FILED
APRIL 11,2013
In tbe Office of tbe Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30338"1"111 ) Respondent, ) ) v. ) ) JUAN ANGEL DIAZ, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Juan Angel Diaz appeals his stolen motor vehicle possession
conviction. He 'first contends the fingerprint evidence is insufficient evidence to support
the jury's guilty finding. Secondly, he contends the trial court erred in not first
determining if he has the current or future ability to pay his legal financial obligations
(LFOs). In his pro se statement of additional grounds for review (SAG), Mr. Diaz adds
the court miscalculated his offender score. We affirm.
FACTS
One morning in August 2010, someone took Kory Welsch's Honda Civic from his
driveway. Mr. Welsch last saw his car in his driveway around 12:30 a.m. Mr. Welsch
spotted the vehicle three houses down where it had apparently been pushed. Car parts
were missing. The driver's side window was off track and looked like it had been
flopped outwards. indicating a possible point of entry. The window had not been in that No. 30338-1-111 State v. Diaz
condition previously. Officers found a fingerprint on the driver's side window. The
State's fingerprint expert identified the fingerprint as belonging to Mr. Diaz. Mr. Welsch
did not know Mr. Diaz.
The State charged Mr. Diaz with possession of a stolen motor vehicle and first
degree trafficking in stolen property. The jury found Mr. Diaz guilty of the possession
charge. but not guilty of the trafficking charge.
At sentencing, the court imposed a standard range sentence of 27 months based
on an offender score of seven. The court imposed costs, totaling $2,887.65. The court
also ordered, "The defendant shall pay up to $50.00 per month to be taken from any
income the defendant earns while in the custody of the Department of Corrections. This
money is to be applied towards legal financial obligations." Clerk's Papers at 39.
Without objection, there was no finding regarding Mr. Diaz's ability to pay. This appeal
followed.
ANALYSIS
A. Evidence Sufficiency
The issue is whether, conSidering the fingerprint evidence, sufficient evidence
supports Mr. Diaz's conviction for possession of a stolen motor vehicle.
In determining the sufficiency of the evidence, our standard of review is "whether,
after viewing the evidence in a light most favorable to the State, any rational trier of fact
could have found the essential elements of the charged crime beyond a reasonable
doubt." State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990). "A claim of
No. 30338-1-111 State v. Diaz
insufficiency admits the truth of the State's evidence and all inferences that reasonably
can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Circumstantial evidence is considered to be as reliable as direct evidence. State v.
Myers, 133 Wn.2d 26,38,941 P.2d 1102 (1997).
RCW 9A.56.068 provides: "(1) A person is guilty of possession of a stolen vehicle
if he or she possess[es] a stolen motor vehicle." "Possession may be actual or
constructive, and constructive possession can be established by showing the defendant
had dominion and control over the [property]." State v. Echeverria, 85 Wn. App. 777,
783,934 P.2d 1214 (1997). "Actual possession means that the goods are in the
personal custody of the person charged with possession." State v. Callahan, 77 Wn.2d
27, 29,459 P.2d 400 (1969).
When fingerprint evidence is the sole evidence linking the defendant to the crime,
the State must show the object upon which the fingerprint was found was generally
inaccessible to the defendant at an earlier time. State v. Bridge, 91 Wn. App. 98. 100
01.955 P.2d 418 (1998) (citing Mikes v. Borg, 947 F.2d 353,357 n.6 (9th Cir.1991». In
a "fingerprint-only" case where the fingerprint is found on a moveable object, the State
must also show the fingerprint could have been impressed only during the commission
of the crime, not earlier. Bridge, 91 Wn. App. at 101 (citing Mikes, 947 F.2d at 356-57;
State v. Lucca, 56 Wn. App. 597, 599-600, 784 P.2d 572 (1990». Courts distinguish
between moveable objects generally accessible to the public and fixed objects not
generally accessible to the public. Bridge, 91 Wn. App. at 101 (citing Mikes, 947 F.2d at
357; Lucca, 56 Wn. App. at 602-03».
In Bridge, a burglar broke into the victim's barn and a tool was found at the point
of entry. A tag bearing the defendant's fingerprint was affixed to that recently
purchased tool. The State did not rule out the possibility that the defendant's fingerprint
might have been impressed while it was recently in the stream of commerce. The tool
had been purchased in an area open to the public and was accessible to the defendant
before being moved by the victim to his barn. This court held, "[E]vidence of a latent
fingerprint absent proof by the State that the print could 'only have been impressed at
the time the crime was committed' is insufficient to support a conviction for burglary."
Bridge, 91 Wn. App. at 101 (quoting Lucca, 56 Wn. App. at 599).
But here, the State offered evidence showing Mr. Welsch did not know Mr. Diaz
and had never seen him before. Additionally, Mr. Welsch testified his vehicle was in his
driveway, not a public place, when he went to bed at approximately 12:30 a.m. The
window was not pulled back at that time. Nothing here shows Mr. Diaz could have
encountered the vehicle in the public stream of commerce. The State '''need not
exclude all inferences or reasonable hypotheses consistent with innocence.'" Bridge,
91 Wn. App. at 100 (quoting Mikes, 947 F.2d at 357). It is the role of the fact finder to
determine the weight, credibility, and persuasiveness of the evidence. State v. Walton,
64 Wn. App. 410,415-16,824 P.2d 533 (1992).
Viewing the evidenc~ in the State's favor, sufficient evidence was admitted from
which a rational jury could find beyond a reasonable doubt that Mr. Diaz had possessed
a stolen vehicle. Therefore, his evidence sufficiency challenge fails.
B. LFO Order
The next issue is wh~ther the court's order requiring Mr. Diaz to pay LFOs must
be reversed. Mr. Diaz contends the court cannot order LFOs without finding he has the
ability to pay.
The State argues this issue is improperly raised for the first time on appeal. But,
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FILED
APRIL 11,2013
In tbe Office of tbe Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30338"1"111 ) Respondent, ) ) v. ) ) JUAN ANGEL DIAZ, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Juan Angel Diaz appeals his stolen motor vehicle possession
conviction. He 'first contends the fingerprint evidence is insufficient evidence to support
the jury's guilty finding. Secondly, he contends the trial court erred in not first
determining if he has the current or future ability to pay his legal financial obligations
(LFOs). In his pro se statement of additional grounds for review (SAG), Mr. Diaz adds
the court miscalculated his offender score. We affirm.
FACTS
One morning in August 2010, someone took Kory Welsch's Honda Civic from his
driveway. Mr. Welsch last saw his car in his driveway around 12:30 a.m. Mr. Welsch
spotted the vehicle three houses down where it had apparently been pushed. Car parts
were missing. The driver's side window was off track and looked like it had been
flopped outwards. indicating a possible point of entry. The window had not been in that No. 30338-1-111 State v. Diaz
condition previously. Officers found a fingerprint on the driver's side window. The
State's fingerprint expert identified the fingerprint as belonging to Mr. Diaz. Mr. Welsch
did not know Mr. Diaz.
The State charged Mr. Diaz with possession of a stolen motor vehicle and first
degree trafficking in stolen property. The jury found Mr. Diaz guilty of the possession
charge. but not guilty of the trafficking charge.
At sentencing, the court imposed a standard range sentence of 27 months based
on an offender score of seven. The court imposed costs, totaling $2,887.65. The court
also ordered, "The defendant shall pay up to $50.00 per month to be taken from any
income the defendant earns while in the custody of the Department of Corrections. This
money is to be applied towards legal financial obligations." Clerk's Papers at 39.
Without objection, there was no finding regarding Mr. Diaz's ability to pay. This appeal
followed.
ANALYSIS
A. Evidence Sufficiency
The issue is whether, conSidering the fingerprint evidence, sufficient evidence
supports Mr. Diaz's conviction for possession of a stolen motor vehicle.
In determining the sufficiency of the evidence, our standard of review is "whether,
after viewing the evidence in a light most favorable to the State, any rational trier of fact
could have found the essential elements of the charged crime beyond a reasonable
doubt." State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990). "A claim of
No. 30338-1-111 State v. Diaz
insufficiency admits the truth of the State's evidence and all inferences that reasonably
can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Circumstantial evidence is considered to be as reliable as direct evidence. State v.
Myers, 133 Wn.2d 26,38,941 P.2d 1102 (1997).
RCW 9A.56.068 provides: "(1) A person is guilty of possession of a stolen vehicle
if he or she possess[es] a stolen motor vehicle." "Possession may be actual or
constructive, and constructive possession can be established by showing the defendant
had dominion and control over the [property]." State v. Echeverria, 85 Wn. App. 777,
783,934 P.2d 1214 (1997). "Actual possession means that the goods are in the
personal custody of the person charged with possession." State v. Callahan, 77 Wn.2d
27, 29,459 P.2d 400 (1969).
When fingerprint evidence is the sole evidence linking the defendant to the crime,
the State must show the object upon which the fingerprint was found was generally
inaccessible to the defendant at an earlier time. State v. Bridge, 91 Wn. App. 98. 100
01.955 P.2d 418 (1998) (citing Mikes v. Borg, 947 F.2d 353,357 n.6 (9th Cir.1991». In
a "fingerprint-only" case where the fingerprint is found on a moveable object, the State
must also show the fingerprint could have been impressed only during the commission
of the crime, not earlier. Bridge, 91 Wn. App. at 101 (citing Mikes, 947 F.2d at 356-57;
State v. Lucca, 56 Wn. App. 597, 599-600, 784 P.2d 572 (1990». Courts distinguish
between moveable objects generally accessible to the public and fixed objects not
generally accessible to the public. Bridge, 91 Wn. App. at 101 (citing Mikes, 947 F.2d at
357; Lucca, 56 Wn. App. at 602-03».
In Bridge, a burglar broke into the victim's barn and a tool was found at the point
of entry. A tag bearing the defendant's fingerprint was affixed to that recently
purchased tool. The State did not rule out the possibility that the defendant's fingerprint
might have been impressed while it was recently in the stream of commerce. The tool
had been purchased in an area open to the public and was accessible to the defendant
before being moved by the victim to his barn. This court held, "[E]vidence of a latent
fingerprint absent proof by the State that the print could 'only have been impressed at
the time the crime was committed' is insufficient to support a conviction for burglary."
Bridge, 91 Wn. App. at 101 (quoting Lucca, 56 Wn. App. at 599).
But here, the State offered evidence showing Mr. Welsch did not know Mr. Diaz
and had never seen him before. Additionally, Mr. Welsch testified his vehicle was in his
driveway, not a public place, when he went to bed at approximately 12:30 a.m. The
window was not pulled back at that time. Nothing here shows Mr. Diaz could have
encountered the vehicle in the public stream of commerce. The State '''need not
exclude all inferences or reasonable hypotheses consistent with innocence.'" Bridge,
91 Wn. App. at 100 (quoting Mikes, 947 F.2d at 357). It is the role of the fact finder to
determine the weight, credibility, and persuasiveness of the evidence. State v. Walton,
64 Wn. App. 410,415-16,824 P.2d 533 (1992).
Viewing the evidenc~ in the State's favor, sufficient evidence was admitted from
which a rational jury could find beyond a reasonable doubt that Mr. Diaz had possessed
a stolen vehicle. Therefore, his evidence sufficiency challenge fails.
B. LFO Order
The next issue is wh~ther the court's order requiring Mr. Diaz to pay LFOs must
be reversed. Mr. Diaz contends the court cannot order LFOs without finding he has the
ability to pay.
The State argues this issue is improperly raised for the first time on appeal. But,
this issue turns on ripeness. In State v. Baldwin, 63 Wn. App. 303, 310, 818 P.2d 1116
(1991), the court held, "[T]he meaningful time to examine the defendant's ability to pay
is when the government seeks to collect the obligation." See State v. Curry, 62 Wn.
App. 676,680,814 P.2d 1252 (1991) (emphasis added). The Baldwin court further
noted, 'The defendant may petition the court at any time for remission or modification of
the payments on [the basis of manifest hardship]. Through this procedure the
defendant is entitled to judicial scrutiny of his obligation and his present ability to pay at
the relevanttime." Baldwin, 63 Wn. App. at 310-11 (emphasis added). Thus, because
Mr. Diaz can apply for remission or modification of his LFOs when the State initiates
collections, we do not further address his LFO challenge.
C. SAG
Pro se, Mr. Diaz challenges the sufficiency of the evidence and argues the
sentencing court miscalculated his offender score. We do not address his evidence
sufficiency concerns because they were addressed by his appellate counsel and fully
analyzed above. See RAP 10.1 O(a) (providing the purpose of a SAG is to "identify and
discuss those matters which the defendanUappeliant believes have not been adequately
addressed by the brief filed by the defendanUappellant's counsel").
Regarding Mr. Diaz's offender score of seven, he did not object at sentencing.
But, legal error may be challenged for the first time on appeal. State v. Wilson, 170
Wn.2d 682, 689, 244 P.3d 950 (2010). Mr. Diaz has three prior felonies (second degree
theft (vehicle); second degree theft; and theft of a motor vehicle). Under RCW
9.94A.525(20). each prior felony conviction for theft of a motor vehicle counts as three
points in the offender score. Likewise, second degree theft is counted as one point.
RCW 9.94A.525(7). Three plus three plus one equals seven; the court properly
calculated Mr. Diaz's offender score.
Affirmed.
A majority of the panel has determined 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.
Brown, J.
WE CONCUR:
Korsmo, C.J. Sid~,J=- 6