Opinion
No. 33160-8-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-01262-5, Anna M. Laurie, J., entered March 11, 2005.
Counsel for Appellant(s), Roger A. Hunko, Attorney at Law, Port Orchard, WA.
Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor's Office, Port Orchard, WA.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Penoyar, JJ.
Cody E. Springer appeals his convictions of second degree burglary and bail jumping. He claims that the State failed to prove intent, failed to prove accomplice liability, improperly switched the burden of proof, and misstated the law during closing argument. We affirm.
A violation of RCW 9A.52.030(1).
A violation of RCW 9A.76.170.
Facts
On August 11, 2004, between 8:30 and 9:00 p.m., Cody Springer and Joseph Baza went to Dustin Hunt's home in Port Orchard. Hunt left to visit his girlfriend in Silverdale while Springer and Baza played pool and waited for him to return. After three or four hours, Springer and Baza left to find a telephone so Springer could call his girlfriend for a ride.
They ended up at Jay Townsend's home, the father of Daniel Townsend, an acquaintance. The Townsends had a cabana separate from their residence on the property. Daniel had stayed in the cabana until he moved away the previous month. Springer and Baza went to the cabana, found the door open, and stepped inside. Springer then spoke with his girlfriend, Tara Brown, over the telephone for the next three to five minutes. While on the telephone, Springer heard Baza yell out, "Danny," and then saw Baza turn on the bedroom light. Report of Proceedings (RP) at 139. According to Springer, he then told Baza that his girlfriend was on her way and he began walking away.
Meanwhile, Townsend awoke because his dog "was going crazy." RP at 77. When he did not see anything outside his bedroom or driveway, Townsend went down the hall and noticed a light on in the cabana through his daughter's bedroom window. He then observed "two shadow figures" at the cabana. RP at 78. He then saw the two figures leaving and ran to the end of his house, threw open the sliding glass door, and yelled at them. Springer and Baza were moving toward him to leave through the cabana gate and, according to Townsend, it "looked like somebody was carrying something." RP at 80. The two then ran away. While checking the outside area, Townsend found his television set on the pathway next to a fire pit. Townsend recognized Baza as a years-ago acquaintance of his son, but he did not recognize Springer, and did not give either permission to be on his property.
The police apprehended Springer and Baza 50-60 yards away using a K-9 dog; they were lying side-by-side under some brush. Deputy Ben Herrin said that Springer was "obviously intoxicated," having a strong alcohol odor, a thick tongue, and using slurred speech. RP at 49. Springer explained that he ran because he was scared. After taking them into custody, Deputy Herrin asked Townsend if these were the men he saw. Townsend responded, "Definitely." RP at 49. In the cabana, Deputy Herrin observed a coaxial television cable hanging from the wall and a telephone about 15 feet from the door.
The State charged Springer with second degree burglary as an accomplice and bail jumping. At trial, the court denied Springer's motion to dismiss the accomplice liability charge for insufficiency of the evidence. The court also denied his motion to strike the accomplice liability instruction. And the court denied his motion for a mistrial based on his claim that the State shifted the burden of proof when questioning him about Baza not being present to testify. A jury found him guilty of both offenses. He now appeals.
ANALYSIS I. Sufficiency of the Evidence — Second Degree Burglary
Springer first contends that the State failed to prove that he intended to commit a crime when he trespassed into the cabana.
When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), this court defers to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
To convict Springer of second degree burglary, the State had to prove the following: "(1) A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling." RCW 9A.52.030(1).
Springer concedes that he trespassed but he argues that the evidence does not show that he intended to commit a crime in the cabana. He notes that the only testimony presented was Townsend's observations that it appeared that someone was carrying something and Townsend finding the television set by the fire pit. He argues that his intent was merely to use the telephone and that the prosecutor properly characterized it as "a nice crime of opportunity." RP at 219.
The State responds that it had no obligation to prove specific intent to burgle the cabana. Rather, it notes, burglary requires only intent to commit "a crime" in the premises. Here, it continues, regardless of the evidence that the television was removed, the evidence was clear that Springer intended to use the telephone, which constitutes theft of services. See State v. Black, 86 Wn. App. 791, 938 P.2d 362 (1997) (entry to use VCR was burglary because he intended to use electricity); State v. Kolisynk, 49 Wn. App. 890, 894, 746 P.2d 1224 (1987) (entering building to use electricity for outdoor service delivery system sufficient).
In State v. Brunson, 76 Wn. App. 24, 877 P.2d 1289 (1994), a consolidated appeal, the court described the events of appellant West's offense:
At about 6:15 p.m. on May 23, 1991, Karen Bowman went to her kitchen to investigate what sounded like dishes clanking. She saw a man coming through her kitchen window head first. He was on the counter top with his hands straddling the kitchen sink. When Bowman screamed, the man retreated to her yard, saying, "Quiet, lady, I just wanted to use the phone."
Brunson, 76 Wn. App. at 26.
West challenged the use of an inference instruction, claiming that the only evidence before the jury was his unlawful entry and that was not enough. The reviewing court disagreed, remarking:
In West's case, the jury likewise was able to consider additional evidence of his criminal intent beyond the mere fact of his unlawful entry. When confronted by Bowman, he said he only wanted to "use the phone." This is not an innocent statement even taken at face value. An unpermitted use of the telephone nevertheless amounts to a theft of services and therefore West's stated intention was an admission of his criminal intent, confirmed by his hasty retreat after being seen.
Brunson, 76 Wn. App. at 30-31. We agree with these authorities; the evidence shows that Springer committed second degree burglary beyond any doubt.
II. Sufficiency of the Evidence: Accomplice Liability
The State charged Springer as an accomplice under RCW 9A.08.020. He argues that there was no evidence of accomplice liability. At most he argues, assuming that Baza took the television, was mere physical presence as he was not "ready to assist" nor intended to encourage. In re Welfare of Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979) (quoting State v. Aiken, 72 Wn.2d 306, 349, 434 P.2d 10 (1967), vacated on other grounds, Wheat v. Washington, 392 U.S. 652, 88 S. Ct. 2302, 20 L. Ed. 2d 1357 (1971)). He argues that the evidence must show that he meant to participate in it as something he wished to bring about by his actions, and here it did not show that he had prior knowledge that Baza was going to commit a crime. He relies on State v. Alford, 25 Wn. App. 661, 611 P.2d 1268 (1980) (sufficient participation for accomplice liability), aff'd, 95 Wn.2d 629; 628 P.2d 467 (1981); State v. Trout, 125 Wn. App. 403, 105 P.3d 69 (participation in planning and transportation sufficient), review denied, 155 Wn.2d 1005 (2005); and State v. Vaillancourt, 122 N.H. 1153, 453 A.2d 1327 (1982) (indictment that alleged only presence and knowledge insufficient to support accomplice liability).
But there was ample evidence that both Baza and Springer entered the cabana unlawfully, intending to commit a crime while in it. Be it theft of services or theft of the television, the evidence was sufficient for a jury to infer from the facts and circumstances that Baza was familiar with the cabana, that they both knew that Daniel Townsend had left town, and that they went there in the dark of the night to steal the television set.
III. Burden Shifting
Springer next contends that the State committed misconduct during his cross examination. He cites the following:
PROSECUTOR: Well, let me ask you then, today, where is Joe Baza today?
WITNESS: I think he was just here.
PROSECUTOR: All right. Is he here because he's got his own case coming up; is that right?
RP at 164. The court sustained Springer's objection to this testimony. The State then asked Springer:
PROSECUTOR: But he's not here today —
WITNESS: No.
RP at 164. The court denied Springer's motion to strike this line of questioning and a later motion for a mistrial based on this questioning. The court deemed a mistrial unnecessary and, as part of the jury instructions, told the jury:
Evidence has been introduced in this case relating to Joseph Baza. You must consider and decide the case against Mr. Springer independently of any possible charges against Mr. Baza.
The record is not clear on whether this was the instruction the court proposed following Springer's objections. We do note that it was not one of plaintiff's or defendant's proposed instructions.
He complains that this line of questioning was highly improper because Baza could have been an important witness as he was present and part of the entire incident. And this questioning, he reasons, left the jury wondering why Baza never testified. Furthermore, he argues, the instruction exaggerated Baza's absence and implied to the jury that he, Springer, should have called Baza to corroborate his explanation. He complains that this improperly shifted the burden of proof by implying that he had an obligation to prove his own innocence and his failure to do so proved his guilt.
We disagree. First, the court sustained Springer's initial objection and we assume the jury followed the court's instruction that it consider only the evidence properly before it. Second, this was a one sentence inquiry that could have no discernible impact on the jury's deliberations. In fact, the trial court regarded the question as "a very de minimis inquiry." RP at 172. The court explained its ruling:
This whole question of burden shifting, I'm not sure if it is burden shifting or some sort of shifting of the need to collaborate [sic] the statement.
And certainly, Ms. Brown came in to corroborate what Mr. Springer's position was, that was a minor question, there was an objection, it was sustained. There was a further question, a motion to strike, that was overruled. But there were just two questions relating to Mr. Baza.
The jury will be told that they are not to consider Mr. Baza's presence or absence in any way as they exam[ine] Mr. Springer's guilt or innocence in this case. And by my way of thinking that will cure whatever missteps took place and a mistrial is unnecessary at this point.
RP at 177. We agree with the trial court. And third, any prejudice that may have flowed from the prosecutor's question was minimal and cured by the court's ruling and its instruction.
IV. Closing Argument
Baza also complains about the following remark during the prosecutor's closing argument:
Now, here we go back to what did Cody Springer know and when did he know it. Was he entering or remaining in that building intentional [sic] to commit a crime? Well, that's the question of the day.
. . . .
Even if they are going to use the phone, you could probably argue among yourselves that itself could constitute a crime, and that's even a long list of their local calls are part of a package plan, it may not add anything. Or how about turning on the light using electricity? Could that be? It could be as simple as that. And I'm not suggesting that you find that. But it doesn't have to be a specific crime. It just has to be a crime. Did they intend to do that?
RP at 231. He argues that this was an improper argument because accomplice liability requires proof that the person knew he was aiding in the commission of the charged crime, not aiding and abetting some crime. State v. Gallagher, 112 Wn. App. 601, 608, 51 P.3d 100 (2002). He claims that this argument was contrary to Washington law, confused or misled the jury, and an instruction would not have cured it. State v. Belgarde, 110 Wn.2d 504, 507-09, 755 P.2d 174 (1988) (improper prosecutorial remarks deprived defendant of fair trial).
But this was a proper argument because proof of burglary requires only evidence of intent to commit a crime in the building. And the evidence supports that Springer and Baza shared an intent to commit burglary.
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.
BRIDGEWATER P.J. and PENOYAR, J., concur.