Opinion
No. 26584-2-II
Filed: December 9, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County Docket No: 00-1-01222-9 Judgment or order under review Date filed: 10/24/2000
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, P.O. Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Jonathan Edward Sick appeals his residential burglary conviction, alleging seven trial-court errors: (1) improper admission of gun-related and poverty evidence; (2) prosecutorial misconduct during closing argument suggesting that Sick was more likely to have committed this burglary because he was homeless and living in the jail; (3) an unconstitutional inference-of-intent instruction; (4) insufficient evidence of specific intent; (5) ineffective assistance of counsel in failing to object to the above errors; (6) cumulative error; and (7) unjustified controlled substance sentencing conditions. Finding prejudicial, cumulative error, we reverse.
FACTS I. Arrest for Burglary
Olympia Police Officer Gregory Brown responded to a burglary call at 825 Columbia S.W., a home rented by Andrew Steers. When Officer Brown arrived, Steers explained to him that he had been awakened by knocking at his front door. Approaching the front door, Steers heard a piece of wood being dislodged from a window near the front room chimney and saw Sick with his arms through the window, inside the house. When Steers asked Sick if he could help him, Sick replied that he was looking for someone named Jay or Jason who lived there. Steers answered that no one by either name lived at the house. Steers called the police and Sick fled.
Officer Robert Beckwell later found Sick in a wooded area near the house, squatting down behind a tree. Beckwell arrested Sick. Over Sick's objection, Beckwell testified at trial that Sick's backpack contained a receipt and a manual for a Ruger automatic handgun. No gun, however, was found in the area. And the record shows no evidence of a crime against person or property having been committed inside the residence.
Sick admitted having a gun at his own house.
According to Sick, he had gone with a friend to the Columbia street residence to visit someone he thought lived there, whose name he did not remember. Sick told Beckwell, however, that the Friday before the burglary he had met a person named "Jay," who had pointed out the house and invited him to stop by for a beer if he was ever in the area. Sick denied that any part of his body had entered the Columbia residence.
Sick said that he had been inside the house six months or a year earlier and that several days before the burglary incident, this person had told Sick to stop by the house sometime.
II. Trial
At trial, Steers testified that no one named "Jay" or "Jason" had lived at the Columbia residence during the 14 months he had lived there. Preston Wheaton, the legal owner of the residence, also testified that no one named Jay or Jason had lived in the house since he bought it in 1991.
The trial court twice overruled Sick's objection to questions regarding whether he had a place to live. Thus, the jury heard that Sick had no money, no job, and no verifiable address, and that he had been "living" in the jail pending trial. The State offered (1) an "Affidavit Notification" prepared shortly after Sick's arrest, stating that he had no current monthly income, or liquid assets; and (2) an order showing that a condition of Sick's release on bond was that he have a verifiable address.
The trial court instructed the jury that it could infer intent to commit a crime inside the residence from Sick's unlawful entry. During closing argument, the State argued that the jury should infer that Sick was more likely to have committed the burglary because he lacked money, home, and job. Defense counsel did not object to this statement nor did he request a curative instruction. The jury convicted Sick as charged.
III. Sentencing
The trial court sentenced Sick to six months in jail and twelve months of community custody, for which the court imposed the following conditions:
(1) Sick was to refrain from controlled substances; and (2) he was to submit to random urinalysis. The trial court included these conditions because (1) Sick claimed to have gone to the Columbia residence to smoke marijuana and to drink beer; and (2) he had a prior conviction for marijuana possession.
ANALYSIS I. Cumulative Effect of Multiple Errors
Sick contends that the cumulative effect of multiple trial errors requires reversal of his burglary conviction. We agree.
The cumulative error doctrine applies where there have been several trial errors, individually not justifying reversal, that, when combined, deny a defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Such is the case here. We discuss each error in turn.
A. Handgun Manual and Receipt
The State concedes that admission into evidence of a receipt and a manual for a Ruger automatic handgun was error. The prejudicial effect of this evidence outweighed any relevance it might have had to the burglary.
We agree with the State that taken alone, such error might be considered harmless in light of the victim's eyewitness testimony that he saw Sick entering his home without permission. But we consider this error together with the other errors listed below.
B. Improper Jury Instruction
Sick next argues that the trial court erred in giving the following permissive inference instruction:
Instruction No. 11
A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
Clerk's Papers at 16. Sick contends that this instruction relieved the State of its burden of proving a necessary element of the crime of residential burglary, namely intent to commit a crime against person or property inside the residence. When taken together with the other errors, we agree.
Residential burglary: "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" RCW 9A.52.025(1).
A permissive inference or presumption permits, but does not require, the jury to infer an element of the offense from an "evidentiary" or "proved" fact. State v. Jackson, 112 Wn.2d 867, 875, 774 P.2d 1211 (1989) (citing County Court of Ulster County, N.Y., v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224-25, 60 L.Ed.2d 777 (1979)). When an inference is only part of the prosecution's proof supporting an element of the crime, due process requires the presumed fact to flow "more likely than not" from proof of the basic fact. State v. Hanna, 123 Wn.2d 704, 711, 871 P.2d 135 (1994). Because the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a permissive presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt. Hanna, 123 Wn.2d at 711. See also Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985).
Here, although the State did not rest its proof entirely on this permissive inference (of the requisite intent to commit a crime inside), the other proof of intent was improper. The State argued that the jury should infer that Sick entered the house with criminal intent because he was homeless, penniless, and unemployed. Aside from the window frame damaged to gain entry, the record shows no damage to property inside the house, no injury to any person inside the house, and no theft of any item from the house. Nor did Sick state that he entered with intent to commit such crimes inside the residence. Thus, the State did not offer any other proof of intent that Sick had the intent to commit a crime against either a person or property besides the permissive inference from Sick's illegal entry.
Rather, he said only that he intended to smoke marijuana and to drink beer inside, neither of which constitute a crime against person or property inside the residence necessary to prove residential burglary under RCW 9A.52.025(1).
In light of the State's proofs, this inference instruction, taken together with other errors, could have erroneously relieved the State of its burden of proving the requisite intent for burglary.
C. Ineffective Assistance of Counsel
Sick next argues that his counsel was ineffective in failing to object to several different prejudicial errors: (1) evidence that he had no money, no job, and no place to stay, other than the jail, at the time of his arrest; and (2) the State's closing argument that the jury should infer from Sick's impoverished condition that he was more likely to commit burglary.
We review a claim of ineffective assistance of counsel under a two-prong test. Dorsey v. King County, 51 Wn. App. 664, 674, 754 P.2d 125 (1988), citing Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must first show that his counsel's performance was deficient, falling below "an objective standard of reasonableness." Strickland, at 466 U.S. at 687-88. Second, the defendant must show that counsel's deficient performance prejudiced him. Dorsey, 51 Wn. App. at 675. This prong is met where a reasonable probability exists that but for counsel's unprofessional errors, the trial outcome would have been different. Dorsey, 51 Wn. App. at 674. A defendant must demonstrate both prongs in order to sustain his claim of ineffective assistance of counsel. State v. West, 139 Wn.2d 37, 42, 938 P.2d 617 (1999).
Sick contends that his counsel's performance was deficient because counsel failed to object to evidence that he lacked money and employment at the time of the incident. Sick suggests that the evidence offered was not relevant under ER 401 and 402. Contrary to Sick's argument, however, the record shows that defense counsel did object to this evidence, but the trial court overruled the objection.
ER 401: Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence."
ER 402: "All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute, by these rules, or by other rules or regulations applicable in the courts of this state. . . ."
Sick also argues that his counsel was ineffective for failing to object to the prosecutor's closing argument — that because Sick had no money and could not provide a verifiable address, he was more likely to commit residential burglary. Nor did counsel ask for a curative instruction. Sick contends that counsel's failure prejudiced his right to a fair trial by creating this "inescapable inference." Given that the trial court had already allowed the evidence, it is unlikely that defense counsel's objection or request to exclude mention of the improper evidence would have been granted.
Nonetheless, we agree with Sick that taken together with the other errors, counsel's failures could have caused the jury to convict Sick of burglary absent sufficient proof of the requisite intent.
D. Sufficiency of Evidence
Sick further argues the evidence was not sufficient to prove beyond a reasonable doubt that he was guilty of residential burglary.
When there is a claim of insufficiency of evidence, the appellant admits the truth of the State's evidence and all inferences reasonably drawn from the evidence. State v. Myers, 133 Wn.2d 26, 37, 941 P.2d 1102 (1997). We review a claim for insufficiency of evidence by determining whether any rational trier of fact, after viewing the evidence in the light most favorable to the State, could have found the elements of the crime beyond a reasonable doubt. State v. McBride, 74 Wn. App. 460, 463, 873 P.2d 589 (1994). Although logically speaking, there is sufficient evidence to support the jury's verdict, we focus instead on whether the jury would likely have convicted without the erroneously admitted evidence.
Circumstantial or direct evidence can provide a reliable basis for findings. Myers, 133 Wn.2d at 38. The jury, therefore, can infer criminal intent from the defendant's conduct when it is plainly indicated as a matter of logical probability. State v. Bright, 129 Wn.2d 257, 270, 916 P.2d 922 (1996). But such is not the case here.
Here, it is reasonably likely that the jury could have inferred criminal intent from evidence other than Sick's conduct alone. Although Sick said that he was going to smoke marijuana and drink beer, there is no evidence that Sick committed or intended to commit a crime against person or property inside the residence. And the record does not show that there was any marijuana or beer inside the residence that Sick could have stolen.
The only damage mentioned was to the window that Sick use to gain entry. But this damage does not show the requisite intent to commit a crime against property inside.
Thus, the jury likely could have inferred intent from improper evidence, especially in light of the paucity of intent evidence and the permissive intent instruction. As the trial court aptly noted, "[T]he State does not have a huge amount of evidence as they might in some other burglary cases . . . ." Report of Proceedings at 82.
We do not, however, find the evidence insufficient to support a guilty verdict. For example, as weighers of evidence and credibility, the jury could have decided that Sick's flight and tenuous reason for being at the house tended to show his guilt. But because of the other cumulative errors, we cannot say with certainty that the jury would have convicted Sick if the errors had not been committed or if the trial court had cured them.
The jury decides credibility, and its determinations are not subject to our review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
II. Community Supervision Condition: Controlled Substances
Sick argues that the trial court improperly imposed as part of his sentence (1) prohibitions against consumption of controlled substances and (2) a requirement that he subject himself to random urinalysis. He contends that this was error because the record does not show that he possessed or was under the influence of any drugs during the burglary.
Because we reverse and remand for a new trial, and, if thereafter appropriate, resentencing, this issue is moot. Alternatively, if the State elects not to retry Sick for burglary, the trial court could resentence Sick on the lesser included offense of trespass, which the untainted evidence clearly proved. See State v. Finley, 97 Wn. App. 129, 136, 138, 982 P.2d 681 (1999); RCW 9A.52.080; RCW 9A.52.090. In either instance, the sentencing conditions must be reasonably related to the crime for which Sick is sentenced. RCW 9.94A.505(8), formerly RCW 9.94A.120(20) (2000), and RCW 9.94A.030(12).
An issue is moot if it is "purely academic" and the court can no longer provide effective relief. State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983). In a post-argument supplemental brief, the State explained that Sick is no longer subject to the challenged conditions because his active community supervision has ended; thus, the sentencing condition issue is moot. Supp. Brief of Respondent.
Reversed.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG and QUINN-BRINTNALL, JJ., concur.