Opinion
No. 65275-3-I.
Filed: May 2, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-8-00102-4, Michael J. Trickey J., entered April 7, 2010.
Affirmed by unpublished opinion per Lau, J., concurred in by Cox and Schindler, JJ.
Liban Warsame challenges his juvenile court attempted residential burglary conviction. Because the State presented sufficient evidence to support the conviction and trial counsel's performance was not deficient, we affirm.
FACTS
We view the facts in the light most favorable to the State. Maryjane Fontanilla lives in a house on South Kenyon Street in Seattle. The front of the house faces east, the rear faces west. There is no street behind the house. The front of the house is set back from the street, and access to the house exists through an easement.
On January 7, 2009, around 10:55 a.m., Fontanilla was home alone and heard the doorbell ring. She looked outside and saw a shadow moving across her backyard. She looked out her kitchen window and observed three males on the property. One was African-American with a striped shirt and a black backpack. Another was Asian-American and wearing gray. She heard someone pulling the doorknob and someone trying to open the door to the house.
Fontallia then called 911 and hid in her bathroom. While on the 911 call, she heard someone trying to come in through the doors or windows. She also heard the doorbell ring again and heard glass breaking.
Seattle Police Officers Nicholas Carter and Craig McRae arrived at Fontanilla's house in response to the 911 call. Officer Carter approached Fontanilla's house, walking through the easement from the north to the south. Officer Carter detained an African-American male and an Asian-American male on the property. Officers Carter and McRae then observed Warsame walking across Fontanilla's yard, toward the front of the house, coming from the rear (west). As other officers detained Warsame, Officer Carter heard glass breaking, observed a fourth male coming around the northwest corner of the house, and detained him.
The officers found a broken kitchen window and a screen pulled off the bathroom window, both on the west side of the house. Officer Carter spoke with Fontanilla, who appeared frightened and shaken. She told Officer Carter that neither the kitchen nor the bathroom windows were damaged before this incident. Fontanilla did not give permission to Warsame or the other males to enter her property or the house.
Warsame testified that his friend Maxie gave him a ride home from school, and two other males were also in the car. Warsame said Maxie stopped to see his friend at a house on Kenyon but that Warsame did not know why he was stopping. Warsame said that Maxie parked at a grocery store near the friend's house. Warsame stated he went into the store and purchased cigarettes and then caught up to his three friends who were walking "towards the house." Report of Proceedings (RP) (Mar. 15, 2010) at 107. He said, "We approached the front of the door," and Maxie rang the doorbell several times. Warsame "walked towards the back of the house because they had a shelter to protect [his] cigarette." RP (Mar. 15, 2010) at 107. He gave another male half his cigarette and then walked to the front of the house, where the police detained him.
The State charged Warsame in juvenile court with attempted residential burglary. In a fact-finding hearing, the court heard testimony from Fontanilla, Officers Carter and McRae, and Warsame. The court found Warsame guilty of attempted residential burglary as an accomplice. The court entered findings of fact and conclusions of law that incorporated by reference the court's oral findings and conclusions.
ANALYSIS
Warsame argues that there was insufficient evidence to convict him of attempted residential burglary. Warsame argues that the evidence shows only that he was present but not that he assisted in the attempted residential burglary. The State counters that the evidence, with all inferences drawn in favor of the State, adequately supports the trial court's findings and Warsame's conviction. We agree.
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citations omitted). In reviewing a juvenile court adjudication, we must decide whether substantial evidence supports the trial court's findings of fact and, in turn, whether the findings support the conclusions of law. State v. Alvarez, 105 Wn. App. 215, 220, 19 P.3d 485 (2001). We treat unchallenged findings of fact as verities on appeal. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). We review conclusions of law de novo. Levy, 156 Wn.2d at 733. Circumstantial evidence and direct evidence are equally reliable. State v. Liden, 138 Wn. App. 110, 117, 156 P.3d 259 (2007). "Credibility determinations are for the trier of fact and are not subject to appellate review. We must defer to the [trier of fact] on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence." Liden, 138 Wn. App. at 117 (citation omitted).
"A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle." RCW 9A.52.025(1). Criminal intent can be inferred from the facts and circumstances surrounding the commission of an act or acts. State v. Bergeron, 105 Wn.2d 1, 19-20, 711 P.2d 1000 (1985). A trier of fact may infer intent from conduct that plainly indicates such intent as a matter of logical probability. State v. Bright, 129 Wn.2d 257, 270, 916 P.2d 922 (1996). "A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1).
A person is guilty of a crime committed by the conduct of another person for which he or she is legally accountable. This includes an accomplice. RCW 9A.08.020(1)-(2).
A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it; or
"`The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime.'" State v. Dove, 52 Wn. App. 81, 87, 757 P.2d 990 (1988) (quoting WPIC 10.51, in part).
(b) His conduct is expressly declared by law to establish his complicity.
Our review of the record demonstrates that sufficient evidence supports Warsame's conviction for attempted residential burglary. Fontanilla observed three males she did not know standing in her yard. She heard the doorbell ring, someone pulling the doorknob, and glass breaking. Police officers observed the broken window and ripped screen.
Police arrested Warsame on Fontanilla's property, and Warsame admitted he was there with the other males. Warsame also admitted he arrived at the property in a car with the other males. And the trial court made specific findings of fact that the testimony by Fontanilla and Officers Carter and McRae was credible. The trial court also specifically found Warsame's testimony not credible. "Credibility determinations are for the trier of fact and are not subject to appellate review." Liden, 138 Wn. App. at 117. Warsame assigns no error to the court's findings of fact, so they are verities on appeal.
Viewing the evidence in a light most favorable to the State, a reasonable trier of fact could determine that the males intended to commit a crime inside the home. Their actions were not equivocal. They indicated an intention to commit a crime as a matter of a logical probability. No legitimate reason existed to ring Fontanilla's doorbell repeatedly, try to open her back door, break her kitchen window, or remove her bathroom window screen.
And one could also reasonably infer that Warsame took a substantial step toward assisting the other males in their entry into the home that was more than mere presence. Police detained Warsame on the property, he admitted to traveling to the property with the other males, and the trial court specifically found his version of events — that he went to the back of a stranger's property to smoke a cigarette — not credible. And the sequence and timing of events also supports our conclusion. Warsame walked toward the front, east side of the house, from the back, west side of the house, as glass broke on the west side. Shortly thereafter, another male rounded the northwest corner where police detained him. This supports the inference that Warsame was assisting the male who later broke the glass immediately before police detained Warsame. Our review of the record demonstrates that the evidence, and all inferences reasonably drawn from it, amply supports Warsame's conviction.
Ineffective Assistance
Warsame argues that defense counsel was ineffective for failing to ask the juvenile court to consider the lesser included offense of attempted criminal trespass. The State counters that defense counsel did make such a request. We agree.
A criminal defendant has the right under the Sixth Amendment to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant fails to satisfy either prong, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). There is a strong presumption of effective assistance, and defendant bears the burden of demonstrating the absence of a strategic reason for the challenged conduct. McFarland, 127 Wn.2d at 334-35; State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Warsame demonstrates no deficient performance. During closing argument, defense counsel argued, "Well, at the most the State has proven criminal trespass, your Honor." RP (Mar. 15, 2010) at 118. This shows defense counsel did request, in the alternative, attempted criminal trespass as a lesser included offense. But even assuming deficient performance, Warsame demonstrates no prejudice. Because the court specifically found the elements of attempted residential burglary, it did "not reach the lesser-included which would have to be attempted criminal trespass." RP (Mar. 17, 2010) at 135. We conclude Warsame received effective assistance of counsel.
Attempted criminal trespass is a lesser included offense of attempted residential burglary. State v. Pittman, 134 Wn. App. 376, 384, 166 P.3d 720 (2006). Although defense counsel here stated "criminal trespass" rather than "attempted criminal trespass," our review of the record demonstrates that the court was aware that attempted criminal trespass was a lesser included offense based on its statement during its oral findings, discussedbelow.
CONCLUSION
Because sufficient evidence supports Warsame's conviction for attempted residential burglary and he received effective assistance of counsel, we affirm.