State of Washington v. Cody Forest Wolfley

FILED
JULY 6, 2021
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. 37468-8-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
CODY FOREST WOLFLEY, )
)
Appellant. )
PENNELL, C.J. — Cody Forest Wolfley appeals his convictions for first degree
attempted criminal trespass, residential burglary, third degree malicious mischief, second
degree criminal trespass, and possession of a controlled substance. We affirm the bulk of
Mr. Wolfley’s convictions, but reverse the two controlled substance convictions pursuant
to State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). This matter is remanded for
resentencing.
FACTS
On the night of October 17, 2017, Susannah Parker was alone in her home in
Medical Lake, Washington. She went to bed around 9:00 p.m., at which point her house
was dark. There were no outside lights illuminated. No car was parked in the driveway.
From the outside of the residence, it might have appeared no one was home. At around
11:30 p.m., Ms. Parker heard a loud crashing sound near her front door. Concerned there
No. 37468-8-III
State v. Wolfley
might be a falling tree, she went to investigate. Instead of a tree, Ms. Parker encountered
an unknown man, later identified as Cody Wolfley.
Mr. Wolfley had kicked open the door and was starting to enter the residence when
he came face to face with Ms. Parker. Ms. Parker yelled at Mr. Wolfley and ordered him
to get out. Mr. Wolfley then raised his hands and started screaming “help me, help me,
help me.” 1 Report of Proceedings (RP) (Feb. 12, 2020) at 104. Ms. Parker noted Mr.
Wolfley appeared out of it. His eyes were “big and frantic.” Id. at 112. Mr. Wolfley stood
at Ms. Parker’s door for a short while, then turned around and left.
Mr. Wolfley then moved through the neighborhood to different houses, kicking at
doors and damaging property. Various neighbors heard Mr. Wolfley yelling. His speech
was often garbled. But at points he could be heard yelling words to the effect of “kill me”
and “don’t kill me.” See Id. at 124, 127, 144, 153, 164, 167.
Multiple calls were placed to 911. Officers found Mr. Wolfley on the steps to a
residence. Mr. Wolfley was arrested, searched, and found to be in possession of heroin
and methamphetamine. Officers believed Mr. Wolfley showed signs of being under the
influence of stimulants. He was deemed too intoxicated to be able to understand or waive
his Miranda 1 rights. The jail initially refused to take custody of Mr. Wolfley based on his
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
No. 37468-8-III
State v. Wolfley
intoxication. Mr. Wolfley was hospitalized for several hours before being cleared for
booking into the jail.
The State charged Mr. Wolfley with several offenses related to his conduct.
At trial, Mr. Wolfley pursued the affirmative defense that voluntary intoxication
prevented him from forming the intent necessary to commit the offenses of burglary,
trespass and malicious mischief. Mr. Wolfley did not testify at trial or present any
substantive testimony. 2 Instead, to support his defense theory, Mr. Wolfley relied on
testimony presented during the State’s case from law enforcement and other witnesses
describing Mr. Wolfley’s odd behavior and apparent intoxication. At the close of
evidence, the trial court issued a voluntary intoxication instruction to the jury.
During summation, the prosecutor argued the jury could infer Mr. Wolfley had
the requisite intent to commit the crimes charged based on his conduct. At several points,
Mr. Wolfley objected to the prosecutor’s arguments, claiming the prosecutor was
improperly shifting the burden of proof or misstating the evidence. The court overruled
Mr. Wolfley’s objections.
2
Mr. Wolfley called one witness to rebut law enforcement testimony.
3
No. 37468-8-III
State v. Wolfley
The jury convicted Mr. Wolfley on all charges, but reduced the charge of attempted
residential burglary to attempted criminal trespass. At sentencing, Mr. Wolfley received a
drug offender sentencing alternative.
Mr. Wolfley timely appeals his judgment and sentence.
ANALYSIS
Sufficiency of the evidence—burglary
Mr. Wolfley was convicted of burglarizing Ms. Parker’s home. To prove this
charge, the State was obliged to show Mr. Wolfley entered Ms. Parker’s residence with
intent to commit a crime. Mr. Wolfley argues that given his intoxication, the State’s
evidence was insufficient to prove intent.
The standard of review governing a sufficiency challenge is extremely deferential.
See In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011). 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 essential elements of the crime beyond a
reasonable doubt.’” Id. (quoting State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)
(plurality opinion)). All reasonable inferences from the evidence must be drawn in favor
of the State and interpreted most strongly against the defendant. Id. (quoting State v.
4
No. 37468-8-III
State v. Wolfley
Walton, 64 Wn. App. 410, 415, 824 P.2d 533 (1992), abrogated on other grounds by In
re Pers. Restraint of Cross, 180 Wn.2d 664, 327 P.3d 660 (2014)).
The State’s evidence was sufficient to prove intent. Although it was undisputed
Mr. Wolfley was intoxicated, the evidence of intoxication was not so strong as to prevent
the jury from inferring an ability to form criminal intent. The State presented evidence
suggesting Mr. Wolfley targeted Ms. Parker’s residence for a burglary because all the
lights in and around the house were off and it appeared no one was home. It was
uncontested that Mr. Wolfley did not start crying for help until after Ms. Parker
encountered him at the door and ordered him to leave. The jury could infer Mr. Wolfley
decided to cry out for help once he was caught in the act of trying to enter the residence.
This type of purposeful conduct is indicative of the capacity to form intent. The State’s
evidence, while far from overwhelming, was minimally sufficient to justify the jury’s
verdict.
Contrary to Mr. Wolfley’s arguments, our decision in State v. Sandoval, 123 Wn.
App. 1, 94 P.3d 323 (2004), does not suggest a different result. The issue in Sandoval was
not evidentiary sufficiency, but the propriety of a permissive inference instruction. Here,
the trial court denied the State’s request for a permissive inference instruction. Sandoval
does not support Mr. Wolfley’s position.
5
No. 37468-8-III
State v. Wolfley
Comment on the right to remain silent
Mr. Wolfley claims the prosecutor committed misconduct during summation by
commenting on Mr. Wolfley’s right to silence under the Fifth Amendment to the United
States Constitution. Although this issue was not raised at trial, it is the type of argument
that can be asserted for the first time on appeal. See State v. Emery, 174 Wn.2d 741, 760-
61, 278 P.3d 653 (2012). We therefore review the details of Mr. Wolfley’s claims.
Following are excerpts of the prosecutor’s arguments that Mr. Wolfley claims
violated his Fifth Amendment rights:
Initial summation
[Prosecutor]: . . . Mr. Wolfley’s intent was to burglarize this home.
And why do we say that? Because he doesn’t live here. Yes, he may have
been high on something, but you didn’t hear any evidence about what he
was high on, and you didn’t hear any evidence that he was yelling or
look[ing] for help from anybody else.
[Defense counsel]: Your Honor, I would have to object. [The
prosecutor] is trying to shift the burden to the defense.
1 RP (Feb. 19, 2020) at 442. The objection was overruled.
[Prosecutor]: . . . You heard that he kicked the door in. You heard
that he yelled, “help me, help me, help me,” but you didn’t hear any
evidence or any testimony about what drugs he took, why he needed help,
why he picked this house instead of any of these other houses, what he was
doing in this neighborhood, even how he got to this neighborhood. All we
know is that he yelled “help me, help me,” and he looked frazzled.
Then he ran from this house without waiting for help. . . . [I]f he just
needed help, why didn’t he just ring the doorbell? Why didn’t he just knock
6
No. 37468-8-III
State v. Wolfley
on the door? Why did he go to the one place that looked like nobody was
living there? That’s because he had an intent to commit a burglary in that
home and if it wasn’t for Ms. Parker intervening, that burglary would have
occurred.
Id. at 442-43. No objection was made to this argument.
[Prosecutor]: . . . [O]n or about October 17, 2019, [Mr.] Wolfley did
an act that was a substantial step toward the commission of residential
burglary. He did the same thing [at the Parker house] that he did over here.
Open the storm door and start kicking on the door. What was he intending
to do when he gets inside? We don’t know. He had run all this way, busted
through a couple of fences and jumped one fence and was yelling
erratically, nobody could understand what he as saying, gets to this house.
He was obviously very frustrated, he sees the light come on because it’s a
motion sensor, tries to knock that light out to conceal himself.
Id.at 444-45. The court overruled a defense objection to facts not in evidence.
[Prosecutor]: He may have been on some kind of intoxicant, we
don’t know what that is because there’s no evidence of what he had taken,
when he had taken it, or how it affected him.
Id. at 445. The court overruled a defense objection that the prosecutor was misstating
the facts.
Rebuttal summation
[Prosecutor]: So looking at this case, don’t allow yourself to be
confused by this instruction that says that because he’s intoxicated he can
go and do all these things. He can’t. A person that is so intoxicated would
[not] have went through the storm door. A person that is so intoxicated
would [not] have listened [to] Ms. Parker say get out of my house. A person
that is so intoxicated would not have been able to walk on their own to the
hospital. Maybe he was intoxicated; we don’t know. We don’t know what
he had, we don’t know when he took it. And it is reasonable that because he
7
No. 37468-8-III
State v. Wolfley
was caught now he’s got to make up an excuse. He’s now acting out of fear
to try to make something to show that, hey, I wasn’t doing anything wrong.
Don’t be confused. Common sense. You don’t have to throw it out
the door just because you’re on a jury.
Id.at 481. There was no objection to this line of argument.
Mr. Wolfley claims the prosecutor’s argument violated the Fifth Amendment
because it constituted an indirect comment on his failure to testify. Indirect references to a
defendant’s silence are prohibited if they “‘either (1) manifest the prosecutor’s intention
to call attention to the defendant’s failure to testify, or (2) are such that the jury would
naturally have understood them as a comment on the defendant’s failure to testify.’”
United States v. Triplett, 195 F.3d 990, 995 (8th Cir. 1999) (quoting Sidebottom v. Delo,
46 F.3d 744, 759 (8th Cir. 1995)).
A prosecutor does not violate the Fifth Amendment simply by pointing out the
absence of evidence supporting a defendant’s theory of the case. But like many aspects
of a prosecutor’s summation, things can get tricky. In cases where the defendant elects
not to testify, the prosecutor cannot argue about holes in the evidence if the defendant is
the only individual who could fill in the missing information. See State v. Fiallo-Lopez,
78 Wn. App. 717, 729, 889 P.2d 1294 (1995). In such circumstances, the prosecutor’s
comments naturally would cause the jury to focus on the defendant’s failure to testify.
8
No. 37468-8-III
State v. Wolfley
State v. Ramirez, 49 Wn. App. 332, 337, 742 P.2d 726 (1987). This undermines the
Fifth Amendment’s guarantee of the right to silence.
Mr. Wolfley’s primary Fifth Amendment claim is that the prosecutor
impermissibly argued about the lack of evidence regarding Mr. Wolfley’s drug use.
According to Mr. Wolfley, this information could have only been supplied through his
testimony. Because he elected not to testify, the prosecutor’s arguments indirectly
commented on Mr. Wolfley’s exercise of his Fifth Amendment rights.
We disagree with Mr. Wolfley’s claim that the prosecutor’s intoxication arguments
constituted a comment on Mr. Wolfley’s silence. The missing intoxication evidence was
not something that would have naturally or necessarily come from Mr. Wolfley. At the
time of his arrest, Mr. Wolfley was evaluated by several medical professionals, including
hospital personnel. Presumably he was given a blood test. At the very least, he was given
some sort of treatment for his impaired state. Hospital records, coupled with possible
medical or expert testimony, could have supplied the missing intoxication information
referenced by the prosecutor during summation. Mr. Wolfley was not the only, or even
the best, possible source of information on the subject. The prosecutor’s arguments did
not indirectly implicate Mr. Wolfley’s right to silence.
9
No. 37468-8-III
State v. Wolfley
Mr. Wolfley also criticizes the prosecutor’s argument that the jury did not hear any
testimony regarding “why [Mr. Wolfley] needed help, why he picked this house instead
of any of these other houses, what he was doing in this neighborhood, even how he got
to this neighborhood.” 1 RP (Feb. 19, 2020) at 442-43. This complaint has more merit.
Only Mr. Wolfley could have supplied the answers to this line of questions. Thus, the
prosecutor’s comments, as phrased, could be interpreted as a comment on the right to
silence.
While the prosecutor’s comments may have been improper, they did not generate
an objection. Given this circumstance, relief on appeal turns on whether Mr. Wolfley can
demonstrate the improper argument was so flagrant and ill intentioned that it could not be
remedied by a curative instruction. See Emery, 174 Wn.2d at 760-61. 3
Most prosecutorial misstatements do not meet the flagrant and ill-intentioned
standard. We are loath to second guess counsel’s decision to forego an objection during
trial. “Not every prosecutorial misstep merits remand. Deference is instead owed to the
3
As explained in Emery, absent exceptional circumstances such as the purposeful
injection of racial bias, improper prosecutorial argument is not judged by a constitutional
harmless error analysis. 174 Wn.2d at 757-59. When improper argument does not
generate an objection at trial, it is subject to the flagrant and ill-intentioned standard of
assessing prejudice. Id. at 760-61. A RAP 2.5(a)(3) analysis is not applicable in this
context.
10
No. 37468-8-III
State v. Wolfley
trial court’s ability to oversee the administration of justice, defense counsel’s judgment
about whether an objection was worth raising, and a jury’s ability to independently assess
the merits of the case.” In re Pers. Restraint of Richmond, 16 Wn. App. 2d 751, 754,
482 P.3d 971 (2021).
When assessing whether to grant relief based on an unpreserved claim of
prosecutorial misconduct, we focus on the type of harm caused by the prosecutor’s
statement. Emery, 174 Wn.2d at 761-62. Inflammatory statements that cause incurable
prejudice require no objection to result in post-conviction relief. “An objection is
unnecessary . . . because ‘there is, in effect, a mistrial and a new trial is the only and the
mandatory remedy.’” Id. at 762 (quoting State v. Case, 49 Wn.2d 66, 74, 298 P.2d 500(1956)). But when a prosecutor’s misstatement is merely legalistic, a timely objection and
request for curative instruction is usually adequate to address potential prejudice. See id.
at 762-63. Even when the prosecutor’s legal misstep has constitutional implications, the
absence of an objection will generally bar relief on appeal. Id. at 763-64.
Here, the prosecutor’s comments about the absence of evidence were not
inherently inflammatory. The prosecutor was not appealing to bias or the jury’s emotions.
Instead, it appears the prosecutor was trying to rebut defense counsel’s assertion that
Mr. Wolfley’s conduct was consistent with someone crying out for help. A timely
11
No. 37468-8-III
State v. Wolfley
objection and request for a curative instruction could have reoriented the prosecutor’s
comments and reminded the jury that Mr. Wolfley had no burden to present evidence
and that no inference could be made from his decision not to testify. Reversal based on
an unpreserved claim of misconduct is unwarranted.
Assistance of counsel
Mr. Wolfley claims his trial attorney failed to provide effective assistance by not
asserting Fifth Amendment objections during the prosecutor’s closing argument. To
demonstrate ineffective assistance, Mr. Wolfley must show both deficient performance
and prejudice. Id. at 754-55. Here, that standard has not been met.
As set forth above, the majority of Mr. Wolfley’s complaints about the
prosecutor’s closing argument did not implicate the Fifth Amendment. Thus, counsel
did not perform ineffectively by failing to lodge an objection. While there was a brief
portion of the prosecutor’s argument that could have generated a successful Fifth
Amendment objection, Mr. Wolfley has not shown counsel’s conduct resulted in
prejudice. The prosecutor’s comments were a minor part of summation and did not
undermine Mr. Wolfley’s intoxication defense. Counsel did not deprive Mr. Wolfley of
his right to a fair trial by failing to object.
12
No. 37468-8-III
State v. Wolfley
Simple possession convictions
The parties agree Mr. Wolfley’s convictions for possession of heroin and
methamphetamine must be reversed based on the Supreme Court’s recent decision in
Blake. We accept this agreement and remand for purposes of vacating the two convictions
and resentencing. The parties also agree the judgment and sentence contains scrivener’s
errors. Those can be remedied on remand.
CONCLUSION
We affirm Mr. Wolfley’s convictions for first degree attempted criminal trespass,
residential burglary, three counts of third degree malicious mischief, and second degree
criminal trespass. This matter is remanded with instructions to vacate the remaining two
convictions for possession of a controlled substance, and for resentencing.
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.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Fearing, J. Lawrence-Berrey, J.
13