State v. B.J.S.

Decision Date07 August 2007
Docket NumberNo. 34529-3-II.,34529-3-II.
Citation140 Wn. App. 91,169 P.3d 34
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. B.J.S.,<SMALL><SUP>1</SUP></SMALL> Appellant.

Susan Irene Baur, Cowlitz Co. Prosecutor's Office, Kelso, WA, for Respondent.

Valerie Marushige, Attorney at Law, Des Moines, WA, for Appellant.

HOUGHTON, C.J.

¶ 1 B.J.S. appeals his adjudications of residential burglary and second degree theft, both under an accomplice liability theory. He argues that insufficient evidence supported his adjudications and that he received ineffective assistance of counsel. We reverse and remand.

FACTS

¶ 2 In November 2005, Jason Norris and a friend discussed the idea of "[t]aking stuff" from Robert Brekke's house while Brekke was away at the beach. Report of Proceedings (RP) at 65. Norris stayed with Brekke for a couple of days before Brekke left for the beach, but Brekke had never given Norris his house's security code.

¶ 3 B.J.S., who was 16 at the time, had spent "a lot" of time at Brekke's house and occasionally spent the night there. RP at 114. Brekke had given B.J.S. his house's security code and let him know where the house key was.

¶ 4 Norris picked up B.J.S. before going to Brekke's house. He discussed his idea with B.J.S. so that B.J.S. would allow him to "do it" and not "say anything" or "give [him] up." RP at 72. He brought B.J.S. along to enter the security code correctly and to deal with any visitors he did not know who might arrive at the house.

¶ 5 Sometime after midnight, Norris and B.J.S. arrived at Brekke's house. Norris took electronic devices, credit cards, and cash from the house. B.J.S. did not assist Norris, but saw him taking things. Sometime after 6 a.m. that morning, Norris and B.J.S. left the house with the items Norris had taken. Norris dropped off B.J.S., took the items "somewhere," and "unloaded" them in exchange for a later payment. RP at 94, 95. Later, Norris gave B.J.S. some of the cash, but did not tell him where it came from.

¶ 6 After dropping off the items, Norris picked up someone named James, bought some "dope," and then picked up B.J.S. The three then went to Brekke's house. While at the house, Norris took some more credit cards and some pills. Norris did not see either James or B.J.S. take anything from the house. Norris and James attempted to use some lock cutters on an outbuilding on the property, but they did not work. B.J.S. did not use the lock cutters.

¶ 7 Timothy Entler and Dustin Albright went to Brekke's house on the morning of November 18 to see if Brekke had returned from the beach. Brekke was not home when they got there, and they noticed that two of his vehicles were missing. Entler and Albright left Brekke's house, and Albright called the police from his house. Entler and Albright returned to Brekke's house and noticed one of his vehicles was back on the property. Entler saw some people running from the house, but he could not identify who they were.

¶ 8 The State charged B.J.S. with two counts of residential burglary, two counts of second degree theft, and one count of second degree taking a motor vehicle without permission. B.J.S. had an adjudicatory hearing for the charges on February 14, 2006. Among others, Norris, B.J.S., Entler, and Albright testified.

¶ 9 Norris testified he and B.J.S. went to Brekke's the first time to "party" and returned the second time to get his car. He said the idea to burglarize Brekke's house was a spur of the moment decision and he had Brekke's security code. He also testified he thought of burglarizing Brekke's house on November 17 and talked B.J.S. into "allowing [him] to do it and not to say anything or not to give [him] up or nothing. You know, making it okay." RP at 72. He said he needed B.J.S. to come with him "[t]o make sure that [he] had the [security] code right" and because he wanted B.J.S. there in case someone he did not know arrived to the residence. RP at 72.

¶ 10 Norris also read portions of a written statement he prepared on November 18 after the incident. In his statement, he said he had to talk to B.J.S. before "going through with anything" at Brekke's house and discussed a conversation he had with B.J.S., stating,

I brought it up to [B.J.S.] who acted completely out of character by not just saying yes, but like he might enjoy it too.

. . . .

That was truly out of character for [B.J.S.] so I asked him a few times on the way over to [James's] house if he was sure about wanting to do this.

. . . .

And he constantly repeated his answer was yes.

RP at 101. When asked what "[w]anted to do this" referred to, Norris said, "I think we were on our way to go get dope" and that it did not have to do with burglarizing Brekke's house. RP at 101. Another portion of his statement read, "I heard glass breaking and [B.J.S.] say you should have used bolt cutters, not punch it." RP at 102. Norris said this statement had to do with James cutting padlocks on outbuildings on Brekke's property, which "[n]othing was taken out of." RP at 103.

¶ 11 B.J.S. testified that he had permission from Brekke to be at his house when he was not there. He said he did not take anything from Brekke's house and did not see Norris take anything. He verified Norris's statements that he was at Brekke's house on the early morning of November 18, left the house sometime around 6 a.m., and then returned later that day.

¶ 12 After the State rested, the juvenile court judge dismissed the second degree taking a motor vehicle without permission count. The juvenile court judge found that Norris's claim that he had Brekke's security code was not credible and found that Norris was attempting to "take the fall" for B.J.S. because his testimony was inconsistent and not credible. RP at 125. The juvenile court judge concluded that B.J.S. had aided and abetted Norris and found him guilty of one count of residential burglary and one count of second degree theft.

¶ 13 After the juvenile court judge's ruling, B.J.S. moved for a deferred disposition. The juvenile court judge found he was not eligible because he did not move for deferred disposition before the adjudication hearing. B.J.S.'s counsel told the court she had advised B.J.S., "if he went to trial that he could seek a deferred." RP at 131. B.J.S. received an adjudication of 10 days' confinement and 6 months of community supervision for each count. B.J.S. appeals.

ANALYSIS
Sufficiency of the Evidence

¶ 14 B.J.S. first contends that there is insufficient evidence to support his adjudications of residential burglary and second degree theft under an accomplice liability theory.2

¶ 15 On a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether a rational trier of fact could find the elements of the offense beyond a reasonable doubt. State v. Gentry, 125 Wash.2d 570, 596-97, 888 P.2d 1105 (1995). In reviewing a juvenile court adjudication, we must decide whether substantial evidence supports the trial court's findings of fact and, in turn, whether the findings support the conclusions of law. State v. Alvarez, 105 Wash.App. 215, 220, 19 P.3d 485 (2001). We treat unchallenged findings of fact as verities on appeal. State v. Levy, 156 Wash.2d 709, 733, 132 P.3d 1076 (2006).

¶ 16 We review conclusions of law de novo. Levy, 156 Wash.2d at 733, 132 P.3d 1076. A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wash.2d 821, 874-75, 83 P.3d 970 (2004). Circumstantial evidence is equally reliable as direct evidence. State v. Varga, 151 Wash.2d 179, 201, 86 P.3d 139 (2004).

¶ 17 To adjudicate B.J.S. of residential burglary, the State had to show that he remained "unlawfully in a dwelling other than a vehicle" with the intent "to commit a crime against a person or property therein." RCW 9A.52.025(1). To adjudicate him of second degree theft as the juvenile court did, the State had to show he committed theft of an access device (such as a credit card).3 RCW 9A.56.040(c), .010(1). Because the juvenile court judge adjudicated him as an accomplice for both crimes, the State had to show that he encouraged or aided Norris in the planning or commission of the crimes with the knowledge that his actions would promote or facilitate the crimes. RCW 9A.08.020(3)(a)(ii). "Aiding" in a crime includes "`all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his . . . presence is aiding in the commission of the crime.'" State v. Dove, 52 Wash.App. 81, 87, 757 P.2d 990 (1988) (quoting 11 Washington Practice: Washington Pattern Jury Instructions Criminal 10.51, at 56 (1st ed.1977 and Supp. 1986)).

¶ 18 B.J.S. does not dispute that he was at Brekke's house while Norris burglarized it and stole credit cards. Rather, he argues that insufficient evidence showed that he aided Norris in committing the crimes, claiming that substantial evidence does not support the juvenile court judge's findings of fact 2-54 and, therefore, the juvenile court's findings fail to support its conclusions of law.

¶ 19 Finding of fact 2 deals directly with Norris's credibility, an issue that we do not review on appeal. See Thomas, 150 Wash.2d at 874-75, 83 P.3d 970. Accordingly, we defer to the juvenile court judge's finding. Thomas, 150 Wash.2d at 874-75, 83 P.3d 970.

¶ 20 B.J.S. challenges finding of fact 3 on the basis that the juvenile court found there was "no evidence" that Norris knew Brekke's security code even though Norris testified that he did. Clerk's Papers (CP) at 1. The juvenile court judge specifically discussed this finding in his oral ruling. Although this...

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