State Of Washington, V Brian Edward Turner

• Court: Court of Appeals of Washington
• Decided: August 11, 2014
• Docket: 71962-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON s 3§ m c= STATE OF WASHINGTON, ) No. 71962-9-1 CD o-n O

_ ••t\ -j, ) —•—• :^r -3>-' Respondent, ) DIVISION ONE >-Op'| 33» nrrif—. ) ZZ. — "!-r~ v. ) CD tVl - irj ) UNPUBLISHED OPINION CO

BRIAN EDWARD TURNER, ) ) Appellant. ) FILED: August 11,2014

Schindler, J. —A jury convicted Brian Edward Turner of unlawful possession of

a stolen motor vehicle and possession of motor vehicle theft tools. Turner argues

insufficient evidence supports the convictions. Turner also contends the State failed to

prove his criminal history for purposes of calculating his offender score, and the record

does not support the court's finding that he had the ability to pay court costs. We affirm.

FACTS

On November 18, 2012, Rindel Caba reported to police that his white two-door

1991 Honda Civic was stolen.

On December 13, as Lakewood Police Lieutenant Chris Lawler was driving

northbound, he noticed a Honda in the southbound lane. Lieutenant Lawler said the car

was going "pretty quick" and did not come to a complete stop at the intersection.

Lieutenant Lawler also testified that the woman sitting in the passenger seat looked at No. 71962-9-1/2

him with a "surprised look" as the car drove past. Lieutenant Lawler ran the license

plate number of the vehicle. The number matched the license plate number for the

stolen Honda. Lieutenant Lawler immediately drove in the direction the Honda had

been traveling.

Three minutes later, Lieutenant Lawler found the vehicle parked in front of an

apartment complex with the engine running. The woman was still sitting in the front

passenger seat and no one else was in the car. Lieutenant Lawler saw a man, later

identified as Brian Edward Turner, emerge from a breezeway to the apartment units and

walk toward the vehicle. Turner was carrying a red backpack and several bottles of

what appeared to be alcohol. Turner placed the backpack and bottles in the car behind

the driver's seat. As Turner "was preparing to get into the driver seat," Lieutenant

Lawler arrested him. When Lieutenant Lawler looked inside the car, he saw that the

steering column was severely damaged, and observed a flat-blade screwdriver lying on

the front passenger-side floor.

The State charged Turner with unlawful possession of a stolen vehicle and

making or possessing motor vehicle theft tools.

Rindel Caba, the owner of the stolen vehicle, and Lieutenant Lawler testified at

trial. The defense theory at trial was that Turner did not know the vehicle was stolen

and he was never in actual or constructive possession of the Honda or of the

screwdriver.

Caba testified that after his stolen vehicle was recovered, the steering column

cover was broken off and there was tape around the steering column "like they broke it

offto get into the rest of the ignition." Caba testified that the ignition control switch and No. 71962-9-1/3

heater climate control were also damaged, and there were scratches by the radio and

on the steering column cover. Caba said the bag of men's clothing and the screwdriver

found in the car did not belong to him. Caba testified that he did not know Turner and

did not give him permission to drive his car.

Lieutenant Lawler testified that he saw other people around the apartment

complex, including a maintenance worker and a man walking out of the breezeway "a

little bit behind [Turner]" who "appeared to be unrelated." Lieutenant Lawler testified

that when he arrested Turner, the other man turned and went in the other direction

away from the car. Lieutenant Lawler did not see the other man go near the stolen

vehicle or put any items in the car.

Lieutenant Lawler testified that Turner appeared to be about to get into the car

when he arrested him:

It looked like [Turner] had finished putting what it was behind the seat and was preparing to get into the driver seat almost like he was going to raise his leg to get in there. I thought he was getting into the car and I didn't want to let him get in the car.

Lieutenant Lawler testified that the car's steering column "was severely

damaged." Lieutenant Lawler stated that a flat-blade screwdriver, like the one he saw in

the vehicle, "can be used to move the mechanism under the column to start the car."

Lieutenant Lawler testified that neither Turner nor the female passenger had keys to the

car, a bill of sale, or registration or title for the vehicle.

At the end of the State's case, the defense made a motion to dismiss, arguing

the State did not prove beyond a reasonable doubt that Turner possessed the car or the

screwdriver or that he knew the car was stolen. The court denied the motion. The

defense did not present any witnesses. No. 71962-9-1/4

The jury found Turner guilty of unlawful possession of a stolen vehicle and

possession of motor vehicle theft tools. The court sentenced Turner to 15 months

confinement and ordered Turner to pay legal financial obligations, including fees for a

court-appointed attorney of $1,000 and a criminal filing fee of $200.

ANALYSIS

Sufficiency of the Evidence

Turner contends he is entitled to dismissal because the evidence does not

support the convictions for unlawful possession of a stolen motor vehicle and

possessing motor vehicle theft tools.

The State must prove each essential element of the crime beyond a reasonable

doubt. InreWinship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State

v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002). In deciding whether sufficient

evidence supports a conviction, we must view the evidence in the light most favorable to

the State to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). A challenge to the sufficiency of the evidence admits the

truth of the State's evidence. Salinas, 119 Wn.2d at 201. "[A]ll 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. We defer to the trier of fact on

"issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence." State v. Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in

part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L

Ed. 2d 177 (2004). No. 71962-9-1/5

Turner asserts there was insufficient evidence to convict him of possession of a

stolen motor vehicle because the State only proved he was in proximity to the car, not

that he had actual or constructive "possession" of the vehicle or that he knew the car

was stolen.

"A person is guilty of possession of a stolen vehicle if he . . . possesses ... a

stolen motor vehicle." RCW 9A.56.068(1). Knowledge that the property was wrongfully

appropriated is an essential element of the crime of possession of stolen property.

State v. Hatch, 4 Wn. App. 691, 693, 483 P.2d 864 (1971). "Possession may be actual

or constructive, and constructive possession can be established by showing the

defendant had dominion and control over the [property] or over the premises where the

[property] was found." State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214

(1997). "Actual possession means that the goods are in the personal custody of the

person charged with possession." State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400

(1969).

Close proximity alone is not enough to establish constructive possession; other

facts must enable the trier of fact to infer dominion and control. State v. Spruell, 57 Wn.

App. 383, 389, 788 P.2d 21 (1990). No single factor is dispositive in determining

dominion and control. State v. Collins, 76 Wn. App. 496, 501, 886 P.2d 243 (1995).

Rather, the totality of the circumstances must be considered. Collins, 76 Wn. App. at

501. A rational trier of fact could infer that a defendant had constructive possession of

stolen property if the defendant had control over the premises where the property was

found. State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000). A vehicle is a

"premises" for purpose of this inquiry. Turner, 103 Wn. App. at 521. No. 71962-9-1/6

Mere possession of recently stolen property is insufficient to establish that the

possessor knew the property was stolen, but possession coupled with slight

corroborative evidence is sufficient to prove guilty knowledge. State v. Couet, 71 Wn.2d

773, 775, 430 P.2d 974 (1967); State v. Womble, 93 Wn. App. 599, 604, 969 P.2d 1097

(1999). Corroborative evidence includes damage to the vehicle and the absence of a

plausible explanation for legitimate possession. State v. LA, 82 Wn. App. 275, 276,

918 P.2d 173 (1996); Womble, 93 Wn. App. at 604.

Viewed in the light most favorable to the State, a rational trier of fact could find

that Turner possessed the vehicle. Lieutenant Lawler testified that he observed

someone driving the car with a female passenger. Three minutes later, Lieutenant

Lawler saw the same car parked in front of an apartment complex with the engine

running, and watched Turner walk out of the breezeway leading to the apartments

carrying a backpack and bottles and place those items in the car behind the driver's

seat. Lieutenant Lawler testified that Turner appeared to be about to get into the

driver's seat when he arrested him.

Viewing the evidence in the light most favorable to the State, there was also

evidence that Turner knew the car was stolen. Lieutenant Lawler and the owner of the

car testified that the ignition control switch was disabled, the heater controls were

damaged, and the steering column cover was broken off. There was no key and

Lieutenant Lawler testified that the screwdriver found on the floor of the car was likely

used to start the vehicle.

Turner also argues there was insufficient evidence to convict him of possession

of a motor vehicle theft tool because the State did not prove he possessed the No. 71962-9-1/7

screwdriver found inside the stolen vehicle with the intent to use the tool "in the

commission of motor vehicle theft." RCW 9A.56.063(1).

RCW 9A.56.063 provides, in pertinent part:

(1) Any person who makes or mends, or causes to be made or mended, uses, or has in his or her possession any motor vehicle theft tool, that is adapted, designed, or commonly used for the commission of motor vehicle related theft, under circumstances evincing an intent to use or employ, or allow the same to be used or employed, in the commission of motor vehicle theft, or knowing that the same is intended to be so used, is guilty of having motor vehicle theft tools. (2) For the purposes of this section, motor vehicle theft tool includes . . . any other implement shown by facts and circumstances that is intended to be used in the commission of a motor vehicle related theft, or knowing that the same is intended to be so used.

Viewed in the light most favorable to the State, sufficient evidence supports the

conclusion that Turner possessed the screwdriver as a motor vehicle theft tool.

Lieutenant Lawler testified that the screwdriver was on the front passenger-side floor

within reach of someone sitting in the driver's seat. No keys were found in the vehicle,

and there was damage to the car's ignition and steering column. Lieutenant Lawler

testified that flat-blade screwdrivers like the one he found in the car are commonly used

to start stolen vehicles by using the blade to move the mechanism under the steering

column.

Offender Score

In the alternative, Turner argues he is entitled to resentencing because the State

did not prove his criminal history for purposes of calculating the offender score.

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). "[I]llegal or erroneous sentences No. 71962-9-1/8

may be challenged for the first time on appeal." State v. Ford, 137 Wn.2d 472, 477, 973

P.2d 452 (1999).

At sentencing, the State bears the burden of proving a defendant's prior criminal

history by a preponderance of the evidence. State v. Mendoza, 165 Wn.2d 913, 920,

205 P.3d 113 (2009). Bare assertions, unsupported by evidence, do not satisfy the

State's burden to prove the existence of a prior conviction. State v. Hunley, 175 Wn.2d

901, 910, 287 P.3d 584 (2012). The best evidence of a prior conviction is a certified

copy of the judgment. State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002). "This

is not to say that a defendant cannot affirmatively acknowledge his criminal history and

thereby obviate the need for the State to produce evidence." Mendoza, 165 Wn.2d at

920. A defendant's "mere failure to object to State assertions of criminal history at

sentencing does not result in an acknowledgement." Hunley, 175 Wn.2d at 912. But

when defense counsel affirmatively acknowledges a defendant's criminal history, the

court is entitled to rely on such acknowledgement. Bergstrom, 162 Wn.2d at 97-98.

Turner contends the facts in this case are indistinguishable from Hunley. We

disagree. In Hunley, the State presented a written summary of its understanding of the

defendant's criminal history. Hunley, 175 Wn.2d at 905. The State did not present any

documentation of the alleged offenses. Hunley, 175 Wn.2d at 905. The defendant

"neither disputed nor affirmatively agreed with the prosecutor summary." Hunley, 175

Wn.2d at 905. The trial court relied on the summary and on the failure of the defendant

to challenge the offender score or sentence at the trial court. Hunley. 175 Wn.2d at

905. On appeal, the Washington State Supreme Court held that "to treat the

defendant's failure to object to such assertions or allegations as an acknowledgment of

8 No. 71962-9-1/9

the criminal history" and "to base a criminal defendant's sentence on the prosecutor's

bare assertions or allegations of prior convictions" violates due process. Hunley, 175

Wn.2dat915.

Here, unlike in Hunley, the court relied on the defense attorney's affirmative

acknowledgement of Turner's criminal history. At sentencing, the State presented a

"STIPULATION ON PRIOR RECORD AND OFFENDER SCORE" with a list of Turner's

prior convictions.1 But neither Turner nor his attorney signed the stipulation. The

prosecutor proposed rescheduling the sentencing to allow the State to present certified

copies of the prior convictions:

I would [point] out that the stipulation of prior offense that I've handed forward is not signed by the defendant or his attorney. [Defense counsel] said that it's her desire not to sign it. I suggested that we set this over so I can bring in the certified copies to the Court. However, we'll defer to the Court with how you want to proceed.

The court then asked the defense attorney whether "there [is] something wrong

that you're aware of[ Jon his prior record or the offender score?" In response, the

attorney stated, "No, not that I'm aware of, Your Honor." The attorney also told the

court, "We're waiving any right to appeal it if it's wrong." The court ruled that it was

"going to accept the stipulation. We don't actually have a stipulation, but I'm going to

accept the prior record and offender score."

The facts in this case are more like Bergstrom. In Bergstrom, the defense

attorney agreed to the State's calculation of the offender score and criminal history.

Bergstrom, 162 Wn.2d at 90. But the defendant objected, arguing that some of his

crimes were the same criminal conduct. Bergstrom, 162 Wn.2d at 90-91. The

sentencing court addressed Bergstrom's argument and rejected it. Bergstrom, 162

1 Emphasis in original No. 71962-9-1/10

Wn.2d at 91-92. The Supreme Court held that although the sentencing court was

entitled to rely on defense counsel's agreement to the offender score and criminal

history, because the court considered and ruled on Bergstrom's pro se argument, the

court erred in failing to hold an evidentiary hearing and require the State to produce

evidence in support of the offender score. Bergstrom, 162 Wn.2d at 97.

There is no evidence in the record that Turner objected to the State's summary of

his criminal history. Because the sentencing court was entitled to rely on the defense

attorney's affirmative acknowledgment of Turner's criminal history, we affirm Turner's

sentence.

Legal Financial Obligations

Turner also challenges the imposition of the $200 filing fee and the $1,000 in

court-appointed attorney fees and defense costs, arguing the record does not support

finding that he had the ability to pay.2

The $200 filing fee is statutorily mandated under RCW 36.18.020(2)(h) and must

be imposed regardless of the defendant's ability to pay. State v. Lundv, 176 Wn. App.

96, 103, 308 P.3d 755 (2013). As to imposition of court-appointed attorney fees and

defense costs, the State contends that the issue is not ripe for review because the State

has not sought to collect the costs. We agree with the State.

Imposition of court-appointed attorney fees and defense costs is discretionary.

RCW 10.01.160(1), (2). If a court imposes discretionary legal financial obligations

(LFOs), the court must consider the defendant's present or likely future ability to pay.

RCW 10.01.160(3); State v. Curry, 118 Wn.2d 911, 915-16, 829 P.2d 166(1992). The

2Turner does not challenge the imposition of the mandatory $500 crime victim fee or the mandatory $100 DNA (deoxyribonucleic acid) database fee.

10 No. 71962-9-1/11

defendant may petition the court at any time for remission or modification of the

payments on the basis of manifest hardship. RCW 10.01.160(4); State v. Baldwin, 63

Wn. App. 303, 310-11, 818 P.2d 1116 (1991). "Because this determination is clearly

somewhat 'speculative,' the time to examine a defendant's ability to pay is when the

government seeks to collect the obligation." State v. Smits, 152 Wn. App. 514, 523-24,

216 P.3d 1097 (2009). Nothing in the record reflects that the State has attempted to

collect LFOs from Turner or expects Turner to begin repayment of his obligations.

Turner may challenge the trial court's imposition of LFOs when the government seeks to

collect them.

We affirm.

\^QaaC-4$jP~( WE CONCUR: