Opinion
No. 29794-9-II.
Filed: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 02-1-01333-1. Judgment or order under review. Date filed: 12/24/2002. Judge signing: Hon. Jill M Johanson.
Counsel for Appellant(s), Robert W. Jr Huffhines, Attorney at Law, 206 N Pacific Ave, Kelso, WA 98626-3414.
Counsel for Respondent(s), Michelle L Shaffer, Cowlitz Co Pros Attorney Office, 312 SW 1st Ave, Kelso, WA 98626-1799.
Dean Ray Wagner appeals his conviction for second degree possession of stolen property. He asserts that the trial court erred by instructing the jury on accomplice liability as to some of the property and by failing to give a cautionary instruction on accomplice testimony. He also claims that he received ineffective assistance of counsel. Finding no error or deficiency, we affirm.
Facts
The property at issue was taken in a burglary of Jason Murphy's home. Murphy testified that following the burglary, he was missing speakers that he had purchased for $250 and a 53-inch television that he had purchased for $1,800. Wagner's counsel stipulated that the value of the stolen property exceeded $250.
During an investigation following the burglary, Officer Troy Brightbill executed a search warrant at a house on 16th Street in Longview where he found the stolen television set in the living room. Larry Sears, a temporary occupant of the house, was asleep in the back bedroom. Brightbill questioned Sears about the television and the whereabouts of the speakers.
Sears testified at trial that Wagner had obtained the television and speakers in a burglary and that he had helped Wagner load the large television set into a truck and bring it to the 16th Street house. Sears also saw Wagner move the speakers into the house.
Sears further testified that he overheard Wagner making phone calls attempting to sell the television and speakers and that Wagner sold the speakers to `Grinch,' who Officer Brightbill later identified as Jeremy Anderson. Report of Proceedings (RP) at 97. Sears acknowledged that he was present when Anderson purchased the speakers from Wagner.
Both parties emphasized Sears' criminal history and drug problems, pointing out his numerous felony convictions and heroin addiction. There also was evidence that Sears was testifying in exchange for the State's agreement to reduce the charges for an unrelated robbery to a misdemeanor offense.
The State informed the jury that Sears had a number of felony convictions, including attempted burglary, residential burglary, escape, and eight counts of forgery. It also told the jury that Sears was a heroin addict, and was high on heroin when he and Wagner moved the television. Both parties referred to Sears' drug use and criminal history in closing arguments.
Brightbill testified that he recovered the stolen speakers from Jeremy Anderson and questioned him regarding how he acquired them. Anderson testified that he received a call from Wagner, an acquaintance of two to three years, about his interest in purchasing speakers. Wagner then brought Anderson to the house on 16th Street where Anderson purchased the speakers for $100 from Sears. At that time, Anderson saw the stolen television in the living room.
Over Wagner's objection, the trial court gave the jury an accomplice liability instruction. It did not instruct the jury to view the testimony of an accomplice with caution.
The jury found Wagner guilty of second degree possession of stolen property. On appeal, he claims that (1) it was error to give an accomplice liability instruction regarding the television, (2) it was error to fail to give a cautionary instruction on accomplice testimony, and (3) his counsel was ineffective for failing to object to certain hearsay testimony and for stipulating to the value of the property.
Analysis I. Accomplice Instruction
Wagner asserts that accomplice liability was not applicable to his possession of the television because the possession charge related only to his efforts to dispose of the stolen goods and there was no evidence that he had attempted to dispose of the television. He argues that the court's instruction did not specify whether it was referring to the speakers or to the television.
Jury instructions are acceptable if they accurately state the law and do not mislead the jury. State v. Clark, 143 Wn.2d 731, 771, 24 P.3d 1006 (2001). Here, the court instructed the jury that to find Wagner guilty of second degree possession of stolen property, it had to find that he knowingly received, retained, possessed or disposed of stolen property valued at over $250. An additional jury instruction on accomplice liability permitted the jury to make this finding based on evidence that Wagner's conduct met these elements or that he was a knowing accomplice to the commission of the crime. There is no contention that these instructions were not accurate statements of the law.
Jury Instruction 7 reads:
A person commits the crime of Possessing Stolen Property in the Second Degree when he knowingly possesses stolen property which exceeds $250 in value.
Possessing stolen property means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto. Clerk's Papers at 35.
The State's evidence established that Wagner and Sears together brought the television to the 16th Street house; Wagner contacted Anderson about possibly purchasing speakers; Wagner brought Anderson to the 16th Street house; both Wagner and Sears were in a room with the stolen television and speakers in the presence of Anderson; and Anderson purchased the speakers at that time. Given this evidence, the jury instruction on accomplice liability was not erroneous or misleading to the jury.
The jury was not required to discern what role Wagner and Sears played in the possession and disposal of the property. State v. Baylor, 17 Wn. App. 616, 618, 565 P.2d 99 (1977). Nor was it required to unanimously agree on the theory underlying the conviction. `If it was convinced that the alleged crimes were committed and that the petitioner participated in each of them, it was justified in returning a verdict of guilty.' State v. Carothers, 84 Wn.2d 256, 261, 525 P.2d 731 (1974), overruled on other grounds by State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984).
Wagner also contends that the jury may have based its decision on a finding that he only possessed the speakers, which he argues were not worth over $250. But Wagner stipulated that the property had a value in excess of $250 and that Murphy had paid $250 for them.
Further, the jury instructions clearly required a finding that the property's value exceed $250 and we presume that the jury followed the court's instructions. State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982). Thus, Wagner has failed to show that the court's accomplice liability instruction was erroneous.
II. Cautionary Instruction on Accomplice Testimony
Wagner next argues that it was reversible error to not instruct the jury to view accomplice testimony with caution. A trial court is required to so instruct the jury if the accomplice's testimony is uncorroborated. Harris, 102 Wn.2d at 153. Here, neither party requested a cautionary instruction.
When reviewing the failure to give a cautionary jury instruction on accomplice liability, we consider the following principles: (1) it is always the better practice for a trial court to give the cautionary instruction whenever accomplice testimony is introduced; (2) failure to give this instruction is always reversible error when the prosecution relies solely on accomplice testimony; and (3) whether failure to give this instruction constitutes reversible error when the accomplice testimony is corroborated by independent evidence depends upon the extent of corroboration. If the accomplice testimony was substantially corroborated by testimonial, documentary or circumstantial evidence, the trial court did not commit reversible error by failing to give the instruction.
State v. Mannhalt, 68 Wn. App. 757, 767-68, 845 P.2d 1023 (1992), citing Harris, 102 Wn.2d at 155). Wagner argues that Sears' testimony regarding possession of the television was uncorroborated. We disagree. Sears testified that after Wagner said he had `just done a burglary,' Sears agreed to help load the stolen television into a van and bring it to the 16th Street house where Sears was staying. RP at 91. Sears also testified that he overheard Wagner making phone calls attempting to sell the television, along with other stolen property.
Murphy's testimony provided corroboration that the speakers and a television had been stolen from his home, that the television at the 16th Street house was the one taken in the burglary, and that the speakers in Anderson's possession were also taken in that burglary. Anderson's testimony provided further corroboration. He testified that Wagner called him and asked if he was interested in purchasing speakers and that when Anderson conveyed interest, Wagner brought him to the 16th Street house where Anderson saw the stolen television and purchased the stolen speakers. It is not necessary for the State to present corroborating evidence for every part of the accomplice's testimony; it is sufficient if corroborating evidence tends to connect the defendant with the commission of the crime. State v. Calhoun, 13 Wn. App. 644, 648, 536 P.2d 668 (1975) (quoting State v. Gross, 31 Wn.2d 202, 216-17, 196 P.2d 297 (1948)). The testimony of Anderson and Murphy connects Wagner to the possession of the television and supports Sears' testimony that he and Wagner brought the television into the house. This testimony was sufficient to corroborate Sears' testimony.
Further, as the Mannhalt Court noted, the fact that the jurors were told about the accomplice's criminal history would cause reasonable jurors to be cautious about accepting his testimony. 68 Wn. App. at 770 n. 3. Thus, where the evidence substantially corroborates accomplice testimony and the accomplice's criminal history was before the jury, `even if we were to determine that the failure to give the cautionary instruction was error, the error would be harmless.' Mannhalt, 68 Wn. App. at 770 n. 3. Thus, any error in the trial court's failure to give a cautionary instruction on accomplice testimony was harmless.
III. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, Wagner must show that his attorney's performance was deficient and that he was prejudiced as a result. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (citing Strickland v. Washington, 466 U.S. 668, 686-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The defendant has the burden of showing that counsel's conduct fell below an objective standard of reasonableness and was not based on a legitimate strategic or tactical decision. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987); Hendrickson, 129 Wn.2d at 78-79. Prejudice is established only where the outcome of the trial would have been different but for counsel's deficient performance. Thomas, 109 Wn.2d at 226.
A. Failure to Propose Cautionary Jury Instruction on Accomplice Testimony
Wagner first asserts that counsel was deficient in failing to propose a cautionary instruction regarding accomplice testimony. Because we have already determined that the absence of the instruction was not prejudicial, Wagner cannot establish ineffective assistance of counsel on this ground. Harris, 102 Wn.2d at 155; Mannhalt, 68 Wn. App. at 770 n. 3.
B. Failure to Object to Hearsay
Wagner next claims that counsel was ineffective because she did not object to Brightbill's hearsay testimony. Brightbill testified about Sears' statements that implicated Wagner as the person who moved the television to the 16th Street house. Although we agree that this testimony was inadmissible hearsay, see ER 801(c), defense counsel had a strategic reason for failing to object. Thus, the failure was not deficient.
Defense counsel used Brightbill's hearsay testimony to impeach Sears. Counsel questioned Brightbill about Sears' statements during recross examination. Brightbill said that Sears had initially said that Wagner had moved the television into the house but in a second statement, Sears admitted to helping Wagner unload the television into the house. Counsel further used this testimony in closing to suggest that Sears was not a credible witness because he could not keep his story straight with Deputy Brightbill.
C. Counsel's Stipulation to the Value of the Stolen Property
Wagner's attorney stipulated to the fact that `the value of the property is over $250.' RP at 40. Counsel's reasoning for this stipulation was `so that information doesn't come out.' RP at 40. On appeal, Wagner argues that the value of the speakers and of the television should have been segregated and that although this `would have been no benefit to the appellant . . . defense counsel could still have objected to the aggregate value she stipulated to.' Br. of Appellant at 20. Wagner asserts that it was improper to aggregate the value of two items of stolen property taken on one occasion from the individual to elevate the degree of the offense. Although we have some difficulty understanding his argument, he seems to suggest that because RCW 9A.56.010(18)(d) specifically allows for aggregation when the defendant possesses stolen property taken from more than one person, by negative implication, the State may not aggregate where the goods were taken from only one person. We find no merit in this argument.
RCW 9A.56.010(18)(d) provides:
Whenever any person is charged with possessing stolen property and such person has unlawfully in his possession at the same time the stolen property of more than one person, then the stolen property possessed may be aggregated in one count and the sum of the value of all said stolen property shall be the value considered in determining the degree of theft involved.
The law clearly allows aggregation of value in various circumstances, such as when the property was acquired in a series of thefts which are a part of a common scheme or plan, RCW 9A.56.010(18)(c), and when the property came from multiple victims. RCW 9A.56.010(18)(d). We see no basis to conclude, given the legislative preference for aggregation, to determine that the legislature intended to prohibit aggregation where the defendant acquired various items from one victim in a single burglary.
Where `any series of transactions which constitute theft . . . are a part of the criminal episode or a common scheme or plan, then the transactions may be aggregated.' RCW 9A.56.010(18)(c).
As Wagner acknowledges that counsel's stipulation did not cause him any prejudice, the stipulation cannot support an ineffective assistance of counsel claim. Hendrickson, 129 Wn.2d at 78. Moreover, because defense counsel's stipulation was strategic and not inconsistent with the law, it does not support a finding of deficient performance.
Accordingly, we affirm.
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, J. and QUINN-BRINTNALL, A.C.J., concur.