Opinion
No. 25968-4-III.
June 10, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 06-1-03035-0, Ruth E. Reukauf, J., entered March 2, 2007.
Affirmed in part and reversed in part by unpublished opinion per Thompson, J. Pro Tem., concurred in by Kulik, A.C.J., and Korsmo, J.
Boyd Allen Enfield appeals his five convictions of possession of stolen property, claiming they violate the constitutional bar against double jeopardy. He also contends his offender score was improperly calculated. In his pro se statement of additional grounds, Mr. Enfield raises numerous claims, including instructional error, prosecutorial misconduct, cumulative error, and trial court error for failing to consider a drug offender sentencing alternative (DOSA), RCW 9.94A.660. Holding that two of Mr. Enfield's convictions violate double jeopardy, we reverse in part and affirm in part.
FACTS
On December 21, 2006, Sergeant Gregory Cobb was on duty when he saw a Chrysler PT Cruiser, which had been reported stolen. When he pulled behind the car, the driver, later identified as Mr. Enfield, accelerated. Sergeant Cobb activated his lights and siren and pursued the car. Another officer eventually stopped and arrested Mr. Enfield. Police recovered multiple stolen items from the car, including a suitcase with John Appleby's name tag attached to it, various personal items, and a bag of tools. They also found credit cards belonging to Mr. Appleby and Alicia Enyart in Mr. Enfield's wallet.
Two days later, police responded to a report of a parked pickup that appeared suspicious. A license check revealed that the pickup was stolen and belonged to Mr. Appleby. A tenant in a nearby apartment told police the truck had been parked in the area since early December and that she had seen Mr. Enfield driving the truck.
The State charged Mr. Enfield with numerous counts. The five at issue here involve two counts of first degree possession of stolen property relating to the PT Cruiser and the truck, one count of second degree possession of stolen property for the personal items found in the PT Cruiser, and two counts of second degree possession of stolen property pertaining to the stolen access devices.
At trial, Randy Appleby testified that he was at his brother's house and noticed that his brother's truck was gone. John Appleby testified that he was in Seattle when his brother called and that the truck was later recovered about 10 blocks from his house. He testified that various items were taken from his house, including the keys to his PT Cruiser. Two weeks later his PT Cruiser was stolen from his carport. Mr. Enfield was ultimately convicted of numerous counts, including five counts of possession of stolen property.
ANALYSIS
Mr. Enfield first contends that his convictions for possession of stolen property violate double jeopardy. He did not raise this issue at trial, but a constitutional challenge may be raised for the first time on appeal. State v. Adel, 136 Wn.2d 629, 631-32, 965 P.2d 1072 (1998). Our review is de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
The double jeopardy clause of the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Washington State Constitution provides that "[n]o person shall be . . . twice put in jeopardy for the same offense." Const. art. I, § 9. The two clauses provide the same protection. In re Pers. Restraint of Davis, 142 Wn.2d 165, 171, 12 P.3d 603 (2000). "Double jeopardy principles protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the same crime." State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002).
Mr. Enfield contends that four of his five convictions for possession of stolen property must be dismissed because they constitute the same offense for double jeopardy purposes. Relying primarily on State v. McReynolds, 117 Wn. App. 309, 71 P.3d 663 (2003), Mr. Enfield points out that simultaneous possession of various items of property stolen from multiple owners constitutes one unit of prosecution of the crime. McReynolds, 117 Wn. App. at 335-40.
We reject Mr. Enfield's argument as to the two convictions involving possession of stolen credit cards. It is well settled that each stolen access device constitutes a discrete unit of prosecution. State v. Ose, 156 Wn.2d 140, 148, 124 P.3d 635 (2005). Accordingly, Mr. Enfield's two convictions for second degree possession of property involving stolen access devices do not violate double jeopardy.
However, we conclude that the other two possession convictions violate double jeopardy under the rule enunciated in McReynolds. In McReynolds, the defendants were convicted of multiple counts of possessing stolen property based on their possession of various items of stolen property from different owners over a period of 15 days. We held that these multiple convictions violated double jeopardy, pointing out that the identity of the property's owner, the property's location, or its connection to a specific theft or burglary were not elements of the crime of possession of stolen property. McReynolds, 117 Wn. App. at 340. We also explained that when a crime is defined as a course of conduct over a period of time, then it constitutes a continuous offense and prosecution for the remainder is barred. Id. at 339. We ultimately held that the simultaneous possession of articles stolen at different times and from different persons constitutes one offense. Id.
Applying McReynolds here, we conclude that Mr. Enfield's conviction for possessing the items of personal property found in Mr. Appleby's car violates double jeopardy. The information and judgment and sentence both indicate that this offense, count 4, occurred on or about December 21. Mr. Enfield was charged and convicted of possessing the PT Cruiser on the same date. Such simultaneous possession of stolen property constitutes one unit of prosecution. Id. Accordingly, count 4 should be dismissed.
Whether Mr. Enfield's possession of the stolen truck (count 9) violates double jeopardy is more difficult to determine. The State argues that Mr. Enfield's possession of the Ford truck is discrete from his possession of the PT Cruiser because Mr. Enfield possessed the PT Cruiser on December 21, whereas he possessed the truck in early December and parked it in a different location than the PT Cruiser.
We find this analysis problematic. The defendants in McReynolds also possessed stolen property over a period of two weeks. Nevertheless, we concluded that this " continuous possession of various property during a period of 15 days" constituted one unit of prosecution. Id. at 340. Under this analysis, Mr. Enfield's possession of the truck and other stolen items is a single act of possession. The charging documents and judgment and sentence indicate that Mr. Enfield possessed the stolen truck between December 6 and December 21. The evidence at trial did not pinpoint the actual date Mr. Enfield took possession of the truck. Under McReynolds, Mr. Enfield's continuous possession of various times of stolen property gives rise to only one act of possessing all the stolen property. Therefore, Mr. Enfield's conviction for count 9 violates double jeopardy.
Mr. Enfield next challenges the calculation of his offender score. He contends that four of his convictions for possession of stolen property constitute the same criminal conduct and trial counsel was ineffective for failing to point this out at sentencing. Effective assistance of counsel is guaranteed under the federal and state constitutions. U.S. Const. amend. VI; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, Mr. Enfield must show that counsel's deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Mr. Enfield argues that if his multiple possession convictions had been identified as the same criminal conduct, his "offender score would have been reduced by three points, and he would more likely have received a sentence near the middle of the standard range." Appellant's Br. at 12. However, the record indicates that even if four of the convictions were counted as the same criminal conduct, Mr. Enfield's offender score would remain a "9." Therefore, a same criminal conduct finding would not have affected his sentence. Mr. Enfield fails to demonstrate prejudice from counsel's failure to challenge the offender score calculation. Accordingly, his ineffective assistance of counsel argument fails.
Statement of Additional Grounds
In his pro se statement of additional grounds, Mr. Enfield claims error was committed when the trial court refused to give his proposed instruction on circumstantial evidence pursuant to State v. Douglas, 71 Wn.2d 303, 428 P.2d 535 (1967). At trial, Mr. Enfield, not defense counsel, asked that the instruction be given. The court did not include the instruction, but noted Mr. Enfield's pro se objection for the record. The court ultimately instructed the jury that "[t]he law makes no distinction between the weight to be given to either direct or circumstantial evidence." Clerk's Papers at 40.
Mr. Enfield does not explain why he thinks a Douglas instruction should be given in this case. In Douglas, the Court held that a multiple hypothesis instruction should be given where circumstantial evidence alone sustains a conviction. Douglas, 71 Wn.2d at 307-08. "'In order to sustain a conviction on circumstantial evidence, the circumstances proved by the state must not only be consistent with each other and consistent with the hypothesis that the accused is guilty, but also must be inconsistent with any hypothesis or theory which would establish, or tend to establish, his innocence.'" Id. at 307 (quoting State v. Gillingham, 33 Wn.2d 847, 854, 207 P.2d 737 (1949)).
The Court later rejected this rule, noting that circumstantial evidence is no less trustworthy than direct evidence. State v. Gosby, 85 Wn.2d 758, 766, 539 P.2d 680 (1975). It held:
Whether direct evidence, circumstantial evidence, or a combination of these two types of evidence is involved, the jury should only be instructed that it must be convinced beyond a reasonable doubt that the defendant is guilty. The so-called multiple hypothesis circumstantial evidence instruction which has been required . . . should no longer be given.
Id. at 767 (citations omitted).
Here, the jury was properly instructed on reasonable doubt and the weight accorded to direct and circumstantial evidence. This was sufficient.
Mr. Enfield's remaining claims include prosecutorial misconduct, erroneous "to convict" instructions, cumulative error, and trial court error for failing to consider a DOSA. Mr. Enfield provides scant argument and no citation to the record for these claims. Although he is not required to provide citations, we are "not obligated to search the record in support of claims made in a defendant/appellant's statement of additional grounds." RAP 10.10(c). Thus, his claims fail.
Affirmed in part and reversed in part.
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, A.C.J. and KORSMO, J., concur.