FILED
April 9, 2013
[n the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF lliE STATE OF WASHINGTON
DIVISION lliREE
STATE OF WASHINGTON, ) ) No. 30400-1-III Respondent, ) ) v. ) ) JAMISON WAYNE LANG, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. - Jamison Lang challenges the sufficiency of the evidence to
support his conviction of possession of a stolen vehicle. The evidence was sufficient. He
raises over a dozen issues in a statement of additional grounds but only one has merit: the
trial court lacked authority to impose 36 months' community custody. We affirm the
conviction but remand to the trial court to correct the community custody provision.
FACTS AND PROCEDURAL BACKGROUND
Late in the morning on September 5, 2010-the Sunday of Labor Day weekend-
residents of an apartment complex noticed Jamison Lang sleeping in a car that had been
parked in one of the resident's spots. The engine was running and the windows were
rolled down. One resident approached Mr. Lang to ask him ifhe lived at the complex No.30400-1-1I1 State v. Lang
and noticed that he smelled of alcohol and had a black knife lying across his lap. When
he only mumbled in response, she told him that ifhe was not a resident his car was going
to be towed. The manager was notified of Mr. Lang's presence and called police.
Officer Zachary Dahle of the Spokane Police Department responded to the call
and arrived at the complex just as Mr. Lang was stepping out ofthe driver's side door.
Mr. Lang initially did not respond to the officer's question about who owned the car but
denied having a knife. Officer Dahle still frisked Mr. Lang for officer safety purposes.
Suspicious about Mr. Lang's presence in the car the officer handcuffed him, deciding to
detain him while checking to see if the car had been reported stolen.
A license plate check on the car revealed that the car was registered to Catherine
Brady and had not been reported stolen. The address to which the car was registered was
only 55 blocks away; though, so Officer Jeffrey McCollough, who had arrived at the
complex after Officer Dahle, drove to the address in hopes of determining whether Mr.
Lang had Ms. Brady's permission to be in the car. No one was at the home. Officer
McCollough saw clear signs of a burglary, however, and reported that to Officer Dahle,
who then placed Mr. Lang under arrest. Department employees later reached Ms. Brady,
who confirmed that she had left town with her car parked and locked in front of the home
and had not given anyone permission to use it.
No. 30400-1-111 State v. Lang
Upon arresting Mr. Lang, Officer Dahle advised him of his Miranda l rights and
Mr. Lang agreed to speak with the officer. In response to questioning, he first said that
he was in the car because he had been wandering through the parking lot and got in it to
sleep. A bit later, he told the officer a friend gave him permission to sleep in the car. He
would not identify the friend.
Officer Dahle collected several items from the car, including a key ring in the
ignition that included a shaved key, cigarettes, a pair of needle nose pliers, zigzag rolling
papers, and a black knife. Ms. Brady later identified the knife, pliers, and car keys
(although not the shaved key) as items stolen from her home sometime over the Labor
Day weekend. After the car was returned to Ms. Brady, she found two receipts in the car
with Mr. Lang's name on them, both dated September 2, the Thursday before his arrest.
She turned them over to police.
Mr. Lang was charged with one count of residential burglary and one count of
possession of a stolen vehicle.
At trial, Ms. Brady testified that she left home at about 3 p.m. on Friday,
September 3, to go camping. She left her locked car in the driveway and its keys in her
locked home. She testified that she had been able to inventory 75 items missing from the
home on her return, including valuable electronics and jewelry. She also testified that her
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 161. Ed. 2d 694 (1966).
No.30400-1-III State v. Lang
car had been damaged so badly between the time it was taken from her home and the
time it was recovered at the apartment complex that her insurance company treated it as
totaled for insurance purposes.
Mr. Lang did not testifY. His lawyer argued to the jury that while his client had
been found sleeping in a stolen car, no one had seen who drove it to the complex and
parked it there, and the arrest of Mr. Lang for residential burglary and knowingly
possessing stolen property "require[s] a huge leap in logic." Report of Proceedings (RP)
(Aug. 18, 2011) at 181. She stressed the facts that almost none of the property stolen
from Ms. Brady's home was found in the car or on Mr. Lang, there was no forensic
evidence he had ever been in the Brady home, and "[a]s far as the car goes, it's logical
Mr. Lang could have been drunk and crawled in to go to sleep." Id. at 183.
The jury acquitted Mr. Lang of the residential burglary charge but found him
guilty of possession of a stolen vehicle. He appeals.
ANALYSIS
Mr. Lang challenges the sufficiency of the evidence to support his conviction of
possession of a stolen vehicle. To prove that Mr. Lang possessed a stolen vehicle, the
State had to prove, among other things, that he possessed the vehicle knowing it was
stolen. RCW 9A.56.140( 1). A person is deemed to have acted knowingly with respect to
a fact when he is aware of the fact or when he has information that would lead a
reasonable person in the same situation to believe the fact exists. RCW 9A.08.01O(l)(b).
In reviewing a claim of insufficient evidence, we view evidence in the light most
favorable to the State in order to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v. Brockob,
159 Wn.2d 311, 336, 150 PJd 59 (2006). An insufficient evidence claim admits the truth
of the evidence as well as all reasonable inferences that can be drawn from the evidence.
State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). Circumstantial evidence
and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618
P.2d 99 (1980). A conviction will be reversed only when no rational trier of fact could
have found that the State proved all of the elements of the crime beyond a reasonable
doubt. State v. Smith, 155 Wn.2d 496, 501, 120 PJd 559 (2005).
The 44mere possession of stolen property does not create a presumption that the
possession is larcenous"~ nonetheless, possession is '4a relevant circumstance to be
considered with other evidence tending to prove the elements of the crime." State v.
Hatch, 4 Wn. App. 691,694,483 P.2d 864 (1971). Once one is in possession of stolen
property, only 4'4slight corroborative evidence of other inculpatory circumstances tending
to show ... guilt [is needed to] support a conviction. '" Id. (quoting 4 CLARK A.
NICHOLS, ApPLIED EVIDENCE Possession o/Stolen Property § 29, at 3664 (1928)); see
State v. Clark, 143 Wn.2d 731, 765, 24 P.3d 100 (2001) C'False information given to the
police is considered admissible as evidence relevant to defendant's consciousness of
guilt."); State v. Mace, 97 Wn.2d 840, 844-45, 650 P.2d 217 (1982) (while mere
possession of recently stolen property will not support a burglary conviction, inference of
guilt is strong where defendant gave improbable or inconsistent explanation for
possession). Possession of recently stolen property coupled with a dubious account of its
acquisition are sufficient facts to support conviction. Hatch, 4 Wn. App. at 694.
Here, the prosecution offered the shaved key and Mr. Lang's conflicting accounts
of how he came to be sleeping in the vehicle. He was found in the car within 48 hours of
when it had to have been stolen. The two receipts belonging to Mr. Lang that were found
in the car rather than on his person suggested he was in the car longer, and moving
around more, than someone who just crawled in to go to sleep--as did the fact that he
had found the stolen knife and placed it in his lap. Coupled with his presence in the
stolen vehicle, the State's evidence was sufficient corroborative evidence of other
inculpatory circumstances to support the conviction.
STATEMENT OF ADDITIONAL GROUNDS
In his pro se statement of additional grounds (SAG), Mr. Lang raises over a dozen
issues that he places in four categories, denominated by him as (1) ineffective assistance
of counsel, (2) illegal seizure, (3) prosecutorial misconduct, and (4) judicial abuse of
discretion.
Ineffective Assistance of Counsel
Mr. Lang claims ineffective assistance of counsel for his lawyer's failure to object
on several occasions and his failure to file motions requested by Mr. Lang. To prevail on
a claim of ineffective assistance of counsel, Mr. Lang must show both that (1) counsel's
performance was deficient and (2) the deficient performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
There is a presumption that counsel was effective. State v. McFarland, 127 Wn.2d 322,
335,899 P.2d 1251 (1995). Trial strategy and tactics cannot form the basis of a finding
for deficient performance. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563
(1996). Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim. ld. at 78.
Mr. Lang complains for the first time on appeal that his lawyer failed to object to
the officers' removal of keys from the car, citing Arizona v. Gant, 556 U.S. 332, 129 S.
Ct. 1710, 173 L. Ed. 2d 485 (2009). But Mr. Lang had no substantial proprietary or
possessory interest in the car or in the keys and has no standing to object to the officers'
removing them. State v. Foulkes, 63 Wn. App. 643, 821 P.2d 77 (1991). He had stepped
out of the car and cannot claim automatic standing at the time of the search; he therefore
had no legitimate expectation of privacy to assert. State v. Zakel, 119 Wn.2d 563, 834
P.2d 1046 (1992).
He complains that his lawyer failed to object when the prosecutor showed
photographs to jurors before they were admitted into evidence. He has not demonstrated
deficient performance. Even though the State had not established the entire chain of
custody required to admit the photographs, Mr. Lang's lawyer knew that another officer
would be called. The decision not to object to evidence that the lawyer reasonably knew
would eventually be admitted was tactical. Mr. Lang fails to demonstrate prejudice for
that reason and for a second reason: the trial court cautioned jurors immediately after they
were shown the photographs that they should not be considered unless and until they
were admitted, which they later were.
He contends that his lawyer failed to object to testimony by Officer Dahle that was
"deemed to be false in the 3.5 hearing." SAG at 4. The only determination made in the
erR 3.5 hearing was that one question by Officer Dahle and response by Mr. Lang would
be excluded because Mr. Lang's statement was made while in custody and before he was
read his Miranda rights. The excluded question was the officer's asking who the car
belonged to, to which Mr. Lang responded, '''I don't know.'" RP (Aug. 16,2011) at 25.
The State did not elicit testimony about this exchange at trial.
Mr. Lang provides no evidence or argument in support of his contention that his
lawyer "ignored his multiple requests on the filing of mUltiple motions." SAG at 5. In
addition to that assignment being insufficiently articulated, we have no factual foundation
in the record from which we could even begin to address it. It must be more specifically
set forth and considered, if at all, in a personal restraint petition. McFarland, 127 Wn.2d
at 338.
Illegal Seizure
Mr. Lang argues that he was detained for "close to an hour" by Officer Dahle
before Officer McCollough determined that a burglary had occurred at the Brady
residence on the basis of which Officer Dahle placed him under arrest. SAG at 6. The
evidence he cites-the testimony of Officer McCollough-suggests that it might have
taken that long but it also might have taken as little as half an hour. In any event, Mr.
Lang argues that the detention was excessive and therefore unlawful.
An investigative detention must be temporary and last no longer than is necessary
to effectuate the purpose of the stop. State v. Wheeler, 43 Wn. App. 191, 195-96,716
P.2d 902 (1986) (quoting Florida v. Royer, 460 U.S. 491,500,103 S. Ct. 1319,75 L. Ed.
2d 229 (1983)), aff'd, 108 Wn.2d 230, 737 P.2d 1005 (1987); State v. Williams, 102
Wn.2d 733, 741, 689 P.2d 1065 (1984) (recognizing that a 35-minute detention ofthe
defendant to investigate a burglary "approach [ed] excessiveness"); cf State v.
Cunningham, 116 Wn. App. 219, 229, 65 P.3d 325 (2003) (upholding a 45-minute Terri
stop where the defendant was uncooperative and officers had reasonable suspicion he had
committed vehicle theft).
Even if Mr. Lang had demonstrated a near-one-hour detention that we were
willing to consider for the first time on appeal, Mr. Lang does not explain how the
2 Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).
detention contributed to any error during the trial. The trial court suppressed the only
statement that Mr. Lang made during the period of detention, accepting his lawyer's
argument that he was in custody and had not been read his Miranda rights. There was no
other evidence that was the result of the detention. "An illegal arrest, without more, has
never been viewed as a bar to subsequent prosecution, or as a defense to a valid
conviction." United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244,63 L. Ed. 2d
537 (1980). An excessive detention is likewise not a bar to prosecution nor a defense to
conviction.
Prosecutorial Misconduct
Mr. Lang asserts that the prosecutor engaged in prosecutorial misconduct during
trial and in the sentencing hearing. A defendant claiming prosecutorial misconduct bears
the burden of proving that the prosecutor's conduct was both improper and prejudicial in
the context of the entire record and the circumstances at trial. State v. Magers, 164
Wn.2d 174, 191, 189 P.3d 126 (2008). Prosecutorial misconduct is grounds for
reversible error only ifthere is a substantial likelihood that the misconduct affected the
verdict. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). If there is no proper
objection at trial, then the error is not reversible unless the misconduct was so flagrant
and ill intentioned that no curative instruction could have prevented the resulting
prejudice. State v. Corbett, 158 Wn. App. 576,594,242 P.3d 52 (2010) (citing Russell,
125 Wn.2d at 86).
No.30400-I-III State v. Lang
Mr. Lang first argues that the prosecutor disobeyed the trial court's order
excluding the one question and answer that occurred during the period he was detained.
The parties and the court were clear in the erR 3.5 hearing to distinguish six statements
made by Mr. Lang. Only one-identified by the prosecutor as statement number three-
was excluded. That was when Officer Dahle asked during the period of detention whose
vehicle it was, in response to which Mr. Lang said, '''I don't know.'" RP (Aug. 16,
2011) at 25. Referring to that exchange, the trial court ruled "you cannot testify about
asking whose vehicle it was and him saying 'I don't know.'" Id. at 29.
If there is confusion, the source is because the very first exchange between Officer
Dahle and Mr. Lang was only partially addressed in the erR 3.5 hearing but was fleshed
out at trial. The officer's testimony at the erR 3.5 hearing was that upon arrival at the
apartment complex, "I contacted him and he said this [is] harassment." Id. at 13. Neither
the State nor Mr. Lang's lawyer asked the officer what exactly he said in his "contact"
that prompted Mr. Lang to respond, "this [is] harassment." Evidently the prosecutor
knew, because in arguing the suppression motion, he stated, "Officer Dahle asked Lang if
that was his vehicle. Lang replied 'this is harassment. '" Id. at 24. The court, not
recalling this in Officer Dahle's testimony, cautioned the lawyers to keep the statements
straight. Id.
At trial, the prosecutor asked for more detail about the first contact, eliciting the
following testimony from Officer Dahle:
Q. . .. [D]id you contact Mr. Lang? A. 1 did. Q. Did you ask Mr. Lang a question? A. 1 did. Q. What was the first question you asked him? A. 1 asked if it was his vehicle. Q. And what was Mr. Lang's response? A. "This is harassment."
RP (Aug. 17,2011) at 99.
The trial court's suppression ruling was clear: she excluded only the question
posed and answer given during the period of detention. The testimony that Mr. Lang
now challenges related to the first contact, which the trial court explicitly ruled was
admissible. While the CrR 3.5 hearing did not reveal what Officer Dahle's first question
had been, it was not improper for the prosecutor to present evidence of that question and
response at trial or to discuss that testimony in closing argument.
Mr. Lang next argues that the prosecutor attempted to prejudice Mr. Lang by
falsely presenting that he was serving community custody at the time of his possession of
Ms. Brady's stolen car. He attaches a judgment and sentence in a case involving a
different crime committed on August 5, 2010, in which the criminal history is marked
"not applicable" as to whether Mr. Lang was on community custody when he committed
that crime. SAG at 15. The judgment and sentence is not itself evidence that Mr. Lang
was not serving community custody when he possessed Ms. Brady's car. Other materials
in the record state that Mr. Lang was on felony probation at the time. See Clerk's Papers
at 24. In addition, Mr. Lang's offender score applied in sentencing for this crime was 9+;
his lawyer conceded that at the time of sentencing, his offender score was 11. He has not
demonstrated misconduct or prejudice.
Mr. Lang also argues that the prosecutor lied to the court at the sentencing hearing
in representing that Renee Cooper was his probation officer. Ms. Cooper was present in
court, though; told the court herself that she was Mr. Lang's probation officer; and
answered questions from the court. There was no misconduct.
Finally, Mr. Lang asserts that the prosecutor acted improperly when he focused on
the shaved key, creating "a false impression of a material fact." SAG at 9. Nothing in
the record indicates that the prosecutor used the evidence of the shaved key improperly.
Abuse of Discretion
Mr. Lang raises six claims of "abuse of discretion," which amount to complaints
about judicial rulings, statements, or asserted inaction. In most cases, he does not cite to
the record and in no case does he identify the legal basis for assigning error. "Abuse of
discretion" is not the standard of review for most of the matters complained of in this
section of Mr. Lang's SAG. While reference to the record and citation to authorities are
not necessary or required, we will not consider a statement of additional grounds for
review if it does not inform us of the nature and occurrence of alleged errors. RAP
10.1 O( c). We refuse to consider most of the assignments for this reason.
13 No. 30400-1-111 State v. Lang
We choose to address two: Mr. Lang's complaint that the trial court imposed a
timeline for trial during jury selection and its imposition of a 36-month term of
community custody.
First, Mr. Lang asserts that "[d]uring the jury selection process in front of the
whole panel of proposed jurors, [the trial judge] gave the whole panel and the prosecution
and Mr. Lang's trial counsel an order that this trial was absolutely not to exceed [sic] into
Friday because that would cause an inconvenience to [the judge's] upcoming vacation."
SAG at 10. He makes a related complaint that his appellate lawyer failed to obtain a
transcript of the voir dire so that he could support this allegation.
The trial commenced on Tuesday, August 16,2011. Given the number of
witnesses that had been identified, there was every reason for the trial court to conclude
that trial could easily be concluded on Thursday, and it was. In fact, the report of
proceedings reveals that the jurors were excused early on both Tuesday and on
Wednesday (when the presentation of evidence was completed) and were not required to
return until 10 a.m. on Thursday, when the jury instructions were completed and the
lawyers were ready to deliver closing arguments. The case was submitted to the jurors by
the lunch hour. There is absolutely no indication that the time for trial identified by the
court was unfair or that Mr. Lang was prejudiced in any way.
A trial judge enjoys "the broad discretionary right ... to control the trial of the
case." State v. Stiltner, 61 Wn.2d 102, 105,377 P.2d 252 (1962). The rules of evidence
contemplate that a principal responsibility of the trial judge is to conduct an efficient trial,
eliminating unjustifiable expense and delay by, among other things, limiting the parties to
relevant, noncumulative evidence. ER 102,402,403. For the trial court to announce
what it believes to be realistic parameters on the time required for trial is not only
legitimate for the court's control over its own schedule, but is helpful to the lawyers and
jurors. Due process would be a concern if the time projection was unrealistic or proved
to be truly inflexible and prejudicial. But none of those concerns are raised here. The
statement, even if accurately recounted by Mr. Lang, was not an abuse of discretion. A
transcript of the voir dire proceeding is therefore unnecessary.
The second assignment we consider is Mr. Lang's contention that the trial court
"knowingly sentenced [him] to a sentence outside the standard range, by ordering 36
months of community custody" at the same time knowing "that no community custody
was to be allowed." SAG at 11. The court's authority to impose community custody has
been modified periodically by the legislature. The current versions ofRCW 9.94A.701
and .702, which applied to Mr. Lang's sentencing, do not contemplate community
custody sentencing for possession of a stolen vehicle. The State has not provided any
other authority or argument to support the community custody sentence. Indeed, the
prosecutor stated, when asked at sentencing about the amount of community custody
associated with Mr. Lang's conviction, that "[t]here is none." RP (Oct. 18,2011) at 208.
While the trial court cogently explained its interest in Mr. Lang's being supervised by the
Department of Corrections following his release from incarceration, the legislature has
not authorized postrelease supervision for this crime.
We affirm Mr. Lang's conviction and remand for correction of the community
custody portion of his sentence.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
ccr:
Korsmo, C.J.