exceeded $1,900.
A jury found Dahman guilty as charged. A jury also found that Dahman had been convicted of seven prior offenses. Based on the jury’s findings, the trial court found, “The defendant’s felony history results in a `free crime’ as to counts I and III, as neither results in punishment as to the other absent an exceptional sentence.” Clerk’s Papers (CP) at 15. And the trial court concluded, “There are substantial and compelling reasons to impose an exceptional sentence pursuant to RCW 9.94A.535.” CP at 15.
Thus, the trial court sentenced Dahman to: (1) a 68-month sentence for each count of second degree burglary, (2) a 43-month sentence for one count of first degree theft, and (3) a 22-month sentence for one count of second degree theft. The trial court also instructed Dahman to serve the 68-month sentence for each count of second degree burglary consecutively to each other, for a 136-month total sentence. Dahman appeals.
Analysis
Sufficiency of the Evidence
Relying on State v. Mace, 97 Wn.2d 840, 650 P.2d 217
(1982), Dahman argues that the evidence was insufficient to support his two convictions of second degree burglary. We disagree.
Evidence is sufficient to support a conviction if, 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. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When a defendant challenges the sufficiency of evidence in a criminal case, we draw all reasonable inferences from the evidence in favor of the State and interpret all reasonable inferences from the evidence strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Circumstantial evidence is no less reliable than direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). A claim of insufficiency admits the truth of the State’s evidence and all inferences that we reasonably can draw therefrom.[3] State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff’d, 95 Wn.2d 385, 622 P.2d 1240 (1980). Finally, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
In Mace, police officers found a victim’s cash machine card and wallet stashed inside a McDonald’s restaurant sack, which was in a garbage can near a cash machine. 97 Wn.2d at 842. The police officers then matched fingerprints on the sack and fingerprints on a cash machine receipt to the defendant, whom the State subsequently charged and convicted of second degree burglary. Mace, 97 Wn.2d at 841-42. In reversing the conviction, our Supreme Court held that mere possession of recently stolen property, without any other corroborating evidence, was insufficient to support a burglary conviction Mace, 97 Wn.2d at 843.
Nevertheless, our Supreme Court noted:
“. . . When a person is found in possession of recently stolen property, slight corroborative evidence of other inculpatory circumstances tending to show his guilt will support a conviction. When the fact of possession . . . is supplemented by the giving of a false or improbable explanation of it, or a failure to explain when a larceny is charged, . . . or the giving of a fictitious name, a case is made for the jury.”
Mace, 97 Wn.2d at 843 (quoting State v. Portee, 25 Wn.2d 246, 253-54, 170 P.2d 326 (1946)).
Other corroborating evidence may include evidence of flight or presence of the defendant near the crime scene. Mace, 97 Wn.2d at 843.
Officer Maiava first spotted Dahman’s pick-up truck near the 700 or 800 block of Grant Street in Shelton, Washington. Then, he saw Dahman’s pick-up truck near the intersection of Railroad Avenue and Seventh Street. Finally, the Coffee Creek Espresso stand and the Prudential Northwest Real Estate office are located near the intersection of West Shelton-Matlock Road and Highway 101.
The Coffee Creek Espresso stand is about one mile from the Prudential Northwest Real Estate office to the 700 or 800 block of Grant Street. Mason County St. Atlas 37 (Roadrunner Maps, 2005). The 700 or 800 block of Grant Street is about one-third mile from the intersection of Railroad Avenue and Seventh Street. Id. at 47.[4]
Obviously, proof that Dahman merely possessed the recently stolen property from the Coffee Creek Espresso stand and the Prudential Northwest Real Estate office would be insufficient to support a conviction. But here, Deputy Reed testified that someone had pried open both the Coffee Creek Espresso stand window and the Prudential Northwest Real Estate office window. Searching the bed of Dahman’s pick-up truck, officers found a tire iron in a tote that contained two computer screens from the Prudential Northwest Real Estate office. Reed testified that a photograph of this tire iron showed “little white flakes,” which were consistent with the color and texture of a vinyl window. RP at 114. In addition, Reed testified that many of the “pry marks” on the Coffee Creek Espresso stand window were consistent in size and shape with one end of the tire iron. RP at 123. Finally, when Reed escorted Dahman to the patrol car, he attempted to escape.
Therefore, we hold that Dahman’s possession of the recently stolen property, along with this slight corroborating evidence, is sufficient for a rational trier of fact to find the elements of second degree burglary beyond a reasonable doubt.[5]
Statement of Additional Grounds (SAG)[6]
In his SAG, Dahman personally argues that the evidence was insufficient to support the jury’s verdict. As set out above, this argument has no merit.
Dahman also argues in his SAG that he was denied effective assistance of counsel. Specifically, he claims that his counsel was ineffective for failing to object to a few statements from Officer Maiava.[7] Dahman alleges that these statements “could easily be percieved [sic] by any of the juror[s] as prior criminal behavior.” SAG at 3.
To establish ineffective assistance of counsel, Dahman must show that: (1) his counsel’s performance was deficient and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Dahman must overcome a strong presumption that his counsel’s representation was adequate and effective. McFarland, 127 Wn.2d at 335. Counsel’s performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). And to show prejudice, he must establish, “there is a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different.” McFarland, 127 Wn.2d at 335. “`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'” State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 694) (emphasis omitted).
Here, Dahman has not shown how his counsel’s failure to object to Officer Maiava’s isolated comments resulted in prejudice. And because he has failed to satisfy the prejudice prong of the test, we do not inquire any further. See State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J. and ARMSTRONG, J., concur.
(1984).
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