State Of Washington v. Jamil Alkitab Al Wali Mutazz ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
April 4, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48465-0-II
Respondent,
v. UNPUBLISHED OPINION
JAMIL ALKITAB AL WALI MUTAZZ,
Appellant.
MAXA, A.C.J. – Jamil Alkitab Al Wali Mutazz appeals his conviction for possession of a
stolen vehicle and his sentence. He argues that the State did not present sufficient evidence that
he knew the vehicle he was driving was stolen. In a statement of additional grounds (SAG),
Mutazz also challenges the trial court’s imposition of an exceptional sentence for his convictions
of possession of a stolen vehicle and attempting to elude a pursuing police vehicle.
We hold that (1) the State presented sufficient evidence to prove that Mutazz knew that
the vehicle was stolen, and (2) the trial court did not err in imposing an exceptional sentence
based on the rapid recidivism and free crimes aggravating factors. Accordingly, we affirm
Mutazz’s conviction for possession of a stolen vehicle and his exceptional sentence.
FACTS
Around 5:00 AM on February 28, 2015, Young Kim drove his Lexus to his dry cleaning
business in Seattle. Kim went inside, but he left the keys in the car. While Kim was inside, his
No. 48465-0-II
employee Juan Galvan-Garcia saw a black man in a dark colored hooded sweatshirt get into the
car and drive away. Galvan-Garcia could not see the man’s face.
Kim immediately reported to police that his Lexus was stolen. Around 8:48 AM Tacoma
police officer Timothy Fredericks spotted the Lexus, which was parked. When Fredericks drove
by the car he saw a person who he later identified as Mutazz in the driver’s seat, but did not see
anyone else in the car. Fredericks radioed that he had seen the stolen Lexus and started to turn
around. Then he saw Mutazz back the car out of the parking spot and drive off.
Fredericks and Pierce County sheriff’s deputy Ryan Olivarez both activated their marked
cars’ overhead lights to pull over the Lexus, but Mutazz sped away and a chase ensued. During
the pursuit, the Lexus was damaged after running over spike strips placed in its path by law
enforcement. Mutazz drove the damaged car into an alley, hit a tree stump, and ran away on
foot. Olivarez ran after Mutazz and arrested him.
The State charged Mutazz with possession of a stolen vehicle, attempting to elude a
pursuing police vehicle, second degree assault, and resisting arrest. Kim, Galvan-Garcia,
Fredericks and Olivarez testified at trial, as did other law enforcement officers who were
involved in the investigation.
Mutazz also testified at trial. He stated that he obtained the Lexus in Federal Way during
a drug transaction. He did not know the name of the person who gave him the car, but said he
had thought he had seen him before in Tacoma. He said that the man was in the passenger seat
while Mutazz was driving. He also testified that he tried to get away from the police because he
was under Department of Corrections (DOC) supervision, had been using drugs when he was
parked, and still had some drugs with him.
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The jury found Mutazz not guilty of the second degree assault charge and found him
guilty of possession of a stolen vehicle, attempting to elude a pursuing police vehicle, and
resisting arrest.
At the sentencing hearing, the trial court entered findings of fact and conclusions of law
to support an exceptional sentence for Mutazz’s convictions for possession of a stolen vehicle
and attempting to elude a pursuing police vehicle. The trial court found that two aggravating
factors applied. First, Mutazz committed the offenses shortly after his release from jail, which
was 11 days earlier. Second, Mutazz was convicted of multiple current offenses and his high
offender score1 would result in one of his current offenses going unpunished if a standard-range
sentence was imposed.
The trial court sentenced Mutazz to 57 months – the high end of the standard range – for
the possession of a stolen vehicle conviction. For the attempting to elude a pursuing police
vehicle conviction, the trial court imposed a 43 month sentence, which was above the standard
range. The trial court also ordered that the sentences run consecutively for a total of 100 months
in confinement.2
Mutazz appeals his conviction for possession of a stolen vehicle and his exceptional
sentence for his possession of a stolen vehicle and attempting to elude a pursuing police vehicle
convictions.
1
Mutazz’s offender score was calculated to be 40+ for the possession of a stolen vehicle
conviction and 20 for the attempting to elude a pursuing police vehicle conviction.
2
The trial court also sentenced Mutazz to 90 days for the resisting arrest conviction to run
concurrently with the 100 months.
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No. 48465-0-II
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Mutazz argues that the State failed to present sufficient evidence that he knew the Lexus
was stolen. We disagree.
1. Standard of Review
When evaluating the sufficiency of evidence for a conviction, the test is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102,
105, 330 P.3d 182 (2014). We will assume the truth of the State’s evidence and all reasonable
inferences drawn from that evidence when evaluating whether sufficient evidence exists. Id. at
106. We treat circumstantial evidence as equally reliable as direct evidence. State v.
Farnsworth, 185 Wn.2d 768, 775, 374 P.3d 1152 (2016). And we defer to the trier of fact’s
resolution of conflicting testimony and evaluation of the persuasiveness of the evidence.
Homan, 181 Wn.2d at 106.
2. Legal Principles
RCW 9A.56.068(1) states that a person is guilty of possession of a stolen vehicle if the
person “possess[es] . . . a stolen motor vehicle.” RCW 9A.56.140(1) defines what it means to
possess stolen property:
“Possessing stolen property” means knowingly to receive, retain, possess, conceal,
or dispose of stolen property knowing that it has been stolen and to withhold or
appropriate the same to the use of any person other than the true owner or person
entitled thereto.
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(Emphasis added.) The trial court gave an unchallenged jury instruction that stated these
definitions. The trial court’s to-convict instruction required the State to prove that Mutazz “acted
with knowledge that the motor vehicle had been stolen.” Clerk’s Papers at 118.
Showing possession alone is not sufficient to prove guilty knowledge, but “possession
together with slight corroborating evidence of knowledge may be sufficient.” State v. Scoby, 117
Wn.2d 55, 61-62, 810 P.2d 1358, 815 P.2d 1362 (1991). Sufficient corroborating evidence to
prove guilty knowledge includes “the giving of a false explanation or one that is improbable or is
difficult to verify.” State v. Ladely, 82 Wn.2d 172, 175-76, 509 P.2d 658 (1973) (holding that
the fact that the defendant gave three different explanations for how he came to possess the
stolen property was sufficient to show guilty knowledge). And evidence of flight can support an
inference of consciousness of guilt. See State v. McDaniel, 155 Wn. App. 829, 853-54, 230 P.3d
245 (2010).
3. Analysis
Mutazz argues that the State only presented evidence that he possessed the Lexus, which
was not sufficient to show that he knew the car was stolen. He points out that (1) Galvan-Garcia
could not identify Mutazz as the man he saw steal the Lexus, (2) Mutazz was not seen in the
Lexus until a few hours after it was stolen, (3) there was no obvious indication that the car was
stolen, and (4) Mutazz testified that he fled from police because he had been doing drugs and
was on DOC supervision.
But the State presented evidence that Mutazz was a black man who had a dark colored
hoodie with him at the time of his arrest, which was consistent with Galvan-Garcia’s description
of the man who stole the Lexus. That evidence supports an inference that it was Mutazz who
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No. 48465-0-II
stole the Lexus. And Mutazz fled from police, driving at high speeds to try to evade them and
later fleeing on foot, which supports an inference that Mutazz had consciousness of his guilt.
Although Mutazz testified that he fled because he had drugs and not because he knew the car
was stolen, the jury was free to weigh Mutazz’s credibility, consider the extreme measures he
took to avoid arrest, and infer that he knew the car was stolen.
Finally, Mutazz’s testimony about how he acquired the Lexus was improbable and
impossible to verify. Mutazz said he acquired the car during a drug transaction in Federal Way,
but he could not specify where exactly the transaction occurred and did not know the name of the
man who gave him the Lexus or where that man lived. Mutazz also testified that the man was
with him in the car, but neither Fredericks nor Olivarez saw another person in the car. And
another officer who arrived at the location of the abandoned Lexus did not see any other
occupants. This evidence supports an inference that Mutazz gave a fabricated and false
explanation.
Viewing the evidence in the light most favorable to the State, we hold that there was
sufficient corroborating evidence in addition to Mutazz’s possession to prove that Mutazz knew
the Lexus was stolen.
B. IMPOSITION OF EXCEPTIONAL SENTENCE
1. Rapid Recidivism Aggravating Factor
In his SAG, Mutazz argues that the rapid recidivism aggravating sentencing factor was
inapplicable because shortly before this incident he had been confined as a sanction for violating
DOC supervision, not for a criminal conviction. We disagree.
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No. 48465-0-II
Under RCW 9.94A.535(3)(t) 3, one factor that can support a sentence above the standard
range is that “[t]he defendant committed the current offense shortly after being released from
incarceration.” This factor is known as the “rapid recidivism” aggravating factor. State v.
Williams, 159 Wn. App. 298, 309, 244 P.3d 1018 (2011). Here, Mutazz was released from jail
on February 17, 2015, only 11 days before he committed the offenses for which he was
sentenced. This period of time clearly qualifies as “shortly after being released.” See State v.
Zigan, 166 Wn. App. 597, 604-05, 270 P.3d 625 (2012) (holding no error in applying rapid
recidivism aggravator when crime was committed just over two months after release).
However, Mutazz points outs that he had been in jail as a sanction for violating the terms
of DOC supervision, not because he was serving a sentence for another offense. On October 22,
2014 he was released from prison after serving a sentence for two felonies and placed on DOC
supervision. Mutazz argues that the term “incarceration” in RCW 9.94A.535(3)(t) should be
interpreted as confinement for an offense, not confinement for a community supervision
violation. Therefore, he claims that October 22, 2014 and not February 17, 2015 should have
been the relevant date for application of the rapid recidivism factor.
The Sentencing Reform Act (SRA), chapter 9.94A RCW, does not define
“incarceration.” Therefore, we may resort to the dictionary to discern the plain meaning of
incarceration. State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). The dictionary defines
incarceration as “a confining or state of being confined.” WEBSTER’S THIRD NEW
3
RCW 9.94A.535 has been amended since the events of this case transpired. However, these
amendments do not impact the statutory language relied on by this court. Accordingly, we do
not include the word “former" before RCW 9.94A.535.
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No. 48465-0-II
INTERNATIONAL DICTIONARY 1141 (2002). Under this definition, Mutazz’s confinement for
violating DOC supervision imposed because of a felony conviction constitutes incarceration.
In addition, we consider related provisions and the statutory scheme as a whole when
considering the plain language of a statute. State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724(2013). When interpreting other SRA provisions, courts have held that “confinement pursuant to
a felony conviction” includes confinement for violation of a community supervision term
imposed based on the felony. State v. Mehrabian, Wn. App. 678, 714, 308 P.3d 660 (2013);
State v. Blair, 57 Wn. App. 512, 515-17, 789 P.2d 104 (1990). Under these cases, there is no
distinction between confinement for a felony and confinement for violating DOC supervision
imposed based on that felony.
Accordingly, we hold that the trial court did not err in applying the rapid recidivism
aggravating factor.
2. Free Crimes Aggravating Factor
In his SAG, Mutazz also argues that the trial court erred in finding that his high offender
score would lead to some of the current offenses going unpunished. We disagree.
Under RCW 9.94A.535(2)(c), one factor that can support an exceptional sentence is that
“[t]he defendant has committed multiple current offenses and the defendant’s high offender score
results in some of the current offenses going unpunished.” This factor is known as the “free
crimes” aggravating factor. State v. France, 176 Wn. App. 463, 468-69, 308 P.3d 812 (2013).
Once the trial court determines that some of the defendant's offenses will go unpunished, it has
discretion to impose an exceptional sentence on all current offenses. Id.8
No. 48465-0-II
Here, Mutazz had 68 prior convictions, including 18 felonies. His offender score was
calculated at 40+ for possession of a stolen vehicle and 20 for attempting to elude a pursuing
police vehicle. An offender score of 9+ is all that is needed to reach the highest standard
sentencing range for a crime. RCW 9.94A.510; France, 176 Wn. App. at 468.
If the trial court had imposed concurrent sentences, the maximum standard range
sentence for Mutazz’s convictions would have been 57 months – the maximum sentence for
possession of a stolen vehicle. The trial court correctly determined that in light of Mutazz’s
offender scores well over 9+ and his multiple current offenses, a 57 month sentence would result
in some of his current offenses going unpunished. By imposing a sentence above the standard
range for attempting to elude a pursuing police vehicle and ordering that Mutazz’s possession of
a stolen vehicle and attempting to elude a pursuing police vehicle sentences run consecutively,
the trial judge ensured that Mutazz received a punishment for each crime.
Accordingly, we hold that the trial court did not err in finding that Mutazz’s high
offender score would result in some of the multiple current offenses going unpunished.
C. APPELLATE COSTS
Mutazz asks that we exercise our discretion to deny any appellate costs the State may
request. A commissioner of this court will consider whether to award appellate costs in due
course under the newly revised provisions of RAP 14.2 if the State decides to file a cost bill and
if Mutazz objects to that cost bill.
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No. 48465-0-II
CONCLUSION
We affirm Mutazz’s conviction for possession of a stolen vehicle and affirm his
exceptional sentence for possession of a stolen vehicle and attempting to elude a pursuing police
vehicle.
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.
MAXA, A.C.J.
We concur:
WORSWICK, J.
SUTTON, J.
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