IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87070-0-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JOSHUA DAVID MICHAEL,
Appellant.
BIRK, J. — Joshua Michael appeals his convictions for second degree
identity theft and second degree theft. He claims that the trial court erred by not
dismissing his case for governmental misconduct, his second degree theft
conviction was not supported by sufficient evidence, and the trial court erred by
ordering his sentence to run consecutively with his sentence from a prior
conviction. Because the trial court did not err and Michael’s conviction was
supported by sufficient evidence, we affirm.
I
On the morning of May 25, 2023, Jaylinn Phillips woke up to an alert on her
phone that a transaction had been made with her credit card. Phillips initially
worried that she had accidentally left her credit card at the Ilani Casino, where she
had been the night before. But Phillips had stayed at her mother’s house, which
is not near the Ilani Casino. And after contacting her credit card company, she
discovered that the transaction had been made at a gas station near her mother’s No. 87070-0-I/2
house. Phillips then suspected that her card was missing for different reasons.
Phillips had gone to sleep in her mother’s unlocked room with her purse by her
bed. That night, Phillips, her mother, Michael, Michael’s girlfriend, and Michael’s
girlfriend’s daughter were staying at the house. When Phillips woke up on May 25,
everyone was still in the house except for Michael.
On May 25th, at a Chevron gas station, approximately ten minutes from
Phillips’s mother’s house, a transaction was recorded on video. The video
recording shows a man purchasing a fuel injector, “Armor All,” “several snapback
hats,” a car charger, a “type C cord,” and cigarettes. The items purchased in the
video recording matched a Chevron receipt submitted into evidence, totaling
$187.92.
After reviewing screenshots of the video recording, Phillips identified the
man in the screenshot as Michael, and the car at the Chevron as the same type of
red SUV that Michael drove. Phillips stated that she was “150%” confident in her
identification of Michael. Phillips identified the credit card used in the video
recording as hers, as it bore a distinctive cassette tape design.
Michael was charged with one count of second degree identity theft and
one count of second degree theft. The jury convicted him on both counts. At
sentencing, the trial court imposed the maximum standard range sentence of 57
months. The trial court directed that this sentence was to run consecutively with a
sentence that Michael was then serving on a mental health sentencing alternative
(MHSA) for second degree robbery in Thurston County under cause number 21-
1-00944-34.
2 No. 87070-0-I/3
Michael appeals. He contends the trial court should have dismissed his
case for governmental misconduct, there was insufficient evidence to convict him,
and his sentence should not run consecutively with his second degree robbery
MHSA.
II
Michael asserts that because defense counsel had not yet interviewed
Phillips by the day of the trial, the trial court erred by not granting his motion to
dismiss for governmental misconduct pursuant to CrR 8.3(b). We disagree. The
prosecutor did not violate any discovery obligations under CrR 4.7 and did not
commit governmental misconduct.
On the morning of the trial, defense counsel complained that he had been
unable to interview Phillips and requested that the trial court exclude her as a
witness or dismiss based on governmental mismanagement under CrR 8.3(b).
Michael did not want to ask for a continuance or waive his speedy trial rights.
Defense counsel had struggled to locate Phillips for an interview, but he blamed
this on Phillips “being uncooperative” and conceded that “it’s [not] the State’s fault.”
The prosecutor had worked to schedule an interview with Phillips and defense
counsel in the days before trial, but those efforts were unsuccessful because of
scheduling conflicts. Ultimately, the trial court resolved the issue by giving defense
counsel time to interview Phillips at 1:00 p.m. that day, before the 1:30 p.m. trial
start time.
“We review the trial court’s decision to deny a motion to dismiss under CrR
8.3 for abuse of discretion, that is, whether the decision was manifestly
3 No. 87070-0-I/4
unreasonable, based on untenable grounds, or made for untenable reasons.”
State v. Kone, 165 Wn. App. 420, 433, 266 P.3d 916 (2011) (citing State v.
Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997); State v. Blackwell, 120 Wn.2d
822, 830, 845 P.2d 1017 (1993)). Under CrR 8.3(b), courts may “ ‘dismiss any
criminal prosecution due to arbitrary action or governmental misconduct when
there has been prejudice to the rights of the accused which materially affect the
accused’s right to a fair trial.’ ” Kone, 165 Wn. App. at 432 (quoting CrR 8.3(b)).
Dismissal of charges under CrR 8.3(b) is an “ ‘extraordinary remedy.’ ” Kone, 165
Wn. App. at 432 (internal quotation marks omitted) (quoting State v. Rohrich, 149
Wn.2d 647, 658, 71 P.3d 638 (2003)).
Prosecutors have certain discovery obligations, including providing the
names, addresses, written or recorded statements, and substance of any oral
statements of witnesses. CrR 4.7(a)(1)(i). However, prosecutors are not generally
required to facilitate interviews between the defense and witnesses. State v.
Vance, 184 Wn. App. 902, 912, 339 P.3d 245 (2014). The defense does not have
an absolute right to interview potential State witnesses. State v. Wilson, 108 Wn.
App. 774, 778, 31 P.3d 43 (2001), aff’d, 149 Wn.2d 1, 65 P.3d 657 (2003).
Witnesses have the right to refuse to be interviewed. State v. Hofstetter, 75 Wn.
App. 390, 396-97, 878 P.2d 474 (1994). In Wilson, the trial court abused its
discretion in granting a CrR 8.3 motion to dismiss because it “plac[ed] an
affirmative obligation upon the State to produce [a witness] for an interview” when
the State had promised to produce the witness but the witness then refused to
speak to defense counsel. Wilson, 108 Wn. App at 778, 780-81.
4 No. 87070-0-I/5
Here, the prosecutor worked with defense counsel to schedule an interview
with Phillips. The prosecutor made these efforts despite having no obligation to
assist defense counsel in arranging an interview. Though these efforts did not
yield a scheduled interview, defense counsel still had the opportunity to interview
Phillips before the start of trial. There was no governmental mismanagement
because the prosecutor did not violate any discovery obligations, tried to assist in
the interview scheduling, and because the interview with Phillips actually occurred.
III
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87070-0-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JOSHUA DAVID MICHAEL,
Appellant.
BIRK, J. — Joshua Michael appeals his convictions for second degree
identity theft and second degree theft. He claims that the trial court erred by not
dismissing his case for governmental misconduct, his second degree theft
conviction was not supported by sufficient evidence, and the trial court erred by
ordering his sentence to run consecutively with his sentence from a prior
conviction. Because the trial court did not err and Michael’s conviction was
supported by sufficient evidence, we affirm.
I
On the morning of May 25, 2023, Jaylinn Phillips woke up to an alert on her
phone that a transaction had been made with her credit card. Phillips initially
worried that she had accidentally left her credit card at the Ilani Casino, where she
had been the night before. But Phillips had stayed at her mother’s house, which
is not near the Ilani Casino. And after contacting her credit card company, she
discovered that the transaction had been made at a gas station near her mother’s No. 87070-0-I/2
house. Phillips then suspected that her card was missing for different reasons.
Phillips had gone to sleep in her mother’s unlocked room with her purse by her
bed. That night, Phillips, her mother, Michael, Michael’s girlfriend, and Michael’s
girlfriend’s daughter were staying at the house. When Phillips woke up on May 25,
everyone was still in the house except for Michael.
On May 25th, at a Chevron gas station, approximately ten minutes from
Phillips’s mother’s house, a transaction was recorded on video. The video
recording shows a man purchasing a fuel injector, “Armor All,” “several snapback
hats,” a car charger, a “type C cord,” and cigarettes. The items purchased in the
video recording matched a Chevron receipt submitted into evidence, totaling
$187.92.
After reviewing screenshots of the video recording, Phillips identified the
man in the screenshot as Michael, and the car at the Chevron as the same type of
red SUV that Michael drove. Phillips stated that she was “150%” confident in her
identification of Michael. Phillips identified the credit card used in the video
recording as hers, as it bore a distinctive cassette tape design.
Michael was charged with one count of second degree identity theft and
one count of second degree theft. The jury convicted him on both counts. At
sentencing, the trial court imposed the maximum standard range sentence of 57
months. The trial court directed that this sentence was to run consecutively with a
sentence that Michael was then serving on a mental health sentencing alternative
(MHSA) for second degree robbery in Thurston County under cause number 21-
1-00944-34.
2 No. 87070-0-I/3
Michael appeals. He contends the trial court should have dismissed his
case for governmental misconduct, there was insufficient evidence to convict him,
and his sentence should not run consecutively with his second degree robbery
MHSA.
II
Michael asserts that because defense counsel had not yet interviewed
Phillips by the day of the trial, the trial court erred by not granting his motion to
dismiss for governmental misconduct pursuant to CrR 8.3(b). We disagree. The
prosecutor did not violate any discovery obligations under CrR 4.7 and did not
commit governmental misconduct.
On the morning of the trial, defense counsel complained that he had been
unable to interview Phillips and requested that the trial court exclude her as a
witness or dismiss based on governmental mismanagement under CrR 8.3(b).
Michael did not want to ask for a continuance or waive his speedy trial rights.
Defense counsel had struggled to locate Phillips for an interview, but he blamed
this on Phillips “being uncooperative” and conceded that “it’s [not] the State’s fault.”
The prosecutor had worked to schedule an interview with Phillips and defense
counsel in the days before trial, but those efforts were unsuccessful because of
scheduling conflicts. Ultimately, the trial court resolved the issue by giving defense
counsel time to interview Phillips at 1:00 p.m. that day, before the 1:30 p.m. trial
start time.
“We review the trial court’s decision to deny a motion to dismiss under CrR
8.3 for abuse of discretion, that is, whether the decision was manifestly
3 No. 87070-0-I/4
unreasonable, based on untenable grounds, or made for untenable reasons.”
State v. Kone, 165 Wn. App. 420, 433, 266 P.3d 916 (2011) (citing State v.
Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997); State v. Blackwell, 120 Wn.2d
822, 830, 845 P.2d 1017 (1993)). Under CrR 8.3(b), courts may “ ‘dismiss any
criminal prosecution due to arbitrary action or governmental misconduct when
there has been prejudice to the rights of the accused which materially affect the
accused’s right to a fair trial.’ ” Kone, 165 Wn. App. at 432 (quoting CrR 8.3(b)).
Dismissal of charges under CrR 8.3(b) is an “ ‘extraordinary remedy.’ ” Kone, 165
Wn. App. at 432 (internal quotation marks omitted) (quoting State v. Rohrich, 149
Wn.2d 647, 658, 71 P.3d 638 (2003)).
Prosecutors have certain discovery obligations, including providing the
names, addresses, written or recorded statements, and substance of any oral
statements of witnesses. CrR 4.7(a)(1)(i). However, prosecutors are not generally
required to facilitate interviews between the defense and witnesses. State v.
Vance, 184 Wn. App. 902, 912, 339 P.3d 245 (2014). The defense does not have
an absolute right to interview potential State witnesses. State v. Wilson, 108 Wn.
App. 774, 778, 31 P.3d 43 (2001), aff’d, 149 Wn.2d 1, 65 P.3d 657 (2003).
Witnesses have the right to refuse to be interviewed. State v. Hofstetter, 75 Wn.
App. 390, 396-97, 878 P.2d 474 (1994). In Wilson, the trial court abused its
discretion in granting a CrR 8.3 motion to dismiss because it “plac[ed] an
affirmative obligation upon the State to produce [a witness] for an interview” when
the State had promised to produce the witness but the witness then refused to
speak to defense counsel. Wilson, 108 Wn. App at 778, 780-81.
4 No. 87070-0-I/5
Here, the prosecutor worked with defense counsel to schedule an interview
with Phillips. The prosecutor made these efforts despite having no obligation to
assist defense counsel in arranging an interview. Though these efforts did not
yield a scheduled interview, defense counsel still had the opportunity to interview
Phillips before the start of trial. There was no governmental mismanagement
because the prosecutor did not violate any discovery obligations, tried to assist in
the interview scheduling, and because the interview with Phillips actually occurred.
III
Michael claims that there was insufficient evidence to convict him for second
degree theft. He concedes he was in possession of stolen property, but disputes
the sufficiency of other evidence to support the conviction. We disagree. The
State proved sufficient corroborating evidence to sustain Michael’s second degree
theft conviction.
“The test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). “When a defendant challenges the
sufficiency of the evidence, he or she admits the truth of all of the State’s evidence.
In such cases, appellate courts view the evidence in the light most favorable to the
State, drawing reasonable inferences in the State’s favor.” State v. Cardenas-
Flores, 189 Wn.2d 243, 265-66, 401 P.3d 19 (2017) (citations omitted).
“ ‘Circumstantial evidence and direct evidence are equally reliable’ in determining
the sufficiency of the evidence.” State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470
5 No. 87070-0-I/6
(2010) (quoting State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004)). In
cases involving burglary, possession of stolen property accompanied by
“ ‘indicatory evidence on collateral matters,’ ” such as the defendant’s presence
near the scene of the crime, will support a conviction. State v. Mace, 97 Wn.2d
840, 843, 650 P.2d 217 (1982) (quoting State v. Garske, 74 Wn.2d 901, 903, 447
P.2d 167 (1968)). In State v. Ehrhardt, a burglary case, evidence of the
defendant’s presence near the scene of the crime and possession of stolen
property was sufficient evidence to convict. 167 Wn. App. 934, 943-44, 276 P.3d
332 (2012).
To support a conviction for second degree theft, the State had to prove
beyond a reasonable doubt that on May 25, 2023, Michael (1) wrongfully obtained
or exerted unauthorized control over the property of another; (2) that property was
an access device; (3) Michael intended to deprive another person of the access
device; (4) and the act occurred in Washington. RCW 9A.56.020(1)(a), RCW
9A.56.040(1)(d). “ ‘Access device’ means any card, plate, code, account number,
or other means of account access that can be used alone or in conjunction with
another access device to obtain money, goods, services, or anything else of
value.” RCW 9A.56.010(1).
The State presented evidence at trial that the crime took place in Clark
County, Washington and involved a credit card, or access device. When Phillips
went to sleep on May 24, there were five people staying in her mother’s house,
including Michael. Phillips slept in her mother’s unlocked room with her wallet and
purse nearby. When she woke up in the morning, there were four people in the
6 No. 87070-0-I/7
house—Michael being the sole absence. Video evidence showed Michael and a
car resembling his at a Chevron gas station, only 10 minutes from Phillips’s mom’s
house on the morning of May 25. And video evidence captured Michael making a
transaction at the Chevron with a distinctive cassette tape credit card, identified by
Phillips as hers. This evidence supports that Michael was at the scenes of the
crime, Phillips’s mom’s house and the Chevron, and he made the unauthorized
transaction using Phillips’s credit card. Drawing all reasonable inferences in the
State’s favor, this is evidence is sufficient to support the second degree theft
conviction.
IV
In a statement of additional grounds for review (SAG), Michael asserts that
the State requesting a consecutive sentencing under RCW 9.94A.589(2) was error
and affected his “due process of having a fair trial/sentencing” and contributed to
the “mismanagement of the whole case.” Michael claims that this earlier case had
not been sentenced yet and that a point should not have been added to his
offender score for being on community custody. We disagree. The trial court
correctly imposed a consecutive sentence under 9.94A.589(2)(a) because at the
time of sentencing, Michael was on community custody while under sentence for
a conviction of a felony.
The issue of consecutive sentencing under RCW 9.94A.589(2) is
inadequately briefed. We may decline to review issues for which an inadequate
argument has been made. Norcon Builders, LLC v. GMP Homes VG, LLC, 161
Wn. App. 474, 486, 254 P.3d 835 (2011); State v. Thomas, 150 Wn.2d 821, 868-
7 No. 87070-0-I/8
69, 83 P.3d 970 (2004), (courts “will not review issues for which inadequate
argument has been briefed or only passing treatment has been made.”), abrogated
in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004). Michael cites RCW 9.94A.589(2) and points to due
process and mismanagement but provides no other citations or explanation.
However, we will address the issue here, as we infer Michael’s argument to be that
consecutive sentencing was inappropriate because his being on community
custody for a prior felony conviction is not the same as being “under sentence for
conviction of a felony.”
The relevant statute reads in full,
Whenever a person while under sentence for conviction of a felony commits another felony and is sentenced to another term of confinement, the latter term of confinement shall not begin until expiration of all prior terms of confinement. However, any terms of community custody shall run concurrently to each other, unless the court pronouncing the current sentence expressly orders that they be served consecutively.
RCW 9.94A.589(2)(a). Persons under community supervision are “under
sentence for conviction of a felony” for purposes of RCW 9.94A.589. In re Post-
Sentence Review of Allery, 6 Wn. App. 2d 343, 347, 430 P.3d 1150 (2018). RCW
9.94A.695 provides a mental health sentencing alternative (MHSA) to defendants
that meet certain conditions. Under a MHSA, the defendant must have been
convicted of a felony and must agree to community supervision. RCW
9.94A.795(1). If the defendant is eligible and the court agrees to impose the
MHSA, the court imposes a term of community custody (RCW 9.94A.695(4))
consistent with RCW 9.94A.703, the statute outlining community custody
8 No. 87070-0-I/9
conditions. RCW 9.94A.795(8)(a). A MHSA necessarily involves community
supervision.
Michael was convicted and sentenced for second degree robbery in
Thurston County on March 30, 2022. He received a MHSA for the Thurston County
offense. When he was sentenced by the trial court in the case before us, the court
specified that his sentence was to run consecutively with his Thurston County
sentence. Michael was a person “under sentence for conviction of a felony,” as he
was under community supervision for his MHSA. The trial court correctly imposed
its sentence to run consecutively under RCW 9.94A.589(2)(a).
Affirmed.
WE CONCUR: