Opinion
42756-7-II
02-12-2013
STATE OF WASHINGTON, Respondent, v. BRYAN N. DEARDEN, Appellant.
UNPUBLISHED OPINION
Van Deren, J.
Bryan N. Dearden appeals his conviction for second degree burglary, arguing that the State's evidence was insufficient to support a conviction. Dearden raises additional issues in a statement of additional grounds for review (SAG) that have no merit. We affirm.
A commissioner of this court initially considered this appeal as a motion on the merits under RAP 18.14 and then referred it to a panel of judges.
FACTS
Michael Waddington lived in the garage loft on property owned and occupied by Brian Wheeler and the extended Waddington family. Michael's parents, Joshua and Linda, lived in a trailer on the property.
For clarity, the first names of the Waddington family members are used herein.
Michael sold methamphetamine on the property. Dearden supplied some of the drugs Michael sold. In May 2010, Dearden told Joshua that Michael owed the Gypsy Jokers' bike gang $1,200 for drugs Dearden had given to Michael for sale to others and that the gang was going to come get their money back.
A week or so later, Wheeler heard a vehicle pull into the driveway on the property at approximately 10:30 p.m. Three men entered the garage, and two of the men went upstairs to where Michael was sleeping. Michael woke up to a "rush of people" coming into his loft bedroom. He saw Dearden and another man he did not recognize. Dustin Cantrell, who was in the loft with Michael when the men entered, knew one of the men as "Bryan Dearden, " but he did not identify him in court. Report of Proceedings (RP) at 444. Dearden pointed at Michael and said, "[T]hat's him and it's out of my hands now." RP at 475. The other man said to Michael, "[W]here's my money?" RP at 475. When Michael told the man that had no money, the man shoved him onto the bed. As he tried to get up, someone hit him with a metal pipe.
Joshua, Linda, and Wheeler had followed the men into the garage. As Joshua entered, he was hit on the head with a sledgehammer. Wheeler saw a dark-haired man swing a sledgehammer at Linda. Wheeler pushed the man away from her, slipped, and fell. The man then hit Wheeler with a folding chair. Dearden came down from the loft. He yelled, "I told you this would happen. I told you we were going to come." RP at 296. Dearden approached Joshua with a pipe or club-type weapon. He repeated, "I told you this was gonna happen." RP at 188. Dearden then went over to Wheeler and hit Wheeler in the back with a metal pipe. Michael followed Dearden down from the loft, bleeding from his forehead and carrying a meat cleaver.
Dearden's brief, however, represents that "Wheeler hit [Dearden] on the back with a metal bar or pipe." Br. of Appellant at 4.
Wheeler yelled at the men to leave. Dearden told the two men, "[L]et's go." RP at 188. As they backed out of the driveway, they hit a gatepost. Michael and Dearden were involved in a second violent incident on the Wheeler property on June 2, 2010.
On June 2, 2010, Dearden returned to the property in a car with two men, Troy Meyers and Mark Lee. Lee and Dearden got out of the car. Dearden was holding a piece of PVC pipe. Joshua confronted Dearden and Dearden hit him on the head. Others on the property, including Michael, rushed to aid Joshua and the dispute turned into a brawl. Joshua, Dearden, and Lee suffered significant injuries.
The State charged Dearden with one count of first degree burglary for his involvement in the events at the Wheeler property in May 2010. It charged him with one count of first degree assault and two counts of second degree assault for his involvement in the violent incident at the Wheeler property on June 2. Each offense was alleged to have occurred while Dearden or an accomplice was armed with multiple deadly weapons.
The trial court gave a jury instruction on the lesser included offense of second degree burglary on the first degree burglary charge. The trial court also gave a stand-alone jury instruction defining accomplice liability.
The instruction read, in relevant part:
To convict the defendant of the crime of the lesser included offense of burglary in the second degree as to Count IV, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on, about or between May 12, 2010, and May 30, 2010, the defendant entered or remained unlawfully in a building;
(2) That the entering or remaining was done with the intent to commit a crime against a person or property therein;
(3) That the acts occurred in the State of Washington. Clerk's Papers (CP) at 152.
The instruction read, in relevant part:
A person is an accomplice in the commission of the crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.CP at 128.
The jury found Dearden guilty only on the lesser included offense of second degree burglary and acquitted him on the other charges relating to the June 2 incident. The jury answered "no" to all three of the special verdict forms that pertained to the second degree burglary charge. Dearden appeals.
ANALYSIS
Dearden argues that the evidence was insufficient to prove that he committed second degree burglary because there was no evidence to support a second degree burglary conviction as a principal because there was nothing "from which the jury could draw the inference that . . . Dearden entered or remained on the property with the intent to commit a crime." Br. of Appellant at 9 (citing RCW 9A.52.030 ). He contends that the evidence "establishes only that Mr. Dearden was passively present as the unidentified man committed the crime" of hitting Michael with a pipe. Br. of Appellant at 6. He further argues that the jury instructions were defective and the trial court's failure to include accomplice liability in the jury instructions for second degree burglary similarly requires reversal of his conviction for lack of sufficient evidence.
RCW 9A.52.030(1) provides, "A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling."
The State first responds that the instructions as a whole accurately stated the law and allowed the jury to find Dearden guilty as an accomplice to second degree burglary. The State also argues that the evidence was sufficient to support a jury finding Dearden guilty as a principal, even if the jury instructions were defective.
I. Standard of Review
When a defendant challenges the sufficiency of the evidence, we view the evidence in the light most favorable to the State. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). "[A]ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We do not consider circumstantial evidence "any less reliable than direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Evidence is sufficient to support a conviction if any rational trier of fact could have found that the State established the elements of the crime beyond a reasonable doubt. Green, 94 Wn.2d at 220-22. In addition, when a defendant challenges the sufficiency of the evidence based on an incomplete or incorrect jury instruction, we determine whether sufficient evidence exists to sustain the conviction based on the given instruction. See, e.g., Tonkovich v. Dep't of Labor & Indus., 31 Wn.2d 220, 225, 195 P.2d 638 (1948).
II. Sufficiency of the Evidence
Dearden argues that the "evidence introduced at trial establishes only that [he] was passively present as" someone else committed the crime. Br. of Appellant at 10. Viewing the evidence in the light most favorable to the State supports the jury's finding that Dearden and two other men entered Wheeler's property at 10:30 at night, without permission, and entered Michael's bedroom in the garage loft. And Dearden's own testimony places him in the garage with two men that evening. A jury is permitted to infer intent to commit a crime on another's property against a person therein based on an unlawful entry onto the property. RCW 9A.52.040.
Although Dearden testified that he went to the garage only to speak with Michael about "the remaining balance of the money that he owed, " Dearden's account was contradicted by other witnesses. RP at 804. We defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Raleigh, 157 Wn.App. 728, 736, 238 P.3d 1211 (2010), review denied, 170 Wn.2d 1029 (2011).
RCW 9A.52.040 states, "In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent."
The evidence also shows that in the loft Dearden identified Michael to the other men who asked him about money and that one of the men hit Michael with a metal pipe. After Dearden came down from the loft, both Wheeler and Joshua testified that he was armed with a pipe or a club. Dearden also said that he previously "told [Joshua] this would happen" and "told [Joshua] we were going to come." RP at 296. Dearden hit Wheeler with a metal pipe. Dearden also instructed the two men who accompanied him when to leave. Accordingly, we reject Dearden's argument that the evidence was insufficient to find him guilty of second degree burglary as a principal.
III. Accomplice Jury Instruction
Dearden relies on State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984) to support his argument that failure to specifically instruct the jury on accomplice liability for second degree burglary was fatal. But see State v. Teal, 152 Wn.2d 333, 339, 96 P.3d 974 (2004) (finding stand- alone accomplice liability instruction sufficient even if not contained in the "to convict" instruction). We need not reach this argument, however, having found the evidence sufficient to find Dearden guilty of second degree burglary as a principal.
We additionally note that although Dearden challenges the second degree burglary instruction, he makes no argument that there was insufficient evidence to find him guilty as an accomplice.
IV. Statement of Additional Grounds for Review
Dearden raises two issues in his SAG. He asserts that Linda intimidated a witness who did not testify. He also argues that he should have received a change of venue because the crimes took place in a "small town." SAG at 1.
Dearden submits additional materials for us to consider when examining his witness intimidation argument, including written statements by the allegedly missing witness. "If a defendant wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means of doing so is through a personal restraint petition." State v. MacFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). "[R]emanding for expansion of the record is not an appropriate remedy." MacFarland, 127 Wn.2d at 338. Thus, we do not address this issue.
Although Dearden argues that he attempted to change trial venue, the record before us does not contain such a motion. The record does reflect a short discussion of press coverage of the event during jury selection. A challenge to venue is waived if not raised in the trial court. See State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988) (venue is not of constitutional magnitude such that a party may raise an error relating to it for the first time on appeal); RAP 2.5(a).
Accordingly, 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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Penoyar, J., Johanson, A.C.J.