State Of Washington v. Jamil Alkitab Al Wali Mutazz

• Court: Court of Appeals of Washington
• Decided: April 4, 2017
• Docket: 48465-0
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

April 4, 2017

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 48465-0-II

Respondent,

v. UNPUBLISHED OPINION

JAMIL ALKITAB AL WALI MUTAZZ,

Appellant.

MAXA, A.C.J. – Jamil Alkitab Al Wali Mutazz appeals his conviction for possession of a

stolen vehicle and his sentence. He argues that the State did not present sufficient evidence that

he knew the vehicle he was driving was stolen. In a statement of additional grounds (SAG),

Mutazz also challenges the trial court’s imposition of an exceptional sentence for his convictions

of possession of a stolen vehicle and attempting to elude a pursuing police vehicle.

We hold that (1) the State presented sufficient evidence to prove that Mutazz knew that

the vehicle was stolen, and (2) the trial court did not err in imposing an exceptional sentence

based on the rapid recidivism and free crimes aggravating factors. Accordingly, we affirm

Mutazz’s conviction for possession of a stolen vehicle and his exceptional sentence.

FACTS

Around 5:00 AM on February 28, 2015, Young Kim drove his Lexus to his dry cleaning

business in Seattle. Kim went inside, but he left the keys in the car. While Kim was inside, his No. 48465-0-II

employee Juan Galvan-Garcia saw a black man in a dark colored hooded sweatshirt get into the

car and drive away. Galvan-Garcia could not see the man’s face.

Kim immediately reported to police that his Lexus was stolen. Around 8:48 AM Tacoma

police officer Timothy Fredericks spotted the Lexus, which was parked. When Fredericks drove

by the car he saw a person who he later identified as Mutazz in the driver’s seat, but did not see

anyone else in the car. Fredericks radioed that he had seen the stolen Lexus and started to turn

around. Then he saw Mutazz back the car out of the parking spot and drive off.

Fredericks and Pierce County sheriff’s deputy Ryan Olivarez both activated their marked

cars’ overhead lights to pull over the Lexus, but Mutazz sped away and a chase ensued. During

the pursuit, the Lexus was damaged after running over spike strips placed in its path by law

enforcement. Mutazz drove the damaged car into an alley, hit a tree stump, and ran away on

foot. Olivarez ran after Mutazz and arrested him.

The State charged Mutazz with possession of a stolen vehicle, attempting to elude a

pursuing police vehicle, second degree assault, and resisting arrest. Kim, Galvan-Garcia,

Fredericks and Olivarez testified at trial, as did other law enforcement officers who were

involved in the investigation.

Mutazz also testified at trial. He stated that he obtained the Lexus in Federal Way during

a drug transaction. He did not know the name of the person who gave him the car, but said he

had thought he had seen him before in Tacoma. He said that the man was in the passenger seat

while Mutazz was driving. He also testified that he tried to get away from the police because he

was under Department of Corrections (DOC) supervision, had been using drugs when he was

parked, and still had some drugs with him.

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The jury found Mutazz not guilty of the second degree assault charge and found him

guilty of possession of a stolen vehicle, attempting to elude a pursuing police vehicle, and

resisting arrest.

At the sentencing hearing, the trial court entered findings of fact and conclusions of law

to support an exceptional sentence for Mutazz’s convictions for possession of a stolen vehicle

and attempting to elude a pursuing police vehicle. The trial court found that two aggravating

factors applied. First, Mutazz committed the offenses shortly after his release from jail, which

was 11 days earlier. Second, Mutazz was convicted of multiple current offenses and his high

offender score1 would result in one of his current offenses going unpunished if a standard-range

sentence was imposed.

The trial court sentenced Mutazz to 57 months – the high end of the standard range – for

the possession of a stolen vehicle conviction. For the attempting to elude a pursuing police

vehicle conviction, the trial court imposed a 43 month sentence, which was above the standard

range. The trial court also ordered that the sentences run consecutively for a total of 100 months

in confinement.2

Mutazz appeals his conviction for possession of a stolen vehicle and his exceptional

sentence for his possession of a stolen vehicle and attempting to elude a pursuing police vehicle

convictions.

1 Mutazz’s offender score was calculated to be 40+ for the possession of a stolen vehicle conviction and 20 for the attempting to elude a pursuing police vehicle conviction. 2 The trial court also sentenced Mutazz to 90 days for the resisting arrest conviction to run concurrently with the 100 months.

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ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

Mutazz argues that the State failed to present sufficient evidence that he knew the Lexus

was stolen. We disagree.

1. Standard of Review

When evaluating the sufficiency of evidence for a conviction, the test is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102,

105, 330 P.3d 182 (2014). We will assume the truth of the State’s evidence and all reasonable

inferences drawn from that evidence when evaluating whether sufficient evidence exists. Id. at

106. We treat circumstantial evidence as equally reliable as direct evidence. State v.

Farnsworth, 185 Wn.2d 768, 775, 374 P.3d 1152 (2016). And we defer to the trier of fact’s

resolution of conflicting testimony and evaluation of the persuasiveness of the evidence.

Homan, 181 Wn.2d at 106.

2. Legal Principles

RCW 9A.56.068(1) states that a person is guilty of possession of a stolen vehicle if the

person “possess[es] . . . a stolen motor vehicle.” RCW 9A.56.140(1) defines what it means to

possess stolen property:

“Possessing stolen property” means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.

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(Emphasis added.) The trial court gave an unchallenged jury instruction that stated these

definitions. The trial court’s to-convict instruction required the State to prove that Mutazz “acted

with knowledge that the motor vehicle had been stolen.” Clerk’s Papers at 118.

Showing possession alone is not sufficient to prove guilty knowledge, but “possession

together with slight corroborating evidence of knowledge may be sufficient.” State v. Scoby, 117

Wn.2d 55, 61-62, 810 P.2d 1358, 815 P.2d 1362 (1991). Sufficient corroborating evidence to

prove guilty knowledge includes “the giving of a false explanation or one that is improbable or is

difficult to verify.” State v. Ladely, 82 Wn.2d 172, 175-76, 509 P.2d 658 (1973) (holding that

the fact that the defendant gave three different explanations for how he came to possess the

stolen property was sufficient to show guilty knowledge). And evidence of flight can support an

inference of consciousness of guilt. See State v. McDaniel, 155 Wn. App. 829, 853-54, 230 P.3d

245 (2010).

3. Analysis

Mutazz argues that the State only presented evidence that he possessed the Lexus, which

was not sufficient to show that he knew the car was stolen. He points out that (1) Galvan-Garcia

could not identify Mutazz as the man he saw steal the Lexus, (2) Mutazz was not seen in the

Lexus until a few hours after it was stolen, (3) there was no obvious indication that the car was

stolen, and (4) Mutazz testified that he fled from police because he had been doing drugs and

was on DOC supervision.

But the State presented evidence that Mutazz was a black man who had a dark colored

hoodie with him at the time of his arrest, which was consistent with Galvan-Garcia’s description

of the man who stole the Lexus. That evidence supports an inference that it was Mutazz who

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stole the Lexus. And Mutazz fled from police, driving at high speeds to try to evade them and

later fleeing on foot, which supports an inference that Mutazz had consciousness of his guilt.

Although Mutazz testified that he fled because he had drugs and not because he knew the car

was stolen, the jury was free to weigh Mutazz’s credibility, consider the extreme measures he

took to avoid arrest, and infer that he knew the car was stolen.

Finally, Mutazz’s testimony about how he acquired the Lexus was improbable and

impossible to verify. Mutazz said he acquired the car during a drug transaction in Federal Way,

but he could not specify where exactly the transaction occurred and did not know the name of the

man who gave him the Lexus or where that man lived. Mutazz also testified that the man was

with him in the car, but neither Fredericks nor Olivarez saw another person in the car. And

another officer who arrived at the location of the abandoned Lexus did not see any other

occupants. This evidence supports an inference that Mutazz gave a fabricated and false

explanation.

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

sufficient corroborating evidence in addition to Mutazz’s possession to prove that Mutazz knew

the Lexus was stolen.

B. IMPOSITION OF EXCEPTIONAL SENTENCE

1. Rapid Recidivism Aggravating Factor

In his SAG, Mutazz argues that the rapid recidivism aggravating sentencing factor was

inapplicable because shortly before this incident he had been confined as a sanction for violating

DOC supervision, not for a criminal conviction. We disagree.

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Under RCW 9.94A.535(3)(t) 3, one factor that can support a sentence above the standard

range is that “[t]he defendant committed the current offense shortly after being released from

incarceration.” This factor is known as the “rapid recidivism” aggravating factor. State v.

Williams, 159 Wn. App. 298, 309, 244 P.3d 1018 (2011). Here, Mutazz was released from jail

on February 17, 2015, only 11 days before he committed the offenses for which he was

sentenced. This period of time clearly qualifies as “shortly after being released.” See State v.

Zigan, 166 Wn. App. 597, 604-05, 270 P.3d 625 (2012) (holding no error in applying rapid

recidivism aggravator when crime was committed just over two months after release).

However, Mutazz points outs that he had been in jail as a sanction for violating the terms

of DOC supervision, not because he was serving a sentence for another offense. On October 22,

2014 he was released from prison after serving a sentence for two felonies and placed on DOC

supervision. Mutazz argues that the term “incarceration” in RCW 9.94A.535(3)(t) should be

interpreted as confinement for an offense, not confinement for a community supervision

violation. Therefore, he claims that October 22, 2014 and not February 17, 2015 should have

been the relevant date for application of the rapid recidivism factor.

The Sentencing Reform Act (SRA), chapter 9.94A RCW, does not define

“incarceration.” Therefore, we may resort to the dictionary to discern the plain meaning of

incarceration. State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). The dictionary defines

incarceration as “a confining or state of being confined.” WEBSTER’S THIRD NEW

3 RCW 9.94A.535 has been amended since the events of this case transpired. However, these amendments do not impact the statutory language relied on by this court. Accordingly, we do not include the word “former" before RCW 9.94A.535.

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INTERNATIONAL DICTIONARY 1141 (2002). Under this definition, Mutazz’s confinement for

violating DOC supervision imposed because of a felony conviction constitutes incarceration.

In addition, we consider related provisions and the statutory scheme as a whole when

considering the plain language of a statute. State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724

(2013). When interpreting other SRA provisions, courts have held that “confinement pursuant to

a felony conviction” includes confinement for violation of a community supervision term

imposed based on the felony. State v. Mehrabian, Wn. App. 678, 714, 308 P.3d 660 (2013);

State v. Blair, 57 Wn. App. 512, 515-17, 789 P.2d 104 (1990). Under these cases, there is no

distinction between confinement for a felony and confinement for violating DOC supervision

imposed based on that felony.

Accordingly, we hold that the trial court did not err in applying the rapid recidivism

aggravating factor.

2. Free Crimes Aggravating Factor

In his SAG, Mutazz also argues that the trial court erred in finding that his high offender

score would lead to some of the current offenses going unpunished. We disagree.

Under RCW 9.94A.535(2)(c), one factor that can support an exceptional sentence is that

“[t]he defendant has committed multiple current offenses and the defendant’s high offender score

results in some of the current offenses going unpunished.” This factor is known as the “free

crimes” aggravating factor. State v. France, 176 Wn. App. 463, 468-69, 308 P.3d 812 (2013).

Once the trial court determines that some of the defendant's offenses will go unpunished, it has

discretion to impose an exceptional sentence on all current offenses. Id.

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Here, Mutazz had 68 prior convictions, including 18 felonies. His offender score was

calculated at 40+ for possession of a stolen vehicle and 20 for attempting to elude a pursuing

police vehicle. An offender score of 9+ is all that is needed to reach the highest standard

sentencing range for a crime. RCW 9.94A.510; France, 176 Wn. App. at 468.

If the trial court had imposed concurrent sentences, the maximum standard range

sentence for Mutazz’s convictions would have been 57 months – the maximum sentence for

possession of a stolen vehicle. The trial court correctly determined that in light of Mutazz’s

offender scores well over 9+ and his multiple current offenses, a 57 month sentence would result

in some of his current offenses going unpunished. By imposing a sentence above the standard

range for attempting to elude a pursuing police vehicle and ordering that Mutazz’s possession of

a stolen vehicle and attempting to elude a pursuing police vehicle sentences run consecutively,

the trial judge ensured that Mutazz received a punishment for each crime.

Accordingly, we hold that the trial court did not err in finding that Mutazz’s high

offender score would result in some of the multiple current offenses going unpunished.

C. APPELLATE COSTS

Mutazz asks that we exercise our discretion to deny any appellate costs the State may

request. A commissioner of this court will consider whether to award appellate costs in due

course under the newly revised provisions of RAP 14.2 if the State decides to file a cost bill and

if Mutazz objects to that cost bill.

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CONCLUSION

We affirm Mutazz’s conviction for possession of a stolen vehicle and affirm his

exceptional sentence for possession of a stolen vehicle and attempting to elude a pursuing police

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, A.C.J.

We concur:

WORSWICK, J.

SUTTON, J.