Opinion
No. 36936-2-II.
January 27, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-01014-9, John P. Wulle, J., entered October 31, 2007.
Affirmed in part and remanded by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J., and Quinn-Brintnall, J.
UNPUBLISHED OPINION
Nichole Andrea Tyrer appeals her convictions for second degree burglary, and tampering with a witness. We hold that there was sufficient evidence to support both convictions. The State concedes that the trial court improperly calculated her offender score. We affirm the convictions, but remand for the court to resentence Tyrer using the proper offender score.
She does not appeal her conviction of first degree theft.
FACTS
On the morning of June 1, 2007, Keila Watts was standing outside her trailer home located at 8926 S.E. Evergreen Highway in Vancouver, Washington. She heard a loud noise coming from her father-in-law's property next door. She saw a man and a woman loading her father-in-law's 400 Sportsman Polaris Quad 2004 all terrain vehicle (ATV) into a truck. Keila went over to the garage to see what was happening.
We use first names for clarity and mean no disrespect to the parties.
As she approached, the man made an aggressive move toward her. It was then that Keila suspected foul play. But the man and woman immediately jumped into the truck and sped away. Though Keila was stunned, she tried to memorize the truck's license plate number and reported the incident to the police.
Vancouver Police Officer Edward Prentice recognized Keila's description of the truck because he had contact with a similar vehicle a few weeks earlier. He went to the house where he previously had come into contact with the truck. Officer Douglas Deaver also came to the house and noticed what appeared to be ATV tire tracks on the lawn, near the truck. He followed the tracks around the corner and, over the top of a fence, observed what appeared to be an ATV beneath a sleeping bag.
The property owner gave Officer Deaver permission to search the property, the house, and the garage. As suspected, the officer discovered the ATV in the backyard beneath a sleeping bag. During the search, the officers discovered Brian Friend hiding in the garage attic crawl space and they also discovered Tyrer hiding underneath some laundry in the garage. Additionally, the officers found clothing in the garage similar to the clothing Keila described the burglars wearing and large boards that the officers suspected were used to load and unload the ATV.
Keila came to the house where the police officers recovered the ATV and confirmed Friend and Tyrer were the people who took the ATV. She said that she was 75 percent sure Tyrer was the burglar she encountered.
Keila's husband, Jeremy Watts, also came to the house. He positively identified the ATV as his father's vehicle. Jeremy also called his father to confirm that he had not given permission to take the ATV. Watts gave no such permission. The last time he saw the ATV, it was in his garage and no one had permission to remove the vehicle except his son. When Officer Deaver investigated Watts's garage that day, he took photographs showing open drawers and things scattered on the floor. And Jeremy informed Officer Deaver that whoever entered the garage had rifled through drawers and other things in the garage.
The State originally charged Tyrer with one count of first degree theft and one count of second degree burglary. Tyrer remained in custody at the Clark County Jail pending trial. Between July 24, 2007 and August 15, 2007, Corrections Officer Daniel Cluzel, per prison policy, was scanning the inmates' mail before sending it. He thought Tyrer's letter to Yvonne Neikirk was suspicious because it included a letter to Friend, asking him to inform his lawyer that he would not accept a plea offer unless the State dropped its charges against Tyrer. Officer Cluzel knew that Friend was also an inmate in the corrections facility. He determined that the letter violated the jail's no inmate correspondence policy. He therefore sanctioned Tyrer for the infraction, which Tyrer did not appeal.
Based on the letter, the State filed an amended information adding a tampering with a witness charge. The jury convicted Tyrer as charged. At sentencing, the State outlined what it believed to be Tyrer's criminal history and offender score. It calculated Tyrer's offender score as 15 for each of the three convictions. Based on her score, the State recommended that the sentencing court impose an exceptional sentence of 185 months. The sentencing court ultimately imposed an exceptional sentence of 128 months.
ANALYSIS
Tyrer first contends that there was insufficient evidence to support her second degree burglary and tampering with a witness convictions. We review Tyrer's sufficiency challenge by viewing the evidence in the light most favorable to the State. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007). We determine whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. Brown, 162 Wn.2d at 428. We draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. Brown, 162 Wn.2d at 428. Tyrer's insufficiency claim admits the truth of the State's evidence and all reasonable inferences from it. Brown, 162 Wn.2d at 428. Circumstantial evidence is no less reliable than direct evidence and this court can infer specific criminal intent from circumstances as a matter of logical probability. State v. Zamora, 63 Wn. App. 220, 223, 817 P.2d 880 (1991). We defer to the trier of fact on credibility of witnesses, conflicting testimony, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
The jury convicted Tyrer of second degree burglary. A person is guilty of second degree burglary if, "with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling." RCW 9A.52.030(1). Tyrer contends that although law enforcement officers found the ATV at her place of residence while she was on the premises, there was insufficient evidence to establish that she "enter[ed] or remain[ed] unlawfully in a building," i.e., Watts's garage to take the ATV. See RCW 9A.52.030(1).
The State included jury instructions on accomplice liability at trial.
Mere possession of recently stolen property, without corroborating evidence, is insufficient to support a burglary conviction. State v. Mace, 97 Wn.2d 840, 843, 650 P.2d 217 (1982). But "`[w]hen a person is found in possession of recently stolen property, slight corroborative evidence of other inculpatory circumstances tending to show his guilt will support a conviction.'" Mace, 97 Wn.2d at 843 (citing State v. Portee, 25 Wn.2d 245, 253-54, 170 P.2d 326 (1946)). Other corroborating evidence may include evidence of flight or presence of the defendant near the crime scene. Mace, 97 Wn.2d at 843. And even if the only evidence of guilt is circumstantial and consistent with the defendant's hypothesis of innocence, the jury may nonetheless be convinced of guilt beyond a reasonable doubt. See State v. Gosby, 85 Wn.2d 758, 767, 539 P.2d 680 (1975); State v. Gerard, 36 Wn. App. 7, 10, 671 P.2d 286 (1983), review denied, 100 Wn.2d 1035 (1984).
Here, there was sufficient evidence to establish that Tyrer, either on her own or as an accomplice, entered Watts's garage to take the ATV. Watts testified that he kept the vehicle in his garage. He testified that the last time he saw the ATV, it was in the garage and no one had permission to remove it except his son. Keila testified that she recalled her husband, Watts's son, had put the ATV in the garage two days before the incident. Further, Keila testified that she observed the burglary taking place and described her interaction with the suspects, beginning from the moment she noticed two people loading the ATV into a truck. She later identified Tyrer as the woman who fled the scene when Keila approached to ask why they were loading the ATV into the truck. Moreover, Officer Deaver testified that he spoke to Watts's son, who stated that "whoever got in the garage had rifled — rifled through some things, opened drawers, whatnot, of some of the furniture that was stored in there." 1 RP (Oct. 15, 2007) at 61. The State admitted a photograph showing drawers opened and things scattered on the garage floor. This evidence, coupled with the investigating officers' discovery of the ATV at Tyrer's place of residence while Tyrer was hiding in the garage, is sufficient to establish that Tyrer entered the garage to take the ATV. The evidence is sufficient for a rational trier of fact to find the elements of second degree burglary beyond a reasonable doubt.
Likewise, the record contains sufficient evidence to support Tyrer's tampering with a witness conviction. Under the witness tampering statute:
A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to:
(a) Testify falsely or, without right or privilege to do so, to withhold any testimony.
RCW 9A.72.120(1) (emphasis added).
Tyrer relies on State v. Rempel, 114 Wn.2d 77, 785 P.2d 1134 (1990), to argue there is insufficient evidence to support her tampering with a witness conviction. In Rempel, the defendant called the rape victim several times and told her he was sorry, he would not do it again, and that it was going to ruin his life. Rempel, 114 Wn.2d at 81. He also asked the victim to drop the charges. Rempel, 114 Wn.2d at 81. The Supreme Court held this evidence insufficient to show that the defendant was asking the victim to withhold testimony. Rempel, 114 Wn.2d at 83.
But Tyrer's letter went beyond the message in Rempel. To begin, Tyrer sent a letter to Neikirk and enclosed a second letter addressed to Friend. In her letter to Neikirk, Tyrer says that she's "sending a letter that's not in my sloppy writing." Ex. 24. But in the enclosed letter to Friend, the writer indicated she is a friend of Tyrer's. The State's theory at trial was that Tyrer actually wrote both letters, but stated she was "a good friend of Nichole's" in the letter to Friend in an attempt to circumvent the prison policy of sending mail to other inmates. Ex. 24. In the letter to Friend, Tyrer asked Friend to tell the authorities that she had no involvement in the burglary. She asked him to say that a girl named "Chrissy" was instead involved. She went so far as to say that no "Chrissy" would get in trouble because Friend did not know her last name. Ex. 24. And Tyrer emphasized this request by enumerating potential adverse consequences she would face if Friend refused to exonerate her. Tyrer explicitly asked Friend to testify that she had no involvement with the burglary. This is sufficient to support the jury's finding that Tyrer was attempting to get Friend to testify falsely. See Rempel, 114 Wn.2d at 84.
Moreover, we find Tyrer's assertion that without an actual communication, she cannot be legitimately found guilty of tampering with a witness meritless. A person tampers with a witness if he attempts to alter the witness's testimony. State v. Williamson, 131 Wn. App. 1, 6, 86 P.3d 1221 (2004). "A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1).
In Williamson, for example, we held there was sufficient evidence to support the defendant's witness tampering conviction. Williamson, 131 Wn. App. at 6-7. There, the defendant asked a third party to tell the minor witness/victim that her parents would go to jail unless she recanted her allegations of sexual abuse. Williamson, 131 Wn. App. at 6. In determining there was sufficient evidence to support the conviction, we noted that communicating the threat is not required to violate the witness tampering statute so long as the defendant takes a substantial step toward altering a witness's testimony. Williamson, 131 Wn. App. at 6.
Here, similar to Williamson, there is sufficient evidence in this case to establish that Tyrer attempted to alter Friend's testimony. She completed her attempt to induce false testimony when she sent the letters to Yvonne Neikirk, instructing him to pass the letters and/or information to Friend. And it is particularly evident that Tyrer's requests in the letter were serious because she included phone numbers and instructions for Friend to get in touch with her attorney. It does not matter that the corrections officers intercepted Tyrer's letter before it left the jail. See Williamson, 131 Wn. App. at 6-7. Viewed in the light most favorable to the State, the evidence was sufficient to convict Tyrer on the charge of tampering with the witness Friend.
II. Offender Score Calculation
Tyrer next contends that the trial court failed to accurately calculate Tyrer's offender score. Thus, she concludes that the trial court erred when it imposed an exceptional sentence based on free crimes.
The State concedes that the sentencing court improperly calculated Tyrer's offender score, though it maintains that even with the miscalculation, Tyrer's score would still warrant an exceptional sentence because, if calculated properly, it would still be nine points or more. Nonetheless, the State agrees that we should remand the case for the proper modification of Tyrer's offender score and resentencing based on the proper calculation. We agree and remand for resentencing based upon a proper score.
Affirmed but remanded for resentencing.
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.
QUINN-BRINTNALL, J. and PENOYAR, A.C.J., concur.