State v. Boyer, 48763-2-II. (Consolidated w/No. 48766-7-II).
| Decision Date | 26 July 2017 |
| Docket Number | No. 48763-2-II. (Consolidated w/No. 48766-7-II).,48763-2-II. (Consolidated w/No. 48766-7-II). |
| Citation | 200 Wash.App. 7,401 P.3d 396 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Buddy L. BOYER, Appellant. |
John A. Hays, Attorney at Law, 1402 Broadway St., Longview, WA, 98632-3714, for Appellant.
Lynda J. Stone, Grays Harbor County Prosecutor's Office, 102 W. Broadway Ave., Montesano, WA, 98563-3621, for Respondent.
Bjorgen, C.J.¶1 Buddy L. Boyer appeals the juvenile court's adjudication of guilt in his trial for second degree reckless burning, as well as his manifest injustice disposition at sentencing. He argues that (1) the juvenile court's finding of fact 5, concerning his actions just before the fire, is unsupported by substantial evidence, (2) he received ineffective assistance of counsel when his counsel failed to make a motion to dismiss at the close of the State's case because the State failed to provide independent evidence of the corpus delicti for second degree reckless burning, and (3) if the State prevails on appeal, we should decline to impose appellate costs. In his statement of additional grounds (SAG), he contends that the juvenile court improperly imposed a manifest injustice disposition on account of his risk of re-offending, resulting in an impermissibly long sentence.
¶2 We conclude that substantial evidence supports finding of fact 5, we hold that Boyer did not receive ineffective assistance of counsel, and we decline to impose appellate costs on him. Furthermore, because the issue related to his manifest injustice disposition has already been decided by our court commissioner and we denied Boyer's motion to modify the commissioner's ruling, we decline to reach this issue. Accordingly, we affirm the juvenile court.
FACTS
¶3 On July 5, 2015, Donald Hanson Jr. pulled into the Valley Cleaners' parking lot and noticed Boyer sitting in the adjacent alley.1 Hanson and Boyer acknowledged each other as Hanson went inside Valley Cleaners. Hanson saw Boyer handling something in his hand and doing something next to himself, but could not determine what he had or was doing. About two minutes later, someone came inside Valley Cleaners and said that there was a fire outside. Several people, including Hanson, began attempting to put it out. Hanson noticed that the fire was exactly where Boyer had been sitting.
¶4 Within one or two minutes, Officer Jason Capps arrived at Valley Cleaners and witnesses stated that a potential suspect had recently left the alley. Officer Capps began searching the area and encountered Boyer, who matched the witnesses' description of the suspect, about two blocks away from Valley Cleaners. Another officer brought Hanson to Officer Capps, and Hanson identified Boyer as the person whom he saw in the alley. Officer Capps asked Boyer "if he only meant to start a small fire," and he told Officer Capps that "he didn't mean to start the fire and that it just got out of control." Verbatim Report of Proceedings (VRP) (Feb. 4, 2016) at 9. The State charged Boyer with second degree reckless burning.
¶5 On January 5, 2016, Boyer was seen carrying a 10-inch knife while at high school. He was arrested and charged with possession of a firearm or other dangerous weapon on school facilities. On January 21, 2016, Boyer pled guilty to that charge. The juvenile court deferred a disposition hearing on that conviction until after his trial for second degree reckless burning.
¶6 At trial on the second degree reckless burning charge, the State called Officer Capps and Hanson as witnesses. On cross examination, defense counsel questioned Hanson about his observations of Boyer as Hanson was entering Valley Cleaners:
¶7 As brought out in the following exchange, Boyer took the position that his admission to Officer Capps was false and that his friend Ryan Erickson had started the fire in the two minutes between Hanson entering Valley Cleaners and the detection of the fire.
¶8 The juvenile court adjudicated Boyer guilty of second degree reckless burning and entered findings of fact and conclusions of law, including finding of fact 5, which states, "[Boyer] had something in his hand and was doing something beside him, but Mr. Hanson could not see what." Clerk's Papers (CP) (4-3) at 19-21.
¶9 On February 18, 2016, the juvenile court held a disposition hearing on the dangerous weapon and second degree reckless burning charges. The court determined that a local sanction would be a manifest injustice and imposed a sentence of 52 weeks for each adjudication of guilt to run consecutively, for a total of 104 weeks. Boyer appealed both the adjudication of guilt on the second degree reckless burning charge and the manifest injustice disposition.
¶10 On July 1, 2016, a commissioner from our court granted Boyer's motion to bifurcate his appeal to address the adjudication of guilt of second degree reckless burning and the manifest injustice disposition separately. On September 16, our court commissioner issued a ruling affirming the juvenile court's manifest injustice disposition. Boyer filed a motion to modify the commissioner's ruling, and we denied the motion on October 31, 2016.
¶11 We now turn to the appeal of the adjudication of guilt on the second degree reckless burning charge and of the manifest injustice disposition.
ANALYSIS
¶12 Boyer argues that the juvenile court's finding 5 is unsupported by substantial evidence. We disagree.
¶13 We review findings of fact to determine whether they are supported by substantial evidence and, in turn, whether the findings support the conclusions of law and judgment. State v. Macon , 128 Wash.2d 784, 799, 911 P.2d 1004 (1996). Substantial evidence is evidence sufficient to persuade a fair minded, rational individual that the finding is true. State v. Levy , 156 Wash.2d 709, 733, 132 P.3d 1076 (2006). We do not weigh the evidence or witness credibility. Quinn v. Cherry Lane Auto Plaza, Inc. , 153 Wash. App. 710, 717, 225 P.3d 266 (2009).
¶14 Finding 5 states, "[Boyer] had something in his hand and was doing something beside him, but Mr. Hanson could not see what." CP (4-3) at 20. Boyer contends that this finding is not supported by substantial evidence because "Mr. Hanson was clear that the defendant did not have [sic] lighter or any other object in his hands." Br. of Appellant at 9.
¶15 At trial, Hanson testified that "he was doing something like this and looked up at me." VRP (Feb. 4, 2016) at 21 (emphasis added). Although the record does not indicate what "like this" means, Hanson's testimony suggests that he was physically replicating Boyer's hand motions in response to defense counsel's question whether Hanson saw "any lighter or anything else in [Boyer's] hand." VRP (Feb. 4, 2016) at 21. Defense counsel's following question, "[b]ut you don't know what it was?" also suggests that Hanson observed him holding something, but could not identify what it was. VRP (Feb. 4, 2016) at 21. Although Hanson responded that he did not know what Boyer was holding, the testimony just noted and the context of the questioning demonstrate that finding 5 is supported by substantial evidence.
¶16 Boyer argues that he received ineffective assistance of counsel because his attorney failed to make a motion to dismiss under the corpus delicti rule. He contends that there was insufficient independent evidence of the corpus delicti for second degree reckless burning, and consequently his confession to Officer Capps that "he didn't mean to start the fire and that it just got out of control," should not have been admitted.
VRP (Feb. 4, 2016) at 9. We disagree with all his contentions.
¶17 To establish ineffective assistance of counsel, a defendant must demonstrate that: (1) his counsel's performance was deficient in that it fell below an objective standard of reasonableness under the circumstances and (2) he was prejudiced as a result of his counsel's performance. State v. Larios-Lopez , 156 Wash. App. 257, 262, 233 P.3d 899 (2010). A legitimate trial strategy or tactic cannot serve as the basis for a claim of ineffective assistance of counsel. State v. Estes , 193 Wash. App. 479, 488, 372 P.3d 163 (2016), aff'd , 188 Wash.2d 450, 395 P.3d 1045 (2017). A defendant is prejudiced by counsel's deficient performance if, but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. State v. McFarland , 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). We presume that defense counsel's representation was effective, and the defendant must demonstrate that there was no legitimate or strategic reason for defense counsel's conduct. McFarland , 127 Wash.2d at 335, 899 P.2d 1251. When one claims that his counsel was ineffective for failing to make a motion, he must also show that the motion likely would have been granted in order to...
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