State of Washington v. Corey Javon Williams

FILED
MAY 3, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34172-1-III
Respondent, )
)
v. )
) UNPUBLISHED OPINION
COREY JAVON WILLIAMS, )
)
Appellant. )
SIDDOWAY, J. — Corey Javon Williams—aka Corey Javon Pugh, Sr., who asked
to be addressed as Corey Pugh, Sr. in the trial below1—appeals his conviction for theft of
a motor vehicle. He contends the evidence was insufficient to support the jury’s finding
1
We will refer to the appellant as Corey Javon Williams, notwithstanding that the
trial court honored his request to be referred to during trial as Corey Pugh.
The State offered evidence at trial that the appellant uses both names. He was
charged and convicted as Corey Javon Williams, which is how he is identified on the
FBI’s Interstate Identification Index and on the Washington Judicial Information
System’s defendant case history.
No. 34172-1-III
State v. Williams
of guilt, the prosecutor committed misconduct during closing argument, and that legal
financial obligations (LFOs), some unconstitutional, were imposed without an adequate
inquiry. A fourth assignment of error to the trial court’s decision to allow Mr. Williams
to represent himself was rejected in our decision in State v. Williams, No. 34171-2-III
(Wash. Ct. App. Apr. 3, 2018) (unpublished), http://www.courts.wa.gov/opinions
/pdf/341712_unp.pdf (Williams I). We accept the State’s concession to strike three
discretionary LFOs, remand with that direction, and otherwise affirm.
FACTS AND PROCEDURAL BACKGROUND
In September 2015, Corey Javon Williams rented a Ford Mustang from Budget
Rental Car in Richland under the name “Corey J. Pugh.” He did not return the car a week
later, when the terms of his rental agreement provided for its return. The rental
agreement provided for an extension of the rental prior to the return date by calling a toll-
free number, but Mr. Williams did not request an extension. When Budget Rental’s loss
prevention department attempted to run the credit card used for the rental to cover
additional charges accrued following the return date, the charge was declined. Budget
Rental reported the Mustang stolen approximately five weeks after the missed return
date.
The owner of the agency doing business as Budget Rental Car in Richland has a
sister, Shelly Horton, who works for Budget Car Sales in the same building. Many years
before he rented the Mustang, Mr. Williams and Ms. Horton had been coworkers at
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Budget Car Sales. At about the same time that Budget Rental was moving forward with
filing a report that the Mustang had been stolen, Ms. Horton received a telephone
message about the car from Corey Pugh, who she later determined to be Mr. Williams.
When Ms. Horton spoke to Mr. Williams, he told her that the bank that “was the legal
owner on the title” to the Mustang owed him “a large sum of money,” and he was going
to file a legal proceeding to take ownership of the Mustang. Report of Proceedings (RP)
(Trial) at 150, 156. He asked for a fax number and faxed Ms. Horton the copy of a UCC-
1 financing statement. The financing statement had been filed by The C Williams Group,
Mr. Williams’s limited liability company (LLC), shortly after he rented the car. It
represented that The Bank of New York Mellon Trust Company and PV Holding Corp.
were indebted to The C Williams Group, that a “lien” was attached for “1,000,000,000.00
dollars,” and that the billion dollar liability was secured by the Mustang. Ex. 3, at 1.
Budget Rental’s practice was to keep the vehicle registration for its rental cars in
the car’s unlocked glove box. The registration for the Mustang rented by Mr. Williams
would have provided him with information that title was held by PV Holding Corp. and
that The Bank of New York Mellon and Trust Company was a lienholder.
The State charged Mr. Williams with theft of a motor vehicle on November 16,
2015. The Olympia Police Department recovered the Mustang on December 26, 2015.
On December 28, 2015, Mr. Williams appeared for arraignment in two matters:
this matter and charges of two residential burglaries in Benton County case no. 15-1-
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No. 34172-1-III
State v. Williams
01178-6. He told the court he wished to proceed pro se. A Faretta2 inquiry followed that
is reproduced in our opinion in Williams I. Williams I, slip op. at 3-5. At a combined
hearing on motions in both matters that took place in late January 2016, the court
cautioned Mr. Williams about self-representation further, in statements that are also
reproduced in our earlier opinion. See id. at 5.
The court allowed Mr. Williams to represent himself, which he did. In this case,
he filed a number of motions and defended himself at a two day jury trial that began on
February 22, 2016. During the trial, the State called as witnesses the owner of the Budget
Rental agency, Ms. Horton, an investigating officer, and Detective Rick Runge.
Detective Runge testified to similar crimes for which Mr. Williams had been
convicted in the past. Like the motor vehicle theft, the crimes described by Detective
Runge had involved Mr. Williams’s assertions of ownership based on unsubstantiated
representations that he had some type of lien or security interest in personal or real
property.
Mr. Williams called two witnesses: he recalled the owner of the Budget Rental
agency and called the deputy prosecutor who was trying the case for the State.
During closing arguments the prosecutor argued, in part:
[PROSECUTOR]: . . . [T]wo days before the car is due back, Mr.
Williams or Mr. Pugh, or the C. Williams Group, all the same person is—
2
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
4
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....
[PROSECUTOR]: —is making documentation, legal
documentations that he’s [owed] a billion dollars before their car is ever
due back. . . . Well if he owned it, if he’s owed a billion dollars, why not
tell them right away? It’s mine, I’m keeping it.
You guys, we didn’t hear any testimony about how he came to be
owed a billion dollars between September 29th and October 4th when this
filing was made.
MR. WILLIAMS: Objection, Your Honor. They did a jury
instruction stating that the defendant does not have to testify, now she’s
testifying for me.
THE COURT: No. I’m going to overrule the objection. Go ahead,
counsel.
[PROSECUTOR]: . . . So we know sometime between September
29th and October 4th, P.V. Holding Corp., or Budget Car Sales, came to
owe him a billion dollars, if you believe the lien filing.
You could also find, though, as a jury, that this lien filing is not
worth the paper it’s written on. You can find, based on the weight of the
testimony from all of the witnesses who testified, based on his history, that
this is just a way to obtain a car by theft; that this lien document is a way to
take a rental car that belongs to someone else . . . and keep it. Because this
is what he does.
RP (Trial) at 324-26.
The jury found Mr. Williams guilty. At sentencing, the trial court asked a couple
of questions about his past work and future ability to work, found that he had the ability
or likely future ability to pay LFOs, and imposed a total of $651.34.3 Mr. Williams did
not object. He now appeals.
3
The court imposed a $200.00 criminal filing fee, a $60.00 sheriff’s service fee, a
$250.00 jury demand fee, a $100.00 DNA (deoxyribonucleic acid) collection fee, and
$41.34 in witness fees.
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ANALYSIS
In Williams I, we held that the trial court in this action and in Benton County case
no. 15-1-01178-6 did not abuse its discretion in allowing Mr. Williams to represent
himself. Williams I, slip. op. at 12-15. Our decision in that case disposes of that
assignment of error here.
The additional issues raised in this appeal are the sufficiency of the evidence,
alleged prosecutorial misconduct, and challenges to the court-ordered LFOs. We address
the issues in the order stated.
The evidence was sufficient
Mr. Williams points out that while the State introduced evidence of a security
interest and a lien through which he told Ms. Horton he intended to take ownership of the
Mustang, it never produced evidence that his interest was invalid. Without proof that his
interest was invalid, he claims that the State’s evidence of theft of a motor vehicle was
insufficient.
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. Witherspoon, 180 Wn.2d 875, 883, 329
P.3d 888 (2014). A criminal defendant’s claim of insufficient evidence admits the truth
of the State’s evidence and all inferences that reasonably can be drawn from it. State v.
Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015).
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“A person is guilty of theft of a motor vehicle if he or she commits theft of a motor
vehicle.” RCW 9A.56.065. “Theft,” according to RCW 9A.56.020(1), means:
(a) To wrongfully obtain or exert unauthorized control over the
property or services of another or the value thereof, with intent to deprive
him or her of such property or services; or
(b) By color or aid of deception to obtain control over the property
or services of another or the value thereof, with intent to deprive him of
such property or services.
“Subsection (a) is known as theft by taking while subsection (b) is known as theft by
deception.” State v. Smith, 115 Wn.2d 434, 438, 798 P.2d 1146 (1990). In the trial
below, the jury was instructed on both alternatives and was told it need not be unanimous
as to means, so sufficient evidence must support both alternatives. See State v. Owens,
180 Wn.2d 90, 95, 323 P.3d 1030 (2014).
The State presented evidence that title to the Mustang was held by PV Holding
Corp. It presented evidence that Mr. Williams had rights under a rental agreement that
were limited to a week-long term and any extension authorized in accordance with the
agreement’s terms. It presented evidence that Mr. Williams never returned the Mustang
nor took the steps required to extend the rental. It proved that his failure to return the car
was knowing, as evidenced by his filing the UCC-1 financing statement and notifying
Ms. Horton that he intended to take ownership. This is evidence from which theft by
taking and theft by deception could both be found.
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As for the State having offered the UCC-1 financing statement into evidence, a
UCC-1 form exists to provide notice. It is not signed by the debtor and is not itself proof
of any legal interest. See RCW 62A.9A.521(a); Ex. 3. The C Williams Group was not
entitled to file the financing statement unless it was authorized to do so by the purported
debtors. See RCW 62A.9A-509(a). It was subject to statutory damages if it filed the
statement without the debtors’ authorization. See RCW 62A.9A-625(e). The financing
statement was evidence at most that The C Williams Group purported, unilaterally, to
have a legal interest.
If jurors had mistakenly believed that the UCC-1 financing statement proved that
Mr. Williams had an interest and acquitted him, their mistake would be unreviewable.
But the jury did not acquit. We can assess the UCC-1 financing statement for what it is:
legally meaningless. The evidence of theft was sufficient.
Prosecutorial misconduct
Mr. Williams contends that the prosecutor’s statement during closing argument
about having heard no testimony about how Mr. Williams came to be owed a billion
dollars constituted prosecutorial misconduct. He characterizes it as an impermissible
comment on his constitutional right to remain silent and as shifting the burden of proof to
the defense.
Criminal defendants have no duty to present evidence, and a prosecutor commits
error if he or she suggests otherwise. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 8308
No. 34172-1-III
State v. Williams
(2003). A prosecutor’s argument that shifts the State’s burden of proof to the defendant
constitutes misconduct. State v. Thorgerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011).
However, “[t]he mere mention that [the] defense evidence is lacking does not constitute
prosecutorial misconduct or shift the burden of proof to the defense.” State v. Jackson,
150 Wn. App. 877, 885-86, 209 P.3d 553 (2009). A defendant claiming prosecutorial
misconduct bears the burden of proving “‘that the prosecutor’s conduct was both
improper and prejudicial in the context of the entire record and the circumstances at
trial.’” State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008) (quoting State v.
Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003)).
Mr. Williams ultimately argued two theories in his closing argument. One was
that Corey Pugh, not Corey Williams, rented the Mustang. The other was that late return
of a rental car without paying for the extension because of a declined credit card may be a
breach of the rental agreement, but it is not a crime. To prove that Mr. Williams did not
innocently hold onto the car intending to pay additional charges, the State offered the
evidence that shortly after renting it, he filed the UCC-1 form and later told Ms. Horton
he was taking ownership.
Having made the point that Mr. Williams was claiming dominion over the
Mustang, not merely extending his rental, the prosecutor also reasonably argued that
jurors could and should find that Mr. Williams had no right to claim dominion. The
prosecutor never said it was Mr. Williams’s burden to prove he had acquired title to the
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car. The prosecutor merely argued that based on the evidence presented, the jurors could
find that the UCC-1 form was “not worth the paper it’s written on.” RP (Trial) at 326.
That was a fair inference from the evidence. The record included testimony and
documentary evidence that the registered owner of the car was PV Holding Corp.,
countered only by a dubious representation by The C Williams Group that it had accepted
the car as security for a billion dollar loan. The prosecutor’s argument was neither
improper nor prejudicial.
Legal financial obligations
Mr. Williams argues that the trial court’s inquiry into Mr. Williams’s present and
future ability to pay before imposing discretionary LFOs was inadequate under RCW
10.01.160(3) and State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). He challenges
the court’s treatment of the $200 criminal filing fee as if it were mandatory rather than
discretionary and, assuming it is mandatory, as imposing it in violation of his right to
equal protection. Finally, he argues that the victim’s penalty assessment, imposed under
RCW 7.68.035, and the DNA collection fee, imposed under RCW 43.43.7541, violate
substantive due process when applied to defendants who do not have the ability to pay
them.
The State concedes Mr. Williams’s challenge to discretionary LFOs and agrees to
a remand with directions to strike the sheriff’s service fee, the jury demand fee, and the
witness fees from the cost bill. It defends the remaining LFOs as mandatory and
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constitutional. We accept the State’s concession and will remand with directions to strike
the three discretionary LFOs.
Turning to Mr. Williams’s remaining challenges, as we held in Williams I, the
criminal filing fee is mandatory. Williams I, slip op. at 20-21 (citing State v. Lundy, 176
Wn. App. 96, 102, 308 P.3d 755 (2013); State v. Stoddard, 192 Wn. App. 222, 225, 366
P.3d 474 (2016); State v. Gonzales, 198 Wn. App. 151, 153, 392 P.3d 1158, review
denied, 188 Wn.2d 1022, 398 P.3d 1140 (2017)).
His equal protection challenge to that fee, which he argues arises from the fact that
the filing fee for indigent civil litigants may be waived under GR 34, has been rejected by
this court. State v. Mathers, 193 Wn. App. 913, 925-26, 376 P.3d 1163, review denied,
186 Wn.2d 1015, 376 P.3d 1163 (2016).
Finally, this court has rejected his substantive due process challenge to imposing
the victim’s penalty assessment and the DNA collection fee on defendants who do not
have the ability to pay. State v. Seward, 196 Wn. App. 579, 585, 384 P.3d 620 (2016),
review denied, 188 Wn.2d 1015, 396 P.3d 349 (2017).
In a motion filed along with his opening brief, Mr. Williams asks this court to
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waive costs on appeal.4 Under RAP 14.2, “[a] commissioner or clerk of the appellate
court will award costs to the party that substantially prevails on review, unless the
appellate court directs otherwise in its decision terminating review.” In order for the
panel to exercise informed discretion, a general order of this division requires an
appellant to request waiver of costs on appeal in his or her opening brief or by a motion
filed and served within 60 days following the filing of the opening brief.5 If the appellant
is alleging inability to pay, he or she is required by the general order to provide the trial
court’s indigency report and a report as to continued indigency and likely future inability
to pay.
In a report as to continued indigency attached to his motion, Mr. Williams lists
outstanding debts in an amount that is ambiguous, given one amount that may be
substantial but more likely is missing a decimal point. While he reports that he owns no
property, has no source of income, and can pay nothing toward any costs awarded to the
State, he is presently 40 years old and has completed two years of college. He was
sentenced to 57 months’ confinement.
4
Mr. Williams raises other matters in his motion, but the judges generally
determine only those motions identified in RAP 17.2(a). By general order, we also
permit criminal appellants to seek a waiver of fees on appeal by motion. That is the only
matter raised by Mr. Williams’s motion that we will consider. His remaining arguments
can be raised in an objection to any cost bill filed by the State.
5
See General Order of Division III, In re the Matter of Court Administration
Order re: Request to Deny Cost Award (Wash. Ct. App. June 10, 2016),
https://www.courts. wa .gov/appellate_trial_courts/?fa=atc.genorders&div=III.
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Having considered his report the panel denies his motion, but without prejudice to
his right to demonstrate to our commissioner his current or likely future inability to pay.
See RAP 14.2.
We remand with directions to strike the sheriff's service fee, the jury demand fee,
and the witness fees from the cost bill. We otherwise affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, A.CJ.
13
I