Opinion
Nos. 60664-6-I; 60665-4-I.
February 23, 2009.
Appeals from a judgment of the Superior Court for Whatcom County, No. 05-1-01717-4, Charles R. Snyder, J., entered September 6, 2007.
Affirmed by unpublished per curiam opinion.
This consolidated appeal is from two convictions of second degree burglary, one committed in 2005 and the other in 2006. Timothy Kononen was also convicted of second degree theft in connection with the 2005 burglary. The cases were linked in the trial court after Kononen entered into a drug court treatment agreement. When he failed to complete the drug treatment program, the trial court heard the cases on stipulated facts and found Kononen guilty of both burglaries.
The 2006 Burglary
On January 28, 2006, officers responding to a tripped alarm at a building with a broken window found Timothy Kononen hiding in a nearby swamp. Kononen argues that the trial court violated his due process rights by applying the permissive inference of intent under RCW 9A.52.040 as though it were mandatory. Although the trial court did refer to the RCW 9A.52.040 inference of intent as "automatic" in its oral opinion, it did not do so in its written findings. Rather, the court found that moving a bicycle toward the door permitted it to infer an intent to commit a crime in the building. Kononen also asserts that there was insufficient evidence to support the 2006 conviction. We hold that the substantial evidence supports the factual findings, which support the trial court's legal conclusions, and affirm the conviction.
FACTS
On January 28, 2006, police officers responded to a tripped alarm at a business in Bellingham, Washington. A responding officer saw a broken window. Another officer saw the silhouette of a person running away from the building. A K-9 dog led officers to a swampy area where they shouted a warning for anyone in the area to show themselves before they released the dog. From the swampy area, the officers heard the defendant yell, "`I'm sleeping . . . I'm sleeping.'" After the soaking wet defendant emerged, he was asked if he knew why he was being contacted. He said that it was because he accidentally broke the window, but then he admitted that he intentionally entered the building through the window to take water. Kononen "was wearing dark clothing, and possessed a cell phone, binoculars, Leatherman tool, screwdrivers, wire cutters, and a [crowbar] with a back pack, empty duffel bag and two other empty pouch style bags." The owner of the building told police that nothing appeared to be missing, but that a bicycle appeared to have been moved to a bay door. After a stipulated bench trial based on the police reports, the trial court found Kononen guilty of second degree burglary.
A police report supports the last clause of challenged finding of fact 3, which states that the "defendant had claimed to be sleeping, but had earlier been seen by another officer running from the scene."
This evidence supports the trial judge's conclusion in finding of fact 3 that the defendant claimed to have been sleeping.
This challenged finding is supported by police reports.
This challenged finding of fact is supported by police reports.
RCW 9A.52.030(1) provides that "[a] person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling."
DISCUSSION
Kononen challenges findings of fact 3, 4, 5, 6, and 7; conclusions of law 1 and 2; and argues the trial court denied him due process by misapplying RCW 9A.52.040. Appellate review is limited to determining whether substantial evidence supports the trial court's factual findings and, if so, whether the findings in turn support the conclusions of law. Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the finding. When the trial court serves as finder of fact, it makes credibility and persuasiveness determinations that we will not disturb on appeal. If evidence conflicts, we need only decide whether the evidence most favorable to the prevailing party supports the finding. Circumstantial evidence is as probative as direct evidence.
Willener v. Sweeting, 107 Wn.2d 388, 393, 730 P.2d 45 (1986).
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
State v. Nieto, 119 Wn. App. 157, 164-65, 79 P.3d 473 (2003); Bartel v. Zucktriegel, 112 Wn. App. 55, 62, 47 P.3d 581 (2002).
Nieto, 119 Wn. App. at 164-65.
State v. Vermillion, 66 Wn. App. 332, 342, 832 P.2d 95 (1992), review denied, 120 Wn.2d 1030 (1993).
Kononen argues that the trial court did not resolve the conflicting descriptions about the speed at which he fled from the scene. But the trial court found that Kononen was running and that finding is supported by a police report. Kononen claims that finding of fact 4 was prejudicially tailored so that his intention to drink water while in the shop would serve as proof of his intent to commit burglary. But the evidence supports the finding because it simply reflects that the police reports state that Kononen told officers he broke the window to enter the building for water. Police reports also support the trial court's findings reciting what Kononen was wearing and carrying when the police arrested him.
In challenged finding of fact 6, the trial court found that a bike had been moved, a finding which is supported by the owner's statement that a bike appeared to have been moved toward a door. From this finding, the trial court could logically infer that moving the bike toward a door showed an intent to take the bike. Because logical inferences drawn from the facts of a case are a matter for the trier of fact, we do not disturb this finding.
State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999).
Challenged finding of fact 7 builds on finding 6 to conclude that "the moving of a bicycle toward a door showed intent to take the bicycle, intent to commit a crime." Because this finding is a legal conclusion, we review it to determine whether the findings support it. A person acts with intent when he acts with objective or purpose to accomplish a result constituting a crime. A trier of fact may infer intent from circumstantial evidence. Criminal intent may be inferred if a defendant's conduct plainly indicates the required intent as a matter of law. Here, Kononen admitted that he broke a window and entered a building, and the evidence shows that he moved a bike toward a door, had burglary tools and empty bags, fled into a swamp after being "`spooked off'" by the police, and gave nonpersuasive explanations for his actions. Thus, the trial court did not err by concluding that Kononen intended to commit a crime.
Willener, 107 Wn.2d at 393.
RCW 9A.08.010(1)(a); State v. Ferreira, 69 Wn. App. 465, 468, 850 P.2d 541 (1993).
State v. Simpson, 22 Wn. App. 572, 575, 590 P.2d 1276 (1979).
State v. Stearns, 61 Wn. App. 224, 228-29, 810 P.2d 41, review denied, 117 Wn.2d 1012 (1991).
He claimed to have accidentally broken the window and then entered for a drink of water. Kononen had a half-full water bottle in his bag.
In challenged conclusion of law 2, the trial court states that "[t]he inference of intent under RCW 9A.52.040 applies, but there are sufficient facts based upon the entry into the building and moving items is sufficient to find intent to commit a crime therein." The second clause in conclusion of law 2 is the same as the conclusion the trial court labeled finding of fact 7. Accordingly, the same analysis applies, and we hold that the trial court did not err by finding that Kononen intended to commit a crime in the building.
Kononen argues that the trial court improperly predicated its intent finding on Kononen's intent to take water. In its oral ruling, the trial court referenced Kononen's intent to take water, but then went on to state: "I think there's sufficient facts based upon his entry into the building and the fact that items had been moved as though perhaps to be removed from the building is sufficient for the court to find intent to commit a crime therein, and I find Tim [Kononen] guilty of burglary in the second degree." And in its written findings, the trial court made it clear that moving the bicycle was the basis for its finding of intent to commit a crime.
Although the trial court did not actually rely on RCW 9A.52.040's inference of intent when it found Kononen guilty, he argues the court applied the presumption as if it were "automatic" and thus denied him his due process rights. RCW 9A.52.040 provides that
In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.
"Basic principles of due process require the State to prove every essential element of a crime beyond a reasonable doubt." Thus, RCW 9A.52.040 should not be read to unconstitutionally shift the burden of persuasion to the defendant. In Cantu, the trial court erred by employing a mandatory presumption of intent under RCW 9A.52.040. Here, the trial court's written findings and conclusions did not apply RCW 9A.52.040's permissive inference automatically. And in any event, there could be no error because its finding of criminal intent was supported by the finding that Kononen moved the bike to the door.
State v. Cantu, 156 Wn.2d 819, 825, 132 P.3d 725 (2006).
Id. at 827.
Id. at 828.
In its oral findings, the court did state that the "automatic inference of intent for burglary would apply." But it also stated that Kononen's entry into the building and moving the bike was sufficient to support a finding of intent.
See State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986) ("A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error.").
Finally, Kononen argues that the evidence does not support the trial court's conclusion that he unlawfully entered the building. A second degree burglary conviction requires proof beyond a reasonable doubt that the defendant (1) unlawfully entered a building (2) with the intent to commit a crime. A person unlawfully enters a building when he is not licensed, invited, or otherwise permit to enter. Here, the evidence supports a finding that the building's owner did not invite, license, or otherwise permit Kononen to enter through the window he admittedly broke. Based on the evidence in the record from the stipulated trial, a rational trier of fact could clearly conclude that Kononen unlawfully entered the building and intended to commit the crime of stealing a bicycle.
The 2005 Burglary
On November 2, 2005, Timothy Kononen dropped Jonah Hazelbaker off at a Lowe's store. Hazelbaker returned to the car, and Kononen drove him to a spot behind the store and dropped him off again. Hazelbaker left the car carrying bolt cutters; Kononen left the engine running. Police arrived to find Hazelbaker cutting through the Lowe's fence to retrieve the merchandise he had stashed on the other side. Kononen argues that the trial court erred when it convicted him of second degree burglary and second degree theft following a stipulated bench trial. Because substantial evidence supports the findings of fact and the facts support the conclusion that Kononen was Hazelbaker's accomplice, we affirm the convictions.
FACTS
On November 2, 2005, Kononen drove Jonah Hazelbaker to a Lowe's home improvement store and dropped him off. Kononen, who was driving Hazelbaker's car, waited for him outside the store. Hazelbaker returned to the car, and Kononen drove him to a dead-end behind Lowe's. Kononen waited in the car with the engine running after Hazelbaker left the car holding bolt cutters. A nearby property owner, who apparently mistook the bolt cutters for a shotgun, called 911 after seeing Hazelbaker leave the car.
A responding officer saw Hazelbaker cutting the chain link fence near Lowe's and walked toward Kononen. When Kononen saw the officer approaching he tried to drive away, but he stopped after the officer ordered him to. He told the officer that he was on lunch break from his construction job and that his "`buddy'" had "`just told [him] to pull around here . . . he went in to look at tools.'" When asked by the officer what he thought was going on, Kononen replied, "`I don't even wanna know . . . whatever he was doing I didn't want any part of.'" A Lowe's employee told the police that a grocery cart load of merchandise had been pushed into a fenced-off area of the business near where the officer saw Hazelbaker attempting to cut through the fence.
The police apprehended Hazelbaker after he fled.
DISCUSSION
Kononen argues that findings of fact 4, 6, 7, 10, and 12 are not supported by substantial evidence, that the findings do not support conclusion of law 3, and that the prosecution did not prove accomplice liability for second degree burglary and theft by sufficient evidence. We apply the same standard of review to these challenges as we did to the 2006 burglary discussed above.
The State concedes that finding of fact 12, which states that "Kononen was dishonest regarding his `buddy's' identity," is not supported by the record. This erroneous finding of fact does not materially affect the trial court's conclusions of law. See State v. Caldera, 66 Wn. App. 548, 551, 832 P.2d 139 (1992).
Findings of fact 6 and 7 state that "Kononen planned on assisting by driving the `getaway' car" and that "Kononen aided Hazelb[a]ker by moving the car to a location appropriate for use to remove the stolen items." The police report supports the finding that Kononen moved the car to a location suitable for removing the stolen goods. And Kononen's sitting in the car in the suitable location with the engine running further aided Hazelbaker in completing the crime he began when he took the merchandise out of the Lowe's store.
Challenged conclusion of law 3 states that "Kononen was acting as an accomplice to Hazelbaker in burglarizing Lowes Home Improvement Store by driving the `getaway' car." Kononen does not dispute that Hazelbaker committed second degree burglary and theft. Instead, he argues the facts found do not support the conclusion that he was an accomplice, and that the State did not prove he knowingly assisted in second degree burglary or theft. We review the trial court's conclusions of law to determine whether they are supported by the findings. And in reviewing a challenge to the sufficiency of the evidence, we determine whether, after examining the facts in the light most favorable to the State, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. A person commits second degree burglary when he (1) unlawfully enters a building (2) with the intent to commit a crime. A person is guilty of second degree theft when he exerts unauthorized control over the property of another worth over $250.00, with the intent to deprive him or her of that property.
Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999).
State v. Joy, 121 Wn.2d 333, 338-39, 851 P.2d 654 (1993).
RCW 9A.52.030(1). A "`building,' in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, [or] cargo container. . . ." RCW 9A.04.110(5).
RCW 9A.56.040(1)(a) provides that
[a] person is guilty of theft in the second degree if he or she commits theft of:
(a) Property or services which exceed(s) two hundred fifty dollars in value but does not exceed one thousand five hundred dollars in value, other than a firearm as defined in RCW 9.41.010 or a motor vehicle.
"Theft" means: "[t]o wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services." RCW 9A.56.020(1)(a).
Washington's accomplice liability statute holds a defendant liable for a crime committed by another person if he aids that person in committing the crime with knowledge that his actions will promote or facilitate the commission of the crime.
RCW 9A.08.020(3) states that
[a] person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it.See State v. Berube, 150 Wn.2d 498, 511, 79 P.3d 1144 (2003).
RCW 9A.08.010(1)(b) provides:
A person knows or acts knowingly or with knowledge when:
(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or
(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute describing an offense.
An accomplice need only have general knowledge of the crime and does not need to know every element of the crime committed by the principal. Although mere physical presence at a crime scene is insufficient to convict someone as an accomplice, here, as discussed above, Kononen was more than merely physically present: he aided Hazelbaker by driving his car and parking where Hazelbaker had taken the merchandise he planned to steal.
State v. Roberts, 142 Wn.2d 471, 511-12, 14 P.3d 713 (2000).
State v. Roberts, 80 Wn. App. 342, 355, 908 P.2d 892 (1996).
Kononen argues that he did not know he was aiding Hazelbaker, but the evidence does not support this assertion. First, he knew that Hazelbaker walked into and out of Lowe's, and he knew that he was driving him to a dead-end street behind Lowe's. He knew that Hazelbaker got out of the car behind Lowe's, just like he knew that he was sitting in the car with the engine running after Hazelbaker got out. And if a neighbor could see the bolt cutters she mistakenly identified as a shotgun, Kononen, who was closer to Hazelbaker, would have seen them too. Kononen also tried to drive away when police approached. Flight is evidence of guilt. Finally, even Kononen's attempt to make an exculpatory statement shows that he knew Hazelbaker was committing a crime. Instead of simply declaring that he did not know why he had dropped Hazelbaker off behind Lowe's, Kononen said, "`I don't even wanna know . . . whatever he was doing I didn't want any part of.'" The findings support the legal conclusion that Kononen was acting as an accomplice, and the evidence presented sufficiently supports Kononen's accomplice liability.
Challenged finding of fact 10 states that "Kononen was seen by police in the car, with the motor running, and when Kononen saw police, he tried to leave by driving away." This finding is supported by the police report.
State v. Price, 126 Wn. App. 617, 645, 109 P.3d 27, review denied, 155 Wn.2d 1018 (2005).
Kononen cites State v. Armenta to support his argument that the court's failure to find he knowingly assisted in the crimes means that conclusion of law 3 was not supported by the findings. Armenta holds that courts must presume that the party with the burden of proof failed to meet their burden absent a finding on a factual issue. But Armenta does not apply here because the question of whether Kononen knowingly assisted Hazelbaker is a legal issue. While the court did not specifically address knowledge in its written conclusions, it did conclude that Kononen was an accomplice to the crimes. It could not have reached that conclusion without determining Kononen knew he was assisting in a crime. As discussed above, there is sufficient evidence to support the court's determination that Kononen knew that Hazelbaker was taking something from Lowe's.
134 Wn.2d 1, 948 P.2d 1280 (1997).
Id. at 14.
If an additional conclusion of law were required, the remedy would be to remand to the trial court. State v. Alvarez, 128 Wn.2d 1, 19, 904 P.2d 754 (1995). We do not believe a remand is necessary here.
Finding of fact 4 states that "[t]he property Hazelbaker and Kononen were intending to steal was worth over $250, with a value of approximately $577." The record shows that Hazelbaker had intended to steal $577 worth of merchandise. It does not matter whether Kononen knew the value of the property Hazelbaker attempted to steal. An accomplice need only have general knowledge of the crime and does not need to know or aid in every element of the crime committed by the principal. Kononen's lack of knowledge about the value of the items Hazelbaker intended to steal does not affect his accomplice liability for second degree theft or burglary.
Roberts, 142 Wn.2d at 511-12.
We affirm Kononen's second degree burglary and second degree theft convictions from Cause No. 05-1-01717-4 and his second degree burglary conviction from Cause No. 06-1-00137-3.