STATE v. SMILEY, 162 Wn. App. 1053 (2011)

No. 28874-9-III.The Court of Appeals of Washington, Division Three.
Filed: July 21, 2011. UNPUBLISHED OPINION.

Appeal from a judgment of the Superior Court for Grant County, No. 09-8-00223-0, John D. Knodell III, J., entered March 8, 2010.

Affirmed by unpublished opinion per Korsmo, J., concurred in by Kulik, C.J., and Brown, J.

KORSMO, J.

Brian Smiley challenges the sufficiency of the evidence to support the juvenile court’s determination that he committed residential burglary and malicious mischief in the second degree. Believing that the evidence against him is not quite as limited as he claims, we affirm the adjudication.

FACTS
Mr. Smiley and his family vacated one-half of a duplex owned by Jack Williams after causing extensive damage to the premises. Mr. Williams set about repairing the building, doing much of the work himself. Among the items he used were aerosol cans of insulating foam. At the conclusion of one work day two weeks after the property had been vacated, he left a single aerosol can in the garage unit belonging to Mr. Smiley’s former half of the duplex. There were no other foam aerosol cans left on the property.

That evening, Mr. Smiley and a friend, Ashley Ellingsworth, returned to the duplex. The other occupant, Michelle Razey, saw them in the backyard. She told Mr. Smiley to leave the property or else she would call the police. She went inside the duplex to retrieve her cell phone. She returned approximately three minutes later and saw someone who matched Mr. Smiley’s description at the back door to the garage that served the other half of the duplex. The young man had a screwdriver and was doing something to the back door. Eventually it opened and the man went inside. She then heard the sound of an aerosol can being discharged. The young man left the garage.

The next day Mr. Williams returned and found that someone had broken into the garage and sprayed foam insulation all over the interior. The can he had left inside the garage was gone. Police found an empty aerosol can of insulating foam just outside the garage. A fingerprint was recovered from the can. It matched Brian Smiley’s right index finger.

Charges were filed in the Grant County Juvenile Court and the matter proceeded to an adjudication hearing. Ms. Razey identified Mr. Smiley as the young man she had seen in the backyard, but was not absolutely certain about the young man at the garage door because it was in shadow. Mr. Smiley testified on his own behalf. He admitted being at the duplex that day, but denied that he was the person who broke into the garage. He testified that the aerosol can of spray foam belonged to his family and he had touched it one year earlier. Mr. Williams testified that the can was his and had been left in the garage to continue with his repair efforts.

The trial court concluded that Mr. Smiley was the responsible party and determined that he had committed both offenses. Mr. Smiley subsequently filed a timely appeal from the adjudication.

ANALYSIS
Mr. Smiley presents two issues, claiming that the trial court erred in relying upon the fingerprint evidence and that the evidence was insufficient to support the adjudications. We will consider the two claims as one.

Well-settled law governs sufficiency of the evidence review. Such challenges are reviewed to see if there was evidence from which the trier-of-fact could find each element of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628
(1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. Id. Reviewing courts also must 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, 874-875, 83 P.3d 970 (2004). “Credibility determinations are for the trier of fact and are not subject to review.” Id. at 874.

Appellant relies heavily upon our decision in State v. Bridge, 91 Wn. App. 98, 955 P.2d 418 (1998). That case also involved a defendant found responsible for the burglary of a barn. Id. at 99. The only evidence connecting the defendant to the crime was a sole fingerprint found on the price tag of a newly purchased tool found near the entrance to the barn. Id. This court found the evidence insufficient to support the verdict and reversed. Id.
at 100-101. The court reasoned: “Fingerprint evidence is sufficient to support a conviction if the trier of fact (here the judge) could infer from the circumstances that the fingerprint could have been impressed only at the time of the crime.” Id. at 100. Because the evidence did not establish that the fingerprint, the sole evidence of identity, could have been left only during the commission of the crime, the evidence was insufficient. Id. at 101.

Bridge is a sufficiency of the evidence case and stands for the proposition that a fingerprint alone is insufficient evidence of identity unless the print could only have been left during the crime. Hence, we disagree with Mr. Smiley’s argument that under Bridge the trial court could not consider the fingerprint evidence at all. Rather, we will treat that evidence in the same context it arose i Bridge — as evidence of the identity of the burglar.

Mr. Smiley also argues that the evidence is insufficient in both cases to identify him as the perpetrator. We disagree. He was identified as being in the backyard of the duplex three minutes before the break-in. He agrees that he was present. Someone matching his description was seen forcing his way into the garage with a screwdriver. Then his fingerprint was found on a spray can that was used to vandalize the garage that someone looking like him had just entered. While Mr. Smiley contends that the aerosol can was one left behind by his family, it is our obligation to view the evidence in a light most favorable to the State. Green, 94 Wn.2d at 221. The testimony of Mr. Williams permitted the trial judge to find, as he did, that the landlord left the spray can in the garage that very day. Thus, the evidence permitted the trial judge to conclude that the fingerprint had been left during the garage burglary.

The fingerprint evidence, thus, strongly suggested that Mr. Smiley was the man in the garage. In conjunction with his admitted presence on the property three minutes earlier and the similarity of the burglar’s appearance to his, the total evidence of identity was overwhelming. It permitted the trier-of-fact to conclude, beyond a reasonable doubt, that Mr. Smiley was the person who forced his way into the garage (the burglary) and caused more than one thousand dollars in damage (malicious mischief). The evidence supported the adjudications. The judgment is affirmed.

A majority of the panel has determined 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.

KULIK, C.J. and BROWN, J., concur.

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