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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 72746-0-1 Respondent, DIVISION ONE v.
ISMAEL BUCIO, UNPUBLISHED OPINION
Appellant. FILED: March 14, 2016
Spearman, C.J. — Ismael Bucio was convicted of two counts of residential
burglary and one count of assault in the third degree. He appeals, arguing that
the evidence was insufficient to support one of the counts of residential burglary,
and that the trial court imposed an improper community custody condition. We
affirm Bucio's conviction but remand to the trial court to strike the community
custody condition.
FACTS
On June 19, 2014, at approximately 3:13 p.m., Skagit Valley College
student Hwansik Kim called the Mount Vernon Police Department to report the
theft of his wallet and his cell phone. Kim had left his wallet and phone on the
table in the common area of his dormitory at 2410 Sigmar Lane in Mount Vernon,
Washington. He left the room for about 15 minutes; when he returned he No. 72746-0-1/2
discovered that his phone was gone. Kim asked his roommate to call his phone
in an effort to locate it and was unable to find it. He checked his wallet and found
that $150 cash was also missing. He immediately called 911 and used his
roommate's laptop to connect to Apple's online tracking system for iPhones.
Using the tracking system, Kim was able to find his phone and see its
location on an aerial map of the surrounding area. Kim saw the phone moving
along a trail right behind the dorm and heading toward a parking lot. The phone
began to move at a quicker pace and stopped moving around the time the police
arrived. The tracking system showed his phone emitting a strong signal with a
short range, "[v]ery close" to Kim's dormitory, less than a mile away. Verbatim
Report of Proceedings (VRP) (11/17/14) at 59.
Police officers arrived at the dormitory and attempted to track Kim's phone
by using their cellular phones, but the phone stopped transmitting a signal. This can occur if a phone is turned off or the SIM card is removed. Based on the last tracking information the police received, Kim's phone was located at 2220 Horizons Street.1 The officers arrived at the Horizons Street location at
approximately 3:29 p.m., 2-3 minutes after leaving the dormitory. Officer Tom Wenzl spoke to Brenton Hill, a resident of the house. Hill first told the officers that he was the only person in the house, but later told the officers that Bucio had
1In his testimony, Officer Wenzl stated that the tracking system indicated thatthe phone was located at 2021 Horizons Street, but the officers actually tracked the phone to and found Bucio at 2220 Horizons Street. 2 No. 72746-0-1/3
arrived about 15 minutes ago and asked to use the restroom. Bucio was found in
one of the bedrooms hiding behind a door. In his pocket were Kim's phone and
some cash.
Bucio was also charged with add two additional counts of residential
burglary and assault in the third degree for two other unrelated incidents. The
trial court dismissed one count of residential burglary, finding insufficient
evidence that Bucio had entered a building and stolen a laptop computer on July
7, 2014.
On November 19, 2014, the jury found Bucio guilty of the remaining two
counts of residential burglary and assault in the third degree. Bucio was
sentenced to 38 months of confinement and 12 months of community custody.
As a condition of community custody, the sentencing court ordered that Bucio not
consume any controlled substances except pursuant to a lawful prescription. RCW 9.94A.703(2)(c). In addition, the court imposed a handwritten condition that
provided for "[n]o use of controlled substances." Clerk's Papers (CP) at 54. Bucio appeals only his conviction for one count of residential burglary related to the incident occurring on June 19, 2014, and the above-referenced condition of his
sentence.
DISCUSSION
Bucio argues that he was deprived of due process because there was
insufficient evidence for one count of burglary. According to Bucio, the State No. 72746-0-1/4
failed to prove the necessary element that he "enter[ed] or remain[ed] unlawfully
in a dwelling," because there was no evidence that he set foot in Kim's residence
on June 19, 2014, only that he was only found in possession of Kim's phone.
Brief of Appellant at 3; RCW 9A.52.025(1).
The due process clauses of the federal and state constitutions require
that the State prove every element of a crime beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L Ed. 2d
435 (2000); U.S. CONST, amend. XIV; WASH. CONST, art. I, § 3. "[T]he critical
inquiry on review of the sufficiency of the evidence to support a criminal
conviction must be ... to determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). "[T]he relevant question
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier offact could have found the essential elements of the crime beyond a reasonable doubt." jd. at 319 (quoting Johnson v. Louisiana,
406 U.S. 356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)).
A claim of evidentiary insufficiency admits the truth of the State's evidence
and all reasonable inferences from that evidence. State v. Kintz, 169 Wn.2d 537,
551, 238 P.3d 470 (2010). Circumstantial evidence and direct evidence can be equally reliable. State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the jury on questions of conflicting testimony, credibility of witnesses, No. 72746-0-1/5
and the persuasiveness of the evidence. State v. Killinqsworth, 166 Wn. App.
283, 287, 269 P.3d 1064 (2012). In determining whether the necessary quantum
of proof exists, the reviewing court need not be convinced of the defendant's guilt
beyond a reasonable doubt, but only that substantial evidence supports the
State's case. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000).
Substantial evidence is that which "would convince an unprejudiced, thinking
mind of the truth of the fact to which the evidence is directed." State v. Hutton, 7
Wn. App. 726, 728, 502 P.2d 1037 (1972) (quoting State v. Zamora, 6 Wn. App.
130,491 P.2d 1342(1971)).
Under RCW 9A.52.025(1 )(a), a person is guilty of residential burglary if,
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iUi:ri;<;\ U Li L: k
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 72746-0-1 Respondent, DIVISION ONE v.
ISMAEL BUCIO, UNPUBLISHED OPINION
Appellant. FILED: March 14, 2016
Spearman, C.J. — Ismael Bucio was convicted of two counts of residential
burglary and one count of assault in the third degree. He appeals, arguing that
the evidence was insufficient to support one of the counts of residential burglary,
and that the trial court imposed an improper community custody condition. We
affirm Bucio's conviction but remand to the trial court to strike the community
custody condition.
FACTS
On June 19, 2014, at approximately 3:13 p.m., Skagit Valley College
student Hwansik Kim called the Mount Vernon Police Department to report the
theft of his wallet and his cell phone. Kim had left his wallet and phone on the
table in the common area of his dormitory at 2410 Sigmar Lane in Mount Vernon,
Washington. He left the room for about 15 minutes; when he returned he No. 72746-0-1/2
discovered that his phone was gone. Kim asked his roommate to call his phone
in an effort to locate it and was unable to find it. He checked his wallet and found
that $150 cash was also missing. He immediately called 911 and used his
roommate's laptop to connect to Apple's online tracking system for iPhones.
Using the tracking system, Kim was able to find his phone and see its
location on an aerial map of the surrounding area. Kim saw the phone moving
along a trail right behind the dorm and heading toward a parking lot. The phone
began to move at a quicker pace and stopped moving around the time the police
arrived. The tracking system showed his phone emitting a strong signal with a
short range, "[v]ery close" to Kim's dormitory, less than a mile away. Verbatim
Report of Proceedings (VRP) (11/17/14) at 59.
Police officers arrived at the dormitory and attempted to track Kim's phone
by using their cellular phones, but the phone stopped transmitting a signal. This can occur if a phone is turned off or the SIM card is removed. Based on the last tracking information the police received, Kim's phone was located at 2220 Horizons Street.1 The officers arrived at the Horizons Street location at
approximately 3:29 p.m., 2-3 minutes after leaving the dormitory. Officer Tom Wenzl spoke to Brenton Hill, a resident of the house. Hill first told the officers that he was the only person in the house, but later told the officers that Bucio had
1In his testimony, Officer Wenzl stated that the tracking system indicated thatthe phone was located at 2021 Horizons Street, but the officers actually tracked the phone to and found Bucio at 2220 Horizons Street. 2 No. 72746-0-1/3
arrived about 15 minutes ago and asked to use the restroom. Bucio was found in
one of the bedrooms hiding behind a door. In his pocket were Kim's phone and
some cash.
Bucio was also charged with add two additional counts of residential
burglary and assault in the third degree for two other unrelated incidents. The
trial court dismissed one count of residential burglary, finding insufficient
evidence that Bucio had entered a building and stolen a laptop computer on July
7, 2014.
On November 19, 2014, the jury found Bucio guilty of the remaining two
counts of residential burglary and assault in the third degree. Bucio was
sentenced to 38 months of confinement and 12 months of community custody.
As a condition of community custody, the sentencing court ordered that Bucio not
consume any controlled substances except pursuant to a lawful prescription. RCW 9.94A.703(2)(c). In addition, the court imposed a handwritten condition that
provided for "[n]o use of controlled substances." Clerk's Papers (CP) at 54. Bucio appeals only his conviction for one count of residential burglary related to the incident occurring on June 19, 2014, and the above-referenced condition of his
sentence.
DISCUSSION
Bucio argues that he was deprived of due process because there was
insufficient evidence for one count of burglary. According to Bucio, the State No. 72746-0-1/4
failed to prove the necessary element that he "enter[ed] or remain[ed] unlawfully
in a dwelling," because there was no evidence that he set foot in Kim's residence
on June 19, 2014, only that he was only found in possession of Kim's phone.
Brief of Appellant at 3; RCW 9A.52.025(1).
The due process clauses of the federal and state constitutions require
that the State prove every element of a crime beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L Ed. 2d
435 (2000); U.S. CONST, amend. XIV; WASH. CONST, art. I, § 3. "[T]he critical
inquiry on review of the sufficiency of the evidence to support a criminal
conviction must be ... to determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). "[T]he relevant question
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier offact could have found the essential elements of the crime beyond a reasonable doubt." jd. at 319 (quoting Johnson v. Louisiana,
406 U.S. 356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)).
A claim of evidentiary insufficiency admits the truth of the State's evidence
and all reasonable inferences from that evidence. State v. Kintz, 169 Wn.2d 537,
551, 238 P.3d 470 (2010). Circumstantial evidence and direct evidence can be equally reliable. State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the jury on questions of conflicting testimony, credibility of witnesses, No. 72746-0-1/5
and the persuasiveness of the evidence. State v. Killinqsworth, 166 Wn. App.
283, 287, 269 P.3d 1064 (2012). In determining whether the necessary quantum
of proof exists, the reviewing court need not be convinced of the defendant's guilt
beyond a reasonable doubt, but only that substantial evidence supports the
State's case. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000).
Substantial evidence is that which "would convince an unprejudiced, thinking
mind of the truth of the fact to which the evidence is directed." State v. Hutton, 7
Wn. App. 726, 728, 502 P.2d 1037 (1972) (quoting State v. Zamora, 6 Wn. App.
130,491 P.2d 1342(1971)).
Under RCW 9A.52.025(1 )(a), a person is guilty of residential burglary if,
he or she enters or remains unlawfully in a dwelling other than a vehicle, with
intent to commit a crime against a person or property therein. Proof of
possession of recently stolen property is not prima facie evidence of burglary, unless accompanied by other evidence of guilt. State v. Mace, 97 Wn.2d 840,
843, 650 P.2d 217 (1982). When a person is found in possession of such
property, however, slight corroborative evidence of other inculpatory
circumstances tending to show his guilt will support a conviction, jd.
A case is made for the jury if the fact of possession is supplemented by the
giving of a false or improbable explanation, orfailure to explain when a larceny is charged, or possession offalse bill ofsale, or giving of a fictitious name. State v. Portee, 25 Wn.2d 246, 253-54, 170 P.2d 326 (1946). No. 72746-0-1/6
Bucio argues that the State only proved that he was in possession of the
phone "sometime after Mr. Kim noticed it missing." Br. of Appellant at 4.
According to him, this evidence does not establish that he entered the dormitory
but only shows that "he came into possession of the phone at some point near
the apartment." ]d. We disagree.
Immediately after Kim discovered his phone was missing, he began to
track it. He watched the phone move along a trail that ran directly behind the
building, and followed its path to a parking lot, where it began to move more
quickly. The phone was tracked to a home less than a mile from the dormitory,
where Bucio had arrived about 15 minutes earlier. He was found hiding in close
proximity to the scene of the crime, exactly where the phone tracking system had
indicated, and he was in possession of Kim's phone, its SIM card and some
cash. This evidence exceeds by far the slight corroborative evidence necessary
to support the burglary conviction.
Bucio next argues that the sentencing court erred when it imposed the
community custody condition requiring "[n]o use of controlled substances"
because it is not authorized by statute. Br. of Appellant at 6. The State agrees
that the additional handwritten condition should be stricken in light of the
uncontested condition that Bucio not consume controlled substances except
pursuant to a lawful prescription. We therefore remand to the sentencing court
with instructions to strike the extraneous condition. No. 72746-0-1/7
Affirm and remanded.
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WE CONCUR:
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