Opinion
No. 34999-0-II.
August 7, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-01229-3, Robert L. Harris, J., entered May 25, 2006.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Armstrong and Penoyar, JJ.
Carl Joseph Antunez appeals his convictions for first degree possession of stolen property and first degree malicious mischief as well as his sentence for these crimes, arguing that: (1) insufficient evidence supported each conviction, (2) both convictions comprised the same criminal conduct, and (3) his trial counsel was ineffective because he interrupted Antunez's right to allocution at sentencing. We affirm.
RCW 9A.56.140(1)(a) provides: `"Possessing stolen property' means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto."
RCW 9A.56.150(1) provides: "A person is guilty of possessing stolen property in the first degree if he or she possesses stolen property other than a firearm as defined in RCW 9.41.010 which exceeds one thousand five hundred dollars in value."
RCW 9A.48.070(1)(a) provides: "A person is guilty of malicious mischief in the first degree if he knowingly and maliciously: . . . [c]auses physical damage to the property of another in an amount exceeding one thousand five hundred dollars."
FACTS
On February 22, 2005, Police Officer Michael Chylack was dispatched to the 2500 block of F Street in Vancouver, Washington, in response to a report of a suspicious vehicle parked at the site. When he arrived he observed a white 1994 Acura Integra parked on the side of the street. He inspected the vehicle and saw that it was missing a seat, some dashboard parts, and the tail lights. On the exterior of the vehicle "two wheels on the passenger side had donuts instead of the full sized wheels." Report of Proceedings (RP) at 35. The license plate was missing, but Chylack "looked in the . . . rear and . . . found the license plate and . . . was able to run the plate through Dispatch." A police report confirmed that the Integra belonged to Megan LeBov, who lived in Portland, Oregon. She had reported her vehicle stolen on February 16, 2005.
Chylack noted scrape and drag marks on the asphalt leading to the white Integra. Along with another officer, Chylack followed the drag marks to a driveway about ten blocks from where the vehicle was found. As Chylack walked up the driveway, he observed a black Acura Integra parked in the open garage. He saw a seat similar to the one removed from the white Integra on F Street inside the black Integra and a tire and rim that looked similar to the white Integra's remaining wheels in front of the garage. The police obtained a search warrant for the house and garage, where the officers had seen the black Integra. They found an Oregon car registration in LeBov's name and Antunez's bank statement with a Portland address inside the black Integra.
Crystal Pickett, Antunez's girlfriend at the time, rented the house where Antunez had parked the black Integra. Antunez had moved in with her about a month before the police executed the search warrant. During the police investigation, Pickett told Lieutenant Andrew Hamlin that "her boyfriend brought [the white Integra] home about a week and a half ago" and that he began to take parts from it. RP at 202. She also testified that Antunez was attempting to fix his black Integra, which he had wrecked.
On May 16, 2006, the State charged Antunez with first degree possession of stolen property, malicious mischief, and possession of a controlled substance — methamphetamine hydrochloride. A jury trial began on May 17, 2006.
RCW 69.50.4013(1) provides: "It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter."
Vancouver police officers and LeBov testified to the facts as recited above. Hamlin testified about his earlier conversation with Pickett, who told him that Antunez brought the white Integra home and took parts from it to repair his black Integra. Christina Lamp, Pickett's neighbor, testified that she saw both a white Integra and a black Integra at Pickett's residence. She stated that she was not sure whether she had seen two different cars or one car that had been repainted. Lamp recalled that the white Integra first appeared at the Pickett residence about a week before the police executed the search warrant. Her testimony placed the vehicle at the residence at approximately the same time it was stolen. She also testified that she heard banging and saw a group of men working on both a black car and a white car.
At trial, contrary to her earlier statements to Hamlin, Pickett testified that Antunez had a black Integra, which he put in her garage about two weeks before Vancouver police served the search warrant. She testified that a man named "Tom" showed up with a white Integra some time later but that "at first . . . [Antunez] didn't want anything to do with the car." RP at 142. She further testified that some men came to the house and took parts from the white Integra. During cross-examination, the State asked Pickett if the parts taken from the white car were the same as the damaged parts of the black car. She replied, "Uhm, not necessarily. I mean, yes, and no." RP at 146. Pickett also denied that Antunez worked on the white car. She further testified that Antunez stayed up nights because he used drugs and that the other men would "be up working on the cars." RP at 184.
After considering the testimony and counsel's arguments, the jury found Antunez guilty of first degree possession of stolen property and first degree malicious mischief. The jury could not reach a verdict on the methamphetamine charge and the trial court declared a mistrial on count 3.
At sentencing, on the State's motion, the trial court dismissed the methamphetamine charge with prejudice. Antunez argued that first degree possession of stolen property and first degree malicious mischief were same criminal conduct and, therefore, should be counted as one point in his offender score calculation. The trial court concluded that the two crimes were not the same course of conduct and determined that Antunez's offender score was six, with each crime counting as one point. After discussing Antunez's parole status on other charges, the trial court asked him, "Anything further, sir?" RP at 285. The record reflects that Antunez did not answer. At this point, his counsel asked if Antunez could find work as a pressman and Antunez replied that he wanted to go back to working on cars. The trial court then sentenced Antunez to a mid-range sentence of twenty months on each conviction, to be served concurrently. Antunez appeals.
ANALYSIS
I. Sufficiency of the Evidence
Antunez contends that the evidence was insufficient to support his convictions for first degree possession of stolen property and first degree malicious mischief. We disagree.
"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." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). An insufficiency claim admits the truth of the State's evidence and any reasonable inferences from it. Salinas, 119 Wn.2d at 201. We defer to the fact-finder on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. And we consider circumstantial and direct evidence to be equally reliable. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
A. First Degree Possession of Stolen Property
Antunez argues that the State did not present sufficient evidence to prove that he knew the white Integra had been stolen. He argues that, without corroborating facts, bare possession of recently stolen property is not sufficient to justify a conviction. See State v. Budinich, 17 Wn. App. 336, 337, 562 P.2d 1006 (1977) (citing State v. Portee, 25 Wn.2d 246, 253, 170 P.2d 326 (1946)).
To establish first degree possession of stolen property the State had to prove and, the jury had to find, beyond a reasonable doubt "(1) [t]hat between February 15, 2005 and February 22, 2005 [the defendant] possessed stolen property; (2) [t]hat [the defendant] knew the property was stolen; (3) [t]hat [the defendant] withheld or appropriated the property to the use of someone other than the true owner or person entitled thereto; (4) [t]hat the value of the stolen property exceeded $1,500; and (5) [t]hat the acts occurred in State of Washington. Clerk's Papers (CP) at 26.
Antunez is correct that, without any knowledge of the theft, mere possession of stolen property is insufficient to support a conviction. State v. Mace, 97 Wn.2d 840, 843, 650 P.2d 217 (1982). We do not, however, require a defendant's actual knowledge that the property was stolen. Rather, constructive knowledge is sufficient and the jury may infer knowledge from corroborative facts. State v. Jennings, 35 Wn. App. 216, 219, 666 P.2d 381 (1983). Possession of stolen property, along with slight corroborative evidence of inculpatory circumstances, is sufficient to support a conviction for possession of stolen property. Budinich, 17 Wn. App. at 337. Possession may be actual or constructive. The State proves constructive possession through substantial evidence that the defendant had dominion and control over the stolen item. See State v. Chavez, 138 Wn. App. 29, 34, 156 P. 3d 246 (2007).
Here, sufficient evidence supported the jury's conclusion that Antunez possessed the white Integra with knowledge that it was stolen. First, parts of the stolen Integra were incorporated into Antunez's own vehicle, establishing dominion and control. Second, the police found the stolen car abandoned approximately ten blocks from Antunez's residence with drag marks leading from the vehicle to his residence, creating an inference of both knowledge and constructive possession. Third, Pickett's trial testimony established the presence of the white Integra at Antunez's residence, and, even though at trial she denied her earlier statements to the police that Antunez had brought the white Integra home and began to take parts from it, it was for the jury to resolve the disputed evidence. Fourth, the fact that someone dragged the stolen vehicle away from Pickett's residence indicates that Antunez and his girlfriend did not want it on the property where they resided. No one disputes that these events occurred in Washington State or that the white Integra was worth more than $1,500. Thus, when viewing the trial evidence in a light most favorable to the State, we hold that sufficient evidence supported Antunez's conviction for first degree possession of stolen property.
B. First Degree Malicious Mischief
Antunez asserts that no evidence supports that he knowingly and maliciously caused physical damage to the property of another, as required for conviction under RCW 9A.48.070 (1)(a).
Considering the totality of the circumstances, we hold that sufficient evidence supports Antunez's conviction for malicious mischief. The white Integra was missing a seat, dashboard parts, and tail lights. The window on the driver's side was broken and the passenger side tires were replaced with spares. Police found most of the missing car parts at Atunez's residence. As we addressed above, the evidence substantially supported Antunez's knowledge that the white Integra was stolen. Given the replacement of parts from the stolen car into Antunez's own car and the extensive damage to the stolen vehicle, we hold that the jury had sufficient evidence to conclude that Antunez knowingly and maliciously damaged Lebov's car.
II. Sentencing
Antunez argues that the trial court violated his rights at sentencing by failing to consider his convictions for possession of stolen property and malicious mischief as same criminal conduct and by denying his right to allocution due to ineffective assistance of counsel. We disagree.
A. Same Criminal Conduct
Antunez contends that "convictions for possession of stolen property and malicious mischief for dismantling the same stolen property involve the same victim, time, and intent and therefore we must be treated as the same criminal conduct." Br. of Appellant at 15. We review a trial court's determination of whether offenses constitute same criminal conduct for abuse of discretion or misapplication of the law. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990).
Under RCW 9.94A.589(1) (a) two crimes comprise same criminal conduct only when the following elements are established: (1) the two crimes share the same criminal intent; (2) the defendant commits the two crimes at the same time and place; and (3) the two crimes involve the same victim. State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992). If any one of these elements is missing, the crimes cannot constitute the same criminal conduct. Lessley, 118 Wn.2d at 778.
"Intent" means the defendant's objective purpose in committing the crime. In re Holmes, 69 Wn. App. 282, 290, 848 P.2d 754 (1993). In determining a shift in intent, trial courts should consider the "extent to which the criminal intent, objectively viewed, changed from one crime to the next." State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994) (citing State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987)).
In this case, Antunez's crimes lack the same criminal intent. Possession of stolen property requires the knowing possession of stolen property while withholding its use or possession from the true owner. Malicious mischief, on the other hand, is the intentional destruction of someone else's property, whether stolen or not. In other words, intentionally damaging property belonging to another without an attempt to steal or possess it, would constitute malicious mischief under the law. But intentionally possessing or retaining another person's property, even if the property were never damaged, would constitute possession of stolen property. Because the criminal intent to damage is different from the criminal intent to possess, we hold that the trial court correctly ruled that malicious mischief and possession of stolen property do not amount to the same course of conduct and, therefore, correctly scored the crimes as separate offenses. See State v. Taylor, 90 Wn. App. 312, 321, 950 P.2d 526 (1998).
RCW 9A.56.140(1) provides: "Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.
B. Ineffective Assistance of Counsel and the Right to Allocution Antunez argues that he did not receive effective assistance of counsel because he "was prejudiced by his attorney's usurpation of allocution." Br. of Appellant at 21. In order to establish ineffective assistance of counsel, the defendant must show that (1) his attorney's performance was deficient and not a matter of trial strategy or tactics, and (2) he was prejudiced as a result. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). If either part of the test is not satisfied, the claim fails. Hendrickson, 129 Wn.2d at 78. There is a presumption of effective representation requiring the defendant to demonstrate the absence of a legitimate strategic or tactical reason supporting the challenged conduct. Hendrickson, 129 Wn.2d at 78-79.
The record does not establish that the trial court denied Antunez his right to allocution. The record shows, that after discussing Antunez's parole status on other charges, the trial court asked him, "Anything further, sir?" RP at 285. Antunez did not respond. His counsel then elicited a response from Antunez by asking him a question about his previous employment. There is no indication in the record as to how much time elapsed between the trial court's question to Antunez and his counsel's inquiry. Nothing in the record indicates that his counsel's question was improper; in fact, it appears that counsel was encouraging Antunez to speak on his own behalf when the trial court had specifically invited allocution.
Furthermore, even if his counsel's performance were deficient, Antunez has failed to establish any prejudice. The trial court imposed a midrange sentence, commensurate with Antunez's offenses and offender score. Accordingly, we hold that Antunez's ineffective assistance of counsel claim fails.
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.
ARMSTRONG, J., PENOYAR, J., concur.