State Of Washington, Resp v. Michael Richard Bruce, App ( 2017 )

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2017 AUG -7 AH
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 74673-1-1
Respondent, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
MICHAEL RICHARD BRUCE, )
)
Appellant. ) FILED: August 7, 2017
)
APPELWICK, J. — Bruce was convicted of residential burglary. He contends
that the evidence was insufficient to support his conviction, that the trial court
abused its discretion in not severing his trial from his codefendants, and that the
jury instructions amounted to a judicial comment on the evidence. We affirm.
FACTS
At about 5:30 a.m. on September 27, 2012, Bill Campbell saw four men
carrying boxes and large bags out of a neighbor's carport and called 911.
Snohomish County Sheriff's Deputy John Sadro was one of the first officers to
arrive at the scene. Deputy Sadro observed a damaged lock to a gate that had
"tool marks," and a door into the house appeared to have been pried open.
Lynnwood Police Department Sergeant Coleman Langdon also responded.
He observed two males, later identified as Denis Gorbunov and Svein Vik, walking
along Serene Way towards a white minivan, and spoke with them. Sergeant
Langdon patted down Gorbunov. He discovered a flat prying tool. The police
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found stolen property from the residence inside the white van. Sergeant Langdon
and his K9 swept the house, but they found no other individuals in the house.
Snohomish County Sheriff's Deputy Troy Koster also responded to the
scene. He approached a Jeep parked on the side of the road. The hood was
warm, as if it had recently been running. He saw someone lying down in the back
seat, later identified as Michael Bruce. He also saw bolt cutters and a backpack
"full of something."
Deputy Koster spoke with Bruce. Bruce stated that he had attended a
barbecue in the area the night before and was on his way home when the vehicle
broke down, so he decided to sleep in it.
Police also located a man named Edward Blunt at the scene. Blunt claimed
that, unrelated to Bruce, he had fallen asleep drunk in the residence's backyard.
But, his driver's license was found inside the Jeep that Bruce claimed to be
sleeping in.
Police ultimately found items belonging to the residence owner, Sandra
Davis, inside the Jeep. Bruce was charged with one count of residential burglary.
Bruce, Vik, and Blunt were tried in a single trial. The jury found Bruce guilty. Bruce
appeals. .
DISCUSSION
Bruce makes three arguments. First, he argues that the evidence was
insufficient to support his conviction. Second, he argues that the trial court abused
its discretion in denying his motions to sever trial from his codefendants. Third, he
argues that the jury instructions amounted to a judicial comment on the evidence.
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I. Sufficiency of Evidence
Bruce argues that the evidence was insufficient to support his conviction for
residential burglary. The test for determining the sufficiency of the evidence is
whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found guilt beyond a reasonable doubt. State v.
Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992). When the sufficiency of the
evidence is challenged in a criminal case, all reasonable inferences from the
evidence must be drawn in favor of the State and interpreted most strongly against
the defendant. Id. A claim of insufficiency admits the truth of the State's evidence
and all inferences that reasonably can be drawn therefrom. Id.
Under RCW 9A.52.025, "[a] person is guilty of residential burglary if, with
intent to commit a crime against a person or property therein, the person enters or
remains unlawfully in a dwelling other than a vehicle." The State's theory of the
case included the possibility that Bruce was an accomplice to the crime. A person
is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the
commission of the crime, he or she:
(i) Solicits, commands, encourages, or requests such other
person to commit it; or
(ii) Aids or agrees to aid such other person in planning or
committing it.
RCW 9A.08.020(3).
While no evidence directly put Bruce inside of the residence, extensive
evidence supported an inference that he had in fact been a participant in the
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residential burglary. Neighbor William Campbell saw a man walk away from the
house and place a package in the back of the Jeep. Bruce was found inside of the
Jeep that was parked near the residence. Bruce told police that he had been
sleeping there that night, but the hood of the Jeep was warm to the touch,
suggesting that it had recently been running. Inside the Jeep, police found
medications prescribed to the residence owner, Sandra Davis, mail addressed to
Davis, checkbooks in Davis's name, a credit card belonging to Davis's father,
Ansel Davis, and receipts with Sandra Davis's name on them. The Jeep also
contained bolt cutters, a pair of pliers, and a screwdriver. The lock of the gate to
the residence was broken and the door to the house appeared to have been pried
open. Police found a glove in the Jeep's glove compartment that matched a single
glove that police found inside of the residence. And, police found numerous items
from Davis's residence at Vik's residence.1 Bruce's driver's license showed Vik's
residence as Bruce's address, and Bruce received mail at that address.
Bruce notes that mere physical presence at a scene is not sufficient to show
that an individual was an accomplice to a crime. State v. Roberts, 80 Wash. App.
342, 355, 908 P.2d 892(1996). But, the evidence at trial established far more than
mere physical presence. The evidence was sufficient to support the jury's verdict
finding Bruce guilty of residential burglary.
1 Similarly, police found additional stolen goods, including Davis's credit
cards and receipts, in Vik's white van.
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II. Severance
Bruce moved to sever trial from his codefendants multiple times. He argues
that the trial court abused its discretion in denying his motions to sever under CrR
4.4(c)(2). That rule states that a trial court should grant a severance
(i) if before trial, it is deemed necessary to protect a
defendant's rights to a speedy trial, or it is deemed appropriate to
promote a fair determination of the guilt or innocence of a defendant;
or
(ii) if during trial upon consent of the severed defendant, it is
deemed necessary to achieve a fair determination of the guilt or
innocence of a defendant.
Id.
A trial court's denial of a motion for severance will not be reversed absent a
manifest abuse of discretion. State v. Dent, 123 Wash. 2d 467, 484, 869 P.2d 392
(1994). "Separate trials are not favored in this state." Id. On appeal from denial
of a motion .For severance, the defendant has the burden of demonstrating that a
joint trial was so manifestly prejudicial as to outweigh the concern for judicial
economy. State v. Hoffman, 116 Wash. 2d 51, 74, 804 P.2d 577 (1991). To meet
this burden, the defendant must show specific prejudice. State v. Jones, 93 Wn.
App. 166, 171, 968 P.2d 888 (1998).
Specific prejudice may result if the codefendants offer "antagonistic
defenses conflicting to the point of being irreconcilable and mutually exclusive."
Id. The existence of mutually antagonistic defenses is not alone sufficient to
compel separate trials. Hoffman, 116 Wash. 2d at 74. Rather, it must be
demonstrated that the conflict is so prejudicial that defenses are irreconcilable, and
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the jury will unjustifiably infer that this conflict alone demonstrates that all are guilty.
Id. The burden is on a moving party to come forward with sufficient facts to warrant
the exercise of discretion in his or her favor. Id.
Bruce argues that he was prejudiced here, because his defense and Vik's
defenses were irreconcilable and mutually exclusive. Bruce's defense was that
the Jeep had broken down after he had attended a nearby party. A witness called
by Bruce, Taylor Nemra, testified that she had been at a party the evening of
September 26, 2012. She stated that she arrived at the barbecue around 7:00
p.m. She also stated that Bruce had arrived at the party "probably within the same
hour" that she had arrived, and did not leave until after 2:00 a.m. But, Vik testified
that Bruce and Blunt had come over to Vik's house the night of September 26,
2012. Vik read a prior statement that claimed that Blunt and Bruce had stopped
by his house between 8:00 p.m. and 9:00 p.m. that night.
However, during his testimony, Vik could not recall the specifics of that visit
beyond what he had written in his prior statement. Nemra's recollection about the
timeline of that night was similarly vague. She noted that, while Bruce "probably"
showed up within the same hour as her, "I can't recall exact time honestly." And,
her own statement that she arrived around 7:00 p.m. "give or take," was just a
"rough estimate."
Nemra's and Vik's respective testimony do not give a concrete narrative for
a timeline of the night. But, we cannot say that the trial court abused its discretion
in determining that these incomplete recollections gave sufficient room such that
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both Nemra's and Vik's accounts could be believed. Belief in one witness's
testimony did not require complete disbelief of the other.
III. Comment on Evidence
Bruce also argues that the trial court's jury instructions amounted to a
judicial comment on the evidence. He assigns error to an instruction that stated,
"A person who is an accomplice in the commission of a crime is guilty of that crime
whether present at the scene or not." (Emphasis added.) Bruce concedes that
this is the language offered by 11 Washington Practice: Washington Pattern Jury
Instructions: Criminial 10.51, at 234 (4th ed. 2016), but he argues that in this
particular case, the "whether present or not" language singled out Bruce. He
contends this is so, because his codefendants were walking around near the
scene, while Bruce was lying down inside of a vehicle, and the instruction turned
this exculpal:ory fact against Bruce.
Article IV, section 16 of the Washington State Constitution provides,
"Judges shall not charge juries with respect to matters of fact, nor comment
thereon, but shall declare the law." This provision prohibits a judge from
"conveying to the jury his or her personal attitudes toward the merits of the case"
or instructing a jury that "matters of fact have been established as a matter of law."
State v. Becker, 132 Wash. 2d 54, 64, 935 P.2d 1321 (1997). We review jury
instructions de novo. State v. Levy, 156 Wash. 2d 709, 721, 132 P.3d 1076 (2006)
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This pattern instruction did not amount to a comment on the evidence by
singling out Bruce.2 Bruce was found in his Jeep containing the victim's property
near to the scene of the crime—roughly 50 yards away. And, to the extent he was
not on the property when found, he was not singled out by the instruction.
Codefendant Blunt was not on the residence property when police first approached
him, and the State's closing argument acknowledged that it had no direct evidence
of Blunt breaking and entering the residence as part of a burglary. The instruction
therefore did not amount to a judicial comment on the evidence.
We affirm.3
WE CONCUR:
2 Bruce did not make this argument below. But, because the Washington
constitution expressly prohibits any judicial comment on the evidence, a claimed
error based upon such a comment involves a manifest constitutional error that may
be challenged for the first time on appeal. State v. Besabe, 166 Wash. App. 872,
880, 271 P.3d 387 (2012).
3 Bruce asks that appellate costs not be imposed, because the trial court
found Bruce Indigent for the purposes of appeal. State does not contest Bruce's
indigency in its brief. "Unless a trial court finds a defendant's condition has
improved, we presume the defendant continues to be indigent." State v. Caver,
195 Wash. App. 774, 785, 381 P.3d 191 (2016), review denied, 187 Wash. 2d 1013
(2017). The State is therefore not entitled to costs.
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