Opinion
No. 55061-6-I.
November 13, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-10113-8, J. Wesley Saint Clair, J., entered October 4, 2004.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Seattle, WA.
Jason Brett Saunders, Washington Appellate Project, Seattle, WA.
Gregory Charles Link, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA.
Christine Wilson Keating, King County Prosecutors Office, Seattle, WA.
Affirmed by unpublished per curiam opinion.
Robert Grover appeals his convictions for residential burglary and possession of stolen property, contending that the court abused its discretion in denying his motion to sever, that the prosecutor committed misconduct, that the possession of stolen property conviction is not supported by sufficient evidence, and that the court miscalculated his offender score at sentencing. Finding no error, we affirm.
FACTS
Based on evidence that Grover entered a house without permission and also possessed stolen checks, the State charged him with residential burglary and first degree possession of stolen property. Prior to trial, Grover moved to sever the counts for trial. The court denied the motion.
The case was then transferred to a second judge to accommodate the first judge's scheduled vacation. The new judge declined to revisit the first judge's severance ruling. Grover then waived his right to a jury trial on the residential burglary count.
The evidence at trial established that at 1 a.m. on July 4, 2003, Seattle police officers responding to a 911 call found Grover in the yard of a house belonging to James Helland. When the officers shined a flashlight on him, Grover began to walk away. One of the officers then identified himself and ordered Grover to stop, but Grover continued walking. The officer again ordered Grover to stop and instructed his police dog to bark. At that point, Grover stopped and turned around.
During questioning, Grover claimed that he was the caretaker of the property and that he had called 911. Although he claimed to have given the address of the residence to the 911 operator, Grover was unable to provide it to the officers. Grover also told the officers that he had called 911 using a cell phone that he had borrowed from a person walking down the street. Later, Grover said that the person was actually a jogger. An officer familiar with the area testified that joggers are not ordinarily seen on the streets in that neighborhood at that time of day. The officer also testified that Grover did not answer questions immediately, but instead paused "like he had to think of an answer."
Verbatim Report of Proceedings (July 7, 2004) at 69.
Suspecting criminal activity, the officers directed Grover to sit on the front steps of the house. In searching the area, the officers found fresh pry marks on the front door jamb and a number of valuable power tools on the front porch. Although the front door was closed, the officers discovered it to be unlocked. The officers then proceeded inside. They noted discovered that the house was being remodeled and the inside was covered with sawdust. The sawdust appeared to be of the same consistency as sawdust seen on Grover's clothing. When the officers confronted Grover with these observations, he claimed that he had not been inside the house and had not touched any of the items found on the porch. However, fingerprints later taken from those items were determined to match Grover's.
At some point, the owner of the house, James Helland, arrived. He informed police that he employed no caretaker and that Grover did not have permission to be on the property. Helland told the officers that he was remodeling the house for resale, that some tools were missing from the garage, and that the tools on the porch had been inside the house when he left the house the prior evening.
The officers arrested Grover for residential burglary. During a search incident to the arrest, the officers found five checks issued to the Coca-Cola Bottling Company in Grover's pants pocket. Grover could not explain where the checks had come from or why he possessed them. An investigation later revealed that the checks had been stolen from a Coca-Cola delivery truck on July 3, 2003. Grover did not have permission to take or possess any of the checks.
At the close of the State's case, Grover moved to dismiss the charges against him and, alternatively, to sever the counts. The court denied the motions.
In his case-in-chief, Grover called a witness identified only as "Ronald," who testified that he and Grover were helping a friend repair some windows on the evening in question, that when they finished, they went to a bar, and that on their way to the bar, Ronald saw Grover bend over and pick up an envelope containing some checks. On cross-examination, Ronald refused to give his last name, citing the Fifth Amendment. He admitted to having prior convictions, including a conviction for a crime of dishonesty.
Grover testified and corroborated Ronald's claim that they were helping repair windows on the evening of the burglary. The work involved sanding, sawing, and drilling, Grover explained, and he got a lot of sawdust on himself. When they finished, he and Ronald went to a bar. Grover found an envelope on the way to the bar. It contained five checks made out to Coca-Cola. He put them in his pocket with the intent of returning them to the checks' issuers.
Grover further testified that after drinking some beer, he went to visit another friend. On his way, he noticed a large number of tools on the porch of a home. When he walked by the house again later, he heard voices and the sound of something hitting the ground. He noticed several people carrying something across the sidewalk and then heard a car start. He turned around and walked back toward the house. He entered the porch, moved an item out of the way, and knocked on the door. He then noticed a jogger running by and told him to call the police.
Following the testimony, the court instructed the jury that, "A separate crime is charged in each count. You must decide count two separately." The jury found Grover guilty of possessing stolen property, and the court found him guilty of residential burglary.
Instruction 10. Prior to so instructing the jury, the court asked Grover and the prosecutor to review this instruction. Both indicated that they had no objection.
DECISION
Grover first contends the court abused its discretion in denying his motion to sever the counts for trial. We disagree.
We review the denial of severance motions for manifest abuse of discretion. State v. Russell, 125 Wn.2d 24, 62-63, 882 P.2d 747 (1994).
CrR 4.3(a) permits two or more offenses of similar character to be joined for trial. Properly joined offenses may be severed if "the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." CrR 4.4(b). A defendant seeking severance must demonstrate that a trial on both counts would be so manifestly prejudicial as to outweigh the concern for judicial economy. In determining whether the potential for prejudice requires severance, a trial court must consider the strength of the State's evidence, the clarity of the defenses, the instructions to the jury to consider each count separately, and the cross-admissibility of the evidence.
State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990).
Here, the State's evidence on each count was overwhelming, the issues and defenses were clear and straightforward, and the jury was instructed to consider the stolen property count separately from the burglary count, which was being tried to the bench. The trial court did rule, and the State does not dispute, that the evidence on each count was probably not cross-admissible. But even assuming that ruling was correct, severance was not required. The ultimate test is whether the prejudice to the defendant outweighs the need for judicial economy. Here, the trial court concluded that, on balance, the relevant factors showed little potential for prejudice. We agree. The court did not abuse its discretion in denying Grover's motion to sever.
State v. Kalakosky, 121 Wn.2d 525, 538, 852 P.2d 1064 (1993); State v. Markle, 118 Wn.2d 424, 439, 823 P.2d 1101 (1992); Bythrow, 114 Wn.2d at 720; State v. Sanders, 66 Wn. App. 878, 885, 833 P.2d 452 (1992); State v. Watkins, 53 Wn. App. 264, 272, 766 P.2d 484 (1989).
Russell, 125 Wn.2d at 68.
Next, Grover contends the evidence is insufficient to support his conviction for residential burglary. Again, we disagree.
Evidence is sufficient if, when viewed in a 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. "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Circumstantial evidence and direct evidence are equally reliable. Additionally, because it is the jury's responsibility to resolve credibility issues and determine the weight of the evidence, we defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Salinas, 119 Wn.2d at 201.
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
To prove residential burglary, the State had to prove that Grover entered or remained in a "dwelling." RCW 9A.52.025(1). The term "dwelling" is defined as "any building or structure . . . which is used or ordinarily used by a person for lodging." RCW 9A.04.110(7). The trial court found that "[t]he home burglarized by the defendant, while being renovated at the time of the offense, is a residence within the meaning of the Residential Burglary Statute as it is intended and commonly used for occupancy as a dwelling." Grover contends that the court's finding is not supported by the evidence. He argues that whether the house had been, or would subsequently be used as a dwelling is irrelevant; "[t]he only relevant question is whether the building was a dwelling on July 4, 2003."
Appellant's Brief at 18.
While we agree with Grover's formulation of the question, we disagree with his conclusion that evidence of the building's past or future use is irrelevant. The statutory definition of "dwelling," i.e., a building that is "used or ordinarily used by a person for lodging," makes such evidence relevant. RCW 9A.04.110(7). It is clear from that definition and cases applying it that a building need not be currently used as lodging to qualify as a "dwelling." In State v. McDonald, 123 Wn. App. 85, 96 P.3d 468 (2004), the court considered whether a building that was being remodeled and that the owners had temporarily vacated was a "dwelling." In finding sufficient evidence to send the issue to the jury, the court held that the question "turns on all relevant factors and is generally a matter for the jury to decide." McDonald, 123 Wn. App. at 91. Here, the location, appearance, and prior and intended use of the building permitted an inference that it was ordinarily used as lodging. Viewed in a light most favorable to the State, the evidence was sufficient to support the court's finding that the house was a "dwelling."
Grover also argues that the prosecutor committed misconduct when he made the following statements during closing argument:
If I have done my job, it is now your turn to do yours. Find the defendant guilty. Don't let sympathy and prejudice, feeling sorry for him because he is representing himself, enter into your minds. Sure, that's hard to say, don't be sympathetic for Mr. Grover when he is representing himself. Don't be sympathetic for Mr. Grover when he is sitting here in red jail garb. Don't be sympathetic for Mr. Grover when he puts on the performance that he did. But remember, Ladies and Gentlemen, all of those are his choices, his choices. He needn't represent himself. He needn't appear in red garb. He could have had a qualified attorney present his case for him. He chose not to. Ask yourself why? Why? . . . I understand and acknowledge that you are going to feel that sympathy. Put it aside. Do your job and hold Mr. Grover accountable for his actions. Sympathy? Yes. Accountability Certainly. Thank you for your attention.
Grover points out that it is improper for a prosecutor to draw adverse inferences from a defendant's decision to represent himself. He contends that the prosecutor's comments "encouraged the jury to infer [his] guilt from the fact that he exercised his constitutional right" to represent himself. We disagree.
State v. Moreno, 132 Wn. App. 663, 672-73, 132 P.3d 1137 (2006).
The court instructed the jury that it was not to make its decision based on "sympathy." The prosecutor's argument properly applied that directive to Grover's self-representation and attire, both of which could have been intended to garner sympathy. Furthermore, reversal would not be required even if counsel committed misconduct and infringed Grover's right to self-representation. Given the overwhelming evidence of guilt and the fact that the comments were isolated, any improper comments were harmless beyond a reasonable doubt.
Instruction 1.
Washington courts have acknowledged that wearing jail attire is often used as a defense tactic to gain sympathy. State v. Levy, 156 Wn.2d 709, 730-731, 132 P.3d 1076 (2006); State v. Sanchez, 122 Wn. App. 579, 587-88, 94 P.3d 384 (2004).
See Moreno, 132 Wn. App. at 673-74; State v. Neslund, 50 Wn. App. 531, 563, 749 P.2d 725 (1988).
In a pro se statement of additional grounds for review, Grover claims the State failed to prove that the checks in his possession were stolen, that he knew they were stolen, and that they had a value of $1,500. These claims are without merit. A delivery driver reported that the checks and a cell phone had been taken from his truck without permission. Grover had the checks in his pants pocket, but could not explain why he had them or where they came from. This circumstantial evidence was sufficient to support findings that the checks were stolen and that Grover knew they were stolen.
As to the value of the checks, Grover contends that "the State did not prove that the checks in question were of any value." But a completed check between a maker and payee has a value equal to the value of the obligation on the face of the check. The jury was so instructed in this case. Because each of the checks in Grover's possession was completed and admitted into evidence, the State proved their value. Grover contends the State failed to prove an aggregate value of $1,500, as required by RCW 9A.56.150, because two of the checks were postdated for after his arrest. This contention is specious. Post-dated or not, the checks were worth their face value to the payee on the day of Grover's arrest. Furthermore, as noted above, the jury was instructed that the value of a check "is the face amount of said check." Grover did not challenge that instruction below and has not challenged it on appeal.
State v. Skorpen, 57 Wn. App. 144, 148-150, 787 P.2d 54 (1990); State v. Easton, 69 Wn.2d 965, 970, 422 P.2d 7 (1966).
Instruction 8.
Finally, Grover contends the trial court miscalculated his offender score. He first argues that his 1972 grand larceny conviction should not have been included in this score. In the 1972 case, Grover initially received a suspended sentence on the grand larceny conviction, but his probation was later revoked and the court sentenced him to serve concurrent terms for convictions of grand larceny, robbery, and assault. Grover cites In re Seitz, 124 Wn.2d 645, 880 P.2d 34 (1994), in support of his argument that the court should not have counted the grand larceny conviction separately from the robbery and assault convictions. Seitz, however, was superseded by former RCW 9.94A.360(6)(b) (1995), now codified as RCW 9.94A.525(5)(b). That statute provides that prior convictions count separately if "the concurrent timing of the sentences was not the result of a probation or parole revocation on the former offense." RCW 94A.525(5)(b)(iii). Although the State cited this statute below, Grover does not address it on appeal. That omission is fatal to his present claim.
Grover also argues that his 1979 convictions for two counts of first degree robbery should have counted as one point instead of two. The trial court ruled that because Grover received consecutive sentences on the counts, the convictions had to be counted separately. Grover argues that he received only one sentence for his two 1979 convictions, and therefore it is erroneous to say that he received or served consecutive or concurrent sentences. This contention is without merit.
Pursuant to RCW 9.94A.360(6), prior adult convictions for pre-SRA offenses must be counted separately unless the sentences for the crimes were served concurrently. The judgment and sentence for the 1979 convictions imposed a maximum term of "LIFE on each count, to be served CONSECUTIVELY." These sentences were suspended, but the order of suspension included "a term of ONE YEAR in King County Jail, for each count, served CONSECUTIVELY (total 2 years)." These terms constituted separate sentences and were not concurrent. Accordingly, the court properly counted each of them in calculating the applicable offender score.
Statement of Additional Grounds for Review, Appendix E.
Affirmed.
COX and BAKER, JJ., concur.