Opinion
No. 33930-7-II.
January 3, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-1-01435-6, Wm. Thomas McPhee, J., entered August 25, 2005.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, WA.
Counsel for Respondent(s), David Harold Bruneau., Thurston Co Pros Aty Office, WA.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Armstrong and Penoyar, JJ.
Milo Shawn Thorne appeals three counts of second degree burglary. We affirm.
At approximately 4:00 a.m. on July 6, 2004, Tumwater Police Officer Quiles was looking for a suspicious car. He did not find it. Instead, at 4:17 a.m., he noticed Thorne walking rapidly on a sidewalk in an area of closed businesses. Thorne was sweating heavily and appeared nervous. Officer Quiles asked Thorne if he had seen any suspicious vehicles or people; Thorne said he had not.
Officer Quiles briefly talked with Thorne about where he was going and where he had come from. At Officer Quiles's routine request, Thorne handed him an identification card. The officer wrote down Thorne's full name and date of birth and immediately returned the card. According to the officer, had he intended to detain Thorne, he would have retained the card. The conversation and request for identification took approximately five minutes. Officer Quiles radioed "dispatch" to ask whether Thorne had an outstanding arrest warrant. RP (Aug. 15, 2005) at 20. He did.
Officer Quiles testified he did not physically or verbally restrict Thorne's movements until he learned of the warrant. Thorne testified otherwise. Dispatch confirmed the arrest warrant at 4:26 a.m., nine minutes after contact began.
Officer Quiles then searched Thorne incident to the warrant arrest. He discovered a large flat blade screwdriver, a pair of vise grips, a flashlight, and enough coins to fill a paper lunch bag to a depth of one or two inches.
Later the same morning, three Tumwater businesses reported overnight burglaries. Each business had a glass door with a metal frame. Each door had a round lock, without a knob, set in the metal frame of the door. And, in each burglary, the burglar had completely removed or spun the lock out of the door. Officers testified that only a sophisticated burglar would use vise grips and a screwdriver to remove a lock, a distinctive or unusual burglary method.
At each business, the burglar stole small bills and large quantities of coins, intended for making change. One of the burglary sites, Bonsai Teriyaki, was within 400 feet of where Officer Quiles contacted Thorne. The other two were adjacent businesses, Tammy's Ceramics and Cosa Bella, about 1.7 miles away. At Tammy's Ceramics, the burglar had pried open the cash register, leaving marks. A forensic scientist later determined Thorne's screwdriver made the unique tool marks on the cash register.
About 15 months earlier, on April 13, 2003, a police officer saw Thorne trying to open a similar metal frame glass door of a Kirkland small business at 2:38 a.m. At that time, Thorne was carrying a long flat blade screwdriver, vise grips, and a flashlight. The area around the "spin-type" lock was damaged, and part of the lock was on the ground. RP (Aug. 15, 2005) at 202.
About eight months after Officer Quiles contacted Thorne, on March 1, 2005, Puyallup police caught Thorne committing a burglary inside another small business at 2:15 a.m. It too had a metal frame glass door with a round lock. The lock had been removed. Thorne had stolen a small quantity of cash. He had a flat blade screwdriver, vise grips, and a flashlight. The missing lock was still lodged in the jaws of the vise grips. The damaged locks and doors in the Kirkland and Puyallup incidents were the same type as those in the Tumwater burglaries.
He also had a large "forked pry tool commonly used as a ball joint splitter." RP (Aug. 25, 2005) at 214.
The State charged Thorne with three counts of second degree burglary for the three Tumwater break-ins. Thorne unsuccessfully moved to suppress evidence, arguing that Officer Quiles had seized him without the articulable suspicion necessary to support an investigatory stop. The trial court held that the officer did not seize Thorne until the officer discovered the arrest warrant.
In its CrR 3.6 findings of fact and conclusions of law, the trial court entered what it labeled as "Conclusions as to the Disputed Facts":
The officer's testimony is credible — and more credible than that of the defendant. The defendant was not ordered to remain anywhere, and until the warrant information was relayed to the officer, the defendant was not "seized."
3.1 The contact of the defendant by Officer Quiles initially was inadvertent and one of information-gathering by the officer of a citizen (the defendant) who appeared to be a potential witness[.]
3.2 Officer Quiles took no action, verbally or otherwise, to restrain or detain the defendant in any way. The defendant was free to walk away at all times until the warrant was discovered. The duration of the initial contact to the discovery of the warrant was quite brief[.]
3.3 Officer Quiles engaged in no behavior that had coercive elements of constitutional implications. The request for identification by the officer was in a manner and in a context that implicated no privacy rights of the defendant. Given the totality of the circumstances the defendant was free to leave and a reasonable person would have felt free to go (until the warrant was discovered).
Clerk's Papers at 67.
Citing Washington Rule of Evidence (ER) 404(b), the State sought to admit evidence Thorne had attempted the prior burglary in Kirkland and had committed the subsequent burglary in Puyallup. The trial court held the non-charged burglaries relevant to prove Thorne's identity as the burglar in the charged burglaries. The jury convicted Thorne.
I. Challenged Findings of Fact
Thorne challenges the trial court's "Conclusions as to the Disputed Facts." CP at 67. Whether Officer Quiles seized Thorne is a mixed question of law and fact. See State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996); State v. Crane, 105 Wn. App. 301, 306, 19 P.3d 1100 (2001). When the trial court resolves disputes about the details and circumstances of an encounter, it is deciding issues of fact. Thorn, 129 Wn.2d at 351. But "whether those facts constitute a seizure" is a question of law. Thorn, 129 Wn.2d at 351.
The challenged trial court "conclusions" contain both factual findings about the disputed details of the encounter and ultimate legal conclusions about whether Officer Quiles seized Thorne. We review findings as findings, no matter how they are labeled. State v. Evans, 80 Wn. App. 806, 820, 820 n. 35, 911 P.2d 1344, review denied, 922 P.2d 97 (1996). We uphold all suppression hearing findings substantial evidence supports. State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994). Evidence is substantial when "there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding." Hill, 123 Wn.2d at 644.
Thorne challenges the trial court's finding that Officer Quiles, before discovering the arrest warrant, did not restrict Thorne's movements. The officer's testimony provides substantial evidence to support the court's finding. Thorne testified otherwise, but after observing the witnesses, the trial court found Officer Quiles more credible. As we have previously held, "[i]t is the trial court's role to resolve issues of credibility, weigh evidence, and resolve differing accounts of the circumstances surrounding the encounter and the reviewing court gives deference to these determinations." Crane, 105 Wn. App. at 306.
II. Social Contact v. Seizure
Thorne contends Officer Quiles seized him when the officer engaged him in conversation and requested his identification. We review de novo the trial court's legal conclusion that Officer Quiles did not seize Thorne until the officer discovered the warrant. See State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Thorne had the burden of proving the seizure occurred earlier. See State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998); State v. Mote, 129 Wn. App. 276, 282, 120 P.3d 596 (2005).
An officer seizes an individual "when considering all the circumstances, an individual's freedom of movement is restrained and the individual would not believe he or she is free to leave or decline a request due to an officer's use of force or display of authority." State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004) (citing State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003)). The officer's subjective suspicions and intents are irrelevant unless reflected in his or her actions. O'Neill, 148 Wn.2d at 574-77. The crucial questions include whether and to what extent the officer has used force or displayed authority. See O'Neill, 148 Wn.2d at 577.
A uniformed armed police officer with an official car does not necessarily seize someone by merely approaching, asking questions, and requesting identification. O'Neill, 148 Wn.2d at 577-78, 580-81. Even without a basis to seize, an officer encountering a suspicious person sometimes has "the limited right and the duty to approach and inquire about what appeared to be suspicious circumstances." State v. Belanger, 36 Wn. App. 818, 821, 677 P.2d 781 (1984). When an officer keeps identification just long enough to write down the name and birth date, returns it, and then checks for warrants, there is no seizure. State v. Hansen, 99 Wn. App. 575, 576, 579, 994 P.2d 855 (2000).
Based on the totality of facts here, Thorne failed to prove that Officer Quiles seized him before discovering the warrant. He merely approached Thorne and briefly conversed with him. Officer Quiles began by requesting assistance in a different investigation. He did not require Thorne to answer, and Thorne simply could have continued walking. Officer Quiles did not retain Thorne's identification card or restrict his movements while he checked for warrants. Under controlling authority, the officer did not use force or display authority sufficient to make reasonable persons believe they could not leave. Officer Quiles did not conduct an investigatory stop under State v. Kennedy, 107 Wn.2d 1, 726 P.2d 445 (1986).
Thorne challenges neither the validity of the arrest warrant nor the legitimacy of searches incident to valid arrests. As Officer Quiles discovered the warrant without seizing Thorne, the trial court properly admitted the evidence the officer recovered.
III. Non-charged Burglary Evidence
Thorne next argues that the non-charged burglary evidence was not sufficiently unique to be relevant and was more prejudicial than probative. We must determine whether the trial court abused its discretion when it admitted evidence of the non-charged burglaries. See State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
Evidence Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of . . . identity.
Before admitting evidence of other bad acts, a trial court
must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.
Thang, 145 Wn.2d at 642. Because no witness saw the charged burglaries, the identity of the burglar was at issue. The trial court admitted evidence of the non-charged burglaries as tending to prove Thorne's identity in the charged burglaries.
Such evidence is relevant to prove the charged crime only when the method used to commit both crimes is so distinctive that proving the defendant committed one of them makes it very probable the defendant committed the other. Thang, 145 Wn.2d at 643. The identifying criminal method must be as unusual and distinctive as a signature, and the distinctive method must be shared between the charged and non-charged crimes. Thang, 145 Wn.2d at 643. The more distinctive the method or feature, the more likely it is that one person committed both crimes, making the evidence more relevant. Thang, 145 Wn.2d at 643.
When deciding whether the method is sufficiently distinctive, the trial court must consider the totality of the similarities:
The next question is whether the similarities between the two crimes are unusual or distinctive. . . . Even when features are not individually unique, appearance of several features in the cases to be compared, especially when combined with a lack of dissimilarities, can create sufficient inference that they are not coincidental, thereby justifying the trial court's finding of relevancy.
Thang, 145 Wn.2d at 644 (citations omitted).
Thorne argues that the common nature of the tools used and the lack of geographical or temporal proximity does not meet the stringent identity evidence test. We disagree and hold that the trial court properly admitted the evidence to prove Thorne's identity as the burglar in the charged counts.
See Thang, 145 Wn.2d at 643 ("Factors relevant to similarity include geographical proximity and commission of the crimes within a short time frame").
A screwdriver, vise grips, and a flashlight are in themselves common and non-distinctive items. But witnesses testified that using these items in combination to commit burglaries is unusual. Further, witnesses testified that gaining entry by spinning a lock is distinctive and unusual. Much more typically, a burglar simply breaks a window, kicks in a door, or looks for an unlocked entrance. The burglar in the charged and non-charged cases selected small businesses with a metal frame glass door. At every burglary, the burglar used a screwdriver and vise grips to spin the lock out of the door, lighting his work with a small flashlight. At every completed burglary, the burglar stole only small amounts of money kept on the premises to make change. The recurring features, when combined with a near-total lack of dissimilarities, justify the trial court's finding. The trial court did not abuse its discretion.
The trial court conducted an on the record balancing of the probative value of the other burglary evidence against its prejudicial effect. Recognizing the danger that the jury would use the other burglary evidence as propensity evidence, the trial court required and repeatedly gave a limiting instruction. The trial court engaged in the proper balancing and did not abuse its discretion. See State v. DeVincentis, 150 Wn.2d 11, 23, 74 P.3d 119 (2003).
Affirmed.
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.
We concur:
Armstrong, J.
Penoyar, J.