State v. Francis, No. 26959-1-III (Wash. App. 7/2/2009)
| Decision Date | 02 July 2009 |
| Docket Number | No. 26959-1-III.,26959-1-III. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. LATISHA STARR FRANCIS, Appellant. |
Appeal from Spokane Superior Court. Docket No: 07-1-02671-2. Judgment or order under review. Date filed: 03/13/2008. Judge signing: Honorable Michael P Price.
Counsel for Appellant(s), Janet G. Gemberling, Gemberling & Dooris PS. Po Box 22029, Seattle, WA, 98122-0029.
Counsel for Respondent(s), Mark Erik Lindsey, Spokane County Prosecuting Attorneys, 1100 W Mallon Ave, Spokane, WA, 99260-2043.
UNPUBLISHED OPINION
A stolen car found at an apartment complex had a tank top in it belonging to Latisha Francis.1 Ms. Francis told officers that the tank top found in the vehicle belonged to her child, that she knew the vehicle was stolen, that she knew she needed a screwdriver to start the vehicle, and that she had driven it a few times. At trial, Ms. Francis denied any knowledge of the vehicle. She was convicted of first degree possession of stolen property. Ms. Francis appeals, arguing: (1) the trial court erred by admitting hearsay statements as prior inconsistent statements, (2) the trial court erred by finding that the State established the corpus delicti, and (3) there was insufficient evidence to convict her. Concluding that the trial court committed no error and that sufficient evidence supports the conviction, we affirm.
Spokane police officers investigated a drive-by shooting at Dutch Jake's Park in June 2007. The suspects in the shooting were Kevin Gilfoy, Christopher Summa, and Daniel Comer. Latisha Francis lived at an apartment complex. Because these suspects had been seen at Ms. Francis's apartment, the police conducted surveillance at her apartment complex.
The police had information that one of the suspects had been driving a stolen silver Dodge. Officer Gordon Ennis saw a silver Dodge in the parking lot of the apartment complex parking lot, approximately 50 to 80 feet from Ms. Francis's apartment. The car had been stolen.
While Officer Ennis was waiting for the owner of the car, he noticed pry marks on the car and saw that the ignition had been punched out and was on the floor of the back seat. Officer Ennis also found a Kleenex box and some audiotapes, which the owner identified as his own, and a child's tank top, which the owner said he had never seen before. The owner confirmed the car was his and stated that he did not know Mr. Gilfoy, Mr. Summa, Mr. Comer, or Ms. Francis and that he had not given any of them permission to drive his car.
Detective Lonnie Tofsrud, Officer Ennis, and two other law enforcement officials asked Ms. Francis about the car and the tank top, as well as the drive-by shooting. Ms. Francis's account of what was said during this conversation differs greatly from Detective Tofsrud's and Officer Ennis's accounts.
Officer Ennis testified that when he showed the tank top to Ms. Francis, she indicated that it belonged to one of her children. At trial, however, Ms. Francis testified that the tank top did not belong to her son, or her, and that she never told Officer Ennis that it belonged to her.
Detective Tofsrud testified that Ms. Francis said: " " Report of Proceedings (RP) at 186. She explained that "they" were Mr. Gilfoy and Mr. Comer. RP at 187. Detective Tofsrud further testified that Ms. Francis indicated that she knew the vehicle was stolen, that she knew the car had to be started with a screwdriver, and that she had driven it "'just a few'" times. RP at 188. But later Ms. Francis testified that she did not know anything about the stolen vehicle. She also denied telling Detective Tofsrud that she knew the ignition was punched out or that she had driven the vehicle.
Mr. Comer, testifying for the State, stated that he stole the car and that he had never seen Ms. Francis driving it. Detective Tofsrud interviewed Mr. Comer twice, once on June 6, 2007, after he was arrested at Ms. Francis's apartment, and again on June 8, 2007. Detective Tofsrud testified that Mr. Comer stated he had seen Ms. Francis driving the stolen car.
A jury convicted Ms. Francis of first degree possession of stolen property. Ms. Francis moved for a dismissal based on the State's failure to establish the corpus delicti of the charged crime. The trial court denied the motion, finding that sufficient evidence had been produced to establish the corpus delicti. The jury found Ms. Francis guilty of first degree possession of stolen property.
Ms. Francis appeals, arguing that the court (1) abused its discretion when it admitted hearsay statements as prior inconsistent statements, (2) erred by considering statements admitted solely for impeachment purposes when determining the sufficiency of evidence to prove the corpus delicti, and (3) erred by denying the defense's motion to dismiss the charge.
Prior Inconsistent Statements. A trial court's decision to admit evidence is reviewed for an abuse of discretion. State v. Nieto, 119 Wn. App. 157, 161, 79 P.3d 473 (2003). A trial court abuses its discretion only if its decision is based on manifestly unreasonable or untenable grounds. State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003).
"Hearsay" is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). Hearsay is not admissible unless a specific exception applies. ER 802. Extrinsic evidence of prior inconsistent statements is admissible as long as the witness is afforded an opportunity to explain or deny the statement and opposing counsel is allowed to question the witness. ER 613(b). Prior inconsistent statements are not hearsay because they are not offered for the truth of the matter asserted, but, instead, are offered to challenge the declarant's credibility.
Ms. Francis argues that Mr. Comer did not testify about whether he saw the car on June 6 or whether he saw Ms. Francis in the car with Mr. Gilfoy and Mr. Summa, and Mr. Comer did not deny making such statements to Detective Tofsrud. Ms. Francis argues that the statements made by Detective Tofsrud that addressed those particular issues were offered for the truth of the matter asserted, not for impeachment; therefore, they were inadmissible hearsay and should not have been admitted.
Ms. Francis is correct that during the trial, Mr. Comer was not asked specifically about June 6 or about who was in the car on June 6. However, Mr. Comer stated that he had never seen Ms. Francis drive the car and he denied telling Detective Tofsrud that the first time he saw the car, Ms. Francis was driving it. Mr. Comer's prior inconsistent statement pertained to June 6 and, thus, the State's questions were proper.
Detective Tofsrud testified about the conversations he had with Mr. Comer that were prior inconsistent statements. Mr. Comer claimed that he stole the car. Detective Tofsrud testified that Mr. Comer told him that he first saw the car when he was contacted by Ms. Francis, Mr. Gilfoy, Mr. Summa, and Michelle Jeske. This statement is inconsistent with Mr. Comer claiming that he stole the car. Mr. Comer testified that he had never seen Ms. Francis drive the stolen car. However, Mr. Comer told Detective Tofsrud that at the time he saw the car, Ms. Francis was driving. This is inconsistent with his statement that he had never seen Ms. Francis driving the car.
Detective Tofsrud's statements about his interview with Mr. Comer were introduced solely to impeach Mr. Comer. The prosecutor was not trying to convince the jury that Ms. Francis was in the car with Mr. Gilfoy, Mr. Summa, and Ms. Jeske, but only that Mr. Comer was not telling the truth when he testified. Furthermore, the jury was instructed that any prior inconsistent statements of witnesses were to be considered for purposes of credibility only.
The trial court did not abuse...
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