Opinion
No. 31164-0-II
Filed: May 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 03-1-00324-7. Judgment or order under review. Date filed: 12/04/2003. Judge signing: Hon. Toni a Sheldon.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Monty Dale Cobb, Mason County, Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Shane L. Havens appeals convictions for second degree possession of stolen property and third degree assault. He alleges that the trial court commented on the evidence, that the evidence is insufficient, and that his trial counsel was ineffective. We affirm. In 2003, Carlos G. Gervacio owned a 1993 Geo Tracker. At the same time, Havens also owned a Geo Tracker.
In May 2003, Gervacio's Tracker was stolen. Later the same month, Havens and Nicholas Shaffer followed in Havens' Tracker as Donny Hartwell drove Gervacio's Tracker to the Manke gravel pit. Once there, Havens and Hartwell took the tires and rims off Gervacio's Tracker and installed them on Havens' Tracker. They also took the front grill and intake from Gervacio's Tracker. Someone it is not clear who then set Gervacio's Tracker on fire. On May 20, 2003, the burned hulk of Gervacio's Tracker was found at the gravel pit.
In the summer of 2003, Havens drove his Geo Tracker to Teresa Carson's house. He had extra Tracker parts with him, including an intake manifold, a tailgate, and two bucket seats. He told Carson that he and a friend had `taken a Tracker and took it up to the Manke pit and took parts off of it and then burned it.' He told Carson's son that he had `participated' in burning a Tracker.
Report of Proceedings (RP) at 39.
RP at 62.
On September 4, 2003, two police detectives saw Havens. Suspecting that he was involved, they said they wanted to talk to him `down at the Police Department.' He ran.
RP at 132.
The next day, the detectives saw Havens again. He ran again, with Detective Wiktorek in pursuit. When Wiktorek overtook Havens, he said, `You're under arrest . . . I'm a Police Officer.' He also told Havens to quit resisting. Eventually, Havens was subdued and arrested.
RP at 141.
The State charged Havens with first degree possession of stolen property, second degree arson, and third degree assault. At the ensuing jury trial, the title to Gervacio's Tracker was admitted as Exhibit 4, and the evidence tended to show that in May 2003 Gervacio's Tracker had been worth less than $1500.
At the end of the evidence, the trial court instructed on lesser included offenses as well as the crimes charged. Its `to convict' instruction for first degree possession of stolen property was number 15, and its `to convict' instruction for second degree possession of stolen property was number 27. As originally typed, those instructions omitted the words we now italicize:
To convict the defendant of the crime of possessing stolen property in the [first] [second] degree . . . each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That during the month of May, 2003 the defendant knowingly received, retained or possessed stolen property to wit: the motor vehicle evidenced in Ex 4;
(2) That the defendant acted with knowledge that the property had been stolen;
(3) That the defendant withheld or appropriated the property to the use of someone other than the true owner or person entitled thereto;
(4) That the stolen property exceeded $250.00 in value but did not exceed $1,500.00 in value; and
(5) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 57 (Instruction 27) (emphasis added); CP at 46 (Instruction 15) (emphasis added).
While reading the instructions to the jury, the judge orally directed each juror `to add' the italicized words to his or her copy of the instruction packet. Before doing this, the judge explained on the record, out of the jury's presence, that he and counsel had conferred in chambers on what instructions should be given; that he had provided each attorney `with a copy of the packet of Instructions that have been adopted by the Court in chambers after discussion with counsel[;]' and that `by agreement [of] counsel and the Court[,]' he would ask the jury to interlineate the words italicized above. His remarks were not corrected by either counsel. The jury acquitted Havens of second degree arson and first degree possession of stolen property, while convicting him of second degree possession of stolen property and third degree assault. After sentencing, he brought this appeal.
RP at 326.
RP at 310.
RP at 310.
I.
According to Havens, Instruction 27's `to-wit' language `could have been read as a direction or a comment by the court that the vehicle listed in Exhibit 4 was in fact stolen property,' thus removing that element from the jury's consideration. The State responds that if there was error, counsel affirmatively invited it when he agreed that the `to-wit' language should be interlineated. Although we agree with Havens that the `to-wit' language was improper under State v. Jackman, we also agree with the State that even constitutional error may be invited by the affirmative agreement of counsel, and that Havens' counsel affirmatively agreed here. Accordingly, we decline to reverse on this ground.
Br. of Appellant at 10.
___ Wn. App. ___, 104 P.3d 686 (2004).
State v. Henderson, 114 Wn.2d 867, 871, 792 P.2d 514 (1990); In re Detention of Gaff, 90 Wn. App. 834, 845, 954 P.2d 943 (1998).
II.
Havens contends that his counsel rendered ineffective assistance by agreeing to the italicized language. To prove ineffective assistance, a defendant must show deficient performance and resulting prejudice. Performance is not deficient if it is tactical. Counsel's agreement here may well have been tactical, as he may have wanted to focus the jury on the identity of the arsonist and the value of the Tracker. If that was his purpose, he may have succeeded, at least in part, as the jury acquitted on second degree arson and first degree possession of stolen property. This is speculation, however, because the present record simply does not show why counsel did what he did. Accordingly, Havens has not shown that counsel's performance was deficient or ineffective.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 336-37.
III.
Havens contends that the evidence is not sufficient to support a finding that he `received, retained or possessed' Gervacio's Tracker. `The test for determining the sufficiency of the 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.' According to the evidence here, Havens, Shaffer, and Hartwell all took Gervacio's Tracker to the gravel pit. Havens and Hartwell stripped it and someone set it on fire. Havens later told Carson that he and friend had `taken' a Tracker, driven it to the Manke pit, stripped parts from it, and burned the rest. Havens told Shaffer and Carson that the Tracker had been stolen. Taking this evidence in the light most favorable to the State, the jury could rationally have found that Havens possessed Gervacio's Tracker with knowledge that it had been stolen, and thus the evidence is sufficient to support the verdict.
Br. of Appellant at 15.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
We do not overlook, but we do deem immaterial, Havens' reliance on State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). The evidence was sufficient to prove that Havens possessed Gervacio's tracker, as well as parts therefrom.
IV.
Havens contends that the verdicts by which he was acquitted are inconsistent with the verdicts by which he was convicted. The question thus raised is whether the evidence is sufficient to support the verdicts by which he was convicted. As already seen, the evidence here was sufficient. If the verdicts were inconsistent, the inconsistency does not warrant relief.
State v. McNeal, 145 Wn.2d 352, 357-59, 37 P.3d 280 (2002); State v. Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988).
This conclusion also disposes of Havens' claim that his counsel was not effective by not raising the alleged inconsistency before the jury was discharged. As counsel had no basis on which to object, his failure was neither deficient nor prejudicial.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., concur.