State v. Taplin , 9 Wash. App. 545 ( 1973 )

Williams, J.

— Sandy Junior Taplin appeals from a judgment entered upon his conviction by a jury of second-degree burglary. The errors claimed concern two instructions given and the competence of trial counsel. We affirm.

The facts which the jury had a right to find from the evidence are these: On August 20, 1971, the manager of a motel in Seattle left her apartment on an errand which took from 3 to 5 minutes. As she was returning to her apartment, she saw a woman, later identified as Ms. Estill, sitting in the passenger seat of a car parked in the driveway adjacent to the office of the motel. The manager asked Ms. Estill what she wanted and was told that her husband was looking for someone from whom- to rent a unit. The manager then continued on and, as she rounded the turn to her apartment, met Taplin, who was walking by her door. He rented a room, giving his name as “Thomas”, and with Ms. Estill drove off. The manager then went to her apartment and found that while she had been on the errand it had been forcibly entered, and that checks, credit cards, other identifiable property, and money had been stolen. About 2 hours later, Taplin registered in the names of “Mr. and Mrs. McLeod” at another motel in Seattle. Both he and Ms. Estill occupied the room, and when they left, the stolen property was found there.

Taplin’s first assignment of error is directed to the instruction on the statutory presumption of criminal intent “unless such unlawful breaking and entering or unlawful entry shall be explained by testimony satisfactory to the jury . . .” He contends that this language, which is carried verbatim from the statute, RCW 9.19.030, is an unlawful comment on his not testifying in his own behalf, in violation of the fifth amendment to the United States Constitution. The Washington Supreme Court has held that the instruction does not shift the burden of proof to the defendant to prove his innocence. State v. Reid, 74 Wn.2d 250, 444 P.2d 155 (1968); State v. Durning, 71 Wn.2d 675, 430 P.2d 546 (1967). The quoted language refers to the absence of satisfactory evidence generally and not to the silence of the accused. Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965).

Taplin next assigns error to the instruction which was given on aiding and abetting, contending that there was no evidence to support it. It is true that, if there is no proof that anyone else committed the offense, the giving of an aiding and abetting instruction may be prejudicial error. State v. Nikolich, 137 Wash. 62, 241 P. 664 (1925).¹ However, there was sufficient evidence to warrant the giving of the instruction. Ms. Estill was in close proximity to the scene of the crime when it was committed, she was a passenger in the car in which the stolen property was probably transported, and she occupied the motel room in which the property was subsequently found. This establishes a prima facie case of burglary against her and justifies the giving of the instruction. State v. Frazier, 76 Wn.2d 373, 456 P.2d 352 (1969); State v. Razey, 54 Wn.2d 422, 341 P.2d 149 (1959).

The defense seems to argue that there was no evidence implicating Ms. Estill in the commission of the crime because, with Taplin seen at the doorway, it is obvious that, as between the two, Taplin did it. The evidence as to the person or persons entering the apartment was entirely circumstantial. The jury could not know absolutely whether it was Taplin, Ms. Estill, or both, or someone else. It is enough under the statute, RCW 9.01.030, that there be substantial evidence, which there was, that Taplin participated either as principal or accessory. State v. Nichols, 148 Wash. 412, 269P. 337 (1928).

Finally, Taplin contends that he did not receive a fan-trial because his counsel (who was other than appellate counsel) was incompetent. We have examined the record and find that trial counsel was not only competent but ably represented his client.

The judgment is affirmed.

1 Cf. State v. Nelson, 144 Wash. 370, 258 P. 24 (1927); People v. Starkey, 234 Cal. App. 2d 822, 44 Cal. Rptr. 738 (1965); Wilson v. State, 150 Neb. 436, 34 N.W.2d 880 (1948); Richmond v. State, 456 P.2d-897 (Okla. Crim. 1969).