Opinion
No. 49476-7-I, 49476-7-I
Filed: December 16, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County, No. 011004799, Hon. Michael E. Rickert, October 23, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Thomas M. Kummerow, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Seth A. Fine, Snohomish Co. Prosecutor's Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.
Constance M. Crawley, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201.
Tien Lam was caught by police while burglarizing a home. A subsequent warrant search of Lam's residence yielded numerous stolen items from several other burglaries. He was convicted by a jury of 10 counts of burglary and 11 counts of possession of stolen property. On appeal he argues that the trial court erred in denying his motion to sever several of the burglary counts for trial. He also argues that the search warrant was invalid, and that there was insufficient evidence to support two of the burglary convictions. We disagree, and affirm.
I
Tien Lam and Han Nem were arrested while burglarizing a residence. Lam had in his possession a bracelet and watch taken from another burglary and one glove in his pocket. The matching glove was found inside the residence.
The police also found a pillowcase containing electronic equipment and jewelry inside the home. Lam's vehicle, a red Dodge Colt, was impounded and later searched. Property from another burglary was found inside. The police served search warrants at the apartments of Lam and Nem and recovered a large quantity of property linked to a number of other unsolved burglaries.
In several of the other burglary cases, witnesses had observed a small red hatchback car matching Lam's. Witnesses had also observed two men matching the descriptions of Lam and Nem. In all of the linked burglaries, police found evidence consistent with the wearing of gloves to conceal fingerprints. The burglars in the linked crimes had always stolen electronics and jewelry, and in most cases the front doors of the residences were forced open. The burglars had commonly used pillowcases stolen from the residences to transport the stolen property. Lam was charged with 12 counts of residential burglary, six counts of stolen property in the second degree, and six counts of possession of stolen property in the third degree. At trial the State elicited testimony from deputy McCormick who had stopped Lam for a traffic infraction prior to his arrest. McCormick stated that Lam, accompanied by Nem, acted nervous as he approached the car. McCormick saw a television, computer, and video games inside the car. The State also elicited testimony from a witness who saw Lam prior to his arrest. The witness testified that she thought it unusual that Lam would be in possession of a large quantity of jewelry, given his lack of employment.
The jury returned a verdict of guilty in 10 of the 12 counts of residential burglary, six counts of possession of stolen property in the second degree, and five counts of possession of stolen property in the third degree. Lam appeals.
II
Lam argues that the trial court erred in failing to suppress the evidence seized at his residence because the affidavit for the search warrant failed to establish a sufficient nexus between his residence and the property taken from the burglaries. We conclude that the facts set forth in the affidavit established a reasonable inference that stolen property from the burglaries would be found in Lam's residence.
A search warrant may issue solely upon a determination of probable cause. Probable cause exists if the supporting affidavit sets forth facts sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and evidence of the crime can be found at the place to be searched. We review a search warrant for abuse of discretion, giving great deference to the issuing magistrate. We apply common sense, resolving any doubts in favor of the warrant. Specific facts must establish a nexus between the items to be seized and the place to be searched. In State v. Thein, our Supreme Court held general observations about the habits of drug dealers are insufficient to establish the probable cause needed to search a suspected drug dealer's residence. Probable cause to believe a person has committed a crime does not necessarily give rise to probable cause to search that person's home. However, as noted by Professor LaFave in his treatise, when valuable property has been taken in a recent burglary, courts have been more willing to infer that the criminal would have the fruits of his crime in his residence, vehicle, or place of business. Lam relies on State v. McReynolds for his proposition that there was insufficient evidence of a nexus between the property sought and his residence. In McReynolds, we held that the affidavit in support of probable cause for a search warrant failed to establish a nexus between other crimes and the defendant's residence because the only evidence linking the defendant to another burglary was a pry bar found at the scene of the defendant's arrest. The court stated that, `But the presence of this tool, without more, does not establish an inference that evidence of the earlier burglary or any other crime would be at the [defendant's residence]. But in contrast to McReynolds, the affidavit here substantially linked Lam to other burglaries. The affidavit delineated nine local burglaries occurring over a 22-day period. Very little of the property taken had been pawned at area pawn shops. At five of the burglaries, witnesses saw a small red hatchback car matching that of Lam's. Witnesses reported seeing two men matching Lam and Nem's description at several of the burglaries. Nine days prior to Lam's arrest, he was stopped for a traffic infraction.
State v. Clark, 143 Wn.2d 731, 747, 24 P.3d 1006, cert. denied, 122 S.Ct. 475 (2001).
State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995).
In re the Personal Restraint of Yim, 139 Wn.2d 581, 595, 989 P.2d 512 (1999).
Cole, 128 Wn.2d at 286.
State v. Jackson, 111 Wn. App. 660, 677, 46 P.3d 257 (2002) (citing State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)).
138 Wn.2d 133, 977 P.2d 582 (1999).
Thein, 138 Wn.2d at 148.
Thein, 138 Wn.2d at 148.
2 Wayne R. LaFave, Search and Seizure sec. 3.7(d), 381-84 (3d ed. 1996)).
104 Wn. App. 560, 17 P.3d 608 (2000), review denied, 144 Wn.2d 1003 (2001).
McReynolds, 104 Wn. App. at 570-571.
McReynolds, 104 Wn. App. at 570.
This case is more analogous to State v. Stone, 56 Wn. App. 153, 782 P.2d 1093 (1989). In that case, the court held that the observation of defendant's car at a crime scene coupled with the observation of items taken from the defendant's vehicle during a previous arrest, and the similar methods employed in the burglaries established the required nexus. Stone, 56 Wn. App. at 158.
The deputy conducting the stop observed a computer, stereo equipment, and video games in Lam's car. Finally, when Lam's codefendant Nem was arrested, Nem admitted participation in three burglaries and told police the stolen property was not at his residence because his sister would not allow it to be stored there. The search warrant affidavit contained a sufficient nexus between the missing items and Lam's residence. Lam next contends that the trial court erred in failing to sever the stronger burglary counts from those with weaker evidence supporting them.
We disagree. A trial court's refusal to sever charges is reviewable only for manifest abuse of discretion. In deciding a motion to sever, a trial court must consider whether the prejudice resulting from joinder is mitigated by (1) the strength of the State's case on each count, (2) the clarity of the defenses, (3) instructions to the jury to consider each count separately, and (4) the admissibility of evidence of the other charges even if not joined for trial. In addition, the court must weigh any residual prejudice against the need for judicial economy. A review of these factors demonstrates that the trial court did not abuse its discretion.
State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994).
Russell, 125 Wn.2d at 63.
Russell, 125 Wn.2d at 63.
The State's evidence on counts one, two, four, seven, eight and ten was arguably stronger than the remaining counts. The evidence consisted of Lam being arrested inside the burglarized residence (count one), evidence of property taken in a burglary in the possession of Lam shortly after his arrest (count two), a car similar to Lam's observed near the residence burglarized (counts four, seven, and ten), and evidence from yet another burglary in possession of Lam in his car prior to his arrest when he was stopped by a police officer for an unrelated traffic infraction (count eight). Conversely, in the remaining burglary counts the only direct evidence linking Lam to the burglary was the discovery of evidence from the burglary inside Lam's apartment. This factor weighs in favor of severance.
The second factor weighs against severance because Lam's defenses, a general denial on all counts but one (defense counsel conceded in closing argument that there was considerable evidence of burglary in count one), were clear and not likely to cause confusion. The third factor also weighs against severance because the court instructed the jury to `decide each count separately' and to not let their `verdict on one count . . . control (the) verdict on any other count.' Courts have repeatedly found this type of instruction sufficient to mitigate prejudice from joinder. Furthermore, differing verdicts indicate that the jury heeded the instruction. Here, Lam was acquitted on burglary counts 11 and 12.
See State v. Robinson, 38 Wn. App. 871, 691 P.2d 213 (1984) (general denial as to both counts); Russell, 125 Wn.2d at 64 (the `likelihood that joinder will cause a jury to be confused as to the accused's defenses is very small where the defense is identical on each charge.').
See e.g., State v. Bythrow, 114 Wn.2d 713, 723, 790 P.2d 154 (1990); State v. Cotten, 75 Wn. App. 669, 688, 879 P.2d 971 (1994); State v. Herzog, 73 Wn. App. 34, 51, 867 P.2d 648 (1994) (citations omitted).
State v. Standifer, 48 Wn. App. 121, 126-27, 737 P.2d 1308 (1987).
The fourth factor also weighs against severance. Any risk that the evidence of one count bolstered other counts is alleviated if the evidence would have been cross-admissible if severance were granted. If the evidence was cross-admissible, then even if the counts were tried separately, evidence of the other counts would have been admissible in the separate trials. Under ER 404(b), evidence of prior bad acts is admissible to show a common scheme or plan if the prior acts are sufficiently similar to the crime charged and not too remote in time. The evidence of prior misconduct must be sufficiently similar so that it naturally leads to the conclusion of a general plan. It must be admitted to show plan, not propensity. Here, the trial court concluded that `the joinder of these cases, as I said yesterday, was proper . . . there appears to be a same or similar scheme or character or plan to all of this and it seems to be based on . . . a method of conduct or series of conduct that took place in a short period of time in a very similar fashion.' In so ruling, the court implicitly recognized the `common scheme or plan' exception to ER 404(b).
State v. Lough, 125 Wn.2d 847, 860, 889 P.2d 487 (1995).
Lough, 125 Wn.2d at 860.
In most of the burglaries, the houses burglarized had their front doors forced open. In all of the burglaries the burglar wore gloves and frequently the stolen items were carried out in pillowcases taken from the residence. Further, the burglars always targeted electronics and jewelry and four of the burglaries occurred within days of one another. This evidence demonstrates Lam's burglaries were part of a common scheme or plan and would likely be cross-admissible in separate trials if severance were granted. Taken together, the four prejudice-mitigating factors weigh against severance. Contrary to Lam's assertions, any residual prejudice is outweighed by the concern for judicial economy. The trial court did not abuse its discretion in concluding that any potential prejudice was outweighed by concerns for judicial economy. Lam next contends that two of the burglary counts lack sufficient evidence to prove that he entered the residences. Specifically he argues that in count three (Vu residence) and count five (Jenkins residence) the State's only evidence was that the stolen property was found in codefendant Han Nem's apartment.
In order to prove that Lam was guilty of residential burglary, the State must prove that Lam entered or remained unlawfully in a dwelling with the intent to commit a crime against a person or property therein. Mere possession of recently stolen property is sufficient evidence of burglary only if it is coupled with corroborative evidence of guilt, such as false or improbable explanations of possession, flight, or physical evidence of the defendant's presence at the scene of the burglary. With regard to the Vu residence, we conclude that sufficient corroborating evidence is present. The evidence shows Lam was a friend of the Vus' stepson and had been in the home on numerous occasions. Lam's familiarity with the Vu home considered in conjunction with evidence that the Vu burglar knew where the Vus kept valuables in their home comprises the `slight corroborative evidence' necessary to sustain his burglary conviction on count three. Lam relies on State v. Mace for his proposition that there was insufficient evidence to support his conviction for the Jenkins burglary. In Mace the police found the victim's ATM card and wallet stashed inside a McDonald's restaurant bag and placed inside a trash can. The police matched the fingerprints on the sack and on the ATM receipt to that of the defendant. He was subsequently arrested, charged and convicted of second degree burglary. In reversing his conviction, the Washington Supreme Court held that there was no corroborative evidence, only inferences, that the defendant had entered the dwelling. Thus, Mace would likely require us to reverse the Jenkins count if it had been tried by itself without the cross-admissible evidence. But here there are multiple counts and evidence of a common scheme or plan, which taken together, provide more than sufficient corroborating evidence to satisfy Mace. For the foregoing reasons, we affirm the convictions on all counts.
State v. Q.D., 102 Wn.2d 19, 28, 685 P.2d 557 (1984). See also State v. Mace, 97 Wn.2d 840, 843, 650 P.2d 217 (1982) (while mere possession of recently stolen property, by itself, will not support a burglary conviction, the inference of guilt is strong where the defendant gave improbable or inconsistent explanation for his or her possession of the stolen goods); State v. Tollett, 71 Wn.2d 806, 811, 431 P.2d 168 (1967) (proof of possession of stolen goods, unless accompanied by other guilty circumstances such as giving a improbable explanation, will not support a conviction for possession of stolen property).
Mace, 97 Wn.2d at 843 (quoting State v. Portee, 25 Wn.2d 246, 253-54, 170 P.2d 326 (1946)).
Mace, 97 Wn.2d at 843.
Mace, 97 Wn.2d at 843-845.