Opinion
No. 23991-8-III.
December 5, 2006.
Appeal from a judgment of the Superior Court for Columbia County, No. 04-1-00034-9, William D. Acey, J., entered March 31, 2005.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, Spokane, WA, 99223-3005.
Counsel for Respondent(s), Colleen G Fenn, Attorney at Law, Dayton, WA, 99328-1149.
Authored by TERESA C. KULIK, Concurring: JOHN A. SCHULTHEIS, KENNETH H. KATO.
UNPUBLISHED OPINION
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Kato, J.
Michael Milner was convicted by a jury of residential burglary and first degree theft. In this appeal, Mr. Milner argues that the jury had insufficient evidence to identify him as the burglar. Considering both direct and circumstantial evidence, the jury had sufficient evidence to convict Mr. Milner. We affirm.
FACTS
On June 12, 2004, Brooke Lewis found her trailer in disarray and her T.V., stereo and towels missing. After calling her landlord, Ms. Lewis called the police.
Deputy Jeff Jenkins responded to Ms. Lewis's burglary call. Deputy Jenkins noticed that the doorknob on Ms. Lewis's trailer had been twisted and that the door had been opened. Deputy Jenkins took digital pictures of the scene and lifted fingerprints from items he thought the perpetrator might have touched. He did not submit the fingerprints for testing because he believed the evidence indicated that the suspect was wearing gloves. Upon examining the doorknob, Deputy Jenkins noticed damage that looked like teeth marks from a pair of pliers or a pipe wrench. He did not collect the doorknob that day, but went back later to collect it after Ms. Lewis had had the doorknob replaced with a new one.
After collecting the doorknob, Deputy Jenkins spoke to Ms. Shirley Weeden, a neighbor next door to Ms. Lewis. Michael Milner had been living in Ms. Weeden's trailer and acting as her caretaker. Before the burglary, Mr. Milner moved out of Ms. Weeden's trailer and was living out of his car. Ms. Weeden told Deputy Jenkins that she had seen Mr. Milner use a pipe wrench. Deputy Jenkins learned that the owner of the pipe wrench was Robert Cummins, also a neighbor in the trailer park. Deputy Jenkins retrieved the pipe wrench from Mr. Cummins.
Prior to the burglary, Mr. Cummins' wife, Julie Cummins, had given Mr. Milner permission to borrow the pipe wrench to fix a leak at Ms. Weeden's trailer. Mrs. Cummins next saw the pipe wrench lying in front of Ms. Weeden's trailer on a concrete slab some time after the burglary of Ms. Lewis's trailer. Mr. Cummins then took the pipe wrench home, where it remained until Deputy Jenkins took it.
Deputy Jenkins sent both the pipe wrench and the doorknob to the Washington State Crime Lab for comparison. Experts from the crime lab determined that the pipe wrench had made the teeth marks on the doorknob.
On June 13, 2004, Sergeant Stephen Gallagher pulled over Mr. Milner's car during a traffic stop. Dispatch had informed Sergeant Gallagher that the car belonged to Mr. Milner, and that he did not possess a valid driver's license. Upon stopping Mr. Milner's car, Sergeant Gallagher saw a haphazardly connected car stereo. He suspected that the stereo may have been stolen from Kyle's Towing, which earlier had experienced a series of thefts of stereo equipment from its tow yard.
Since Mr. Milner did not have a valid driver's license, he could not drive his car away. Sergeant Gallagher then called Kyle's Towing to remove the car. While preparing to tow the car, Kyle Anderson, of Kyle's Towing, saw the suspicious car stereo and recognized it as the same make and model as one stolen a few nights before.
When the car reached the tow yard, Kyle Anderson's brother was present. He had spent time in Brooke Lewis's trailer before the robbery, and thought that the towels seen lying inside Mr. Milner's car looked similar to the ones stolen from Brooke Lewis. Sergeant Gallagher obtained a search warrant for Mr. Milner's car and searched it with Deputy Jenkins. Deputy Jenkins then contacted Brooke Lewis, who identified some of the items in Mr. Milner's car as items stolen from her trailer.
Subsequently, Sergeant Gallagher visited Wayne Schroeder, a friend of Mr. Milner's. Earlier, Mr. Schroeder had chased Mr. Milner off of his property. Mr. Schroeder showed Sergeant Gallagher a large T.V. set, apparently left by Mr. Milner. Sergeant Gallagher took this T.V. set to Brooke Lewis, who identified it as the one stolen from her home.
Mr. Milner was arrested for possession of stolen property. Mr. Milner claimed that the T.V. set was his, and that he had received it from somebody either as a gift or through a purchase. However, Mr. Milner refused to name the person or give a description of the person who gave him the T.V. During an interview with Deputy Jenkins, Mr. Milner also claimed that he had purchased the stolen items from someone. Again, he would not identify or name this person.
At trial, Ms. Weeden testified that thefts had occurred at the trailer park before. She also testified that she had previously seen young people, approximately 19 years of age, lurking about Ms. Lewis's trailer. One of these people was a trailer park resident named Shawn Treib. Ms. Weeden also testified that, to her knowledge, Mr. Milner did not have generous friends who could have given him brand new towels. Ms. Weeden stated that Mr. Milner told her that he traded drugs for the stolen items.
Contrary to Ms. Weeden's testimony, Shawn Treib testified that he had never seen crowds of young people lurking about the trailer park. He also testified that he never looked into Ms. Lewis's trailer.
The jury found Mr. Milner guilty of residential burglary and first degree theft.
ANALYSIS
Was there sufficient evidence to support Mr. Milner's convictions for residential burglary and theft?
In reviewing the sufficiency of the evidence to support a conviction, this court must determine whether, after viewing all of the evidence in the light most favorable to the State, a jury could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A criminal defendant claiming insufficiency of the evidence admits the truth of all of the State's evidence, along with any reasonable inferences in favor of the State that may be drawn therefrom. Id.
The reviewing court considers circumstantial evidence to be as equally reliable as direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). The jury determines the credibility of witnesses and evidence, and such determinations cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The identity of a criminal defendant is a question of fact for the fact finder and "any relevant fact, either direct or circumstantial, which would convince or tend to convince a person of ordinary judgment, in carrying on his everyday affairs, of the identity of a person should be received and evaluated." State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974).
At issue here is whether the jury had sufficient evidence to conclude that Mr. Milner, not someone else, committed this burglary. Mr. Milner argues that while the State provided ample evidence showing his possession of the stolen goods, the State failed to provide evidence that he committed the burglary.
Based on the record, there was sufficient evidence to convict Mr. Milner. He was the last person known to have used the pipe wrench prior to the burglary. Experts concluded that this pipe wrench broke Ms. Lewis's doorknob. Mr. Milner was also in possession of the stolen items. Finally, although Mr. Milner claims he received these items from a third party, he consistently refused to name or describe the person or persons who allegedly gave him the stolen items.
We conclude that the jury had sufficient evidence to convict Mr. Milner.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
1. Was it appropriate for the prosecutor to inform the victim of Mr. Milner's criminal history?
RPC 3.8 governs the special responsibilities of a prosecutor in a criminal case. Mr. Milner argues that the prosecutor in this case informed Ms. Lewis of his past criminal record, and as a result, Ms. Lewis mentioned his criminal record in court prior to the trial judge's rejection of the plea agreement. Nowhere does RPC 3.8 prohibit a prosecutor from informing a victim of a defendant's criminal history. Therefore, the prosecutor here did not act inappropriately.
2. Did the jury properly convict Mr. Milner when the record showed conflicting dates on the occurrence of the crime?
Under ER 103(a), harmless evidentiary errors are disregarded. Primm v. Wockner, 56 Wn.2d 215, 351 P.2d 933 (1960). Mr. Milner argues error in that the Clerk's Papers, on pages 1 and 25, show conflicting dates on the occurrence of the crime. Since this error does not substantially affect Mr. Milner's conviction, its presence is negligible.
3. Was there sufficient evidence to convict when the fingerprints taken from the crime scene were not tested?
Mr. Milner argues that, without the fingerprints taken by Deputy Jenkins, the jury had insufficient evidence to convict him. As explained earlier, even without the fingerprints, the record showed sufficient evidence for the jury to convict Mr. Milner of the burglary and theft.
4. Did the trial judge act properly in rejecting a plea agreement after the victim informed the court of Mr. Milner's past criminal record?
Under RCW 9.94A.431(1), the prosecutor must inform the court whether the victim of the crime objects to or wishes to comment on the plea agreement. The court then determines, at the time of the plea, whether the agreement is "consistent with the interests of justice and with the prosecuting standards." RCW 9.94A.431(1). Mr. Milner argues that the trial judge acted improperly in rejecting the plea agreement after hearing Ms. Lewis's statement. RCW 9.94A.431, however, gives the court wide discretion on the acceptance or rejection of a plea agreement. Accordingly, the judge acted with the proper authority to reject Mr. Milner's plea agreement.
5. Did the jury properly convict Mr. Milner when the record shows conflicting evidence?
Mr. Milner asserts that the jury improperly convicted him based on conflicting testimony. We reject his assertions.
Findings of fact are within the realm of the trial court, and not the appellate court. Camarillo, 115 Wn.2d at 71. It is the jury's duty to determine the credibility of witnesses. This court does not have the discretion to challenge findings of fact by the jury.
6. Did the court err in allowing hearsay testimony that Mr. Milner was planning a robbery?
Under ER 801(c), hearsay is defined as a statement, other than one made by the declarant while testifying, offered to prove the truth of the matter asserted. Mr. Milner contends that the trial court erred by admitting hearsay from Ms. Lewis's testimony concerning a plan for a robbery. Even assuming this to be true, Mr. Milner cannot identify any prejudice flowing from this alleged error. As such, he has not established that he is entitled to relief.
We affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, J.
WE CONCUR:
Schultheis, A.C.J.
Kato, J.