Opinion
No. 35549-3-II.
June 17, 2008.
Appeal from a judgment of the Superior Court for Clallam County, No. 06-1-00160-4, George L. Wood, J., and Susan Owens, J. Pro Tem., entered November 3, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Armstrong, J.
Justen William DeFrang appeals from his convictions for first degree possession of stolen property and residential burglary. We affirm.
We note that the appellant's first name is spelled Justin and Justen. Based on the spelling in his Statement of Additional Grounds, we use Justen in this opinion.
FACTS
On the evening of March 6, 2006, DeFrang, Ron Leppanen, and Nicole Parker spent the night sleeping in DeFrang's 1995 white Chevrolet Blazer. They awoke on March 7 and drove around looking for gas. They noticed people leaving a house, assumed it was empty, and allegedly proceeded to burglarize it.
The house that was burglarized is located at 2903 W. 18th Street, Port Angeles, WA.
DeFrang broke through the front door with his shoulder. He and Leppanen ransacked the house, while Parker stayed in the car and acted as a lookout. After removing several items from the house, they drove away without incident. Shortly thereafter a neighbor called the police because he noticed that the front door to the house was open. Police stopped the car, impounded it, and obtained a search warrant for the vehicle.
During the search, the officers obtained comic books, baseball cards, basketball cards, memorabilia, a Nintendo system and games, a Playstation and games, sports jerseys, and tools. After the burglary victims identified the stolen property, the State charged DeFrang with one count of residential burglary and one count of first degree possession of stolen property.
The jury began its deliberations on the fourth day of trial. It deliberated for most of the fourth day, until the trial court excused it at 4:30 pm. After deliberating for part of the fifth day, the presiding juror notified the trial court that the jury had a verdict on one count, but could not reach a verdict on the second count.
The substitute trial judge called the jury into the courtroom. With all parties present, the substitute trial court judge cautioned that it was important she not make any remark that may adversely affect the rights of the parties. She instructed the presiding juror not to disclose any information about the deliberations, except to answer her specific questions with a "yes" or "no." RP (Aug. 11, 2006) at 3. The substitute trial judge then engaged in the following exchange:
Justice Susan Owens presided over the proceedings on August 11, 2006, the final day of jury deliberations.
THE COURT: . . .
Is there a reasonable possibility of the jury reaching an agreement within a reasonable time as to any of the other counts?
[PRESIDING JUROR]: No.
THE COURT: Okay. Counsel have any questions or wish additional inquiry?
[defense counsel]: No.
[PROSECUTOR]: No, Your Honor, thank you.
THE COURT: Okay in that case we would — I would receive the verdict.
Verdict for [sic] A, which would be the charge of Residential Burglary, Count I, is the verdict that you could not reach?
[PRESIDING JUROR] Yes.
THE COURT: Verdict form B, "We the jury find the defendant, Justin William Defrang [sic], guilty of the crime of Possession of Stolen Property in the First Degree, as charged in Count II.
Would you like the jury polled?
[PROSECUTOR]: No, Your Honor, not from the State. [defense counsel]: Only as to that verdict, Your Honor.
RP (Aug. 11, 2006) at 3.
After polling, the substitute trial judge discharged the jury, but did not make oral findings related to the discharge. Nor did the substitute trial judge formally declare a mistrial on the record. Upon discharge, defense counsel asked the trial court to advise the jury members that they were free to discuss the matter with others, including counsel if they were so inclined. When the jury left the courtroom, the deputy prosecutor announced the State's intention to re-file residential burglary charges against DeFrang.
Thereafter, the State re-filed the residential burglary charge against DeFrang and a jury convicted him as charged. The trial court sentenced him for both convictions.
ANALYSIS I. Double Jeopardy
DeFrang first contends that his residential burglary conviction violates his constitutional right not to be twice put in jeopardy for the same offense. "The double jeopardy clause of the Fifth Amendment protects the criminal defendant from repeated prosecutions for the same offense." State v. Juarez, 115 Wn. App. 881, 886, 64 P.3d 83 (2003) (citing United States v. Dinitz, 424 U.S. 600, 606, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976)). It also protects the right of the defendant to be tried by the jury he selected. State v. Jones, 97 Wn.2d 159, 162, 641 P.2d 708 (1982) (citing Arizona v. Washington, 434 U.S. 497, 503 n. 11, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)).
When a trial court grants a mistrial without the defendant's consent and after jeopardy has attached, retrial is barred by double jeopardy principles unless the mistrial was justified by manifest necessity. Juarez, 115 Wn. App. at 889. Manifest necessity exists when "extraordinary and striking" circumstances that clearly indicate that substantial justice cannot be obtained without discontinuing the trial. Juarez, 115 Wn. App. at 889 (citing Jones, 97 Wn.2d at 164). When a jury acknowledges, through its presiding juror and on its own accord, that it is hopelessly deadlocked, there is a factual basis sufficient to constitute the "extraordinary and striking" circumstance necessary to justify discharge. Jones, 97 Wn.2d at 164. Other factors a judge should consider include the length of deliberations in light of the length of trial, and the volume and complexity of the evidence. State v. Kirk, 64 Wn. App. 788, 793, 828 P.2d 1128 (citing Jones, 97 Wn. App. at 164), review denied, 119 Wn.2d 1025 (1992). "Where the judge who sits with the jury did not hear the case, information with regard to the nature of the evidence and length of the trial can be supplied by counsel." State v. Boogaard, 90 Wn.2d 733, 739, 585 P.2d 789 (1978). A reviewing court accords great deference to a trial court's declaration of a mistrial due to jury deadlock. Jones, 97 Wn.2d at 163.
Here, the jury twice sent inquiries to the trial court during its deliberation. On its second day of deliberations, the jury indicated that although it reached a verdict on the possession of stolen property count, it could not reach a decision on the residential burglary count. The trial court proceeded to summon the jury and ask the presiding juror whether "there [was] a reasonable possibility of the jury reaching an agreement within a reasonable time[?]" RP (Aug. 11, 2006) at 3. These facts establish "extraordinary and striking" circumstances sufficient for the judge to exercise discretion to discharge the jury. See Jones, 97 Wn.2d at 164.
Nevertheless, DeFrang argues that the discharge was improper because the trial court (1) failed to ask all the jurors if they agreed with the presiding juror's claim that the jury was deadlocked; (2) failed to consider the length of deliberations, length of trial, and complexity of the issues; (3) failed to make findings required for discharge; and (4) failed to formally declare mistrial on the record. But DeFrang's arguments are unconvincing in light of the deference accorded to the substitute trial judge.
First, polling of individual jurors is not necessarily precluded. State v. Dykstra, 33 Wn. App. 648, 652, 656 P.2d 1137, review denied, 99 Wn.2d 1014 (1983). But we have expressly held that "the court has the discretion to rely on the representations of the [presiding juror]." Dykstra, 33 Wn. App. at 652. This is precisely what the substitute trial judge did in this case. She prefaced her questioning with a cautionary statement that the presiding juror should not make any remark that may adversely affect the parties. She then instructed the presiding juror to answer "yes" or "no" to her specific and limited questions. RP (Aug. 11, 2006) at 2. The substitute trial judge proceeded to ask the presiding juror whether there was a reasonable probability that the jury could reach a decision on residential burglary count. The presiding juror answered, "No," and the substitute trial judge had the discretion to rely on the presiding juror's statement. RP (Aug. 11, 2006) at 2; see Dykstra, 33 Wn. App. at 652.
Next, a trial judge is not required to consider on the record the length of deliberations, length of trial, and complexity of issues in rendering its decision to declare a mistrial when a jury is deadlocked. Boogaard, 90 Wn.2d at 739; see also Jones, 97 Wn.2d at 164. Rather, the language in past cases suggests that "[i]n exercising that discretion, the judge should consider the length of time the jury had been deliberating in light of the length of the trial and the volume and complexity of the evidence." Jones, 97 Wn.2d at 164 (citing Boogaard, 90 Wn.2d at 739) (emphasis added). We have previously found there are no particular procedures that the trial court must follow in determining the probability of the jury reaching an agreement. State v. Barnes, 85 Wn. App. 638, 657, 932 P.2d 669 (1997) (citing Boogaard, 90 Wn.2d at 738).
Here, the jury announced, sua sponte, that it was hopelessly deadlocked. After the trial court summoned the entire jury and both parties into the courtroom, the presiding juror confirmed that the jury could not reach a verdict on the one count of residential burglary. Therefore, the trial court had reason to believe the jury was truly deadlocked. In exercising its considerable discretion, it was not required to conduct a detailed inquiry. Barnes, 85 Wn. App. at 657.
And finally, although the substitute trial judge did not expressly declare a mistrial or make oral findings, it may be inferred from the record that both the State and DeFrang were well aware that the substitute trial judge was going to dismiss the jury as to the burglary count. Moreover, the substitute trial judge expressly gave both parties the opportunity to object.
The record on appeal does not include any written findings of fact or conclusions of law.
The substitute trial judge asked the presiding juror whether there was a reasonable probability that the jury could reach a decision on the residential burglary count. When the juror responded, "No," the trial judge asked the parties if they had "any questions or wish any additional inquiry." RP (Aug. 11, 2006) at 3. Both the State and DeFrang responded, "No." RP (Aug. 11, 2006) at 3. The substitute trial judge then received the verdict on the possession of stolen property count. Thereafter, she asked the parties if they would like the jury polled. The State did not, but DeFrang asked that the jury be polled "[o]nly as to the verdict." RP (Aug. 11, 2006) at 3. Following the polling of the jury, the substitute trial judge released the jurors. But before they left, DeFrang's counsel asked the substitute trial judge to remind the jurors that they could discuss the case with others; the substitute trial judge agreed and so instructed the jurors.
After the jury left the courtroom, the State indicated that it intended to re-file the residential burglary charge against DeFrang. DeFrang's attorney made no objections. He merely proceeded to discuss the sentencing hearing and scheduling matters. Given this record, we find it reasonable to infer that the trial court did not deprive DeFrang an opportunity to object or argue against the discharge.
In conclusion, we hold that the trial court did not abuse its discretion when it discharged the jury after the jury informed the trial court that it was hopelessly deadlocked on the residential burglary count. The jury informed the trial court, on its own accord, that it could not reach a verdict and this was sufficient to establish "extraordinary and striking" circumstances necessary to justify a mistrial. See Jones, 97 Wn.2d at 164. Despite DeFrang's procedural challenges to the actual declaration of mistrial, we hold that the trial court did not abuse its discretion. See Barnes, 85 Wn. App. at 657.
II. Accomplice Instruction
DeFrang also contends that the accomplice jury instruction in his second trial violated his constitutional right to due process. He argues that the instruction misstated the law by permitting the jury to convict him as an accomplice on the basis of mere presence and assent and in the absence of an overt act. But his argument is misguided.
As an initial matter, DeFrang failed to challenge the accomplice jury instruction below. He may raise the error for the first time on appeal if it is manifest, involving a constitutional right. RAP 2.5(a)(3). A manifest error is one that has practical and identifiable consequences in the trial of the case. State v. Roberts, 142 Wn.2d 471, 500, 14 P.3d 713 (2000). Although DeFrang includes no language in his brief as to why the alleged accomplice instruction constitutes a manifest error, it may be inferred that he believes the instruction was a manifest error because it relieved the State of the burden to prove an element of accomplice liability — an overt act.
If an instruction allows the jury to convict the defendant without finding an essential element of the crime charged, "'the State has been relieved of its burden of proving all elements of the crime(s) charged beyond a reasonable doubt.'" State v. Moran, 119 Wn. App. 197, 211, 81 P.3d 122 (2003), review denied, 151 Wn.2d 1032 (2004) (quoting State v. Stein, 144 Wn.2d 236, 241, 27 P.3d 184 (2001)). The failure of the trial court to properly instruct the jury on an element of the charged offense is an error of constitutional magnitude that may be raised for the first time on appeal. State v. Roggenkamp, 153 Wn.2d 614, 620, 106 P.3d 196 (2005). But accomplice liability is not an element of, or an alternative means of committing an offense. State v. Teal, 152 Wn.2d 333, 338, 96 P.3d 974 (2004). The elements of a crime are considered the same for a principal and an accomplice, and the rule requiring that all elements of a crime be listed in a single instruction is not violated when accomplice liability is described in a separate instruction. Teal, 152 Wn.2d at 338.
Here, the trial court provided residential burglary instructions in addition to the accomplice instruction. Thus, even if the accomplice instruction was improper, the trial court did not fail to instruct the jury on each element of the crime charged — residential burglary. See Roggenkamp, 153 Wn.2d at 620. Therefore, an erroneous accomplice instruction does not rise to constitutional magnitude which may be raised for the first time on appeal. See Roggenkamp, 153 Wn.2d at 620.
Yet, even if DeFrang's challenge to the accomplice instruction is of constitutional magnitude, it lacks merit. We review alleged errors in jury instructions de novo. State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213 (2005). Jury instructions are sufficient when, taken as a whole, they properly inform the jury of the applicable law, are not misleading, and permit the parties to argue their theory of the case. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999).
DeFrang is correct that an overt act is required to establish accomplice liability. "Mere presence at the scene of the crime, even if coupled with assent to it, is not sufficient to prove complicity. The State must prove that the defendant was ready to assist in the crime." State v. Luna, 71 Wn. App. 755, 759, 862 P.2d 620 (1993), accord State v. Peasley, 80 Wash. 99, 141 P. 316 (1914) (holding that something more than mere assent to an act is required before one can be charged as an aider or abettor). The intent to facilitate another in committing the crime by providing assistance through presence and actions makes an accomplice criminally liable. State v. Trout, 125 Wn. App. 403, 410, 105 P.3d 69, review denied, 155 Wn.2d 1005 (2005).
Here, the trial court used the Washington Practice Jury Instruction 10.51 to instruct the jury on accomplice liability. 11 Washington Practice: Washington Practice Jury Instructions: Criminal 10.51, at 136 (2d ed. 2005 supp.) (WPIC). The instruction provides:
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
A person who is an accomplice in the commission of the crime is guilty of that crime whether present at the scene or not.
WPIC 10.51; See also Suppl. CP at 43.
WPIC 10.51 is an accurate statement of the law. See 11 Washington Practice: Washington Practice Jury Instructions: Criminal 10.51, at 137 (2d. ed. 2005 supp.) ("[t]he language used in this 2005 update [of WPIC 10.51] was approved in State v. Moran, 119 Wn. App. [at] 209-10.); see also State v. O'Neal, 159 Wn.2d 500, 506 n. 5, 150 P.3d 1121 (2007)).
Here, the accomplice liability instruction varied from WPIC 10.51 by one word. The first sentence of the instruction read: "A person is an accomplice in the commission of the crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either. . . ." Suppl. CP at 43 (emphasis added). The trial court's use of the word "the" in the first sentence did not relieve the State of proving beyond a reasonable doubt that DeFrang knew he was facilitating the crime of residential burglary. Cf., State v. Cronin, 142 Wn.2d 568, 581-82, 14 P.3d 752 (2000). Because the accomplice liability instruction here complied with a proper recitation of WPIC 10.51, it follows that it is an accurate statement of the law. When read as a whole, it explained that "more than mere presence and knowledge of the criminal activity of another must be shown." Suppl. CP at 43. And juries are presumed to have followed the instructions given by the court. State v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). In short, DeFrang's due process rights were not violated.
III. Internal Inconsistency of Accomplice Instruction
Finally, DeFrang contends that the trial court's accomplice instruction was internally inconsistent, resulting in a clear misstatement of the law. This argument fails.
As discussed above, the trial court's accomplice liability instruction was an accurate statement of the law. See WPIC 10.51; O'Neal, 159 Wn.2d at 506 n. 5; Moran, 119 Wn. App. at 209-10. When taken as a whole, the jury instructions properly informed the jury of accomplice liability, they were not misleading, and permitted the State and DeFrang to argue their theories of the case. See Tili, 139 Wn.2d at 126. Therefore, we hold that the accomplice liability instruction is not internally inconsistent. The trial court's use of the instruction was not error.
IV. Statement of Additional Grounds (SAG)
RAP 10.10.
In his SAG, DeFrang makes several factual assertions, alleging various errors from his trial, but fails to cite to any authority to support his contentions. Nonetheless, a defendant who files a SAG need not cite to cases or the record, but he must provide details sufficient to inform the court of the objection for review. RAP 10.10(c). DeFrang also raises issues regarding the credibility of the State's witnesses at trial. We, however, do not review weight and credibility issues. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
A. Prosecutorial Misconduct
DeFrang alleges prosecutorial misconduct for (1) intentionally misleading the jury in the first trial to believe DeFrang owned the Chevrolet Blazer; (2) making impermissible comments on his character and credibility; and (3) referencing his previous criminal trial. These arguments lack merit.
To establish prosecutorial misconduct, DeFrang must prove that the prosecuting attorney's conduct was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). A new trial will be ordered only if there is a substantial likelihood the misconduct affected the jury's verdict. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). If the defendant does not object to alleged misconduct at trial, the issue of prosecutorial misconduct is waived unless the misconduct was "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Stenson, 132 Wn.2d at 719. Failure to request a curative instruction or move for a mistrial "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
1. Ownership of Chevrolet Blazer
At DeFrang's first trial, there was significant testimony regarding ownership of the Chevrolet Blazer. The State solicited testimony from Detective Hall that Lloyd Farmer was the registered owner of the vehicle, but that DeFrang's brother had purchased the car from Farmer. After the first trial, a dispute arose between DeFrang and Farmer because DeFrang still owed Farmer money for the Chevrolet Blazer.
In an ex parte hearing, the State moved to release the Chevrolet Blazer to Lloyd Farmer, the registered owner. Meanwhile, DeFrang's girlfriend attempted to retrieve the vehicle on his behalf. Subsequently, DeFrang's counsel moved to dismiss both counts based on the confusion in ownership of the vehicle. But DeFrang's counsel later withdrew that motion after reviewing the first trial transcripts, which revealed he argued at trial that DeFrang was not the actual owner of the vehicle. In other words, he withdrew a motion that contradicted his trial strategy. Under these facts, we find the prosecutor's conduct at trial was proper.
2. Comments on DeFrang's Character and Credibility
Likewise, the State did not commit misconduct by impermissibly commenting on DeFrang's character and credibility. Contrary to DeFrang's contention, the prosecutor did not comment on her personal belief that DeFrang was a liar. Nor did the prosecutor commit misconduct by referring to DeFrang in terms other than "Mr. DeFrang." See SAG at 5.
A prosecutor may not state her personal belief about a defendant's guilt or credibility of witnesses. Dhaliwal, 150 Wn.2d at 577-78. But it is "within the range of legitimate argument for the prosecuting attorney to characterize the conduct of the accused in language which, although it consists of invective or opprobrious terms, accords with the evidence in the case." State v. Perry, 24 Wn.2d 764, 770, 167 P.2d 173 (1946) (holding that the prosecutor did not commit misconduct when he characterized the defendant as a "mad dog").
Here, the prosecutor was not expressing her personal opinion that DeFrang was a liar; rather, she was arguing to the jury that DeFrang initially told Detective Hall that there was no property in the Chevrolet Blazer, but recanted when the detective said he was going to obtain a search warrant. In other words, that she was legitimately characterizing DeFrang's conduct.
Moreover, DeFrang's assertion that the prosecutor engaged in misconduct when she referred to him in "terms other than 'Mr. DeFrang' or 'the defendant'" lacks merit. SAG at 5. A review of the record reveals that in a few instances, the prosecutor referred to him simply as "DeFrang" and one time referred to him as "'King Tut' getting chauffeured around." SAG at 5; see RP (Aug. 7, 2006) at 44; RP (Aug. 10, 2006) at 3; RP (Oct. 5, 2005) at 21. But DeFrang has failed to establish how these limited references prejudiced him at trial. Thus, no prosecutorial misconduct occurred with regard to the limited comments he challenges.
3. Reference to Previous Hearing
Next, the State did not engage in prosecutorial misconduct by referencing DeFrang's previous criminal trials in the presence of the jury. Rather, on two occasions during his second trial, the State referred to a "prior hearing." RP (Oct. 4, 2006) at 87. This in no way implies that DeFrang was previously convicted of a crime. Moreover, DeFrang did not object to these two isolated references to prior hearings during his trial. As such, he has not preserved the issue for appeal and even if he had, this argument lacks merit.
B. Malicious Prosecution
Next, DeFrang contends that the State maliciously and selectively prosecuted him because of his prior conviction for burglarizing the Clallam County Public Defender's office. He bases this claim on the fact that the State did not prosecute Leppanen and Parker for possession of stolen property and residential burglary, even though they were involved in the same incidents and occurrences for which the State charged DeFrang. But again, this argument lacks merit.
The only evidence in the record of DeFrang's prior conviction is a discussion he had with the trial court during a pre-trial hearing.
RCW 9.62.010 governs malicious prosecution. It provides:
Every person who shall, maliciously and without probable cause therefor, cause or attempt to cause another to be arrested or proceeded against for any crime of which he or she is innocent:
(1) If such crime be a felony, is guilty of a class C felony and shall be punished by imprisonment in a state correctional facility for not more than five years; and
(2) If such crime be a gross misdemeanor or misdemeanor, shall be guilty of a misdemeanor.
DeFrang fails to meet any of the statutory criteria for establishing malicious prosecution. There is overwhelming evidence that the State had probable cause to prosecute DeFrang for residential burglary and possession of stolen property: the victim's neighbors observed a white Chevrolet Blazer suspiciously parked in the victim's driveway on the day of the incident; officers later pulled over the same Chevrolet Blazer when DeFrang was a passenger in the vehicle; DeFrang admitted in an interview with Detective Hall that there was stolen property in the back of the Chevrolet Blazer; and there was evidence that DeFrang owned the Chevrolet Blazer at the time of the incident. Moreover, there is no evidence in the record that the State chose to prosecute DeFrang and not Leppanen or Parker because of DeFrang's past conviction for burglary of the Clallam County Public Defenders' Office. Therefore, we hold that there is no basis for finding malicious prosecution.
C. Sufficient Evidence to Support Convictions
DeFrang challenges the sufficiency of the evidence to support his convictions for possession of stolen property and residential burglary. But his argument fails.
The test for determining the sufficiency of 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. Brockob, 159 Wn.2d 311, 336, 150 P.3d 59 (2006). In determining whether evidence supports a jury verdict, we view "the evidence in a light most favorable to the State." State v. McNeal, 145 Wn.2d 352, 359, 37 P.3d 280 (2002). "'A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.'" McNeal, 145 Wn.2d at 360 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). "Credibility determinations are for the trier of fact and are not subject to review." State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). And we "must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." Thomas, 150 Wn.2d at 874-75.
The essential elements of residential burglary are unlawfully entering or remaining in a dwelling with the intent to commit a crime against person or property therein. RCW 9A.52.025(1). At his second trial, there was significant testimony establishing that DeFrang broke into the victims' residence with the intent to take property. Additionally, there was significant evidence establishing that police officers later found some of the stolen items in his Chevrolet Blazer. Thus, a rational trier of fact could have reasonably found him guilty of residential burglary beyond a reasonable doubt. Sufficient evidence supports his conviction for residential burglary.
D. Effective Assistance of Counsel
Finally, DeFrang argues that he was denied effective assistance of counsel. Specifically, he claims that his counsel was ineffective for failing to file a change of venue motion, failing to file a motion to dismiss the charges, and failing to object to the trial court's discharge of the jury in his first trial.
To establish ineffective assistance of counsel, DeFrang must show that (1) his counsel's performance was deficient and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). He must overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. Counsel's performance is deficient when it falls below an objective standard of reasonableness. Stenson, 132 Wn.2d at 705. And to show prejudice, DeFrang must establish, "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335. "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 694) (emphasis omitted).
Here, DeFrang has not established that counsel's performance fell below an objective standard of reasonableness. The record does not reflect that a change of venue was necessary due to DeFrang's previous conviction for burglarizing the Clallam County Public Defenders' office. Nor does the record establish that DeFrang's counsel's performance fell below an objective standard of reasonableness by failing to follow through on his oral motion to dismiss charges based on the post-first-trial confusion as to whom the Chevrolet Blazer legally belonged. In fact, DeFrang's counsel withdrew his motion because there was sufficient evidence at trial to support his position that DeFrang did not own the vehicle. And finally, the record does not establish that DeFrang's counsel's performance fell below an objective standard of reasonableness by failing to object to the discharge of the jury in the first trial, as the discharge was proper. See Jones, 97 Wn.2d at 164-65; Barnes, 85 Wn. App. at 657.
In sum, DeFrang has failed to establish his counsel's performance fell below an objective standard of reasonableness and the challenge fails.
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.
Armstrong, J., Van Deren, A.C.J., concur.