Opinion
No. 64068-2-I.
Filed: February 14, 2011.
Joseph Massingale appeals from the judgment entered on the jury's verdicts finding him guilty of possession of a stolen vehicle and possession of motor vehicle theft tools. He contends that the evidence in the case is insufficient to support the jury's verdict as to either offense, that the trial court erred by declining to give two of his proposed jury instructions, that the prosecutor engaged in misconduct in closing argument, and that the trial court erred by denying his request for an alternative sentence pursuant to RCW 9.94A.660, the drug offender sentencing alternative. Finding that the evidence was insufficient to prove that Massingale was guilty of possession of motor vehicle theft tools, we reverse that conviction. Finding no other error warranting relief, we affirm the remaining conviction.
I
Late one night in early December 2008, a blue Acura Integra was stolen from where it was parked in Sedro Woolley. Ten days later, at around 1:50 a.m., Skagit County Deputy Brad Holmes was exiting an AM/PM store in Sedro Woolley and saw a blue Acura Integra pull into the store's parking lot. The car appeared to be pulling up to a gas pump but then it suddenly and rapidly accelerated away from the store. Deputy Holmes believed this behavior to be suspicious because it "appeared obvious" to him that the occupants "looked directly at [the Deputy] and changed their plans and made a rapid acceleration out of the area." Report of Proceedings (RP) (June 2, 2009) at 45-46. Deputy Holmes noted the vehicle's license plate number and checked it in his vehicle's computer system, which revealed that the Acura had been reported stolen. Video surveillance tapes from the store revealed that the driver was wearing a white sweatshirt and that the passenger was wearing black clothing.
Deputy Holmes left the store parking lot, following the Acura's tire tracks in the freshly-fallen snow. He located the car parked on a nearby residential street. Although the car was unoccupied when Deputy Holmes located it, he observed two sets of footprints in the snow leading away from the vehicle. Each set of footprints exhibited distinct tread patterns. Deputy Holmes requested the assistance of other officers.
Several officers followed the footprints for more than an hour, traversing through residential areas, through school property, and across several roads. Ultimately, the tracks led to a trailer park residence. Joseph Massingale and Curtis Dupey were found inside the residence. At the time of their arrests, Massingale was wearing a white sweatshirt and Dupey was wearing dark clothing. The tread of their shoes matched the two sets of footprints leading away from the vehicle.
While the search for the suspects was occurring, another officer, Sergeant Dan McIlraith, was searching the car. Sergeant McIlraith discovered several tools, including screwdrivers and files, on the front passenger-side floorboard. Sergeant McIlraith testified at trial that the car's ignition had various marks and scratches on it and that "it appeared as if it had been started with something other than a key." RP (June 2, 2009) at 143.
Massingale was charged with possession of a stolen vehicle, a violation of RCW 9A.56.068, and possession of motor vehicle theft tools, a violation of RCW 9A.56.063. Massingale proceeded to trial. Testimony at trial was consistent with the above-described facts. Additionally, the car owner's son testified that, once the car was returned, the ignition was not working as well as it had before the car was stolen. He further testified that the passenger-side door lock was broken and would no longer accept a key. Massingale did not present any direct evidence.
The other occupant of the vehicle, Dupey, pleaded guilty prior to trial.
The jury found Massingale guilty of both charges.
At the sentencing hearing, after several people spoke on Massingale's behalf and described Massingale's struggle with methamphetamine, the trial court inquired as to whether a drug offender sentencing alternative (DOSA) had been considered. Then, over the objection of the prosecutor, the trial court ordered that a DOSA evaluation be conducted and sentencing rescheduled. At the second sentencing hearing, the prosecutor argued that a DOSA was not appropriate because Massingale's election to go to trial and his intention to appeal his convictions suggested that he was not amenable to treatment. She specifically argued, "[W]e shouldn't be rewarding people [with a DOSA] after a trial." RP (Aug. 13, 2009) at 7. The Department of Corrections (DOC) evaluator recommended against a DOSA. The trial court followed the DOC's recommendation and denied the DOSA. The trial court sentenced Massingale within the standard range, with both sentences to run concurrently.
Massingale appeals.
II
Massingale first contends that there is insufficient evidence to support his conviction of possession of a stolen vehicle. We disagree.
In determining the sufficiency of the evidence, our standard of review is "whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt." State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is considered to be as reliable as direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
RCW 9A.56.068 provides: "(1) A person is guilty of possession of a stolen vehicle if he or she possess[es] a stolen motor vehicle." "Possession may be actual or constructive, and constructive possession can be established by showing the defendant had dominion and control over the [property] or over the premises where the [property] was found." State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). "Actual possession means that the goods are in the personal custody of the person charged with possession." State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). An essential element of the crime of possession of stolen property is knowledge that the property was wrongfully appropriated. State v. Hatch, 4 Wn. App. 691, 693, 483 P.2d 864 (1971).
RCW 9A.56.140 provides, in pertinent part: "`Possessing stolen property' means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen."
Mere possession of stolen property does not create a presumption that the possession is unlawful, but possession is "a relevant circumstance to be considered with other evidence tending to prove the elements of the crime." Hatch, 4 Wn. App. at 694. Only "`slight corroborative evidence of other inculpatory circumstances tending to show . . . guilt will support a conviction.'" Hatch, 4 Wn. App. at 694 (quoting 4 C. Nichols, Applied Evidence, Possession of Stolen Property § 29 at 3664 (1928)); see also State v. Ladely, 82 Wn.2d 172, 175, 509 P.2d 658 (1973).
Evidence of flight provides such corroborative evidence, as it is indicative of guilty knowledge. State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965); State v. Womble, 93 Wn. App. 599, 604, 969 P.2d 1097 (1999). Indeed, in a previous opinion involving a charge of taking a motor vehicle without permission, we held that "[t]he absence of any explanation for [the defendant's] use of what appears to have been a recently stolen automobile . . . and his flight provide ample evidence from which to infer guilty knowledge." State v. Hudson, 56 Wn. App. 490, 495, 784 P.2d 533 (1990). Flight is "an instinctive or impulsive reaction to a consciousness of guilt or is a deliberate attempt to avoid arrest and prosecution," and, thus, guilty knowledge can be inferred from a defendant's quick departure from the scene. Bruton, 66 Wn.2d at 112-13. "Any innocent explanation for [a defendant's] actions could reasonably be negated by his attempts to escape capture." State v. Medley, 11 Wn. App. 491, 495, 524 P.2d 466 (1974). In addition, evidence of "a damaged ignition" constitutes corroborative evidence to support knowledge that a vehicle is stolen. State v. L.A., 82 Wn. App. 275, 276, 918 P.2d 173 (1996).
Our Supreme Court has described as "recently stolen" a vehicle that had been stolen several weeks before the defendant was found in possession of the vehicle. State v. Couet, 71 Wn.2d 773, 775, 430 P.2d 974 (1967).
The record herein contains sufficient evidence to support the jury's determination that Massingale had actual possession of the car. The video surveillance tapes reveal that the driver was wearing a white sweatshirt and the passenger was wearing dark clothing. When Massingale and Dupey were arrested, Massingale was wearing a white sweatshirt and Dupey had on black clothing. Thus, there was evidence that Massingale was driving the Acura. While driving the vehicle, Massingale fled from the gas station when observed by a law enforcement officer. He then abandoned the car on a residential street and fled on foot, in the middle of the night, through the snow, on an hour-long urban version of a cross-country jaunt. This flight is sufficient corroborating evidence of Massingale's knowledge of the car's stolen status.
Viewing the evidence in the State's favor, sufficient evidence was admitted from which a rational jury could find beyond a reasonable doubt that Massingale had been the driver of the stolen car and had known that it was stolen. Thus, the evidence is sufficient to sustain the jury's verdict finding Massingale guilty of possession of a stolen vehicle.
III
Massingale next contends that there is insufficient evidence to support his conviction of possession of motor vehicle theft tools. We agree.
RCW 9A.56.063 provides, in pertinent part:
(1) Any person who makes or mends, or causes to be made or mended, uses, or has in his or her possession any motor vehicle theft tool, that is adapted, designed, or commonly used for the commission of motor vehicle related theft, under circumstances evincing an intent to use or employ, or allow the same to be used or employed, in the commission of motor vehicle theft, or knowing that the same is intended to be so used, is guilty of making or having motor vehicle theft tools.
(2) For the purpose of this section, motor vehicle theft tool includes . . . any other implement shown by facts and circumstances that is intended to be used in the commission of a motor vehicle related theft, or knowing that the same is intended to be so used.
RCW 9A.56.063 (emphasis added).
Here, several tools were found in the Acura. There was evidence that the car was started with the use of tools other than a key. Plus there was damage to the passenger door lock and scratches on the car's ignition. However, there was no evidence presented at trial that any of the tools found in the Acura were adapted, designed, or commonly used for vehicle theft or that the damage to the ignition and the passenger door lock was, in fact, made by any of the tools found in the car. While the photographic exhibits admitted at trial reveal the size and shape of each of the tools found in the car, all of the tools are of a type commonly possessed for proper, benign purposes, and none appear to be altered in any way. No other testimony or other evidence was presented about the tools from which the jury could infer that the tools were "adapted, designed, or commonly used for the commission of motor vehicle related theft."
The tools discovered in the Acura included "files and screw drivers," RP (June 2, 2009) at 140, and three other tools that were described by the prosecutor in closing argument as "some other, kind of more pointier punch type mechanisms." RP (June 3, 2009) at 224. There was no further description of these tools at trial. Our independent review of the photographic evidence admitted at trial reveals that the tools included two screwdrivers, two files, and three pointed tools resembling awls.
The State contends that "tools when located in a stolen vehicle with the ignition damaged and tampered with and with a passenger door lock which was broken when it was stolen is sufficient to support a conviction for possession of motor vehicle theft tools." Br. of Resp't at 20-21. This is incorrect. Such evidence is not sufficient because it fails to provide any support for a finding that the tools were "adapted, designed, or commonly used for the commission of motor vehicle related theft." Such a finding is an essential element of the crime charged. RCW 9A.56.063.
Even given the deferential standard of review applicable to this issue, we cannot say that any reasonable jury could find from the evidence presented that any of these particular tools was a "tool[] that is adapted, designed, or commonly used for the commission of motor vehicle related theft." RCW 9A.56.063(1). Given that this is an essential element of the crime charged, Massingale's conviction for possession of motor vehicle theft tools must be reversed and the cause remanded to the trial court with instruction to dismiss this count with prejudice.
Massingale contends that the prosecutor engaged in misconduct in closing argument by arguing that the tools recovered from the car could fit into a car's ignition or door lock and by arguing that there was no evidence that Massingale had used a key to access or operate the Acura. Although Massingale argues that this misconduct tainted both of his convictions, these assignments of error relate only to Massingale's conviction for possession of motor vehicle theft tools. Viewing the allegedly improper arguments in the context of the whole argument, as we must, there is no possibility that these alleged errors could have affected the jury's decision on the charge of possession of a stolen vehicle.
To associate the prosecutor's challenged arguments with the charge of possession of a stolen motor vehicle misconstrues the elements that were required to be proved for that charge. Massingale was not charged with stealing a motor vehicle. If he had been, such arguments related to the tools and the key may have been applicable to that charge. We are reversing Massingale's conviction for possession of motor vehicle theft tools, which is the only charge to which these allegedly improper arguments could have been related. Accordingly, we need not consider whether the prosecutor engaged in misconduct in these instances.
IV
Massingale next contends that the trial court erred by refusing to give two of his proposed jury instructions. We disagree.
A trial court's refusal to give a proposed jury instruction is reviewed for an abuse of discretion. In re Det. of Pouncy, 168 Wn.2d 382, 390, 229 P.3d 678 (2010). We review de novo alleged errors of law in jury instructions. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). The right to due process of law requires that the jury be fully instructed on the defense theory of the case. State v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502 (1994). Jury instructions are sufficient where they allow the parties to argue their theories of the case, are not misleading, and properly inform the jury of the applicable law. Barnes, 153 Wn.2d at 382. When read as a whole, jury instructions must make the applicable legal standard "`manifestly apparent to the average juror.'" State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996) (quoting State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984)).
The trial court herein instructed the jury with respect to the possession of a stolen vehicle charge, to the possession of motor vehicle theft tools charge, and to accomplice liability. Massingale contends, however, that the trial court's instructions did not make the knowledge element of the crime of possession of a stolen vehicle manifestly apparent to the average juror and, instead, allowed the jury to convict Massingale without evidence that Massingale knew that the car was stolen. However, the trial court properly instructed the jury that it had to find that Massingale knew that he possessed the car and that Massingale knew that the car had been stolen. No additional instructions were necessary. The jury could not, without disregarding the trial court's instructions, find Massingale guilty without finding that he knew that the car was stolen.
Nevertheless, Massingale contends that the trial court's denial of his proposed instructions violated his right to present a defense. Massingale proposed the following instructions: "Possession of recently stolen property alone is not sufficient to justify a conviction for the crime of possessing stolen property," Clerk's Papers (CP) at 90, and "A mere passenger in a vehicle cannot be presumed to be aware of the vehicle's legal condition." CP at 91.
The trial court's other instructions sufficiently addressed the legal principles contained within both of Miller's proposed instructions. See Instruction 11 (CP at 78) ("To convict the defendant of the crime of possessing a stolen motor vehicle . . . each of the following elements of the crime must be proved beyond a reasonable doubt: . . . (2) That the defendant acted with knowledge that the motor vehicle had been stolen."); Instruction 15 (CP at 82) ("[M]ore than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice."). Even without Massingale's proposed instructions, the trial court's instructions to the jury allowed Massingale to argue a theory of the case that he was the passenger in the car and that he was not aware that the car was stolen. The trial court's instructions did not misstate the law and were not misleading; they made the legal standard "manifestly apparent." See LeFaber, 128 Wn.2d at 900. Massingale's proposed instructions, therefore, were unnecessary. Accordingly, the trial court did not err by declining to give the proposed instructions.
V
Massingale contends that the prosecutor engaged in misconduct by implying to the jury that the jurors would have to believe that the police were lying in order to acquit Massingale. While we agree that the prosecutor's argument was improper, the lack of an objection to this argument precludes Massingale from obtaining appellate relief.
A prosecutor engages in misconduct by arguing that the jury must conclude that the State's witnesses are either lying or mistaken in order to acquit the defendant. State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996). The prosecutor herein argued:
A defendant alleging prosecutorial misconduct during closing argument bears the burden of establishing "both the impropriety and the prejudicial effect of the argument." State v. Perez-Mejia, 134 Wn. App. 907, 916, 143 P.3d 838 (2006). Comments are prejudicial only where there is a "substantial likelihood that the misconduct affected the jury's verdict." Perez-Mejia, 134 Wn. App. at 916. We review the allegedly improper arguments in the context of "(1) the total argument; (2) the issues in the case; (3) the instructions, if any, given by the trial court; and (4) the evidence addressed in the argument." Perez-Mejia, 134 Wn. App. at 916-17.
Well, I submit to you that none of the questions that counsel's raised in her closing argument are of any significance or consequence to the outcome of this case based on the totality of the evidence before you. They're simply red herrings designed to draw your attention away from what the evidence truly shows. I submit, again, as we talked about, a reasonable doubt has to be reasonable. Were any of the questions she raised at all in this case reasonable? They were not.
For example, she says she doesn't want to disparage the officer's testimony in this case. She commends some of the things that he does, but questions everything that they do. Essentially, what her closing argument did was tell you that every one of those officers got up here testified and lied. That when they testified that they, in fact, did see the tread in the snow. They lied. That when they said that when they were walking along and could continuously see that tread in the snow, that they lied. For what? What purpose does an officer have to get up here on the stand under oath and tell you that he or she saw something that they did not in fact see? Why? Why would they do that? For taking a motor vehicle case, for possession of a stolen motor vehicle? Seriously? It just doesn't make any sense.
RP (June 3, 2009) at 256-57. Massingale did not object to any of these statements. Where a defendant does not object or request a curative instruction, that defendant has waived the claim of error unless we determine that the objectionable remark "`is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.'" State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
While the prosecutor's comments herein were most certainly flagrant and were possibly ill-intentioned, we have no doubt that this misconduct could have been corrected by a proper limiting instruction. Because Massingale did not interpose an appropriate objection, the trial court was denied the opportunity to provide such a curative instruction. Accordingly, Massingale waived this claim of error and cannot be afforded appellate relief.
VI
Massingale finally contends that the trial court erred by denying his request for a DOSA. We disagree.
A sentencing court's decision of whether to grant a DOSA is ordinarily not reviewable on appeal. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005); RCW 9.94A.660. Review of such a decision is limited to circumstances where the trial court has categorically refused to exercise its discretion to impose a DOSA, Grayson, 154 Wn.2d at 342, or has relied on an impermissible basis for refusing to impose a DOSA. See State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). Where a trial court has considered the facts and has concluded that there is no basis for an exceptional sentence, it has exercised discretion, and a defendant may not appeal such a ruling. Garcia-Martinez, 88 Wn. App. at 330.
Massingale contends that the trial court abused its discretion in three ways by denying his request for a DOSA. However, Massingale cannot obtain relief on any of these enumerated bases.
First, Massingale contends that the trial court categorically refused to grant a DOSA to a defendant who exercised his constitutional right to stand trial. Although Massingale is correct that denying a DOSA on such a basis would be impermissible, see State v. Montgomery, 105 Wn. App. 442, 17 P.3d 1237, 22 P.3d 279 (2001), he is incorrect in his assertion that the trial court did so here. At Massingale's initial sentencing hearing, the trial court — presumably aware that Massingale had exercised his right to a trial, having presided over that trial — prompted the DOSA evaluation without a request from Massingale. Clearly, the trial court considered a DOSA to be an option for Massingale. The trial court would not have requested the DOSA evaluation and delayed sentencing had it believed that a defendant who proceeds to trial is not an appropriate candidate for a DOSA.
While the prosecutor strongly opposed the granting of a DOSA on the basis that a defendant should not be given a DOSA after proceeding to trial, the DOC evaluator and the trial court did not adopt a similar belief. Rather, the evaluator found troubling both Massingale's "criminal lifestyle" and his relapse only five months after receiving earlier treatment. The DOC evaluation also emphasized that Massingale desired a DOSA primarily for purposes of receiving a shorter sentence of incarceration, rather than for purposes of overcoming his drug addiction. The trial court assigned great weight to the evaluator's negative recommendation. The trial court relied in part on Massingale's extensive criminal history, in part on the fact that Massingale had earlier received treatment but had nevertheless reoffended, and in part on the evaluator's recommendation. The trial court herein — unlike the trial court in Grayson — considered the facts and concluded that there was no basis for an exceptional sentence; thus, it exercised its discretion. Accordingly, Miller may not appeal from that ruling. Garcia-Martinez, 88 Wn. App. at 330.
Second, Massingale contends that the trial court improperly relied on his criminal history in denying his request for a DOSA. However, this challenge is unreviewable. Massingale raises neither a constitutional nor a procedural error in challenging the trial court's consideration of criminal history. Absent a constitutional or procedural challenge we will not review a sentencing court's discretionary decision to deny a defendant's request for a DOSA. Grayson, 154 Wn.2d at 338.
Third, Massingale contends that the trial court relied on an incomplete DOSA evaluation. However, even were the DOSA evaluation incomplete, Massingale failed to raise this issue below. He does not cite to any authority allowing him to raise this claim for the first time on appeal.
For his contention that the evaluation was incomplete, Massingale relies on former RCW 9.94A.660(2) (2006). However, this statute was amended in 2009, prior to Massingale's trial, DOSA evaluation, and sentencing hearings. Laws of 2009, ch. 389. Our review of the statute indicates that no information required to be included in Massingale's evaluation was omitted. RCW 9.94A.660(4), (5).
We reverse Miller's conviction for possession of motor vehicle theft tools and remand to the trial court for dismissal with prejudice. We affirm his remaining conviction for possession of a stolen vehicle.
We concur: