Opinion
No. 36860-9-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Mason County, No. 07-1-00107-7, Toni A. Sheldon, J., entered October 15, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J., and Quinn-Brintnall, J.
UNPUBLISHED OPINION
A Jury convicted Glenn R. York on multiple counts of theft of a firearm, first degree unlawful possession of a firearm, second degree theft, and residential burglary. He contends that the evidence was insufficient regarding the two counts for unlawful possession of a firearm, that his offender score was miscalculated, and that his counsel was ineffective. We affirm.
Facts
Robert Haselwood became acquainted with Glenn York in February 2007, when Haselwood was at Mary Phillips's residence getting parts for his truck. Haselwood thought that York was Phillips's son, and when York asked Haselwood if he could "ride along" to Aberdeen the next day, Haselwood agreed. I RP at 102. On February 26, 2007, as the two men returned from Aberdeen, another matter arose that required Haselwood to stop by his residence, and while there, he showed York around his home and property in rural Mason County.
Phillips treated York like her son, and kept a room for him at her house.
The next day, York called Haselwood at 5:30 PM as Haselwood drove to work to begin his night shift. After work, when Haselwood returned home, he found that his home had been burgled and a number of items had been taken, including his guns and his truck. Haselwood assumed that York was responsible and went to Phillips's home to confront York. When Haselwood arrived, Phillips was out, but York was home, and Haselwood demanded that his property be returned. York denied taking anything, but said he might know who had Haselwood's guns. York took Haselwood to an apartment complex and banged on an apartment door, but no one answered. When Shelton police arrived to investigate the disturbance, Haselwood explained why he was there. The officers arrested York on outstanding warrants, and dispatch reported the burglary to the county sheriff's office for investigation.
Haselwood returned to Phillips's home and confronted her about the alleged burglary and his missing property. By that time, Phillips had already received information from another man that prompted her to enter the locked room in her home that York used, to look for a gun. Phillips did not further state what the information was, but testified that she did not permit guns in her house. Phillips pried the locked door open with a butter knife. Inside, she found a rifle under a mattress. A short time later, Haselwood arrived looking for his property. Phillips led Haselwood to the room she had opened, and Haselwood found and identified two rifles and several other items taken from his home in the burglary. He also found the keys to his missing truck, and the key to the lock on the door that Phillips had just pried open. Phillips and Haselwood then drove around Phillips's neighborhood looking for Haselwood's truck and found it nearby. They then called police.
The State charged York with one count of residential burglary (count 1), two counts of theft of a firearm (counts II and III), two counts of first degree unlawful possession of a firearm (counts IV and V), one count of first degree theft for the personal property (count VI), and one count of second degree theft for Haselwood's truck (count VII). The information also included notice of a possible exceptional sentence should York be convicted, based on his criminal history and multiple current offenses resulting in a high offender score and some current offenses going unpunished.
At trial, York stipulated to having a conviction for a prior serious offense for purposes of the two counts of first degree unlawful possession of a firearm (counts IV and V). The jury found York guilty as charged, except for finding him guilty of the lesser included offense of second degree theft regarding count VI. The State then submitted evidence regarding nine of York's prior convictions and the court submitted the matter to the jury with a special instruction and verdict form. The jury found that York had nine prior convictions.
While the trial court need not have employed the jury in this fashion, see State v. Newlum, 142 Wn. App. 730, 738, 176 P.3d 529, review denied, 165 Wn.2d 1007 (2008), the matter is not raised on appeal and we express no opinion on the subject.
The court sentenced York to a statutory sentence of 436 months (running counts II-V consecutively per RCW 9.41.040(6) and RCW 9.94A.589(1)(c), and with counts I, VI, and VII running concurrently). The court imposed a sentence at the top of the standard range for each count. York filed a timely notice of appeal.
Discussion Sufficiency of the Evidence
York contends that the trial court erred in not taking counts IV and V (first degree unlawful possession of a firearm) from the jury for lack of sufficient evidence. We disagree.
A defendant's challenge to the sufficiency of the evidence requires the reviewing court to view 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 charged crime beyond a reasonable doubt. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007) (citing State v. Hosier, 157 Wn.2d 1, 8, ¶ 9, 133 P.3d 936 (2006); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. Brown, 162 Wn.2d at 428. A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences. Brown, 162 Wn.2d at 428.
Direct evidence is not required to uphold a jury's verdict; circumstantial evidence can be sufficient. State v. O'Neal, 159 Wn.2d 500, 506, 150 P.3d 1121 (2007). See also State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980) (in determining the sufficiency of the evidence, circumstantial evidence is not to be considered any less reliable than direct evidence). In reviewing the evidence, deference is given to the trier of fact, who resolves conflicting testimony, evaluates the credibility of witnesses, and generally weighs the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
The relevant issue at trial as to the counts for first degree unlawful possession of a firearm was whether York had "possession" of the rifles stolen from Haselwood's residence. See RCW 9.41.040(1)(a). Possession of property may be either actual or constructive. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Actual possession means that the goods are in the personal custody of the person charged; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged has "dominion and control" over the goods or the premises containing the goods. Callahan, 77 Wn.2d at 29. See also State v. Cote, 123 Wn. App. 546, 549, 96 P.3d 410 (2004). Determining whether there is constructive possession requires examination of the " totality of the situation" to ascertain if substantial evidence exists, which tends to establish circumstances from which the trier of fact can reasonably infer that the defendant had dominion and control over the contraband. State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977). See also Cote, 123 Wn. App. at 549. Exclusive control is not necessary to establish constructive possession. Cote, 123 Wn. App. at 549.
As noted, for purposes of these counts York stipulated at trial that he had a prior felony conviction.
York relies on State v. Bencivenga, 137 Wn.2d 703, 974 P.2d 832 (1999), and State v. Weaver, 60 Wn.2d 87, 371 P.2d 1006 (1962), for the proposition that "essential proofs of guilt cannot be supplied by a pyramiding of inferences." See Bencivenga, 137 Wn.2d at 711 (citing Weaver, 60 Wn.2d at 89). But York misconstrues these cases. In Bencivenga, our Supreme Court rejected the noted formulation, explaining that:
Weaver was predicated on our application of the former rule which required that if a conviction rests solely on circumstantial evidence, the circumstances proved must be unequivocal and inconsistent with innocence. . . . We have since rejected this rule in favor of the rule that whether the evidence be direct, circumstantial, or a combination of the two, the jury need be instructed that it need only be convinced of the defendant's guilt beyond a reasonable doubt.
Bencivenga, 137 Wn.2d at 711. The court clarified that if the inferences and underlying evidence are strong enough to permit a rational fact finder to find guilt beyond a reasonable doubt, "a conviction may be properly based on pyramiding inferences." Bencivenga, 137 Wn.2d at 711 (citation and internal quotation marks omitted). Accordingly, "it is the province of the finder of fact to determine what conclusions reasonably follow from the particular evidence in a case." Bencivenga, 137 Wn.2d at 711.
Here, the two rifles taken from Haselwood's residence were found under the mattress in the locked room that was York's room when York lived at Phillips's house. In the same room, Haselwood and Phillips also found a duffle bag that contained other property belonging to Haselwood, which had also been taken during the burglary. Inside the bag, Haselwood found a key chain with the key to his missing truck along with a key to the new lock on the door of the room that they were searching. Haselwood and Phillips found Haselwood's stolen truck parked nearby. Viewing the evidence in the light most favorable to the State, and considering the circumstances, we hold that sufficient evidence was presented for the jury to reasonably infer that York hid the rifles under the mattress, and by doing so he exerted dominion and control over them and constructively possessed them. Accordingly, we affirm York's conviction for counts IV and V.
Other evidence also linked York to the burglary. Haselwood had shown York around his property the day before the burglary. On the day of the burglary, York called Haselwood on his cell phone as Haselwood drove to work, and during their conversation verified that Haselwood was indeed on his way to work. During the phone conversation, York admitted that he had mistakenly taken Haselwood's red key chain flashlight from Haselwood's car the previous day. When Haselwood returned from work, he found that his residence had been burgled. As he inspected his property, he discovered his missing red key chain flashlight under a window that had been opened to facilitate the burglary. Haselwood then confronted York about the burglary, and York admitted that he might know who had the guns.
Offender Score
York contends that remand for resentencing is required because the trial court miscalculated his offender score. We disagree.
York raises two arguments. He first contends there is a discrepancy between the jury findings regarding his criminal history and the listing of his criminal history on his judgment and sentence, and thus the State failed to adequately prove his criminal history. He also contends that the trial court erred when it did not consider his current offenses as the same criminal conduct.
Generally, the trial court calculates an offender score by adding together the current offenses and the prior convictions. See RCW 9.94A.589(1)(a); State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994). But where the trial court finds that some of the offenses encompass the same criminal conduct, those offenses count as only one crime. See RCW 9.94A.525(5)(a)(i); State v. Bergstrom, 162 Wn.2d 87, 92-3, 169 P.3d 816 (2007). See also RCW 9.94A.589(1)(a) (defining same criminal conduct as two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim). However, even if we accept York's contentions, the present case does not require resentencing. Here, the jury specifically found in a special verdict form that York's criminal history included nine prior felony convictions. York does not dispute this, but contends only that one of the jury's findings is not accurately reflected in the judgment and sentence. But even if we disregarded one of his prior felony convictions, and accepted his contention that all of his current offenses qualify as "same criminal conduct," and thus would only count as one point, his offender score would still be "9." The sentencing grid provides the same standard range for scores of "9 or more." See RCW 9.94A.510. Thus, the standard ranges yielded by the sentencing grid are the same if York's offender score is 9, or "9+" as the State calculated it. See CP at 7, 15 (State's calculation of the offender score for each of the present offenses yielding an offender score ranging from 13 to 17). Because of York's high offender score, the State asked the trial court to impose an exceptional sentence above the standard range for counts II through V, in order to avoid York enjoying "free crimes." II RP at 270. The court declined to do so, and imposed standard range sentences for each offense. Accordingly, the errors York alleges, if errors at all, are harmless. See State v. Gonzales, 90 Wn. App. 852, 855, 954 P.2d 360, review denied, 136 Wn.2d 1024 (1998) (a harmless error is one that is trivial, formal, or merely academic and which in no way affects the outcome).
Additionally, York's reliance upon "same criminal conduct" as defined in RCW 9.94A.589(1)(a) is misplaced in any event because that statute specifically exempts such treatment for convictions for theft of a firearm or unlawful possession of a firearm. The statute also directs how the standard range for such a conviction is to be calculated, and requires that the sentences for such crimes be served consecutively. See RCW 9.94A.589(1)(a) and (c). The trial court's sentence comports with that statute and York does not effectively argue that resentencing is warranted.
RCW 9.94A.589 provides in relevant part:
(1)(a) Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535. "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. . . .
(c) If an offender is convicted under RCW 9.41.040 for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, the standard sentence range for each of these current offenses shall be determined by using all other current and prior convictions, except other current convictions for the felony crimes listed in this subsection (1)(c), as if they were prior convictions. The offender shall serve consecutive sentences for each conviction of the felony crimes listed in this subsection (1)(c), and for each firearm unlawfully possessed.
See RCW 9.94A.589(1)(a) and (c) (emphasis added).
Ineffective Assistance
York contends that his counsel was ineffective for failing to challenge the calculation of his offender score. We disagree.
In order to show that he received ineffective assistance of counsel, York must show (1) that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness; and (2) that the deficient performance resulted in prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). See also State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Because both prongs must be met, a failure to show prejudice will end the inquiry. State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986). We employ a strong presumption that defense counsel's conduct was not deficient. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
For the reasons discussed above, York cannot show prejudice. Moreover, his counsel argued at sentencing for an exceptional sentence below the standard range based on recent Supreme Court case law. York received effective assistance of counsel.
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 pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and PENOYAR, A.C.J., concur.