No. 21003-1-IIIThe Court of Appeals of Washington, Division Three. Panel Five.
Filed: April 8, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County Docket No: 01-1-02480-0 Judgment or order under review Date filed: 03/26/2002
Counsel for Appellant(s), David N. Gasch, Attorney at Law, P.O. Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
SCHULTHEIS, J.
Fingerprint evidence may be sufficient alone to support a conviction if the trier of fact can infer that the fingerprint could only have been impressed at the time of the crime. State v. Bridge, 91 Wn. App. 98, 100, 955 P.2d 418 (1998). Two fingerprints discovered on a stationery box at the scene of a break-in led to Ray Franetich’s conviction for second degree burglary. On appeal, Mr. Franetich contends the State failed to present sufficient evidence that he could not have touched the box before the burglary. He also challenges the trial court’s refusal to submit a proposed instruction to the jury that placed the burden on the State to prove the inaccessibility of the box before the crime. Pro se, Mr. Franetich contends he had ineffective assistance of counsel. We find no error and affirm.
Facts
In March 2001, an employee of Spokane Respiratory Consultants (clinic) arrived at work to discover the office door and lock splintered. Inside, the employee found that a locked drawer had been broken open. A cash box had been removed from the drawer, as well as a box of sympathy cards. Money had been removed from the cash box. The sympathy cards, which were kept at the office to send to deceased patients’ families, had been dumped from their box.
Officers arrived and attempted to take fingerprints from the area, including from the cash box and the stationery box. A forensic specialist was able to lift only one latent print from the cash box and two latent prints from the stationery box. These three prints were entered into the Automated Fingerprint Identification System. Although the print from the cash box did not match anything in the data base, the two prints from the stationery box were flagged as similar to the prints on file of Mr. Franetich. Two forensic specialists did a hand comparison of the prints to Mr. Franetich’s prints and concluded that the prints found on the stationery box were made by Mr. Franetich. Based on this information, a warrant was issued for his arrest.
Mr. Franetich was charged with one count of second degree burglary, RCW 9A.52.030. At trial, the forensic specialists testified that they could not determine when or where the fingerprints were impressed on the stationery box. Witnesses testified that the stationery box was not available to the general public and that it had to be removed from the drawer in order to remove the cash box.
At the conclusion of the State’s case in chief, Mr. Franetich moved to dismiss, arguing that the State failed to establish that he could not have left the fingerprints on the stationery box before the crime. The trial court found that a reasonable juror could infer from the evidence that the fingerprints could only have been impressed at the time of the burglary, and denied the motion. After presenting alibi testimony by Mr. Franetich’s family members and an acquaintance, the defense rested. The trial court rejected a defense proposed jury instruction that placed the burden on the State to prove that the fingerprints could only have been impressed during the commission of the crime. Bridge, 91 Wn. App. at 100. Subsequently, the jury found Mr. Franetich guilty as charged. Sufficiency of the Evidence
The dominant issue on appeal is the sufficiency of the fingerprint evidence to support Mr. Franetich’s conviction. The State contends Mr. Franetich waived this issue because he presented evidence on his behalf after the trial court denied his motion to dismiss. As noted in State v. Jackson, 82 Wn. App. 594, 607-08, 918 P.2d 945 (1996), a defendant may challenge the sufficiency of the evidence at several points: before trial, at the end of the State’s case in chief, at the end of the evidence, after the verdict, and on appeal. In each instance, the court examines the sufficiency of the evidence based on the amount of evidence admitted at trial so far. Id. at 608. If a defendant unsuccessfully moves to dismiss for insufficiency of the evidence at the end of the State’s case in chief, and then presents evidence in his or her own behalf, he or she waives a challenge to the court’s ruling on the motion to dismiss. State v. Allan, 88 Wn.2d 394, 396, 562 P.2d 632 (1977). This is not to say, however, that the defendant is barred from raising the issue of insufficiency of the evidence at a later stage. Jackson, 82 Wn. App. at 607-08. A later challenge to the sufficiency is simply examined with a more complete evidentiary basis. Id. at 608.
In a review of the sufficiency of the evidence, we consider the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Todd, 101 Wn. App. 945, 950, 6 P.3d 86 (2000). Fingerprint evidence will be sufficient by itself to support a conviction if the trier of fact can infer from the circumstances that the fingerprint could only have been impressed at the time of the crime. Bridge, 91 Wn. App. at 100. The record must show that the object upon which the fingerprint was found was generally inaccessible to the defendant before the crime. Todd, 101 Wn. App. at 951; Bridge, 91 Wn. App. at 100-01. A moveable object that has been recently in the stream of commerce is more likely to have been accessible to a defendant before the crime. Bridge, 91 Wn. App. at 101.
The State established at trial that the box of sympathy cards was mass- produced for businesses. Although an employee at the clinic could not testify where the cards were purchased, she knew that the office manager ordered them about once a year. She also testified that the card box was kept on top of the cash box in the locked drawer, away from the general public, and that Mr. Franetich was not a patient at the clinic. If we view the evidence and the reasonable inferences that arise from the evidence in the light most favorable to the State, we find sufficient evidence that the sympathy cards were not in the general stream of commerce, but were ordered specially for those customers who needed large quantities of condolence cards. We also find sufficient evidence that the general public — including Mr. Franetich — would not have had access to the box of sympathy cards before the burglary. From this record a trier of fact could find beyond a reasonable doubt that Mr. Franetich could only have left the fingerprints on the box at the time the crime was committed. Bridge, 91 Wn. App. at 101. Defendant’s Proposed Jury Instruction
Pro se, Mr. Franetich contends the trial court erred in rejecting his proposed instruction on fingerprint evidence. A party is entitled to jury instructions that properly instruct the jury on the applicable law and that allow the party to argue its theory of the case. State v. Johnston, 85 Wn. App. 549, 556, 933 P.2d 448 (1997). A specific instruction is not necessary if a general instruction adequately explains the law. State v. Brown, 132 Wn.2d 529, 605, 940 P.2d 546 (1997). We review the trial court’s decision to exclude a proposed jury instruction for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).
According to the appendix in Mr. Franetich’s pro se supplemental brief, the proposed instruction incorporated the Bridge test for fingerprint evidence:
In order to support a finding of guilt beyond a reasonable doubt, in a case in which the only evidence is a fingerprint on a moveable object, the State has the burden of proving that the fingerprint could have been impressed only during the commission of the crime charged, and not earlier. Thus the State must point to sufficient evidence that the object was generally inaccessible to the defendant prior to the time the crime was committed.
Pro Se Supp. Br., Appendix F. The trial court found that Bridge did not require a jury instruction on fingerprint evidence. Mr. Franetich contends the State was thus relieved of the burden of proving that the stationery box was generally inaccessible prior to the crime.
Although the key defense argument was that Mr. Franetich could have left his fingerprints on the box of sympathy cards before the cards were purchased by the clinic, we find that this theory could be argued under the general evidence instruction given by the court. This instruction, which defines direct and circumstantial evidence, allowed both parties to argue the weight of the evidence and of the inferences arising from the evidence:
Evidence may be either direct or circumstantial. Direct evidence is that given by a witness who testifies concerning facts that he or she has directly observed or perceived through the senses. Circumstantial evidence is evidence of facts or circumstances from which the existence or nonexistence of other facts may be reasonably inferred from common experience. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. One is not necessarily more or less valuable than the other.
Clerk’s Papers at 10. Under the umbrella of this general instruction, the defense ably argued that the evidence did not support an inference that Mr. Franetich could only have impressed his fingerprints during the commission of the crime. Consequently, the proposed instruction was not necessary to the defense theory and did not relieve the State of its burden of production or proof. The trial court did not abuse its discretion in rejecting Mr. Franetich’s proposed jury instruction. Ineffective Assistance of Counsel
Mr. Franetich also argues pro se that his trial counsel was ineffective. To establish ineffective assistance of counsel, he must show that his counsel’s performance fell below an objective standard of reasonableness and that this deficient representation prejudiced him. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We strongly presume that counsel exercised reasonable professional judgment and will not find ineffective assistance of counsel if defense counsel’s actions can be characterized as trial strategy or tactics. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994); State v. Red, 105 Wn. App. 62, 66, 18 P.3d 615 (2001), review denied, 145 Wn.2d 1036
(2002).
According to Mr. Franetich, his trial counsel prejudiced the defense by calling witnesses after unsuccessfully moving for dismissal after the State’s case in chief. As discussed above, defense counsel did not waive the challenge to the sufficiency of the evidence by offering alibi testimony after the motion to dismiss was denied. Jackson, 82 Wn. App. at 608. The defense witnesses supported Mr. Franetich’s argument that he was not at the scene of the burglary and that his fingerprints must have been impressed before the crime was committed. Mr. Franetich’s counsel exercised reasonable professional judgment in presenting a defense after the motion to dismiss was denied. Because we find neither deficient representation nor prejudice, we do not find ineffective assistance of counsel.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, C.J. and KURTZ, J., concur.