Opinion
No. 36107-8-II.
May 20, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 06-1-00490-6, James B. Sawyer II, J., entered March 19, 2007.
Affirmed in part and remanded by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Hunt, J.
Police officers arrested Jerald L. McCowan when they found him removing copper wire from the wall of an abandoned building. They also searched a nearby jacket and found methamphetamine. McCowan admitted to stealing the copper wire and to stealing copper and other scrap metal from the same building on two previous occasions. A jury convicted McCowan of one count of attempted first degree theft, three counts of second degree burglary, two counts of second degree theft, and one count of drug possession. On appeal, McCowan argues that (1) there was insufficient evidence to support the attempted first degree theft conviction, (2) the State failed to establish the corpus delicti for the second degree theft convictions, (3) he received ineffective assistance of counsel, and (4) the trial court miscalculated his offender score by including a prior conviction.
We (1) affirm McCowan's convictions; (2) find that McCowan failed to establish ineffective assistance of counsel; and (3) remand for an evidentiary hearing to allow the State to introduce evidence of the prior conviction.
FACTS
On November 12, 2006, Shelton police arrested McCowan and his brother Richard Long on the rooftop of the old ITT Rayonier building for removing copper wire from a nearby wall. The building was closed to the public. Police seized a black jacket that contained McCowan's identification, methamphetamines, and drug paraphernalia. Police also confiscated two "one-foot copper wire bundles" from the large Tupperware container that McCowan and Long used as a toolbox. Report of Proceedings (RP) at 49.
Shelton Police Detective Heldreth interviewed McCowan at the police station shortly after the arrest. McCowan told Detective Heldreth that he and Long pulled about 40 feet of an 80-foot long copper wire from a "pipe" using a "come-along" before police confronted them. State's Ex. 50 at 3. The copper wire measured one and a half to two and a half inches in diameter and weighed about 30 pounds per foot. McCowan told Detective Heldreth that he was an experienced "recycler" who had "been recycling most of [his] life." State's Ex. 50 at 4. McCowan and Long were "after heavier wire" that day, and McCowan said that he had "never dealt with wire that thick" before. State's Ex. 50 at 9, 11.
State's exhibit 50 is the twenty-page transcription of the post-arrest interview. The record also contains exhibit 36, which is an audio cassette recording of the interview.
McCowan admitted to removing "scrap metal" from the same building on November 7, 2006 (the basis for Counts I and II) and November 9, 2006 (the basis for Counts III and IV). State's Ex. 50 at 4-7. McCowan sold the November 7 scrap metal to a recycling yard for about Page 3 $300 and he sold the November 9 items for about $260. McCowan also admitted to possessing methamphetamine.
Detective Heldreth testified that he searched a Volkswagen Jetta parked outside of the ITT Rayonier building. The Jetta belonged to McCowan's and Long's stepfather. Inside the vehicle, Detective Heldreth found a receipt from a recycling yard, which showed that Long received cash for scrap metal on November 8, 2006. Detective Heldreth also found the "pays receipt" from the same recycling yard, which showed a payment of $210.20 on November 8, 2006. RP at 66.
On January 30, 2007, the State charged McCowan with three counts of second degree burglary (counts I, III and V) for breaking into the ITT Rayonier building on November 7, 9 and 12, 2006, respectively, two counts of theft in the second degree (Counts II and IV) for removing scrap metal from the building on November 7 and 9, 2006, respectively, one count of first degree attempted theft (count VI) for the November 12 incident, and one count of unlawful possession of a controlled substance (count VII).
At trial, David Kamin, one of the ITT Rayonier building's co-owners, testified about the damage to the property. Kamin testified that a "group of guys" had been unlawfully taking items from his building for months, "taking the wire out, the brass fittings, the sink fixtures, lights, phone . . . electrical panels . . . heating radiators, air compressor wires." RP at 72-73. The building contained large amounts of copper wire, including thick wire in three power conduits that were "approximately 400 feet" long. RP at 80. At least one of the conduits on the rooftop had been cut so thieves could extract the wire. Thieves had cut the wires on dozens of power panels inside the building in order to permit the extraction of wire from outside.
The State showed Kamin a series of photographic exhibits that depicted the building's damage. Kamin testified that the photographs showed that the thieves had: (1) gutted electrical motors in the ventilation room, (2) removed wire from lines "coming from the transformer area," (3) dragged a portion of the rooftop conduit off the roof and through the back gate, (4) sawed numerous conduits in half to remove the copper, (5) disassembled motors in the building's vents, and (6) stripped insulation from the copper wires that ran from the rooftop to the inside heating system.
Kamin testified that on November 9th, he contacted Shelton Police Officer Paul Campbell to request extra patrols as he noticed that people were "dismantling copper wires and other areas of the building." RP at 72. According to Officer Campbell, Kamin reported that individuals had entered the building by prying off pieces of plywood and that they removed a number of items from inside the building.
Kamin testified that such vandalism had a significant financial impact on the property. He stated that the main building was in such disrepair "that [he would] have to gut the whole building and start new." RP at 73.
The jury found McCowan guilty on all charges. The court sentenced him to a drug offender sentencing alternative (DOSA) sentence, for each conviction. See RCW 9.94A.660.
The judge sentenced McCowan to 29 months for each of counts I, III and V, 8 months for each of counts II and IV, 9 months for each of counts VI and VII.
ANALYSIS I. Sufficiency of evidence for attempted first degree theft
McCowan argues that the State produced insufficient evidence to establish that the value of the copper wire that he attempted to take exceeded $1,500, which is an element of attempted first degree theft. RCW 9A.56.030; RCW 9A.56.020. McCowan references his admission that he and Long attempted to extricate an 80-foot copper wire. Since the building's co-owner estimated the wire's replacement value to be $8 per foot, McCowan argues that the 80-foot copper wire only had a value of $640. The State relies on the trial testimony of the building's co-owner, David Kamin, to counter McCowan's argument. We affirm McCowan's conviction for attempted first degree theft.
A. Standard of Review
In a criminal case, the test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All 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. A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. Salinas, 119 Wn.2d at 201. Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). This court must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75. Circumstantial evidence is as reliable as direct evidence in establishing sufficiency of the evidence. State v. Bright, 129 Wn.2d 257, 270, 916 P.2d 922 (1996).
B. Attempted First Degree Theft Element
In order to establish attempted first degree theft, the State must prove attempted theft of property that exceeds $1,500 in value. RCW 9A.56.030(1)(a). "Value" means the "market value of the property . . . at the time and in the approximate area of the criminal act." RCW 9A.56.010(18)(a). "Market value" means "the price which a well-informed buyer would pay to a well-informed seller, where neither is obliged to enter into the transaction." State v. Kleist, 126 Wn.2d 432, 435, 895 P.2d 398 (1995) (quoting State v. Clark, 13 Wn. App. 782, 787, 537 P.2d 820 (1975)). We find that the evidence permits a reasonable inference that McCowan intended to steal copper wire valued at more than $1,500.
Kamin testified that the building contained large amounts of copper wire, including three power conduits that ran "approximately 400 feet down." RP at 80. He stated that thieves cut the wires on dozens of power panels inside the building in order to extract wire from outside. Kamin testified that at least one of the conduits on the rooftop, where police arrested McCowan, was cut so thieves could extract the wire. Kamin also identified several other areas of the main building where "they" had extracted wire, including electrical motors in the ventilation room and building vents, wires "coming from the transformer area," rooftop conduits, conduits that "went across our building," and heating insulation wires. RP at 81-84
Kamin uses the subject pronoun "they" throughout his testimony, often making it difficult to know to whom he refers.
McCowan was an experienced "recycler" who employed a come-along ratcheting system to more easily extract the copper wire. McCowan stated that he had "been recycling most of [his] life." State's Ex. 50 at 4. On the day that he was arrested, he stated that he was "after heavier wire," that he had "never dealt with wire that thick" before, and that the removed wire weighed about 30 pounds per foot. State's Ex. 50 at 9, 11. Detective Heldreth testified that he confiscated two "one-foot copper wire bundles" from the large Tupperware container that McCowan and Long used as a toolbox. RP at 49.
Kamin testified that he would have to pay about $8 to replace each foot of wire. He stated that the scrap value for metal fittings removed from his building was "[n]ot even a fraction of the market value." RP at 78.
The State did not specifically introduce evidence about the market value of the copper wire. Replacement cost may be a factor used to determine market value, or may be considered in lieu of market value if no market value data is available. See Clark, 13 Wn. App. at 788; State v. Hammond, 6 Wn. App. 459, 463, 493 P.2d 1249 (1972).
After viewing these facts in the light most favorable to the prosecution and interpreting all reasonable inferences most strongly against McCowan, we find that there was sufficient evidence to convict McCowan of attempted first degree theft. McCowan was experienced at removing copper wire and he used a come-along ratcheting system to enable him to extract more wire. The building's conduits, some of which were 400 feet long, contained large amounts of copper wire. Kamin noted extensive damage in the area in which McCowan worked. Any rational trier of fact could have concluded that McCowan intended to take as much copper wire as possible from the premises and that the market value of that copper wire would exceed $1,500.
McCowan counters by relying on his admission that he was only trying to extract an 80-foot portion of wire from the building. However, based on the facts listed above, the jury could have disbelieved this admission and reasonably inferred that he attempted to steal more. McCowan stood before the jury as an experienced recycler admittedly stealing wire and fittings with far more than $1,500 in value of additional scrap metal readily accessible. It would have been unreasonable for the jury to believe his story that he intended to limit his theft to one specific piece of wire. We defer to the jury on the issues of McCowan's credibility, conflicting testimony, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
II. The corpus delicti for second degree theft
McCowan contends that his two convictions for second degree theft (Counts II and IV) should be reversed because the State failed to establish the corpus delicti for each count independent of McCowan's admission to the police. After he was arrested on November 12, 2006, McCowan told police that he had gone to the same building "twice in the last week" to steal wire. This admission ultimately formed the basis for counts I, II, III and IV.
A. Failure to preserve
The corpus delicti rule is a judicially created rule of evidence, not a constitutional sufficiency of the evidence requirement. State v. Dodgen, 81 Wn. App. 487, 492, 915 P.2d 531 (1996). A defendant must make proper objection to the trial court to preserve the issue. Dodgen, 81 Wn. App. at 492; State v. C.D.W., 76 Wn. App. 761, 763-64, 887 P.2d 911 (1995). The failure to object precludes appellate review because the State may elect to omit available proof of the corpus delicti at trial if the defense does not specifically object. Dodgen, 81 Wn. App. at 492; C.D.W., 76 Wn. App. at 763-64.
McCowan did not object on the issue of corpus delicti at trial. Therefore, he waived his right to raise the issue on appeal, and we decline review. Nevertheless, we address McCowan's corpus delicti argument on the merits since it is directly relevant to his ineffective assistance of counsel claim.
B. The State established the corpus delicti
The State contends that it established the corpus delicti for McCowan's second degree theft on November 7 and 9. The State cites three pieces of corroborating evidence in its brief: (1) Kamin's detailed testimony as to how his building had been "completely tor[n] apart," (2) the fact that police caught McCowan red-handed, (3) McCowan's admissions that he had been to the building "three times" with his brother to take "brass fittings [and] copper wiring." State's Br. at 7-8; RP at 60; RP at 19-20, RP at 22-23. Additionally, the State submitted a receipt dated November 8, 2006 indicating that Richard Long sold scrap metal to a recycler for $210.20.
The corpus delicti rule states that a defendant's confessions alone are insufficient to convict him and must be corroborated by independent evidence. State v. Aten, 130 Wn.2d 640, 655-56, 927 P.2d 210 (1996). This rule "arose from a judicial distrust of confessions, coupled with the view that a confession admitted at trial would probably be accepted uncritically by a jury, thus making it extremely difficult for a defendant to challenge." Aten, 130 Wn.2d at 656-57. The purpose of the rule is to protect defendants from unjust convictions based solely on confessions which may be of questionable reliability. Aten, 130 Wn.2d at 657.
The State has the burden of proof to show the corpus delicti. The corroborating evidence need not show the crime beyond a reasonable doubt, or even by a preponderance of the evidence. State v. Meyer, 37 Wn.2d 759, 763, 226 P.2d 204 (1951). The evidence need only "support a finding that the charged crime was committed by someone." State v. Bernal, 109 Wn. App. 150, 152, 33 P.3d 1106 (2001) (emphasis added). Also, the corpus delicti rule does not require the State to establish who committed the charged crime. Bernal, 109 Wn. App. at 152-153.
The State's evidence supports a finding that someone committed theft in the ITT Rayonier building on November 7 and 9. The building's co-owner, Kamin, spoke with law enforcement about extra patrols on November 9 because he had recently noticed "additional problems" in the building. Specifically, he reported that individuals had entered his building by prying off pieces of plywood and taken items from the building. At trial, Kamin also detailed the extensive looting of wire, metal fixtures and other items from his Page 10 building over the preceding months. These facts are sufficient to support a finding that someone committed second degree theft in the ITT Rayonier building. See Bernal, 109 Wn. App. at 152. Therefore, the State established the corpus delicti for McCowan's second degree theft convictions.
III. Ineffective assistance of counsel
In order to prove ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must overcome a strong presumption that his counsel's performance was not deficient. See State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). An attorney's representation is deficient when his performance falls below an objective standard of reasonableness. Nichols, 161 Wn.2d at 8. To establish prejudice, McCowan must show that there is a reasonable probability that, but for his counsel's unprofessional errors, the outcome of the proceeding would have been different. See Nichols, 161 Wn.2d at 8.
McCowan's ineffective assistance of counsel argument fails because he cannot prove that his counsel's failure to raise the corpus delicti issue prejudiced him. As discussed above, the State met its burden of proof on the corpus delicti. Therefore, even if trial counsel had raised the issue, McCowan would have lost on the merits.
IV. Offender Score Calculation
McCowan argues that the trial court miscalculated his offender score by including a prior Washington conviction that the State alleged, but did not prove by a preponderance of the evidence, at the sentencing hearing. He asks us to remand for resentencing and to hold the State to the existing record on remand. The State argues that the trial court did not err by including the prior conviction because the conviction was a recent, Washington conviction and because it was McCowan's only other prior felony. We remand for an evidentiary hearing.
A. Standard of Review
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).
B. Burden of proof
The use of a prior conviction as a basis for sentencing is constitutionally permissible if the State proves the existence of the prior conviction by a preponderance of the evidence. State v. Ammons, 105 Wn.2d 175, 186, 713 P.2d 719, 718 P.2d 796 (1986); RCW 9.94A.500(1). The State "must introduce evidence of some kind to support the alleged criminal history." State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999) (emphasis added). The best evidence of a prior conviction is a certified copy of the judgment. Ford, 137 Wn.2d at 480. However, the State may also introduce other comparable documents of record or transcripts of prior proceedings to establish criminal history. Ford, 137 Wn.2d at 480.
C. Failure to prove the existence of the prior conviction
In this case, the State asserted at sentencing that McCowan had a prior Washington conviction. However, the State introduced no evidence whatsoever to prove the existence of the prior conviction. Thus, we must remand for resentencing. The State essentially argues that it did not need to meet the preponderance standard here because the prior conviction (1) was a recent Washington conviction and because it (2) was McCowan's only prior felony. The State's first argument ignores the fact that it must prove all convictions, including in-state convictions, by a preponderance of the evidence. RCW 9.94A.500; see, e.g., State v. Labarbera, 128 Wn. App. 343, 347, 115 P.3d 1038 (2005). The second argument fails because the number of prior convictions at issue is entirely irrelevant. In Bergstrom, which the State cites as support, the court remanded for resentencing because the State failed to prove the existence of Bergstrom's prior convictions, not because he was allegedly convicted of multiple prior felonies. See Bergstrom, 162 Wn.2d at 98. The State's attempt to distinguish Bergstrom on this basis is unpersuasive.
D. Remand for an evidentiary hearing
The next issue is whether the State should be held to the record on remand. An evidentiary hearing on remand for resentencing is appropriate when the defendant has failed to specifically object to the State's evidence of the existence of a prior conviction. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 878, 123 P.3d 456 (2005); accord State v. Mendoza, 139 Wn. App. 693, 162 P.3d 439 (2007). If the defendant has objected and the disputed issues have been fully argued at sentencing, the State will be held to the record on remand. Cadwallader, 155 Wn.2d at 878. The court recently reaffirmed this analysis when it created a three-part framework to analyze evidentiary issues for prior convictions on remand. See Bergstrom, 162 Wn.2d at 93.
McCowan did not object to the alleged conviction at sentencing. Accordingly, the State is entitled to an evidentiary hearing on remand so that it may produce a certified copy of the judgment, or other comparable evidence of McCowan's conviction.
McCowan misreads Cadwallader to assert that the State should be held to the record on remand since it failed to present evidence at the sentencing hearing to prove the existence of the prior conviction. Cadwallader holds the State to the record on remand only when it entirely fails to allege the prior conviction at sentencing. Cadwallader, 155 Wn.2d at 880. Here, the State alleged McCowan's prior conviction so Cadwallader is inapplicable.
V. Statement of Additional Grounds
McCowan submits a Statement of Additional Grounds for Review (SAG) pursuant to RAP 10.10. His argument in the SAG has no merit.
McCowan's SAG reads, in its entirety: "I believe that under the corpus delicti rule that the convictions for second degree burglary counts III and V coinside [sic] with counts II and IV. And I saw no mention of these in the summary."
McCowan's counsel adequately addressed the corpus delicti issue in its brief and therefore we decline to review it further. RAP 10.10(a). Also, there is no basis for considering the theft convictions (counts II and IV) to be equivalent to, or otherwise "coinciding," with the burglary convictions (counts III and V). Second degree theft and second degree burglary are separate crimes under Washington law. See RCW 9A.52.030; RCW 9A.56.040.
We affirm McCowan's convictions for attempted first degree theft and second degree theft; we remand for an evidentiary hearing to allow the State to introduce evidence of the prior conviction.
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.
HOUGHTON, C.J. 5 and HUNT, J., concur.