Opinion
No. 37255-0-II.
January 13, 2009.
Appeal from a judgment of the Superior Court for Kitsap County, No. 07-1-01354-5, Leila Mills, J., entered December 7, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Penoyar, A.C.J., and Hunt, J.
UNPUBLISHED OPINION
Brian M. Anderson appeals his Kitsap County convictions of residential burglary and second degree theft. He contends that the evidence is insufficient to support the jury's verdicts. We affirm.
A commissioner of this court reviewed the matter pursuant to RAP 18.14, and referred it to a panel of judges.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it would permit any rational trier of fact to find the essential elements of the crime 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 requires that all reasonable inferences be drawn in favor of the State and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201. Circumstantial evidence is equally as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to appellate review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
FACTS
The following evidence was presented to the jury. The burglary occurred at the home of William and Stephanie Keith, in the early morning hours of September 25, 2007. The Keiths and their two children were asleep, but Stephanie awoke because she heard the sound of a door opening or closing. Then she heard the "beep, beep" sound of one of the family vehicles being unlocked. Report of Proceedings (RP) (Nov. 20, 2007) at 55. She went downstairs, saw that the front door was wide open, and called to her husband. The couple's investigation revealed that one of the windows was open and missing its screen. In addition, Stephanie's purse was upside down, its contents spilled out on the kitchen counter. Her two wallets and cell phone were missing. Also missing were three sets of keys that included house and vehicle keys. The Keiths called 911.
Kitsap County Deputy Sheriff Mark McVey responded, arriving at the Keiths' home in less than five minutes. It was approximately 2:50 a.m. He requested the assistance of a K-9 unit. Bremerton Police Officer Brian Johnson arrived with his dog Tabor shortly after 3:00 a.m. Tabor picked up a scent and followed it to a nearby neighbor's yard where Anderson was sitting or lying in the grass, hidden from the street by trees and bushes. The dog bit Anderson's left leg and held him until Officer Johnson gave the release command.
Deputy McVey, who had accompanied Johnson and Tabor, took custody of Anderson. Anderson was wearing a black Nike backpack, which contained many of the Keiths' missing items, along with Anderson's personal belongings. The backpack, itself, belonged to the Keiths' 10-year-old son. A search of Anderson's pockets turned up two sets of the Keiths' missing keys and the cell phone. Anderson told Deputy McVey that he was homeless and had been sleeping in the yard. He said that someone had run by and thrown the backpack at him. He thought the unknown person "was just being nice" because he is homeless. RP (Nov. 20, 2007) at 95.
Kitsap County Detective Steve Duckworth interviewed Anderson in the county jail later in the morning of the burglary. Anderson also told Duckworth that he was homeless, but conceded that his mother would say that he lived with her. He again asserted that he had come into possession of the backpack while sleeping in the yard where he was found, but offered a slightly different description of the incident, explaining that someone had tripped over him and dropped it. When Duckworth asked him whether his fingerprints might be found inside the Keiths' house, he was noncommittal, asserting that he "probably had walked by the house in the past." RP (Nov. 20, 2007) at 135-36. In response to a similar question about the Keiths' cars, Anderson said that they might have given him a ride somewhere in the past.
Anderson presented a third explanation at trial. He told the jury that he was living with his mother in Bremerton, but on the evening of September 24, 2007, he had spent time at the Hi-Joy bowling alley in Port Orchard. When he went to the ferry dock to return to Bremerton, he discovered that he had missed the last ferry.
At the terminal, he ran into a friend, Norman Hetrick, who said he could get some methamphetamine for Anderson. Anderson accompanied Hetrick on an hour's walk to the neighborhood in which the Keiths lived. Hetrick told him to wait in the yard where he was subsequently arrested, and left to check on availability of the drug. After about 15 minutes, he returned, took $80 from Anderson, gave Anderson the backpack as collateral, and told Anderson he would be right back. He did not return. Anderson explained that the keys and cell phone were in his pocket, rather than in the backpack, because Hetrick had handed those to him separately. It did not seem odd to him that Hetrick had several sets of keys, but no car. The jury convicted Anderson as charged.
DISCUSSION
Anderson first contends that there was insufficient proof of the burglary because there was nothing to connect him with the Keiths' house. It is true that proof of possession of stolen property is not sufficient to prove burglary unless accompanied by other inculpatory evidence. State v. Mace, 97 Wn.2d 840, 843, 650 P.2d 217 (1982). Such evidence can include a false or improbable explanation of possession, flight, use of a fictitious name, or the presence of the accused near the scene of the crime. Mace, 97 Wn.2d at 843.
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).
Here, Anderson was near the site of the burglary, shortly after the crime occurred, and the K-9 dog tracked to him. In addition, he offered several improbable and inconsistent explanations for his possession of the Keiths' property. He asserts that the inconsistencies were the result of drug and alcohol use, and the dog might have attacked him because of the scent left on the backpack by the real burglar. Those assertions were disputed by other witnesses. Neither Deputy McVey nor Detective Duckworth had any difficulty communicating with him. Officer Johnson testified that if Tabor had been following a different scent than Anderson's, he would have continued to track. The evidence and the reasonable inferences from it must be viewed in the light most favorable to the State. Salinas, 119 Wn.2d at 201. Certainly in that light, there was more than enough collateral evidence to connect Anderson to the Keiths' residence, and thus prove the burglary.
As to his conviction of second degree theft, Anderson argues that the State did not prove that the stolen property exceeded $250 in value. That is a requirement under the first alternative means of committing the crime, RCW 9A.56.040(a). The State charged Anderson under RCW 9A.56.040(c), which is based on the taking of an "access device." An "access device" is:
any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.
RCW 9A.56.010(1). There is no dispute that the backpack contained Stephanie Keith's Navy Federal Credit Union Visa debit card and Bank of America MasterCard. That was entirely sufficient to prove the charge.
The judgment is 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.
HUNT, J. and PENOYAR, A.C.J., concur