State Of Washington, V Brian Edward Turner ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON s 3§
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BRIAN EDWARD TURNER, )
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Appellant. ) FILED: August 11,2014
Schindler, J. —A jury convicted Brian Edward Turner of unlawful possession of
a stolen motor vehicle and possession of motor vehicle theft tools. Turner argues
insufficient evidence supports the convictions. Turner also contends the State failed to
prove his criminal history for purposes of calculating his offender score, and the record
does not support the court's finding that he had the ability to pay court costs. We affirm.
FACTS
On November 18, 2012, Rindel Caba reported to police that his white two-door
1991 Honda Civic was stolen.
On December 13, as Lakewood Police Lieutenant Chris Lawler was driving
northbound, he noticed a Honda in the southbound lane. Lieutenant Lawler said the car
was going "pretty quick" and did not come to a complete stop at the intersection.
Lieutenant Lawler also testified that the woman sitting in the passenger seat looked at
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him with a "surprised look" as the car drove past. Lieutenant Lawler ran the license
plate number of the vehicle. The number matched the license plate number for the
stolen Honda. Lieutenant Lawler immediately drove in the direction the Honda had
been traveling.
Three minutes later, Lieutenant Lawler found the vehicle parked in front of an
apartment complex with the engine running. The woman was still sitting in the front
passenger seat and no one else was in the car. Lieutenant Lawler saw a man, later
identified as Brian Edward Turner, emerge from a breezeway to the apartment units and
walk toward the vehicle. Turner was carrying a red backpack and several bottles of
what appeared to be alcohol. Turner placed the backpack and bottles in the car behind
the driver's seat. As Turner "was preparing to get into the driver seat," Lieutenant
Lawler arrested him. When Lieutenant Lawler looked inside the car, he saw that the
steering column was severely damaged, and observed a flat-blade screwdriver lying on
the front passenger-side floor.
The State charged Turner with unlawful possession of a stolen vehicle and
making or possessing motor vehicle theft tools.
Rindel Caba, the owner of the stolen vehicle, and Lieutenant Lawler testified at
trial. The defense theory at trial was that Turner did not know the vehicle was stolen
and he was never in actual or constructive possession of the Honda or of the
screwdriver.
Caba testified that after his stolen vehicle was recovered, the steering column
cover was broken off and there was tape around the steering column "like they broke it
offto get into the rest of the ignition." Caba testified that the ignition control switch and
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heater climate control were also damaged, and there were scratches by the radio and
on the steering column cover. Caba said the bag of men's clothing and the screwdriver
found in the car did not belong to him. Caba testified that he did not know Turner and
did not give him permission to drive his car.
Lieutenant Lawler testified that he saw other people around the apartment
complex, including a maintenance worker and a man walking out of the breezeway "a
little bit behind [Turner]" who "appeared to be unrelated." Lieutenant Lawler testified
that when he arrested Turner, the other man turned and went in the other direction
away from the car. Lieutenant Lawler did not see the other man go near the stolen
vehicle or put any items in the car.
Lieutenant Lawler testified that Turner appeared to be about to get into the car
when he arrested him:
It looked like [Turner] had finished putting what it was behind the seat and
was preparing to get into the driver seat almost like he was going to raise
his leg to get in there. I thought he was getting into the car and I didn't
want to let him get in the car.
Lieutenant Lawler testified that the car's steering column "was severely
damaged." Lieutenant Lawler stated that a flat-blade screwdriver, like the one he saw in
the vehicle, "can be used to move the mechanism under the column to start the car."
Lieutenant Lawler testified that neither Turner nor the female passenger had keys to the
car, a bill of sale, or registration or title for the vehicle.
At the end of the State's case, the defense made a motion to dismiss, arguing
the State did not prove beyond a reasonable doubt that Turner possessed the car or the
screwdriver or that he knew the car was stolen. The court denied the motion. The
defense did not present any witnesses.
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The jury found Turner guilty of unlawful possession of a stolen vehicle and
possession of motor vehicle theft tools. The court sentenced Turner to 15 months
confinement and ordered Turner to pay legal financial obligations, including fees for a
court-appointed attorney of $1,000 and a criminal filing fee of $200.
ANALYSIS
Sufficiency of the Evidence
Turner contends he is entitled to dismissal because the evidence does not
support the convictions for unlawful possession of a stolen motor vehicle and
possessing motor vehicle theft tools.
The State must prove each essential element of the crime beyond a reasonable
doubt. InreWinship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State
v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002). In deciding whether sufficient
evidence supports a conviction, we must view the evidence in the light most favorable to
the State to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,
201, 829 P.2d 1068 (1992). A challenge to the sufficiency of the evidence admits the
truth of the State's evidence. Salinas, 119 Wn.2d at 201. "[A]ll reasonable inferences
from the evidence must be drawn in favor of the State and interpreted most strongly
against the defendant." Salinas, 119 Wn.2d at 201. We defer to the trier of fact on
"issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the
evidence." State v. Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in
part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L
Ed. 2d 177 (2004).
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Turner asserts there was insufficient evidence to convict him of possession of a
stolen motor vehicle because the State only proved he was in proximity to the car, not
that he had actual or constructive "possession" of the vehicle or that he knew the car
was stolen.
"A person is guilty of possession of a stolen vehicle if he . . . possesses ... a
stolen motor vehicle." RCW 9A.56.068(1). Knowledge that the property was wrongfully
appropriated is an essential element of the crime of possession of stolen property.
State v. Hatch, 4 Wn. App. 691, 693, 483 P.2d 864 (1971). "Possession may be actual
or constructive, and constructive possession can be established by showing the
defendant had dominion and control over the [property] or over the premises where the
[property] was found." State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214(1997). "Actual possession means that the goods are in the personal custody of the
person charged with possession." State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400(1969).
Close proximity alone is not enough to establish constructive possession; other
facts must enable the trier of fact to infer dominion and control. State v. Spruell, 57 Wn.
App. 383, 389, 788 P.2d 21 (1990). No single factor is dispositive in determining
dominion and control. State v. Collins, 76 Wn. App. 496, 501, 886 P.2d 243 (1995).
Rather, the totality of the circumstances must be considered. Collins, 76 Wn. App. at
501. A rational trier of fact could infer that a defendant had constructive possession of
stolen property if the defendant had control over the premises where the property was
found. State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000). A vehicle is a
"premises" for purpose of this inquiry. Turner, 103 Wn. App. at 521.
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Mere possession of recently stolen property is insufficient to establish that the
possessor knew the property was stolen, but possession coupled with slight
corroborative evidence is sufficient to prove guilty knowledge. State v. Couet, 71 Wn.2d
773, 775, 430 P.2d 974 (1967); State v. Womble, 93 Wn. App. 599, 604, 969 P.2d 1097(1999). Corroborative evidence includes damage to the vehicle and the absence of a
plausible explanation for legitimate possession. State v. LA, 82 Wn. App. 275, 276,
918 P.2d 173 (1996); Womble, 93 Wn. App. at 604.
Viewed in the light most favorable to the State, a rational trier of fact could find
that Turner possessed the vehicle. Lieutenant Lawler testified that he observed
someone driving the car with a female passenger. Three minutes later, Lieutenant
Lawler saw the same car parked in front of an apartment complex with the engine
running, and watched Turner walk out of the breezeway leading to the apartments
carrying a backpack and bottles and place those items in the car behind the driver's
seat. Lieutenant Lawler testified that Turner appeared to be about to get into the
driver's seat when he arrested him.
Viewing the evidence in the light most favorable to the State, there was also
evidence that Turner knew the car was stolen. Lieutenant Lawler and the owner of the
car testified that the ignition control switch was disabled, the heater controls were
damaged, and the steering column cover was broken off. There was no key and
Lieutenant Lawler testified that the screwdriver found on the floor of the car was likely
used to start the vehicle.
Turner also argues there was insufficient evidence to convict him of possession
of a motor vehicle theft tool because the State did not prove he possessed the
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screwdriver found inside the stolen vehicle with the intent to use the tool "in the
commission of motor vehicle theft." RCW 9A.56.063(1).
RCW 9A.56.063 provides, in pertinent part:
(1) Any person who makes or mends, or causes to be made or mended,
uses, or has in his or her possession any motor vehicle theft tool, that is
adapted, designed, or commonly used for the commission of motor vehicle
related theft, under circumstances evincing an intent to use or employ, or
allow the same to be used or employed, in the commission of motor
vehicle theft, or knowing that the same is intended to be so used, is guilty
of having motor vehicle theft tools.
(2) For the purposes of this section, motor vehicle theft tool
includes . . . any other implement shown by facts and circumstances that
is intended to be used in the commission of a motor vehicle related theft,
or knowing that the same is intended to be so used.
Viewed in the light most favorable to the State, sufficient evidence supports the
conclusion that Turner possessed the screwdriver as a motor vehicle theft tool.
Lieutenant Lawler testified that the screwdriver was on the front passenger-side floor
within reach of someone sitting in the driver's seat. No keys were found in the vehicle,
and there was damage to the car's ignition and steering column. Lieutenant Lawler
testified that flat-blade screwdrivers like the one he found in the car are commonly used
to start stolen vehicles by using the blade to move the mechanism under the steering
column.
Offender Score
In the alternative, Turner argues he is entitled to resentencing because the State
did not prove his criminal history for purposes of calculating the offender score.
We review a sentencing court's calculation of an offender score de novo. State
v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007). "[I]llegal or erroneous sentences
No. 71962-9-1/8
may be challenged for the first time on appeal." State v. Ford, 137 Wn.2d 472, 477, 973
P.2d 452 (1999).
At sentencing, the State bears the burden of proving a defendant's prior criminal
history by a preponderance of the evidence. State v. Mendoza, 165 Wn.2d 913, 920,
205 P.3d 113 (2009). Bare assertions, unsupported by evidence, do not satisfy the
State's burden to prove the existence of a prior conviction. State v. Hunley, 175 Wn.2d
901, 910, 287 P.3d 584 (2012). The best evidence of a prior conviction is a certified
copy of the judgment. State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002). "This
is not to say that a defendant cannot affirmatively acknowledge his criminal history and
thereby obviate the need for the State to produce evidence." Mendoza, 165 Wn.2d at
920. A defendant's "mere failure to object to State assertions of criminal history at
sentencing does not result in an acknowledgement." Hunley, 175 Wn.2d at 912. But
when defense counsel affirmatively acknowledges a defendant's criminal history, the
court is entitled to rely on such acknowledgement. Bergstrom, 162 Wn.2d at 97-98.
Turner contends the facts in this case are indistinguishable from Hunley. We
disagree. In Hunley, the State presented a written summary of its understanding of the
defendant's criminal history. Hunley, 175 Wn.2d at 905. The State did not present any
documentation of the alleged offenses. Hunley, 175 Wn.2d at 905. The defendant
"neither disputed nor affirmatively agreed with the prosecutor summary." Hunley, 175
Wn.2d at 905. The trial court relied on the summary and on the failure of the defendant
to challenge the offender score or sentence at the trial court. Hunley. 175 Wn.2d at
905. On appeal, the Washington State Supreme Court held that "to treat the
defendant's failure to object to such assertions or allegations as an acknowledgment of
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No. 71962-9-1/9
the criminal history" and "to base a criminal defendant's sentence on the prosecutor's
bare assertions or allegations of prior convictions" violates due process. Hunley, 175
Wn.2dat915.
Here, unlike in Hunley, the court relied on the defense attorney's affirmative
acknowledgement of Turner's criminal history. At sentencing, the State presented a
"STIPULATION ON PRIOR RECORD AND OFFENDER SCORE" with a list of Turner's
prior convictions.1 But neither Turner nor his attorney signed the stipulation. The
prosecutor proposed rescheduling the sentencing to allow the State to present certified
copies of the prior convictions:
I would [point] out that the stipulation of prior offense that I've
handed forward is not signed by the defendant or his attorney. [Defense
counsel] said that it's her desire not to sign it. I suggested that we set this
over so I can bring in the certified copies to the Court. However, we'll
defer to the Court with how you want to proceed.
The court then asked the defense attorney whether "there [is] something wrong
that you're aware of[ Jon his prior record or the offender score?" In response, the
attorney stated, "No, not that I'm aware of, Your Honor." The attorney also told the
court, "We're waiving any right to appeal it if it's wrong." The court ruled that it was
"going to accept the stipulation. We don't actually have a stipulation, but I'm going to
accept the prior record and offender score."
The facts in this case are more like Bergstrom. In Bergstrom, the defense
attorney agreed to the State's calculation of the offender score and criminal history.
Bergstrom, 162 Wn.2d at 90. But the defendant objected, arguing that some of his
crimes were the same criminal conduct. Bergstrom, 162 Wn.2d at 90-91. The
sentencing court addressed Bergstrom's argument and rejected it. Bergstrom, 162
1 Emphasis in original
No. 71962-9-1/10
Wn.2d at 91-92. The Supreme Court held that although the sentencing court was
entitled to rely on defense counsel's agreement to the offender score and criminal
history, because the court considered and ruled on Bergstrom's pro se argument, the
court erred in failing to hold an evidentiary hearing and require the State to produce
evidence in support of the offender score. Bergstrom, 162 Wn.2d at 97.
There is no evidence in the record that Turner objected to the State's summary of
his criminal history. Because the sentencing court was entitled to rely on the defense
attorney's affirmative acknowledgment of Turner's criminal history, we affirm Turner's
sentence.
Legal Financial Obligations
Turner also challenges the imposition of the $200 filing fee and the $1,000 in
court-appointed attorney fees and defense costs, arguing the record does not support
finding that he had the ability to pay.2
The $200 filing fee is statutorily mandated under RCW 36.18.020(2)(h) and must
be imposed regardless of the defendant's ability to pay. State v. Lundv, 176 Wn. App.
96, 103, 308 P.3d 755 (2013). As to imposition of court-appointed attorney fees and
defense costs, the State contends that the issue is not ripe for review because the State
has not sought to collect the costs. We agree with the State.
Imposition of court-appointed attorney fees and defense costs is discretionary.
RCW 10.01.160(1), (2). If a court imposes discretionary legal financial obligations
(LFOs), the court must consider the defendant's present or likely future ability to pay.
RCW 10.01.160(3); State v. Curry, 118 Wn.2d 911, 915-16, 829 P.2d 166(1992). The
2Turner does not challenge the imposition of the mandatory $500 crime victim fee or the
mandatory $100 DNA (deoxyribonucleic acid) database fee.
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No. 71962-9-1/11
defendant may petition the court at any time for remission or modification of the
payments on the basis of manifest hardship. RCW 10.01.160(4); State v. Baldwin, 63
Wn. App. 303, 310-11, 818 P.2d 1116 (1991). "Because this determination is clearly
somewhat 'speculative,' the time to examine a defendant's ability to pay is when the
government seeks to collect the obligation." State v. Smits, 152 Wn. App. 514, 523-24,
216 P.3d 1097 (2009). Nothing in the record reflects that the State has attempted to
collect LFOs from Turner or expects Turner to begin repayment of his obligations.
Turner may challenge the trial court's imposition of LFOs when the government seeks to
collect them.
We affirm.
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WE CONCUR:
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