State Of Washington, V. Corey L. Brock

• Court: Court of Appeals of Washington
• Decided: November 8, 2021
• Docket: 81666-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, ) No. 81666-7-I ) Respondent, ) ) DIVISION ONE v. ) ) COREY L. BROCK, ) ) UNPUBLISHED OPINION Appellant. ) )

MANN, C.J. — Corey Brock appeals his judgment and sentence for one count of

theft of a motor vehicle. Brock argues that the trial court erred in admitting irrelevant

evidence over defense objection, and that his defense counsel was ineffective for failing

to object to unduly prejudicial and inadmissible evidence under ER 403 and ER 404(b).

We affirm.

FACTS

The Auburn U-Haul location houses a storage facility, equipment rental, u-Box

rentals, and an onsite shop. Customers renting a storage unit can access the facility

after hours with an access card. Customers are also able to rent vehicles after hours

using a lockbox. Upon arriving to the facility on April 28, 2018, assistant manager

Geena San Nicholas discovered a U-Haul cargo van missing from the parking lot. The

lockbox was broken and the keys to the cargo van were missing. San Nicholas

Citations and pin cites are based on the Westlaw online version of the cited material. No. 81666-7-I/2

informed the police and then reviewed the security footage. The video showed a man

swiping his access card multiple times attempting to enter the storage facility around

10:30 p.m. Brock’s card was the only access card swiped and denied that night. The

video then showed the man leave and return with a crowbar-like object used to break

open the lockbox containing keys to the U-Haul cargo van. A still image from the video

shows a close up of the man’s face. The theft of the van and the identity of who drove it

were not caught on camera or seen by eyewitnesses.

Auburn Police Officer Joseph Vojir obtained Brock’s address from the law

enforcement databases and asked Detective Vincent Martinez to look for the van at the

address. Martinez found the stolen van in the alley behind Brock’s residence. The door

was open and the engine was running. Brock was standing less than four feet away

from the open driver’s side door. Martinez arrested Brock, searched him incident to

arrest, and located the U-Haul access card in his wallet.

The State charged Brock with one count of theft of a motor vehicle. At trial, the

prosecutor asked San Nicolas why Brock’s access card was denied. Brock objected on

relevance grounds. The court overruled the objection and San Nicolas answered, “if it’s

suspended, that means that they haven’t paid their rent.” The jury found Brock guilty as

charged.

Brock appeals.

ANALYSIS

A. Relevance

Brock argues that the trial court erroneously admitted irrelevant evidence that

Brock failed to pay his U-Haul storage unit rent over defense objection. We disagree.

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Under ER 401, evidence is relevant when it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” “Evidence is relevant

if a logical nexus exists between the evidence and the fact to be established.” State v.

Burkins, 94 Wn. App. 677, 692, 973 P.2d 15 (1999). Irrelevant evidence is not

admissible, however, when the threshold to admit relevant evidence is low and “even

minimally relevant evidence is admissible.” ER 402; State v. Darden, 145 Wn.2d 612,

622, 41 P.3d 1189 (2002). We review a trial court’s ruling on relevance for abuse of

discretion. State v. Scherf, 192 Wn.2d 350, 387, 429 P.3d 776 (2018). “A trial court

abuses its discretion if its decision is manifestly unreasonable or based on untenable

grounds or untenable reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940

P.2d 1362 (1997).

Here, in order to prove that it was Brock that stole the van, the State presented

evidence that the same person who broke the lockbox also tried to swipe their access

card eight times—an access card attached to Brock’s suspended account. Brock

concedes that this fact is relevant, however, he argues that the reason the account is

suspended is irrelevant. San Nicholas testified that a suspended account is due to

failure to pay rent. This testimony is relevant to show that it was more probable that

Brock tried to enter the storage building but his access card was denied because his

account was suspended due to missed payments.

Conversely, if Brock’s account had been current, his access card would not have

been denied and thus it would have been less likely that Brock stole the cargo van.

Again, even minimally relevant evidence is admissible. Darden, 145 Wn.2d at 622.

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Because the trial court’s decision was not manifestly unreasonable or based on

untenable grounds, the court acted within its discretion to admit the testimony.

B. Ineffective Assistance of Counsel

Brock argues alternatively, that even if the testimony that he failed to pay his rent

was relevant, his trial counsel was ineffective for failing to object to the evidence of

nonpayment as inadmissible under ER 403 and ER 404(b). We disagree.

The defendant bears the burden to establish ineffective assistance of counsel.

State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). “First, the defendant

must show that counsel’s performance was deficient” and “second, the defendant must

show that the deficient performance prejudiced the defense.” Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Failure to demonstrate

either prong ends the inquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d 489

(2018). We review a claim of ineffective assistance of counsel de novo. State v.

Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

Counsel’s performance is deficient if it falls below an objective standard of

reasonableness. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Scrutiny

of counsel’s performance is highly deferential and counsel’s conduct is presumed

reasonable. In re Pers. Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). This

presumption is rebutted “where there is no conceivable legitimate tactic explaining

counsel’s performance.” State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80

(2004). “Decisions on whether and when to object to trial testimony are classic

examples of trial tactics.” State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541, review

denied, 193 Wn.2d 1038, 449 P.3d 664 (2019). “To prove that failure to object rendered

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counsel ineffective, Petitioner must show that not objecting fell below prevailing

professional norms, that the proposed objection would likely have been sustained, and

that the result of the trial would have been different if the evidence had not been

admitted.” In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004).

“Only in egregious circumstances, on testimony central to the State’s case, will the

failure to object constitute incompetence of counsel justifying reversal.” State v.

Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).

Here, Brock fails under the first prong because he cannot show that counsel’s

performance was deficient for failing to object under ER 403 or 404(b). Strickland, 466

U.S. at 687. Brock cannot establish that the objection would have likely been sustained

or that the results of the trial would have been different if the evidence was not admitted.

Davis, 152 Wn.2d at 715.

ER 403 “requires exclusion of evidence, even if relevant, if its probative value is

substantially outweighed by the danger of unfair prejudice.” State v. Smith, 106 Wn.2d

772, 776, 725 P.2d 951 (1986). Brock argues that his counsel should have objected to

evidence that he was late paying rent as unduly prejudicial because the purpose of the

evidence was to demonstrate that Brock was impoverished and thus more likely to steal

a motor vehicle. However, the State did not present testimony regarding Brock’s

character and did not use the late payment of rent to characterize or prejudice Brock; it

was used to show the likelihood that because Brock’s access card was suspended it

was more likely that he broke into the lockbox. Nor did the State argue that Brock was

impoverished or that his poverty made it more likely that he would steal the van. The

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speculative possibility that the jury might have implied such a conclusion does not

substantially outweigh the probative value of the evidence linking Brock to the theft.

ER 404(b) prohibits admission of prior bad acts “to prove a defendant has a

criminal propensity.” State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). “It

may, however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” ER

404(b). The evidence that his account was suspended because he had not paid his

rent was not introduced for propensity purposes. Instead, it was introduced to prove

identity—that the person who stole the van was first denied access at the card reader.

Moreover, even if Brock’s counsel believed that the nonpayment evidence was

unduly prejudicial, a second objection and request to strike the testimony might only

have drawn further attention to it. In such circumstances, “[d]efense counsel’s decision

to avoid emphasizing the testimony with an objection was purely tactical and entirely

reasonable.” State v. Davis, 17 Wn. App. 2d 264, 274, 486 P.3d 136, review denied,

198 Wn.2d 1008, 493 P.3d 734 (2021).

Additionally, Brock is unable to establish that the late payment of rent evidence

likely changed the results of the trial. Strickland, 466 U.S. at 487. The evidence against

Brock was overwhelming. His face was visible in the video preceding the van theft,

police found Brock standing next to the van behind his address, and Brock was in

possession of the access card that was swiped at the same time and location of the

theft. Also, the State did not use the nonpayment of rent evidence to defame or

characterize Brock; it is unlikely that a speculative inference between nonpayment of

rent and thievery altered the jury’s outcome.

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Affirmed.

WE CONCUR:

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