Opinion
41941-6-II
02-20-2013
STATE OF WASHINGTON, Respondent, v. KAREN M. VIELGUTH, Appellant
UNPUBLISHED OPINION
Judge C.C. Bridgewater is serving as a judge pro tempore of the Court of Appeals, Division II, pursuant to CAR 21(c).
Karen Michelle Vielguth appeals her convictions of second degree burglary and second degree theft. She contends that the State produced insufficient evidence to convict her of either crime, and she raises additional claims of error in a pro se statement of additional grounds. We affirm.
FACTS
Shirley Halverson owns 10 acres of property in Graham. Among other buildings, the property contains a large garage. The gate to the property is secured with a chain that is wrapped around a post and locked with a padlock. An opening between the gate and post is secured with barbed wire.
On August 17, 2009, Shirley and her husband Marvin went to the property and noticed that the barbed wire had been cut and the chain pulled off. The padlock had been reset to look as though it was still locked. Two days earlier, the lock and barbed wire had been secure.
We use the Halversons' first names for clarity.
Marvin drove his truck toward the property and saw a white van backed in next to the garage. Marvin got out of the truck with his gun, and Shirley called 911.
Marvin saw a woman pushing a bicycle that had been leaning against the garage toward the back of the van. When she saw Marvin, she leaned the bicycle back against the garage and spoke to someone. Marvin then saw the woman and a man get into the van. Shirley saw a man get into the driver's seat but did not see the woman.
As the van sped past the Halversons, Marvin put a bullet into one of its tires. Shirley memorized the first part of the van's license plate: B275.
Pierce County Deputy Sheriff Brian Coburn responded to Shirley's 911 call and walked around the property with Marvin. They saw that the "man door" of the garage had been broken into, and they found a pink "Tuff Chix" work glove by the gate that did not belong to the Halversons. 2 Report of Proceedings (RP) at 148. The van's tire marks showed that the van was heading southbound. Deputy Coburn broadcast a description of a Caucasian male and female, both in their 30s, driving a white Astrovan.
Deputy Anthony Filing heard the broadcast, saw the van, and pursued it. The van accelerated and eventually pulled into a parking lot. A Caucasian male and female got out of the van and began running toward the woods.
Deputy Filing caught up with the female, who identified herself as Vielguth. She denied but eventually admitted being in the van, and she identified the driver as "Rob." 4 RP at 306. She later identified "Rob" as Robert Murphy during a photo lineup.
After giving Deputy Filing conflicting accounts of how she came to be in the van with Murphy, Vielguth admitted that she went to the Halverson property with him in the white van. Vielguth said Murphy had told her that people had been taking things from the property, and she said she closed the gate after they entered. She added that she saw Murphy enter the garage, remove a wagon wheel, and place it in the van.
When officers searched the white van, which had the license plate number B2754K, they found an iron bell, sheet music, an iron cart with wagon wheels, ski poles, glass skis, wooden skis, and a pressure washer. The Halversons identified these items as property from their garage. Officers also found Murphy's wallet and a receipt with Vielguth's name in the van. The Halversons did not know Vielguth or Murphy and had never given them permission to be on the Graham property.
The State charged Vielguth with second degree burglary and second degree theft. The trial court ruled that her statements to Deputy Filing were admissible, and the Halversons and the deputies testified to the facts cited above. Shirley has 20 years' experience as an antiques dealer, and she estimated that the value of the items taken from the garage was $280-$340.
Murphy testified for the defense that when he and Vielguth drove by the Halverson property and saw that the gate was open, they stopped to sleep over night. He added that he decided to take the Halversons' property the next morning and that Vielguth did not help or assist him in any way. Murphy also testified that Vielguth warned him when someone was coming, and he admitted that his tire was shot at as he drove off.
The trial court instructed the jury on accomplice liability, and the jury found Vielguth guilty as charged. The trial court imposed concurrent standard range sentences.
ANALYSIS
I. Sufficiency of the Evidence
Vielguth argues that the evidence was insufficient to show that she participated in the burglary and theft as either a principal or an accomplice.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn.App. 410, 415-16, 824 P.2d 533 (1992).
An accomplice and a principal share the same liability. State v. Carter, 154 Wn.2d 71, 78, 109 P.3d 823 (2005). A person is an accomplice if she knowingly "[s]olicits, commands, encourages, or requests" the commission of a crime, or if she aids in planning or committing a crime. RCW 9A.08.020(3); In re Welfare of Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979). A defendant is not guilty as an accomplice unless she has associated with and participated in the crime as something she wished to happen and which she sought by her acts to make succeed. State v. Luna, 71 Wn.App. 755, 759, 862 P.2d 620 (1993). Mere presence at the scene of a crime, even if coupled with assent to it, is not sufficient to prove complicity. Luna, 71 Wn.App. 4 at 759. An accomplice need not have the same state of mind as a principal, but she must know that her actions will encourage or promote the principal's commission of the crime. State v. LaRue, 74 Wn.App. 757, 762, 875 P.2d 701 (1994).
A. Burglary
The trial court instructed the jury that to convict Vielguth of second degree burglary, the State had to prove that she or an accomplice entered or remained unlawfully in a building, that the entering or remaining was with intent to commit a crime against a person or property therein, and that this act occurred in Washington. RCW 9A.52.030(1). A separate instruction explained that a building includes any fenced area.
Viewed in the light most favorable to the State, the evidence supports the inference that Vielguth helped Murphy enter the Halversons' property by cutting open the gate and then closing it behind them. She then attempted to take a bicycle from beside the garage, watched as Murphy took a wagon wheel from inside the garage, and warned him when the Halversons were approaching. This evidence shows more than Vielguth's mere presence at the scene. When viewed in the light most favorable to the prosecution, the evidence shows that she participated in the burglary and helped to make it succeed.
B. Theft
The trial court further instructed the jury that to convict Vielguth of second degree theft, the State had to prove that she or an accomplice wrongfully obtained or exerted unauthorized control over the property of another, that the property exceeded $250 in value, that the defendant or accomplice intended to deprive the other person of the property, and that this act occurred in Washington. RCW 9A.56.020(1)(a); former RCW 9A.56.040(1)(a) (2009). Here again, the evidence shows that Vielguth helped Murphy gain access to the Halversons' property and closed the gate behind him. She started to put a bicycle into the van, watched as Murphy loaded other property into the van, and warned him when the Halversons approached. Neither she nor Murphy had permission to take any property from the garage, and they sped off in the van when they saw the Halversons. The estimated value of the Halversons' property found in the van was $280 to $340. This evidence was more than sufficient to prove that Vielguth acted as either a principal or an accomplice in her effort to deprive the Halversons of property that exceeded $250 in value.
An amendment increasing the value to $750 applies to crimes committed on or after September 1, 2009. Laws of 2009, ch. 431, § 20.
II. Statement of Additional Grounds
Vielguth raises two issues in her pro se brief. She first asserts that Deputy Filing admitted during his testimony that he did not take notes while talking to her, that he wrote his report late that evening, and that he could have forgotten some of what they discussed. The jury was able to consider this admission in evaluating the deputy's testimony and credibility. We see no basis for relief.
Vielguth next asserts that a witness who could have testified in her defense died a few months before trial. Again, she does not assert any claim of error that entitles her to relief.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Johanson, A.C.J., Wiggins, J.