Filed Washington State Court of Appeals Division Two
January 29, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50390-5-II
Respondent,
v.
SARAH MARIE BROWNING, UNPUBLISHED OPINION
Appellant.
LEE, J. — Sarah M. Browning appeals her residential burglary and bail jumping
convictions. She contends (1) the burden of proof on an essential element of bail jumping was
wrongly shifted to the defense, (2) the trial court violated her CrR 3.3 time for trial rights when
granting defense counsel’s motion to withdraw, (3) sufficient evidence does not support her
residential burglary conviction, and (4) ineffective assistance of counsel for failing to object to
impeachment evidence. In her statement of additional grounds for review (SAG), Browning
argues the sentencing court miscalculated her offender score. We affirm. No. 50390-5-II
FACTS
A. FACTUAL BACKGROUND
Shirley Cuccia, previously known as Shirley Lewis, lived in a house at 321 Charlotte
Avenue in Bremerton. After Cuccia bought the house, she and her husband reconciled.
Nevertheless, she would go back and forth between the Charlotte Avenue home and the family
home.
Cuccia had plants, personal items, and boxes of items belonging to her children and
grandmother in the Charlotte Avenue house. She took care of the yard and upkeep of the home.
The power was on. And the water and plumbing worked. Cuccia’s identification listed the
Charlotte Avenue address as Cuccia’s address.
One morning, Cuccia went to the Charlotte Avenue home to work on a water main leak
and install storage shelves. She returned to her other home to make dinner for her family and then
returned to the Charlotte Avenue home later that night.
When Cuccia returned to the Charlotte Avenue house, the gate was open, which was not
how she left it, and the screen to one of the bedroom windows was removed. Cuccia called 911.
Cuccia then went inside the home. As she went upstairs, Cuccia saw Browning coming out of
Cuccia’s bedroom. Cuccia did not know Browning. Browning began throwing items out of her
backpack at Cuccia and then ran out of the house.
Kitsap County Sheriff’s Deputy Joseph Hedstrom was dispatched to the residence. As he
neared the home, he saw Browning running down the street. Deputy Hedstrom stopped Browning.
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Browning told Deputy Hedstrom that she was being set up by “Vicki Lewis.” Verbatim
Report of Proceedings (VRP) (May 17, 2017) at 91. She said she was in the home to help Lewis
move boxes.
Kitsap County Sheriff’s Deputy Donald Moszkowicz arrived and in a search incident to
arrest, he found a small jewelry box and various pieces of jewelry in Browning’s pockets. Inside
the jewelry box was Cuccia’s class ring with her initials.
B. PROCEDURAL BACKGROUND
On December 3, 2015, the State charged Browning with residential burglary with a special
allegation that the victim was present during the burglary. The trial court released Browning on
bail pending trial. The trial court’s pre-trial release order required Browning to appear at an August
17, 2016, review hearing and a November 30, 2016, omnibus hearing. Browning did not attend
either hearing. The State also learned that Browning had contacted the victim. On December 13,
2016, the State additionally charged Browning with two counts of bail jumping and witness
tampering. A new omnibus hearing was set for January 12, 2017.
On January 12, 2017, defense counsel moved for a continuance and to reset the omnibus
hearing and trial dates. He explained that as a result of the amended information, he needed more
time to prepare a Knapstad 1 motion. The State did not object. The trial court granted the
continuance. Browning refused to sign the continuance order. Trial was set for March 6, 2017.
On March 2, 2017, defense counsel filed a motion to withdraw. He argued that “this would
be . . . mutual between myself and my client, that communication has been irretrievably broken.”
1 State v. Knapstad, 107 Wn.2d 346, 357, 729 P.2d 48 (1986) (a motion to dismiss when the undisputed facts do not establish a prima facie case of guilt).
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VRP (March 2, 2017) at 6. The trial court inquired about the breakdown in communication, and
defense counsel replied, “There have been incidents which have now — prevent me from
adequately preparing for trial because of new things that have been divulged to me by Ms.
Browning.” VRP (March 2, 2017) at 7. Defense counsel stated he would not be prepared to go to
trial the following week.
The trial court granted the motion to withdraw and advised Browning that she had now
“gone through” two attorneys2 and she did not get “to pick and choose” because they did not “have
an exhaustive list.” VRP (March 2, 2017) at 12. Defense counsel then advised the trial court that
Browning was concerned about her time for trial rights. The trial court responded that Browning
“ask[ed] for new counsel” and the trial court was “not going to make another attorney be ready by
Monday.” VRP (March 2, 2017) at 13-14.
The State ultimately dismissed one of the bail jumping charges (relating to the August 17,
2016, hearing) and the witness tampering charge. Browning went to trial on the residential
burglary and bail jumping charges.
Prior to trial, the State moved to introduce 14 of Browning’s prior burglary, theft, and
possession of stolen property convictions under ER 609. The State argued it would go to
Browning’s credibility if she testified. Defense counsel did not object. The trial court granted the
motion.
2 The details of the withdrawal of Browning’s first attorney are not in our record, but the trial court inquired at the March 2, 2017 hearing if this was Browning’s first attorney. The State responded, “No . . . this will be the second attorney that Ms. Browning has had relieved of duty.” VRP (March 2, 2017) at 11.
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C. TRIAL AND SENTENCING
Trial commenced on May 15, 2017. During trial, Deputy Hedstrom testified that in his
opinion, the house looked like someone lived there and that he has “seen worse.” VRP (May 17,
2017) at 127. He also testified there were functional lights in the house.
After the State rested, Browning testified. During her testimony she admitted that she had
gone into Cuccia’s house without permission. However, she denied taking Cuccia’s property and
stated that she only entered the home to get out of the cold. Browning also testified that she was
unable to attend the November 30, 2017, omnibus hearing because she was sick and in the hospital.
During Browning’s testimony, the State asked her about her “fairly significant theft
history.” VRP (May 18, 2017) at 269. Browning admitted to multiple prior theft convictions and
one burglary conviction from 2010.
The trial court instructed the jury, without objection, that
[i]t is a defense to a charge of bail jumping that:
(1) uncontrollable circumstances prevented the defendant from personally appearing in court; and (2) the defendant did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear; and (3) the defendant appeared as soon as such circumstances ceased to exist.
For the purposes of this defense, an uncontrollable circumstance is an act of nature such as a flood, earthquake, or fire, or a medical condition that requires immediate hospitalization or treatment, or an act of man such as an automobile accident or threats of death, forcible sexual attack, or substantial bodily injury in the immediate future for which there is no time for a complaint to the authorities and no time or opportunity to resort to the courts.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true.
5 No. 50390-5-II
If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty.
Clerk’s Papers (CP) at 144. The trial court also instructed the jury that evidence of prior
convictions may “only” be considered “in deciding what weight or credibility to give to the
defendant’s testimony.” CP at 124.
A jury found Browning guilty as charged. The sentencing court calculated Browning’s
offender score as an eight on the bail jumping conviction and a nine on the residential burglary
conviction. Browning agreed to a 100-month aggravated exceptional sentence as part of a plea
deal to have other unrelated charges dropped. The sentencing court sentenced Browning to 100
months on the residential burglary conviction and 57 months on the bail jumping conviction to be
served concurrently.
Browning appeals.
ANALYSIS
A. BAIL JUMPING
Browning first contends the trial court violated her due process rights because the bail
jumping defense jury instruction relieved the State of its burden of proof of an essential element
of bail jumping. Specifically, she argues that the State must prove she was capable of appearing
instead of her having to prove she was incapable of appearing as an affirmative defense. We
disagree.
Due process requires the State to prove all elements of the crime beyond a reasonable
doubt. State v. W.R., 181 Wn.2d 757, 762, 336 P.3d 1134 (2014). Jury instructions are appropriate
if they allow the parties to argue their theory of the case, do not mislead the jury, and do not
6 No. 50390-5-II
misstate the law. State v. Stevens, 158 Wn.2d 304, 308, 143 P.3d 817 (2006). We review de novo
whether the jury instructions adequately state the applicable law. Id.
The essential elements of bail jumping are that the defendant “(1) was held for, charged
with, or convicted of a particular crime; (2) was released by court order or admitted to bail with
the requirement of a subsequent personal appearance; and, (3) knowingly failed to appear as
required.” State v. Williams, 162 Wn.2d 177, 183-84, 170 P.3d 30 (2007) (emphasis omitted);
RCW 9A.76.170(1). Under RCW 9A.76.170(2),
It is an affirmative defense to a prosecution [for bail jumping] that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.
The trial court instructed the jury on the affirmative defense to a bail jumping charge.
Here, no legal authority directly supports Browning’s argument. However, State v. Deer,
175 Wn.2d 725, 287 P.3d 539 (2012), cert. denied, 568 U.S. 1148 (2013), is instructive. There,
our Supreme Court considered whether the State must prove volition as an element of rape of a
child in the third degree. Deer argued that once she produced evidence of a lack of a voluntary
action, the State had the burden of proving volition beyond a reasonable doubt. Id. at 731-32.
Deer claimed she was sleeping during several acts of intercourse and, therefore, could not be guilty
of rape. The Court held that Deer’s lack of volition claim was an affirmative defense that she was
required to prove by a preponderance of the evidence:
We must reject Deer’s contention that the State is required to prove as an element of child rape that she was awake during the alleged acts. While she is entitled to argue a lack of conscious action, her claim is properly treated as an affirmative defense, much like claims of involuntary intoxication, insanity, or unwitting possession
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Id. at 733.
Browning’s contention is similar to Deer’s. Browning argues that the State was required
to prove that she was capable of appearing at the required time. She relies on Carter v. United
States, 530 U.S. 255, 257, 120 S. Ct. 2159, 147 L. Ed. 2d 203 (2000), to argue that every crime
must have an actus reus that the State must prove. However, the Deer court recognized there is a
divergence between the importance of actus reus in “criminal law philosophy” and its relevance
in practice, and explained that
[t]he law has “deviated” for good reason; theory and practice sometimes diverge. Breaking criminal responsibility into its component parts of actus reus and mens rea is fine in theory, but requiring the prosecution to establish volition—here consciousness—as an “element” in the strict sense is unreasonable.
Deer, 175 Wn.2d at 732-33.
The defense to bail jumping is very similar to the lack of volition defense noted in Deer in
that the excuse cannot have been caused by the defendant’s own acts. As the Deer court observed,
the defendant generally bears the burden of proving an affirmative defense by a preponderance of
the evidence. Id. at 734; see also State v. Lawson, 37 Wn. App. 539, 542, 681 P.2d 867 (1984)
(“It is within the defendant’s knowledge and ability to establish the existence of one of the statutory
exceptions to the charge of unlawful consumption. . . . It is not an ‘undue hardship’ to require the
defendant to come forward with evidence of a defense, if one exists.”). The sole exception is when
a defense “negates” an element of the charged offense, in which case due process requires the State
to bear the burden of disproving the defense. Deer, 175 Wn.2d at 734 (citing State v. Lively, 130
Wn.2d 1, 10-11, 921 P.2d 1035 (1996)).
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Bail jumping requires the State to prove that the defendant knew that she was required to
appear. State v. Fredrick, 123 Wn. App. 347, 353, 97 P.3d 47 (2004). The affirmative defense
does not negate that element. Id. To the contrary, the failure to appear element is essentially a
strict liability element because the State only has to prove the defendant’s absence, not the reason.
State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004). Moreover, the Deer court went on
to explain that “the reason for putting the burden of proof on the defendant in such cases is ‘because
generally, affirmative defenses are uniquely within the defendant’s knowledge and ability to
establish.’ ” 175 Wn.2d at 737 (quoting State v. Riker, 123 Wn.2d 351, 367, 869 P.2d 43 (1994)).
Browning contends she was not able to attend because she was in the hospital. But she did
not present any documentation for her alleged hospital stay. This is exactly the type of evidence
in the “unique[]” control of the defendant that justifies placing the burden on the defense. Deer,
174 Wn.2d at 737.
The trial court’s affirmative defense instruction did not relieve the State of its burden to
prove the essential elements for a bail jumping charge. Accordingly, Browning’s due process
challenge fails.
B. TIME FOR TRIAL RIGHT
Browning next contends the trial court erred by granting defense counsel’s motion to
withdraw and that this error violated her CrR 3.3 time for trial rights. We disagree.
We review a trial court’s ruling on an attorney’s motion to withdraw for abuse of discretion.
State v. Stark, 48 Wn. App. 245, 252-53, 738 P.2d 684, review denied, 109 Wn.2d 1003 (1987).
A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State
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v. Nguyen, 131 Wn. App. 815, 819, 129 P.3d 821 (2006). We review applications of the CrR 3.3
time for trial rules de novo. State v. Kindsvogel, 149 Wn.2d 477, 480, 69 P.3d 870 (2003).
Browning alleges the trial court abused its discretion by not inquiring more regarding the
relationship between her and defense counsel before granting counsel’s motion to withdraw.
However, Browning did not object to Defense counsel’s withdrawal below; rather, Browning
joined in the motion. Defense counsel stated that the motion was “mutual between myself and my
client, that communication has been irretrievably broken.” VRP (March 2, 2017) at 6. Thus, the
trial court concluded that there was no time for trial violation because Browning “ask[ed] for new
counsel” and the trial court was “not going to make another attorney be ready for trial on Monday.”
VRP (March 2, 2017) at 13-14.
Based on the record, Browning acquiesced in the motion for a new counsel, which would
necessitate additional time to prepare for trial. There was no abuse of discretion in granting the
motion. Moreover, a time for trial waiver “ ‘forced solely by defense counsel’s conduct, and not
in any way attributable to the State or the court, is not a violation of Criminal Rule 3.3, and does
not justify a dismissal of charges.’ ” State v. Vicuna, 119 Wn. App. 26, 34, 79 P.3d 1 (2003)
(quoting State v. Thomas, 95 Wn. App. 730, 739, 976 P.2d 1264 (1999), review denied, 139 Wn.2d
1017 (2000)), review denied, 152 Wn.2d 1008 (2004). “Requiring dismissal in such situations
would inappropriately place the State in an adversarial position against withdrawal to protect its
interest in preventing [time for trial] violations.” Vicuna, 119 Wn. App. at 34-35. Thus, given the
facts below, Browning’s time for trial violation challenge based on the trial court allowing defense
counsel to withdraw fails.
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C. SUFFICIENCY OF EVIDENCE FOR RESIDENTIAL BURGLARY
Browning next contends sufficient evidence does not exist to support her residential
burglary conviction, which violates her constitutional due process right to have every element
proved beyond a reasonable doubt. Browning contends the State’s evidence was insufficient to
prove that she entered a dwelling, which is an essential element of residential burglary under RCW
9A.52.025(1). We disagree.
As previously discussed, in a criminal prosecution, due process requires the State to prove
every element of the charged crime beyond a reasonable doubt. W.R., 181 Wn.2d at 762. Evidence
is sufficient if, when viewed in the light most favorable to the State, any rational trier of fact could
find that all of the crime’s essential elements were proven beyond a reasonable doubt. State v.
Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). When challenging the evidence as insufficient,
the defendant admits the truth of the State’s evidence and all reasonable inferences that arise
therefrom. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017). Circumstantial
and direct evidence are equally reliable. Id. at 266. Because it is the jury’s responsibility to resolve
credibility issues and determine the weight of the evidence, we defer to the trier of fact on issues
of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v.
Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
To prove residential burglary, the State had to prove beyond a reasonable doubt that
Browning entered or remained in a “dwelling.” RCW 9A.52.025(1). A “dwelling” is “any
building or structure . . . which is used or ordinarily used by a person for lodging.” RCW
9A.04.110(7). Browning argues the home was not a dwelling because it was not used for lodging.
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However, whether a home is used for lodging is but one factor determining “dwelling.”
See State v. Hall, 6 Wn. App. 2d 237, 430 P.3d 289 (2018). The factors considered in determining
“dwelling” include:
(1) [W]hether the occupant deemed the house his or her abode and treated it as such, (2) whether the house was furnished and rented out periodically, (3) whether the occupant intended to return, (4) whether the house usually was occupied by someone lodging there at night, (5) whether the house was maintained as a dwelling, and (6) how long the house had been vacant.
Id at 240. (citing State v. McDonald, 123 Wn. App. 85, 91 n.18, 96 P.3d 468 (2004)).
Here, Cuccia testified that after she and her husband reconciled she would go back and
forth between the Charlotte Avenue home and the family home. She had plants, personal items,
and boxes of items belonging to her children and grandmother in the house. She took care of the
yard and upkeep of the home. The power was on. And the water and plumbing worked. Cuccia’s
identification listed the Charlotte Avenue address as Cuccia’s address.
Deputy Hedstrom testified that in his opinion the house looked like someone lived there.
He also testified there were functional lights in the house.
Viewing this evidence in the light most favorable to the prosecution, it permits any rational
trier of fact to find beyond a reasonable doubt that the Charlotte Avenue home was a dwelling.
Accordingly, the evidence was sufficient to convict Browning of residential burglary.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Browning next contends she was denied effective assistance of counsel because counsel
did not object to the admission of her 2010 burglary conviction, which was admitted under ER
609(a)(2). We disagree.
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To prove that she received ineffective assistance of counsel, Browning must show that
defense counsel’s conduct was deficient and that the deficient performance resulted in prejudice.
State v. Linville, 191 Wn.2d 513, 524, 423 P.3d 842, (2018). “Because both prongs must be met,
a failure to show either prong will end the inquiry.” State v. Classen, 4 Wn. App. 2d 520, 535,
422 P.3d 489 (2018).
Defense counsel’s representation is deficient if it falls “ ‘below an objective standard of
reasonableness.’ ” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). “There is a strong
presumption that defense counsel’s conduct is not deficient.” State v. Reichenbach, 153 Wn.2d
126, 130, 101 P.3d 80 (2004). Because of this presumption, “the defendant must show in the
record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by
counsel.” State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Performance is
prejudicial if there is reasonable probability that but for the deficiency the result of the proceeding
would have been different. Grier, 171 Wn.2d at 34. Where the issue is counsel’s failure to bring
a motion, the defendant can establish prejudice only if the motion would have been granted and
the outcome of the proceeding would have been different. State v. Price, 127 Wn. App. 193, 203,
110 P.3d 1171 (2005), aff’d, 158 Wn.2d 630, 146 P.3d 1183 (2006).
ER 609 governs the admission of a prior conviction for impeachment purposes. Relevant
to this appeal is ER 609(a)(2), which states:
For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime . . . involved dishonesty or false statement, regardless of the punishment.
13 No. 50390-5-II
A burglary conviction generally qualifies as a crime of dishonesty if the underlying crime the
burglar intends to commit is a crime of dishonesty. State v. Garcia, 179 Wn.2d 828, 847, 318 P.3d
266 (2014); State v. Black, 86 Wn. App. 791, 793, 938 P.2d 362 (1997), review denied, 133 Wn.2d
1032 (1998).
Here, the record does not show whether the predicate offenses to Browning’s prior burglary
conviction was a crime of dishonesty. However, even if we assume deficient performance,
Browning cannot show prejudice. Browning had an extensive criminal background. Several theft
convictions were introduced to the jury. The jury was instructed to consider the prior conviction
only in assessing Browning’s credibility. We presume that juries follow the trial court’s
instructions. State v. Anderson, 153 Wn. App. 417, 428, 220 P.3d 1273 (2009), review denied,
170 Wn.2d 1002 (2010).
Further, even assuming the jury disregarded the trial court’s limiting instruction, there is
no reasonable possibility that the jury convicted Browning based solely on her 2010 burglary
conviction. The State’s other evidence overwhelmingly supports Browning’s convictions. The
record does not support Browning’s claim that she received ineffective assistance of counsel.
Browning also appears to argue that defense counsel should have objected because ER
609(a)(2) violates a defendant’s due process right to a fair trial under both the state and federal
constitutions because it is unfairly prejudicial. Because there is no legal authority holding that ER
609(a)(2) violates the state and federal due process clauses, defense counsel’s decision to not
object would not be considered deficient performance or prejudicial.
Based on the above, Browning’s ineffective assistance of counsel claim fails.
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E. MISCALCULATED OFFENDER SCORE
Lastly, Browning argues in her SAG that the sentencing court miscalculated her offender
score. She, however, does not explain how the court miscalculated her offender score. Under
RAP 10.10(c), Browning is required to “inform the court of the nature and occurrence of alleged
errors.” Browning fails to do so. Moreover, she agreed to a 100-month aggravated exceptional
sentence as part of a plea deal. Accordingly, we decline to address this issue further.
We affirm.
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.
Lee, J. We concur:
Maxa, C.J.
Melnick, J.