Opinion
No. 21477-0-III.
Filed: March 11, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Douglas County. Docket No. 02-8-00009-5. Judgment or order under review. Date filed: 04/17/2002. Judge signing: Hon. Judith Lea McCauley.
Counsel for Appellant(s), Donald G. Miller, Attorney at Law, 422 W Riverside Ave Ste 518, Spokane, WA 99201-0302.
Counsel for Respondent(s), Nancy Anne Harmon, Attorney at Law, Douglas Co Prosc Atty Ofc, PO Box 360, Waterville, WA 98858-0360.
Several people saw Dustin Fry in the vicinity of a local convenience store shortly before it was burglarized. Others saw him carrying armloads of carton cigarettes and candy after the burglary. And he worried out loud that his fingerprints would be found on the rock he used to smash the store window. The superior court denied revision of the juvenile commissioner's finding of guilt of burglary, theft, and malicious mischief. Mr. Fry challenges the sufficiency of the evidence. That evidence is sufficient and so we affirm.
FACTS
The Waterville Family Grocery Store was burglarized in the early morning hours of January 25, 2002. The glass in the door was smashed with a good-sized rock found on the sidewalk. And 10 or 12 cartons of cigarettes and 10 to 15 candy bars were stolen.
Douglas County Sheriff's Deputy Steve Groseclose investigated. Jeffrey Callahan told Deputy Groseclose that Dustin Fry arrived at his apartment in the early hours of January 25, carrying an armload of cigarette cartons. Mr. Fry told Mr. Callahan that he feared the police would find his fingerprints on a rock he used to break into the store. Mr. Callahan and his roommate, Ian Shedd, gave matching accounts. And Mr. Callahan turned over a carton of cigarettes. Mr. Fry was arrested and charged with second degree burglary, second degree theft, and third degree malicious mischief.
At an adjudication hearing, Mr. Callahan testified that Mr. Fry arrived at his apartment in the early hours of January 25, 2002. He was carrying 8 to 10 cartons of cigarettes and some candy bars. Mr. Fry was selling the cigarettes for $20 a carton. Mr. Callahan, Jacob Kiehne, and Jacob's brother bought them all. Mr. Fry wondered if he should go back to the store to recover the rock he had thrown through the window, lest his fingerprints be recovered from it.
Mr. Shedd testified that he saw Mr. Fry enter the apartment with armloads of cigarettes and candy. He confirmed that Mr. Callahan and Mr. Kiehne bought some. Mr. Shedd testified that he told investigators later that he would deny having seen Mr. Fry, because he did not want to get him in trouble. He explained that he felt threatened by Mr. Fry.
Mr. Fry presented an alibi defense. He testified that he arrived home at 10:30 p.m. on January 24, 2002, went to bed between 11:30 and midnight, and stayed there. Mr. Fry's father testified that he was unaware that his son was in the habit of sneaking out of the house at night. Mr. Fry's mother was sure he had sneaked out no more than one or two times. Mr. Fry told Deputy Groseclose that he often did so. Phil Shelly, owner of a tavern near the grocery store, testified to having many times seen Mr. Fry out and about after 11:00 p.m., and as late as 3:00 a.m.
Crystal Curry testified that she saw Mr. Fry twice on January 24, at about 8:30 p.m. and again at about 10:30 p.m. Craig Wood also saw Mr. Fry, whom he knew well, at around 11:30 p.m., hanging around near the grocery store.
A commissioner found Mr. Fry guilty of second degree burglary, second degree theft, and third degree malicious mischief. The court entered written findings that Mr. Fry left his parents' house on January 24 and was seen by one witness at 10:30-10:45 and by another at 11:30 to 11:50 p.m.; that he went to Mr. Callahan's apartment at 1:45 to 2:30 a.m. on January 25 with 10 to 12 cartons of cigarettes and 10 to 15 candy bars he had stolen from the Waterville Family Grocery Store. The commissioner found that Mr. Callahan had no motive to lie.
Mr. Fry moved for revision of the commissioner's decision. The court ordered a transcript of the adjudication hearing. The superior court denied the motion for revision by written findings and conclusions. Mr. Fry appeals.
DISCUSSION
Mr. Fry contends that the evidence was insufficient to enable a rational trier of fact to find guilt beyond a reasonable doubt because the evidence was conflicting. Mr. Fry's witnesses testified that he was at home with his parents on the night of the burglary. None of the witnesses who recognized Mr. Fry downtown and contradicted his alibi saw him after 11:30 p.m. Mr. Fry complains that the commissioner believed what he himself describes as unbiased witnesses, rather than him and his parents who testified that he was at home at 10:30 p.m.
Mr. Fry asks us to weigh witness credibility. He challenges the reliability of Mr. Wood's testimony as well as that of Mr. Callahan. Mr. Fry contends that he and Mr. Callahan were involved in an altercation on New Year's Eve, giving Mr. Callahan a reason to lie. Moreover, while in jail on a material witness warrant, Mr. Callahan retracted his story. Once released, he retracted his retraction. Mr. Fry contends that Mr. Callahan's testimony is thus inherently unreliable, because he admitted that he would have said anything to get out of jail. Moreover, Mr. Callahan should not be believed because he admitted to buying the stolen property. The court should instead have believed Mr. Fry and his parents. Because of the conflicting testimony, any reasonable fact finder must have had reasonable doubt.
On motion for revision, the superior court undertakes appellate review of the certified record. In re Marriage of Moody, 137 Wn.2d 979, 992, 976 P.2d 1240 (1999). Review is limited to the record and the commissioner's findings of fact and conclusions of law. RCW 2.24.050. Findings are reviewed for substantial evidence and conclusions are reviewed de novo. State v. Lown, 116 Wn. App. 402, 407-08, 66 P.3d 660, review denied, 150 Wn.2d 1024 (2003). This court reviews the action of the revision court. RCW 2.24.050; State v. Wicker, 105 Wn. App. 428, 432-33, 20 P.3d 1007 (2001). Here, that means we review the record for substantial evidence supporting the commissioner's decision.
An adjudication of guilt will be affirmed if, viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements beyond reasonable doubt. State v. Echeverria, 85 Wn. App. 777, 782, 934 P.2d 1214 (1997). We review the record for substantial evidence — evidence in `sufficient quantity . . . to persuade a fair-minded, rational person of the truth of the allegation.' Id. at 783. The credibility of witnesses is determined exclusively by the judge who heard the testimony and observed the demeanor of the witnesses. State v. Hill, 123 Wn.2d 641, 646, 870 P.2d 313 (1994). Here, that was the juvenile court commissioner.
Here, Mr. Callahan's testimony is sufficient by itself to uphold the conviction. The commissioner found that Mr. Callahan had no motive to lie; the investigators had no suspects when Mr. Callahan came forward and implicated himself by admitting to possession of stolen property. The commissioner found that Mr. Callahan's inconsistent statements while incarcerated as a material witness were explained by his fear of being labeled a snitch while incarcerated.
The superior court also found overwhelming unbiased evidence refuting testimony by Mr. Fry and his parents and supporting the adjudication of guilt. That finding is also amply supported by this record.
ADDITIONAL GROUNDS FOR REVIEW
Mr. Fry contends the commissioner erroneously excluded testimony of his investigator, Jim Patterson, impeaching Mr. Callahan with prior inconsistent statements which Mr. Callahan admitted on the stand. The trial court correctly ruled that ER 613 excludes extrinsic evidence where the impeachment is complete without it. State v. Babich, 68 Wn. App. 438, 443, 842 P.2d 1053 (1993).
Mr. Fry also complains that his counsel did not call to the stand two potential witnesses who were present in court — one of them having been subpoenaed by the State. He does not say how testimony from these witnesses might have affected the outcome. This court's general rule is not to question counsel's judgment on the calling and questioning of witnesses absent some reason to suspect the decision was not based on trial strategy. State v. Bradbury, 38 Wn. App. 367, 372-73, 685 P.2d 623 (1984). The record suggests no such reason here.
We affirm the judgment.
A majority of the panel has determined that 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.
KATO, A.C.J. and SCHULTHEIS, J., concur.