Opinion
No. 30780-4-II
Filed: January 4, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County. Docket No: 02-1-00886-5. Judgment or order under review. Date filed: 08/08/2003. Judge signing: Hon. H John Hall.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Counsel for Respondent(s), Brandy Marshelle Meyer, City of Auburn, 25 W Main St, Auburn, WA 98001-4998.
Kenneth N. Scotton appeals a Lewis County Superior Court conviction of second degree burglary. He claims that the evidence is insufficient to support the verdict, that a juror was biased against him, that he received ineffective assistance of counsel and that the State engaged in misconduct. Finding none of these arguments persuasive, we affirm. Further, we grant the State's request for fees and costs under RAP 14.2, 14.3 and RCW 10.73.160.
Rules of Appellate Procedure.
Facts
Centralia police officer Steve Burress's attention was drawn by a metallic sound at an enclosed dumpster at the Fairway Shopping Center at approximately 1:00 a.m. on November 6, 2002. Burress noticed two people inside the enclosure and called for them to come out. The first person, Gary Franken, came out immediately. The other person, Scotton, retreated to the back of the dumpster and did not reappear for several seconds. Franken possessed four credit cards in different names and methamphetamine. Scotton possessed a small Leatherman, a large bolting knife and a pair of vice grips, but no methamphetamine. Scotton told Burress that he and Franken were inside the dumpster looking for `something of value.' Report of Proceedings (RP) (Jan. 30, 2003) at 55.
The dumpster was attached to the building and enclosed by a cinderblock wall and a chain-link fence. The gate to the enclosure was secured by a chain, which had been broken or cut. The dumpster contained paper documents and shipping material primarily from a business called Copy Depot. Burress testified the documents were `sensitive' because they contained names, addresses, and phone numbers. RP at 63. Larry Robertson, manager of the Fairway Shopping Center, testified that the shopping center established a policy that required the enclosure to be locked after several incidents of forgery and identity theft had been linked to the dumpster.
The State charged Scotton with second degree burglary. Scotton moved to exclude the evidence of methamphetamine found on Franken prior to trial. He argued that the methamphetamine evidence was unduly prejudicial and irrelevant. The State countered that this evidence was relevant to prove its theory that Scotton was in the dumpster looking for documents that would enable him to commit identity theft to generate money for drugs. The court denied Scotton's motion to exclude.
A jury convicted Scotton on January 31, 2003. On May 12, 2003, Scotton filed a motion and memorandum for arrest of judgment or for new trial under CrR 7.4 and 7.5., claiming insufficient evidence, juror bias and ineffective assistance of counsel. The trial court held an evidentiary hearing on the motion on August 8, 2003. Scotton testified that juror number two was a person who works at Goodwill, knew him well, and had once accused him of theft. Scotton stated he did not recognize the juror until he was seated in the jury box and when he told his trial counsel about the biased juror, his statements were ignored. Scotton complained that his trial counsel's performance was deficient because he had been paid $1,500 in cash during the trial, and would not allow Scotton to testify or call witnesses. The trial court denied his motion for a new trial, from which he appeals.
Discussion I. CrR 7.4 and CrR 7.5
CrR 7.4 provides that a judgment may be arrested where there is insufficient proof of a material element of the crime, but it further requires that a motion under this rule be served and filed within 10 days of the verdict, subject to the court's discretion in extending the deadline. CrR 7.4(b).
CrR 7.4 Arrest of Judgment:
(a) Arrest of Judgments. Judgment may be arrested on the motion of the defendant for the following causes: (1) Lack of jurisdiction of the person or offense; (2) the indictment or information does not charge a crime; or (3) insufficiency of the proof of a material element of the crime.
(b) Time for Motion; Contents of Motion. A motion for arrest of judgment must be served and filed within 10 days after the verdict or decision. The court on application of the defendant or on its own motion may in its discretion extend the time until such time as judgment is entered.
Scotton filed his motion over three months after the jury verdict. The State did not object to the untimely filing of the motion. The court gave no indication that it was making an exception to the CrR 7.4(b) time requirement, but held a hearing on the motion approximately three months after Scotton filed his motion and seven months after the jury rendered its verdict. Thus, the time limits of CrR 7.4 are deemed waived.
Scotton also argued for relief in the form of a new trial under CrR 7.5(a)(2). This rule allows a new trial where substantial justice has not been done. The same time and specificity requirements apply to motions under CrR 7.5 as apply to motions under CrR 7.4. See CrR 7.5(b). Again, Scotton did not comply with the timely filing requirement. But because the State did not object to the untimely motion, the time requirements of CrR 7.5 are also deemed waived.
CrR 7.5 New Trial:
(a) Grounds for New Trial. The court on motion of a defendant may grant a new trial for any one of the following causes when it affirmatively appears that a substantial right of the defendant was materially affected:
. . . .
(2) Misconduct of the prosecution or jury;
. . . .
When the motion is based on matters outside the record, the facts shall be shown by affidavit.
(b) Time for Motion; Contents of Motion. A motion for new trial must be served and filed within 10 days after the verdict or decision. The court on application of the defendant or on its own motion may in its discretion extend the time.
The motion for a new trial shall identify the specific reasons in fact and law as to each ground on which the motion is based.
. . . .
(d) Statement of Reasons. In all cases where the court grants a motion for a new trial, it shall, in the order granting the motion, state whether the order is based upon the record or upon facts and circumstances outside the record which cannot be made a part thereof. If the order is based upon the record, the court shall give definite reasons of law and facts for its order. If the order is based upon matters outside the record, the court shall state the facts and circumstances upon which it relied.
(e) Disposition of Motion. The motion shall be disposed of before judgment and sentence or order deferring sentence.
II. Sufficiency of the Evidence
Scotton argues that the State failed to produce sufficient evidence to convict him of second degree burglary because the items in the dumpster were abandoned property. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of the State's evidence and requires that all reasonable inferences be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial and direct evidence are accorded equal weight. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). This court must give deference to the trier of fact who resolves conflicting testimony, evaluates the credibility of witnesses, and generally weighs the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Burglary requires intent to commit an underlying crime. It is undisputed that the cinderblock and fenced enclosure in this case is a `building' for purposes of this statute. See RCW 9A.04.110(5) (stating that "[b]uilding,' in addition to its ordinary meaning, includes any . . . fenced area'); see also State v. Gans, 76 Wn. App. 445, 449-52, 886 P.2d 578 (1994) (fenced area is a `building' if its main purpose is to protect personal property inside it); State v. Brenner, 53 Wn. App. 367, 377-78, 768 P.2d 509 (1989) (wrecking yard enclosed by eight foot fence is a `building'); State v. Livengood, 14 Wn. App. 203, 540 P.2d 480 (1975) (under former burglary statute, fence enclosing electrical substation and construction materials was a `structure' serving mainly to protect property); State v. Wentz, 149 Wn.2d 342, 68 P.3d 282 (2003) (solid wood fence with padlocked gates surrounding a backyard is a `building').
RCW 9A.52.030 provides: (1) A person is guilty of burglary in the second degree 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.
Scotton argues that the underlying crime of theft cannot be based on taking abandoned property. But the Fairway Shopping Center has an expectation of privacy in the dumpster within the enclosure. See State v. Boland, 115 Wn.2d 571, 578, 800 P.2d 1112 (1990) (holding that an enhanced expectation of privacy under article I, section 7 of the Washington Constitution exists in one's garbage can or the curtilage).
The dumpster here was on property owned by Fairway Shopping Center. It was enclosed and locked, implying permissive use primarily by Copy Depot. Scotton told Burress he was looking for `something of value' within the enclosure. The evidence shows Scotton and Franken illegally entered a building with the intent to commit a crime. The items in the enclosed dumpster were not abandoned. Rather, they were protected from unwanted intrusion because of the valuable information contained on the documents. Accordingly, the State presented sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Scotton committed second degree burglary when he entered the dumpster.
Scotton claims there was insufficient evidence to prove malicious mischief. He also contends he could have been convicted as an accomplice, but no accomplice liability instruction was given. But Scotton was not charged with malicious mischief or as an accomplice and these arguments have no merit. Thus, the jury was not instructed on these matters.
III. Juror Bias
Scotton states that juror number two knew him, was unreasonably biased, and concealed these facts during voir dire. The failure to provide a defendant a fair hearing with an unbiased jury violates due process. State v. Jackson, 75 Wn. App. 537, 543, 879 P.2d 307 (1994). A trial court's decision on a motion for new trial based on juror misconduct will not be disturbed on appeal unless the ruling is based on an erroneous interpretation of the law or constitutes an abuse of discretion. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989).
Scotton identified the biased juror as Donald Rice at the evidentiary hearing. During voir dire, Rice was seated in the front row, and Scotton faced all potential jurors at counsel table. During general questioning by the court as to acquaintance with any of the parties, Rice did not raise his hand. Scotton's counsel asked Rice a direct question during voir dire about a defendant's decision not to testify, to which Rice responded verbally. Scotton admitted there was no obstruction in his view of the jurors, but that Rice was seated in a way that kept Scotton from seeing him. Scotton claims he could not recognize Rice until he was seated in the jury box, at which time he told his attorney that Rice should not be on the jury due to their prior altercation. Trial counsel did not raise an objection to Rice being seated on the jury.
Scotton cites the case of Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), to support the position that seating Rice on the jury requires reversal of his conviction. Hughes is distinguishable here. The juror in that case specifically stated she did not think she could be fair. The court and counsel did not inquire further, utilize juror rehabilitation, or challenge this juror for cause. A defendant may obtain a new trial if an impaneled juror's honest responses to questions on voir dire would have given rise to a valid challenge for cause. Hughes, 258 F.3d at 458. Rice made no indication he could not be fair, and in response to a direct question by counsel, stated he would not hold Scotton's decision not to testify against him. A court may rely upon juror assurances of impartiality in deciding whether a defendant has satisfied his burden of proving actual prejudice. Hughes, 258 F.3d at 460. The court did not err in denying the motion for mistrial on juror bias.
IV. Ineffective Assistance of Counsel
Scotton's claim of ineffective assistance of counsel also fails. Counsel is ineffective when his or her performance falls below an objective standard of reasonableness and counsel's deficient performance prejudices the defendant. In re Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001) (citing Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)); State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). In order to establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's errors, the result of the trial or sentencing would have been different. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Scotton contends the relationship with his counsel had so deteriorated that communication between them was not possible. He states he tried to fire his counsel, but then offered him $1,500 to `encourage' him to do a better job. Clerk's Papers at 21. But the State offered an attorney legal services agreement between Scotton and his counsel, dated February 6, 2003, six days after the trial concluded. A letter from Scotton's counsel stated the $1,500 was a retainer for representation on post-trial matters. The record does not support Scotton's assertions.
Scotton also claims that his counsel did not give him an opportunity to review the police reports and did not review the strengths and weaknesses of the case with him. During the evidentiary hearing on his motion for a new trial, Scotton testified, `I told him a lot of things and asked him a lot of things.' RP (Aug. 8, 2003) at 49. He testified that he called his counsel twice after the preliminary hearing, but he `got an answering machine every time I called him.' RP at 45. But Scotton admitted it was possible his counsel did try to contact him, and he was Snot trying to say he's a bad person or wasn't trying to do his job.' RP at 45. This court strongly presumes that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993). Scotton's bare allegations do not rebut this presumption.
V. Methamphetamine Evidence
Scotton asserts that his counsel provided ineffective assistance because he did not object to the State raising the subject of methamphetamine during voir dire and direct questioning. But Scotton's counsel moved in limine to exclude evidence and questioning regarding methamphetamine. The court denied the motion in limine. `The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation. Unless the trial court indicates further objections are required when making its ruling, its decision is final, and the party losing the motion in limine has a standing objection.' State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984); State v. Sullivan, 69 Wn. App. 167, 170-71, 847 P.2d 953 (1993) (emphasis added). Scotton has demonstrated neither deficient performance nor prejudice by counsel's failure to object to questions after losing a motion in limine regarding those questions.
While the court may have erred in admitting prejudicial methamphetamine evidence, Scotton has not raised this evidentiary issue on appeal and the issue is, therefore, waived. State v. LeFever, 102 Wn.2d 777, 785, 690 P.2d 574 (1984).
An appellate court may decline to consider issues not raised and those properly belonging in an opening brief. See State v. Hudson, 124 Wn.2d 107, 120, 874 P.2d 160 (1994); In re Donohoe, 90 Wn.2d 173, 175, 580 P.2d 1093 (1978); see also State v. Collins, 121 Wn.2d 168, 179, 847 P.2d 919 (1993); Douglas v. Freeman, 117 Wn.2d 242, 258, 814 P.2d 1160 (1991).
We note, however, that Burress caught Scotton inside the locked and fenced enclosure, without permission, while looking for something of value, and he was convicted of burglary, not a drug crime. Although the admission of evidence of the codefendant's possession of methamphetamine was improper, the evidence was overwhelming that Scotton committed burglary and any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Therefore the admission of this evidence was not so prejudicial that it likely changed the outcome of the trial.
VI. Prosecutorial Misconduct
Scotton argues that the State committed misconduct by alluding to methamphetamine use in voir dire and during direct examination of Burress, and by inferring that Scotton used methamphetamine during closing argument. In a claim of prosecutorial misconduct, the appellant bears the burden of establishing both improper conduct and prejudicial effect. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). Prejudice exists where there is a substantial likelihood that the misconduct affected the jury's verdict. Brett, 126 Wn.2d at 175.
Scotton's codefendant, Franken, was in possession of methamphetamine when arrested by Burress. As discussed above, Scotton's counsel made a motion in limine to exclude the evidence of methamphetamine found on Franken. The court denied the motion, ruling that the evidence was admissible to prove the State's theory that Scotton was in the dumpster to find documents that would enable him to commit identity theft in order to generate money for drugs. Utilizing evidence specifically ruled admissible is not improper and, thus, there was no prosecutorial misconduct.
VII. Attorney Fees and Costs
The State requests statutory attorney fees and costs, including the filing fee and the cost of reproducing the briefs, verbatim transcripts, and clerk's papers. Scotton did not respond to this request in his reply brief.
We may require an adult convicted of an offense to pay appellate costs. RCW 10.73.160(1); State v. Nolan, 141 Wn.2d 620, 627, 8 P.3d 300 (2000) (citing State v. Blank, 131 Wn.2d 230, 234, 930 P.2d 1213 (1997)). RCW 10.73.160(1) authorizes appellate courts, under RAP, Title 14, to award the State appellate counsel expenses incurred on behalf of a defendant, if the State is the substantially prevailing party. Nolan, 141 Wn.2d at 628. This award is discretionary, consistent with the appellate court's authority under RAP 14.2 to decline to award costs. Nolan, 141 Wn.2d at 628.
Because the State is the prevailing party here, we grant the State's request for appellate costs subject to its compliance with RAP Title 14.
Finding no error in the denial of Scotton's motion for new trial, 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.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., Concur.