Opinion
No. 67136-7-I.
Filed: August 1, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Thurston County, No. 09-1-01648-1, Wm. Thomas McPhee, J., entered February 2, 2010.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Lau and Spearman, JJ.
Corder appeals his conviction of burglary in the second degree on the grounds that insufficient evidence supported his conviction. He also argues pro se that he received ineffective assistance of counsel. We affirm.
FACTS
While on routine patrol of his normal area in the early morning hours, Olympia Police Officer Jason Watkins noticed a truck in the parking lot of the Hope Community Church, an unusual sight. Watkins contacted dispatch and approached the vehicle, noticing that no one was inside but the hood was still warm. Watkins then inspected the area and noticed an open window. He noted that the screen had been removed from the window.
Additional officers responded. While waiting for someone affiliated with the church to provide a key to the church, the officers looked in a window. They observed a person, later identified as Brandon Corder, carrying a large object in his left hand, which they described as looking like a rifle or a shotgun. The person entered the room that the officers were observing and left again. Once they obtained a key, the officers entered the church and took Corder into custody. Nothing of evidentiary value was found on Corder at the time of his arrest. Corder was the only person found in the church. He did not have permission to be in the church.
The officers searched the church and discovered numerous doors forced open, papers and credit cards strewn about, multiple desk drawers and cabinets opened, and the church safe damaged. The police also found a hammer, a pry bar, a screwdriver, a flashlight, and small pieces of electronics in the building. Steven Morgan, the chairman of the church leadership team, testified that those tools had been found in unusual places, not placed there by a member of the church. Marks showed a pry bar was used to open locked doors. Officer Watkins testified that the item he had seen Corder carrying, which he had at first thought was a rifle or a shotgun, was likely the pry bar.
The State charged Corder with burglary in the second degree. Corder did not testify at trial. The jury found Corder guilty as charged. Corder appeals.
DISCUSSION
I. Sufficiency of the Evidence
Corder argues that the State failed to prove sufficient evidence to support his conviction of burglary in the second degree. 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 jury could find the essential elements of a crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from the evidence must be drawn in favor of the verdict and interpreted strongly against the defendant. Id. A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it. Id. Circumstantial evidence is no less reliable than direct evidence and "specific criminal intent of the accused may be inferred from the conduct where it is plainly indicated as a matter of logical probability." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Further, we defer to the fact finder on issues of witness credibility. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
In order to prove second degree burglary, the State was required to show that Corder unlawfully entered or unlawfully remained in the church and that he intended to commit a crime against a person or property in the building. Former RCW 9A.52.030(1) (1989) (Laws of 1989, chap. 412, § 2), amended by Laws of 2011, ch. 336, § 370 (effective July 22, 2011). The intent required for burglary is intent to commit any crime inside the burglarized premises. State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985).
Former RCW 9A.52.030(1) provided: "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."
Corder argues that the State failed to prove that he was inside the church with the intent to commit a crime. He argues that he did not have any items of value related to the burglary on his person at the time of his arrest. He also argues that the State's evidence showed that the hood of his truck was still warm when the officers approached the church, proving that he could not have been in the church long enough to cause the extensive damage they found.
RCW 9A.52.040 provides for an inference of intent:
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 trial court instructed the jury as to this inference:
A 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. This inference is not binding upon you, and it is for you to determine what weight, if any, such inference is to be given.
Our Supreme Court held in State v. Brunson that this instruction created a permissive inference, not a mandatory presumption, because the language in the instruction is discretionary and allows the trier of fact to reject the inference as it sees fit. 128 Wn.2d 98, 107, 905 P.2d 346 (1995); see also State v. Drum, 168 Wn.2d 23, 35-37, 225 P.3d 237 (2010) (recognizing the continued viability of the Brunson rule). Our Supreme Court further recognized that when a permissive inference is the "`sole and sufficient' proof of an element," the presumed fact must flow beyond a reasonable doubt from the proven fact, so that the prosecution does not "circumvent its burden of persuasion." Brunson, 128 Wn.2d at 107 (quoting County Court of Ulster County v. Allen, 442 U.S. 140, 167, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979)). On the other hand, where the inference is only part of the State's proof, the presumed fact must flow more likely than not from a proven fact. Id.
The result in Brunson was that there was sufficient evidence to sustain the defendants' convictions. Id. at 110-11. For one defendant, the evidence against him was his attempted entry through a kitchen window, his "implausible" excuse that he simply wanted to use the phone, and the fact that kitchenware from the house was found in the yard outside. Id. at 109. Our Supreme Court held that the permissive inference allowed by the jury instruction was not the sole and sufficient proof of criminal intent and that the circumstantial evidence was enough for the jury to find the defendant intended to commit a crime, regardless of the inference. Id. at 109, 111.
Similarly, here the evidence was sufficient to show that Corder was guilty of second degree burglary. Corder was present in the church without permission in the early morning hours. He entered through a window. It can be inferred from the evidence that the officers saw Corder holding the pry bar with which much of the internal damage was likely caused. The forced doors, rifled drawers and cabinets, and damage to the safe are also circumstantial evidence of an intent to commit a crime. The circumstantial evidence, with or without the permissive inference arising from Corder's presence in the church, allowed a rational juror to infer that Corder unlawfully entered the church with the intent to commit a crime.
Sufficient evidence supported Corder's conviction of burglary in the second degree.
II. Statement of Additional Grounds
Corder argues in his statement of additional grounds that his attorney was ineffective. To prevail on a claim of ineffective assistance of counsel, a defendant must establish both ineffective representation and resulting prejudice. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Corder first argues that counsel was ineffective because he failed to investigate Corder's suggested witnesses. Corder argues that, at minimum, his witnesses would have been able to show that he did not arrive at the church in time to cause the amount of damage found by the police. The decision to call a witness is generally a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel. State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981). To evaluate whether failing to present additional witnesses as to the timing of Corder's arrival at the church constituted ineffective assistance would require us to inquire into evidence not contained in the record. We may not consider additional evidence not presented at trial. RAP 9.1. Corder's remedy, if any, lies in a personal restraint petition.
Corder presented several new pieces of evidence in his statement of additional grounds. Corder did not testify at trial. We may not now consider his non-criminal explanation for being in the church. We also may not consider the declarations and other evidence submitted by Corder along with his statement of additional grounds.
Corder next argues that his counsel failed to ask for a continuance to allow Corder to pursue private counsel. But, the record reflects that counsel did request a continuance on Corder's behalf prior to the commencement of trial on the grounds that Corder may have been able to save the money for a retainer for a private attorney. The motion was denied.
Corder fails to show ineffective assistance of counsel. We affirm.
WE CONCUR: