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State v. Howland

The Court of Appeals of Washington, Division Three
Nov 23, 2004
124 Wn. App. 1023 (Wash. Ct. App. 2004)

Opinion

No. 22402-3-III

Filed: November 23, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Spokane County. Docket No: 02-1-03131-6. Judgment or order under review Date filed: 09/11/2003. Judge signing: Hon. Linda G Tompkins.

Counsel for Appellant(s), Robert R Cossey, Robert R Cossey Associates PS, 628 1/2 N Monroe St, Spokane, WA 99201-2161.

Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.

Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.


A defendant detained in jail must be brought to trial no later than 60 days after the date of arraignment. Former CrR 3.3(c)(1) (2001). Anthony Howland was serving a federal sentence when the State of Washington filed an information charging him with possession of stolen property and identity theft. He was arraigned in Spokane County four months later. After a series of continuances and five-day extensions, he was tried on the charges four and one-half months after arraignment. The trial court overruled his speedy trial objections.

On appeal, he contends his case should have been dismissed for speedy trial violations. He also argues that the evidence is insufficient to support his conviction. Because we find that he waived his speedy trial rights for almost three months, we conclude that his trial was timely. We also find sufficient evidence in the record to support his conviction, and affirm.

Facts

In early February 2002, someone broke into Pardner Wynn's summer home in Spokane County. The thief stole numerous items, including Mr. Wynn's credit cards, old driver's license, and business cards indicating that Mr. Wynn was president and on the board of directors of a company called Docent. One of the credit cards taken was a Solomon Smith Barney platinum VISA.

Mr. Wynn first learned of the theft when he discovered on February 11, 2002 an unauthorized use of the VISA card at Acme Bail Bond the day before. He subsequently learned of additional unauthorized charges on the VISA card from February 7 through February 11, including a gasoline purchase on February 10 from Maid O'Clover in Spokane.

During this time, Mr. Howland was staying in a motor home parked in front of a house in Spokane occupied by a woman named Robin Danley and her son Jason Jay. Mr. Jay knew Mr. Howland as Tony Pardner. `Pardner' had said that the motor home belonged to him. On February 10, Ms. Danley was arrested for an unrelated crime. According to Mr. Jay, three of his mother's friends — a woman named Dorrie, a man named Bill, and `Pardner' — asked Mr. Jay to help them bail Ms. Danley out of jail. They decided to use a credit card and told Mr. Jay to go to Acme, fill out the paperwork, and then tell Acme to call Ms. Danley's house for the credit card information. Mr. Jay followed the plan as directed. Although he figured something illegal was going on, he participated because he wanted to get his mother out of jail.

An Acme employee later testified that on February 10 a man who said his name was Pardner Wynn called to arrange payment of Ms. Danley's bail bond. `Mr. Wynn' gave Acme his Solomon Smith Barney VISA number, birth date, social security number, home and office addresses, telephone numbers, driver's license number, and even his vehicle identification number. `Mr. Wynn' stated that he was the president of Docent. After Mr. Jay co-signed on the bond, Acme bonded Ms. Danley out of jail for $260, charged to the VISA account. The next day, the real Pardner Wynn visited Acme, explained that he was not the one on the telephone who authorized the bail bond, and stated that the use of his credit card was fraudulent.

Investigating the fraudulent use of Mr. Wynn's credit card, police officers searched Mr. Howland's motor home and found items bearing Mr. Howland's name, a copy of the Maid O'Clover receipt for gasoline, and the VISA card along with other credit cards and business cards belonging to Mr. Wynn. Subsequent to Mr. Howland's arrest for possession and use of the stolen VISA card, his probation on a federal conviction for counterfeiting was revoked and he was promptly sentenced on February 12, 2002 to 24 months in federal prison. The State filed an information on November 19 charging Mr. Howland with one count of second degree possession of stolen property, RCW 9A.56.160(1)(c), and one count of second degree identity theft, RCW 9.35.020(1), former RCW 9.35.020(2)(b) (2001).

On December 6, 2002, while serving the federal sentence in Lompoc Federal Correctional Institute, Mr. Howland moved pro se for a speedy trial or disposition of the state charges. Arraignment was held on March 27, 2003 and trial was held on August 11-13, 2003. The jury found him guilty of both charges and he timely appealed.

Speedy Trial

Mr. Howland first contends his case should have been dismissed for violation of the speedy trial rule, CrR 3.3. He asserts the trial court failed to give its reasons on the record for the five-day extension granted just before trial. Pro se, he contends the State failed to respond in a timely manner to his demand for speedy trial.

Former CrR 3.3(c)(1) provides that a defendant detained in jail must be arraigned no later than 14 days after the information is filed and must be tried no later than 60 days after the date of arraignment. Failure to bring the defendant to trial within the prescribed period leads to dismissal of the charges with prejudice. Former CrR 3.3(i) (2001); State v. Greenwood, 120 Wn.2d 585, 591, 845 P.2d 971 (1993). Mr. Howland was arraigned 128 days after the information was filed and was tried 137 days after arraignment. Consequently, his trial did not comply with the speedy trial rule unless portions of this time period were excluded or waived.

From the outset we note that Mr. Howland did not timely object on the record to the arraignment date. A defendant must object to the date of arraignment at the time of arraignment. Former CrR 3.3(e) (2001); State v. Swenson, 150 Wn.2d 181, 188, 75 P.3d 513 (2003). Failure to object waives the issue and the actual date of arraignment is used to determine the time to trial period. Swenson, 150 Wn.2d at 188-89.

Pursuant to former CrR 3.3(g)(6) (2001), the time during which a defendant is imprisoned out of state or in a federal prison is excluded in computing the time for arraignment and trial. However, the State must act in good faith and with due diligence to obtain the presence of any defendant amenable to process. State v. Stewart, 130 Wn.2d 351, 363, 367, 922 P.2d 1356 (1996). In this case, the State acted in good faith and with due diligence by filing a detainer pursuant to the interstate agreement on detainers (IAD), chapter 9.100 RCW. State v. Anderson, 121 Wn.2d 852, 861, 855 P.2d 671 (1993). In filing the detainer, the State provided Mr. Howland the opportunity to demand that the State bring him to trial within 180 days of his demand. RCW 9.100.010, Article III; Anderson, 121 Wn.2d at 861. Mr. Howland's demand for trial was filed with the Spokane County Clerk on December 6, 2002. It is not clear when Mr. Howland was finally transported to the county jail for trial proceedings, but there is no indication in the record that the State failed to act in good faith or with due diligence to obtain his presence. Accordingly, the time from filing the information to arraignment should be excluded from the former CrR 3.3(c)(1) time-to-trial period. Former CrR 3.3(g)(6).

Mr. Howland's trial began on August 11, 2003, 248 days after his demand for speedy trial. He waived his speedy trial rights for 85 days of that period (from May 8 to August 1, 2003). Subtracting the waived period from the days to trial leaves 163 days from the demand under the IAD to trial, well within the 180-day period of RCW 9.100.010, Article III. Further, trial began within the speedy trial period of former CrR 3.3(c)(1). Mr. Howland remained in custody pending trial; as a result, former CrR 3.3(c)(1) required trial within 60 days after arraignment. From the date of arraignment on March 27, 2003 to the trial date was 137 days. Excluding the 85 days that were waived leaves 52 days, well within the speedy trial period of former CrR 3.3(c)(1).

The trial court's three five-day extensions (exclusive of weekends and holidays) resulted in the exclusion of another 21 days from the speedy trial period. Former CrR 3.3(d)(8) (2001). Mr. Howland challenges the last of these extensions as unsupported by the record. Five-day extensions under former CrR 3.3(d)(8) (which may be granted retroactively) are authorized when unavoidable or unforeseen circumstances exist beyond the control of the court or the parties. State v. Carson, 128 Wn.2d 805, 817, 912 P.2d 1016 (1996). We review the trial court's decision to grant an extension for abuse of discretion. Id. at 814. The trial court `must state on the record or in writing the reasons for the extension.' Former CrR 3.3(d)(8).

Here, the trial court stated on the scheduling order the following: ``5 day' for victim detective vacation through 8/11/03.' Clerk's Papers at 62. The scheduled vacation of a police witness is a valid reason for continuing trial for a reasonable period. State v. Grilley, 67 Wn. App. 795, 799, 840 P.2d 903 (1992). At any rate, trial occurred here within the speedy trial limits whether or not the five-day extension was valid. Mr. Howland shows neither abuse of discretion nor error; consequently his speedy trial challenge fails.

Sufficiency of the Evidence

Mr. Howland next challenges the sufficiency of the evidence to support his convictions for second degree possession of stolen property and identity theft. We review the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the crimes beyond a reasonable doubt. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). `We defer to the trier of fact to resolve conflicting testimony, evaluate the credibility of witnesses, and generally weigh the persuasiveness of the evidence.' State v. Rodriguez, 121 Wn. App. 180, 187, 87 P.3d 1201 (2004). Circumstantial evidence carries the same weight as direct evidence. Varga, 151 Wn.2d at 201.

To support conviction for second degree possession of stolen property relevant to these facts, the State must prove that the defendant possessed a stolen access device, defined in part as a credit card or account number. RCW 9A.56.010, .160. Mr. Howland contends the State failed to prove that he ever had the VISA card in his possession. A witness testified, however, that Mr. Howland bought him gasoline at Maid O'Clover with a credit card that carried the name of `Pardner.' A receipt from Maid O'Clover confirmed that Mr. Wynn's card was used to buy gasoline on the date in question. Additionally, the card was found in the motor home. Mr. Jay testified that Mr. Howland claimed ownership of the motor home. The inferences arising from this circumstantial evidence are more than sufficient to support a rational juror's belief that Mr. Howland possessed the stolen access device.

Identity theft is defined as knowingly obtaining, possessing, using, or transferring a means of identification or financial information of another person with intent to commit or abet any crime. RCW 9.35.020(1). If the use of this means of identification results in obtaining zero to $1,500 in value, the crime is second degree identity theft. Former RCW 9.35.020(2)(b).

Mr. Howland contends the State failed to prove that he made the telephone call to Acme that supports the elements of second degree identity theft. But the offense does not require that he made the call. It is enough to show that he knowingly transferred the account number to another person who made the call. Assuming Mr. Howland's possession of the VISA card, a reasonable inference from this evidence is that he at least provided the account number to one of the people arranging the bail bond for Ms. Danley. Mr. Jay testified that Mr. Howland participated in the plan to arrange bail through Acme, and Acme's records indicate Mr. Wynn's VISA card was used to pay the bond. The evidence is sufficient to support conviction for second degree identity theft.

Affirmed.

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, C.J. and BROWN, J., concur.


Summaries of

State v. Howland

The Court of Appeals of Washington, Division Three
Nov 23, 2004
124 Wn. App. 1023 (Wash. Ct. App. 2004)
Case details for

State v. Howland

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. ANTHONY TROY HOWLAND, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Nov 23, 2004

Citations

124 Wn. App. 1023 (Wash. Ct. App. 2004)
124 Wash. App. 1023