Opinion
No. 37948-1-II.
Filed: September 3, 2009.
Appeal from the Superior Court, Clark County, No. 07-1-02325-9, Roger A. Bennett, J., entered June 24, 2008.
Affirmed by unpublished opinion per Penoyar, A.C. J., concurred in by Bridgewater and Hunt, JJ.
Unpublished Opinion
In June 2008, a jury convicted Zipporah Foster of organized retail theft. She appeals her conviction, challenging the sufficiency of the evidence. Foster also submitted a statement of additional grounds (SAG), in which she makes several factual arguments, asserts error in trial counsel's performance, and challenges the makeup of the jury. We affirm.
A commissioner of this court initially reviewed this matter pursuant to RAP 18.14 and referred it to a panel of judges.
FACTS
On December 24, 2007, Zipporah Foster went to GI Joes with her infant child; her boyfriend, Glen Rackham; her live-in babysitter, Denisha Baker; and Baker's brother. The party separated when they arrived at the store. Baker took the baby and stroller with her to the shoe department. Baker's brother and Foster periodically joined them there.
Ryan Lawrence was working as a loss prevention officer that evening. Shortly after 5 o'clock, he received a request to watch two females (Baker and Foster) and one male in the shoe department. When Lawrence began surveillance, Foster was trying on shoes. Thereafter, Baker began taking shoes from their boxes and placing them into the diaper bags on the baby's stroller. Foster was about three feet away while Baker was doing this, looking around the store and up at the ceiling. Lawrence said she appeared to be watching for employees or looking for surveillance cameras. Foster looked into the diaper bags on the stroller after Baker deposited the shoes and at one point she put a pair of white Nike shoes inside. Thereafter, both women went to the front of the store. Foster paid for a pair of socks while Baker waited behind her, and then both women left the store. Lawrence confronted Foster and Baker after they had left the building, detained them, and took them to the loss prevention office where he contacted the police. While they waited for the police, Lawrence examined the diaper bags and retrieved seven pairs of shoes and two Blazer's basketball team hats, worth $361.96. According to Lawrence, Foster admitted to the theft of one pair of shoes.
Officer Rodrigo Osorio responded and arrested both Baker and Foster, leaving the infant in Rackham's care. Baker pleaded guilty to retail theft, providing a written statement that she, "together with another person, Ms. Foster, committed theft of property from Joe's, a mercantile establishment, with a value exceeding $250 and less than $1500, with an accomplice, Ms. Foster." 2B Report of Proceedings (RP) at 196. However, she testified at Foster's trial that she did not mean to say that Foster had anything to do with the theft, that at the time, she (Baker) believed that "accomplice" simply meant someone who was with her. 2B RP 190. Foster, too, disavowed her prior statement to Lawrence, insisting that she had been in the shoe department to check on her baby, had no knowledge of Baker's actions, and had nothing to do with the theft of any of the shoes. The jury convicted Foster as charged, and she now appeals.
ANALYSIS
Foster argues that the evidence is not sufficient to prove organized retail theft because at most, it established that she and Baker had independently taken shoes, and not that they had acted as accomplices. This argument is clearly meritless.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits 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). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In determining whether the necessary quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case. State v. McKeown, 23 Wn. App. 582, 588, 596 P.2d 1100 (1979).
Lawrence testified that Foster was with Baker, apparently acting as a lookout, when Baker put the shoes in the diaper bag, that Foster looked into the bag thereafter, that she, herself, put a pair of shoes into the bag, and that she and Baker left the store together without paying for the merchandise in the bag. That was more than enough evidence to establish Foster's guilt as an accomplice. Foster disputed it, but the jury apparently accepted Lawrence's account. Credibility determinations are for the trier of fact, and we will not review the determinations on review. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Foster's pro se claims are likewise meritless. She challenges trial counsel's performance, asserting that he should have entered into evidence (1) a written statement by Baker that she acted alone and (2) a bank statement showing that Foster withdrew $2,000 from her account two days before the incident. Even assuming Baker's statement would have been admissible, it would have provided no more information than Baker provided on the stand. As to the bank statement, Foster appears to argue that it would have shown that she had money and did not need to shoplift. However, she testified that at the time of her arrest, she had $62 in her wallet, not enough to cover the cost of the items taken.
Foster asserts that she was told that she was being arrested for a traffic infraction, but does not indicate what prejudice flowed from this alleged misrepresentation. In any case, she admitted at trial that she told Lawrence when he contacted her that she did not steal anything, and he could not touch her. Clearly she knew the reason for her arrest. She next complains that GI Joes did not preserve the tape that showed her at the register, but she does not explain how the tape would have helped her. There was no dispute that she paid for the merchandise she personally possessed. She questions why all four members of her party were not arrested but does not indicate how that pertains to her own guilt or innocence.
Lawrence testified that Baker's brother left the store before the two women, and there was no reason to believe he had any merchandise with him. As to Foster's boyfriend, there was no evidence that he accompanied the others into the store or had any contact with them while they were inside.
Finally, Foster complains that there were no African Americans on the jury. The absence of any particular group of people on a jury does not violate a defendant's right to a jury of his or her peers unless the circumstances indicate purposeful discriminatory exclusion. State v. Barron, 139 Wn. App. 266, 280, 160 P.3d 1077 (2007). Foster points to no such circumstances.
We affirm.
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.
BRIDGEWATER, J. and HUNT, J., concur.