State Of Washington, V. Curtis Johnson, Jr.

• Court: Court of Appeals of Washington
• Decided: October 19, 2021
• Docket: 54336-2
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

October 19, 2021 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 54336-2-II

Respondent,

v. UNPUBLISHED OPINION

CURTIS CHARLES JOHNSON, JR.,

Appellant.

MAXA, J. – Curtis Johnson appeals his conviction of unlawful possession of a stolen

vehicle. The conviction arose from an incident in which a police officer determined that the car

Johnson was driving had been stolen.

We hold that (1) the evidence was sufficient to prove beyond a reasonable doubt that

Johnson knew that the car he was driving was stolen, and (2) the State did not impermissibly

comment on Johnson’s right to silence. Accordingly, we affirm Johnson’s conviction.

FACTS

Background

On July 14, 2019, Lakewood police officer Nile Teclemariam was on patrol when he saw

a Honda Accord taking up two parking spaces. Johnson was inside the car with the motor

running. Teclemariam did a license plate check and discovered that the car had been reported

stolen the day before. He also learned that the registered owner was Kiyani Parks.

Teclemariam identified himself to Johnson and informed him that the car he was in was

reported as stolen. Teclemariam asked Johnson for his license, registration and proof of No. 54336-2-II

insurance. Johnson produced a title showing that the car was registered in Parks’s name.

Johnson said that he had obtained the car two days before. Teclemariam asked Johnson to turn

off the car engine, but Johnson could not because the key was jammed in the ignition.

Teclemariam then asked Johnson to get out of the car, and Teclemariam handcuffed him

and read him his Miranda1 rights. Johnson agreed to answer some questions. Teclemariam

asked Johnson where he got the vehicle, and Johnson gave three different accounts.

First, Johnson said that he bought the car from a person named Steve on Sixth Avenue in

Tacoma for $700. But he could not be specific about where on Sixth Avenue the transaction

occurred. Johnson then told Teclemariam that Steve was the registered owner’s husband.

Teclemariam saw on the registration that Parks was 19 years old and commented that most 19-

year olds are not married. In response, Johnson dropped his head and sighed.

Next, Johnson stated that he got the car from a person named Rick Jackson, who

facilitated the sale from Steve. Johnson gave Teclemariam a phone number for that person, but

when Teclemariam called the number the call went straight to voicemail. Teclemariam informed

Johnson, and Johnson said nothing in response.

Finally, Johnson changed his story again. He stated that he got the car from a person

named Vic, but he provided no information about Vic.

Johnson gave Teclemariam permission to search the car, and Teclemariam removed the

key from the ignition with difficulty. Johnson said that the key had been jammed in the ignition

since he got the car. The key was not the key for a Honda Accord. It was bent and worn down,

indicating a shaved down key used to break and override the ignition. The key could not lock or

unlock any of the car doors.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 No. 54336-2-II

Teclemariam then asked Johnson if a reasonable person would have known that the car

was stolen. Johnson shook his head and said “yes.” 2 Report of Proceedings (RP) at 227.

The State charged Johnson with unlawful possession of a stolen vehicle.

Trial

At trial, Teclemariam testified to the facts outlined above. Parks testified that her car had

been stolen from the parking lot of her apartment between 11:00 PM on July 12 and 8:00 or 9:00

AM on July 13. She stated that she had possession of the car’s only key. Parks testified that her

husband’s name was Coltran Barrin and that she did not know anyone named Steve.

During closing argument, the prosecutor reviewed the evidence that had been presented

during the trial. Specifically, the prosecutor emphasized the fact that Johnson changed his story

three times, that there was a shaved key stuck in the ignition, and that Johnson said a reasonable

person would know the car was stolen. After discussing Johnson’s three stories about how he

came in possession of the car, the prosecutor concluded with “that was all he gave Officer

Teclemariam.” 3 RP at 254.

The jury found Johnson guilty as charged. Johnson appeals his conviction.

ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE – KNOWLEDGE

Johnson argues that the evidence was insufficient to prove that he knew that the vehicle

he possessed was stolen. We disagree.

1. Legal Principles

The State must provide sufficient evidence to prove each element of a crime beyond a

reasonable doubt in a criminal case. State v. Jones, 13 Wn. App. 2d 386, 398, 463 P.3d 738

(2020). The test for determining sufficiency of evidence is whether any rational trier of fact

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could find the elements of the charged crime beyond a reasonable doubt after viewing the

evidence in a light most favorable to the State. State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d

960 (2019), cert. denied, 140 S. Ct. 834 (2020). In a sufficiency of the evidence claim, the

defendant admits the truth of the evidence and we view the evidence and all reasonable

inferences drawn from that evidence in the light most favorable to the State. Id. Circumstantial

and direct evidence are equally reliable. Id.

“A person is guilty of possession of a stolen vehicle if he or she possess[es] a stolen

motor vehicle.” RCW 9A.56.068(1). “Possessing stolen property” includes knowingly

possessing stolen property “knowing that it has been stolen.” RCW 9A.56.140(1). A person acts

with knowledge when he or she “has information which would lead a reasonable person in the

same situation to believe that facts exist which facts are described by a statute defining an

offense.” RCW 9A.08.010(b)(ii).

To prove a person is guilty of possessing a stolen motor vehicle, the State must prove that

the defendant possessed the stolen vehicle and knew that it was stolen. Jones, 13 Wn. App. 2d at

399. Mere possession of a stolen vehicle is insufficient to establish that the defendant had

knowledge that the vehicle was stolen. Id. at 401. “But possession of recently stolen property

combined with slight corroborative evidence of other inculpatory circumstances tending to

support guilt will sustain a conviction for possession of stolen property.” Id.

Such corroborating evidence includes a false or improbable explanation of the

defendant’s possession. Id.; see also State v. Ladely, 82 Wn.2d 172, 175-76, 509 P.2d 658

(1973) (stating that “giving of a false explanation or one that is improbable or is difficult to

verify” is sufficient to show guilty knowledge); State v. Womble, 93 Wn. App. 599, 604, 969

P.2d 1097 (1999) (“Absence of a plausible explanation is a corroborating circumstance.”).

4 No. 54336-2-II

In Jones, several facts provided corroborating evidence that the defendant knew that the

car he possessed was stolen. 13 Wn. App. 2d at 401-02. When a police officer passed the car,

the defendant sped away and did not stop until the officer activated his siren a second time. Id.

at 402. The defendant also lacked ownership papers to the car, the license plates were removed,

there was a shaved key inside the car, and he provided the officer with a vague explanation of

how he gained possession of the car. Id. The court concluded that viewing the evidence in a

light most favorable to the State, there was sufficient evidence to support a finding that the

defendant knew the car was stolen. Id. at 401-02.

In Ladely, the defendant told three different stories regarding how he acquired a stolen

revolver: he had owned it for some time, he bought it from another person within the past two

weeks, and he traded a third person an air compressor for it. 82 Wn.2d at 175. The court

concluded that giving multiple explanations for possession was sufficient corroborative evidence

to sustain the defendant’s conviction. Id. at 175-76.

2. Analysis

Here, there was sufficient corroborating evidence to show that Johnson knew that the car

he possessed was stolen. First, Johnson provided three different explanations of how he came

into possession of the car: he bought it from a person named Steve, who he claimed was the

owner’s husband; he bought it from a person named Rick Jackson; and he bought it from a man

named Vic. Johnson’s claim that Steve was the owner’s husband was false, and all three stories

were vague and could not be verified.

Second, Johnson did not have proof that he owned the car. He only produced a title that

was in Parks’s name.

5 No. 54336-2-II

Third, Johnson did not have a key to the vehicle. The car engine was running because a

shaved key was jammed into the ignition. Johnson could not even turn off the car.

Viewing the evidence in a light most favorable to the State, we hold that there is

sufficient evidence to show that Johnson knew that the car he possessed was stolen.

B. COMMENT VIOLATING RIGHT TO SILENCE

Johnson argues the State improperly commented on his silence in response to certain

questions by officer Teclemariam. We disagree.

The Fifth Amendment to the United States Constitution states that “[n]o person ... shall

be compelled in any criminal case to be a witness against himself.” Article I, section 9 of the

Washington State Constitution states “[n]o person shall be compelled in any criminal case to

give evidence against himself.” “Both provisions guarantee a defendant the right to be free from

self-incrimination, including the right to silence.” State v. Pinson, 183 Wn. App. 411, 417, 333

P.3d 528 (2014). This right precludes the State from using the defendant’s silence to its

advantage either as substantive evidence of guilt or to invite an inference that the defendant’s

silence is an admission of guilt. State v. Burke, 163 Wn.2d 204, 217, 181 P.3d 1 (2008).

A defendant has the right to remain silent both before and after Miranda warnings are

given. Id. However, “[w]hen a defendant does not remain silent and instead talks to police, the

state may comment on what he does not say.” State v. Clark, 143 Wn.2d 731, 765, 24 P.3d 1006

(2001).

Whether a person has invoked the right to silence depends on “whether ‘a reasonable

police officer in the circumstances would understand the statement’ to be an invocation of

Miranda rights.” State v. I.B., 187 Wn. App. 315, 321, 348 P.3d 1250 (2015) (internal quotation

6 No. 54336-2-II

marks omitted) (quoting State v. Piatnitsky, 180 Wn.2d 407, 413, 325 P.3d 167 (2014)). This

analysis is context specific and takes into account the circumstances leading up to the alleged

invocation. Id. “Silence in the face of repeated questioning over a period of time may constitute

an invocation of the right to remain silent” when the invocation is clear and unequivocal. State

v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003).

In State v. Easter, the court held that testimony that the defendant did not answer and

looked away without speaking when an officer first questioned him violated his right to silence.

130 Wn.2d 228, 241, 922 P.2d 1285 (1996).

In contrast, the court in State v. Hager held that there was no infringement on the

defendant’s right to silence when a detective used the word “evasive” regarding the defendant’s

answers to questions because he was describing those answers, not describing the defendant’s

silence. 171 Wn.2d 151, 158, 248 P.3d 512 (2011). The court stated that the facts were more

analogous to Clark than to Easter and reaffirmed its holding in Clark that the State is allowed to

comment on silence when a defendant does not remain silent and instead talks to police. Id. at

157-58.

Similarly, in Hodges, the defendant’s failure to answer one of the officer’s questions was

not a clear and unequivocal invocation of his right to remain silent because he continued to

answer other questions without hesitation. 118 Wn. App. at 673. The court held that simply not

answering an officer’s question in this context does not invoke the right to silence. Id.

Johnson argues that the State emphasized his silence in three ways. First, Teclemariam

testified that Johnson dropped his head and sighed when told that the car’s owner was 19 years

old and probably was not married. Second, Teclemariam testified that Johnson had no response

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when told that the number he had given to the officer went straight to voicemail. Third, in

closing argument the prosecutor commented on Johnson’s failure to provide a reasonable

explanation for his possession.

Regarding Teclemariam’s testimony, the trial court found after a CrR 3.5 hearing that

Johnson did not appear confused about his Miranda rights, did not ask for an attorney at any

point, and did not invoke his rights at any time during his conversation with Teclemariam. The

court also found that the pre-Miranda conversation between Teclemariam and Johnson was non-

custodial. And post-Miranda, Johnson gave several statements regarding how he came into

possession of the car. The court ultimately ruled that Johnson made a knowing, intelligent, and

voluntary waiver of his rights, and that all statements made to Teclemariam both before and after

the Miranda warnings were admissible. As a result, Teclemariam’s testimony was not an

improper comment on silence under Clark. 143 Wn.2d at 765.

And similar to Hager and Hodges, Teclemariam’s testimony described Johnson’s

responses to questions and did not focus on his silence. Johnson voluntarily answered

Teclemariam’s questions. Although Teclemariam did state that Johnson dropped his head and

sighed when Teclemariam suggested that a 19-year-old would not be married, Johnson continued

to answer questions after this without hesitation. A reasonable officer under similar

circumstances would not have understood Johnson’s head drop as an unequivocal invocation of

his right to silence. The same applies to Johnson’s lack of a response to Teclemariam’s

comment about the phone going to voicemail.

Johnson also argues that the prosecutor improperly inferred guilt from his silence during

closing arguments, apparently referring to the prosecutor’s statement that “[a]nd that was all he

gave Officer Teclemariam.” 3 RP at 254. However, this statement was made after the

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prosecutor recited the three explanations Johnson gave for his possession of the car. As noted

above, the State was free to comment on what Johnson did not say because he did not remain

silent and gave the explanations to the officer. See Clark, 143 Wn.2d at 765.

We conclude that the State did not violate Johnson’s right to remain silent.

CONCLUSION

We affirm Johnson’s conviction of unlawful possession of a stolen vehicle.

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 in accordance with RCW

2.06.040, it is so ordered.

MAXA, J.

We concur:

LEE, C.J.

CRUSER, J.