State v. Lee, 40548-2-II
| Decision Date | 05 June 2012 |
| Docket Number | No. 40548-2-II,40548-2-II |
| Parties | STATE OF WASHINGTON, Respondent, v. MARK ANTHONY LEE, Appellant. |
| Court | Washington Court of Appeals |
Quinn-Brintnall, J. — A jury entered a verdict finding Mark Anthony Lee guilty of residential burglary, former RCW 9A.52.025 (1989), and making a false or misleading statement to a public servant, RCW 9A.76.175. Lee appeals, asserting that the trial court committed reversible error by giving the jury an improper permissive inference instruction or, in the alternative, the State failed to provide sufficient evidence supporting either conviction. Because sufficient evidence supports the residential burglary charge and the trial court's permissive inference instruction was appropriate, we affirm Lee's residential burglary conviction. But because sufficient evidence does not support the jury verdict finding Lee guilty of making a false or misleading statement to a public servant, we reverse that conviction. Because reversing Lee's gross misdemeanor conviction does not affect his residential burglary sentence, we also affirm his sentence on the residential burglary conviction.
Richard Hamilton left his home around five in the morning on November 23, 2009, to visit his son in Florida. Before the trip, Hamilton arranged for two associates, Richard Haehn and Richard Olson, to "kind of look after [the] house" while he was away. 3 Report of Proceedings (RP) at 99. Haehn had previously performed repair work on Hamilton's home, and Hamilton entrusted Haehn with keys to the property. Hamilton also asked Olson to look after the house because "he's been trustworthy" and Olson was familiar with a former sexual companion of Hamilton's, Alaine Turley. 3 RP at 99. Olson would sometimes report to Hamilton "some of the things [Turley] was doing" because he "didn't trust her" and "she was on drugs." 3 RP at 90, 100.
Turley had stayed at Hamilton's home sporadically for a two-month period approximately six months before Hamilton's Florida trip. Despite the sexual nature of their relationship, Hamilton never entrusted Turley with a key, and Turley never received mail at the house. Hamilton once discovered his spare garage door opener missing and "had the impression that she had been in [his] house when [he] wasn't there." 3 RP at 90. He later confronted her about the missing opener, she returned it, and he disposed of it because he "didn't want the possibility of her getting in [the] house using that spare garage door opener." 3 RP at 106-07. Despite the problems with their relationship, Hamilton allowed Turley to come over the night before his Florida trip to do laundry and to shower because she asked him "in a pleading way." 3 RP at 107. Turley left before Hamilton departed for the airport, and she knew that Hamilton was going out of town.
About three hours after Hamilton left for the airport, Haehn let himself in to repair a bed.Upon completing the work, Haehn "checked everything, the doors—locked all the doors and everything," and left at about nine in the morning. 3 RP at 143. Haehn testified that, when he left, nothing seemed out of the ordinary in Hamilton's home.
Around noon, Turley borrowed a drill, a Sawzall,1 and some other tools from Olson. She also borrowed Olson's truck. Turley's own car was broken down on the street in front of Olson's property and Turley had been staying in a room at Olson's warehouse. According to Olson, Turley was going to go over to Hamilton's to do some gardening and fix a door.
On his daily walk at about 1:30 pm, Olson noticed his borrowed truck parked approximately two and a half miles from Hamilton's home in front of Nativity House, a place where "[y]ou can get drugs." 3 RP at 129. He did not see Turley at the time. Shortly thereafter, he had a friend pick up the truck for him. A brief time later, while driving to his own property in Graham, Olson noticed a television on at Hamilton's house. Olson called Hamilton to inform him of this, and Hamilton thanked him for the information but gave him no further instruction. Olson testified that, after speaking with Hamilton, he "checked the house out and made sure that there was [sic] no broken windows or anything" and that "everything appeared to be intact," though he could not be sure because it was his first time visiting Hamilton's home. 3 RP at 131.
Sometime after dark, Olson was again passing by Hamilton's home and noticed lights on in the house and a sport utility vehicle (SUV) parked out front with someone sitting in it. Olson knocked on the home's front door and Lee answered. Olson recognized Lee as they had occasionally met before. Olson testified that he could see Turley in the house and that he askedLee if Turley was there. Olson further testified, without objection from Lee, that Lee told him it was Lee's own home and that Turley was not inside. Olson responded by saying, "Thank you, I'm sorry; have a nice day," and left. 3 RP at 122. Olson then called Hamilton and the police and drove around the area waiting for law enforcement to arrive. As Olson circled back toward Hamilton's house, Lee ran to Olson's truck and asked him where he was going. Olson "did not talk to him [and] just drove around until the cops got there." 3 RP at 124.
Tacoma Police Department Officer Zachary Spangler arrived at Hamilton's home around 9:30 pm. He parked approximately 100 feet away and, before approaching, saw 2 RP at 42. Spangler identified himself as a police officer and asked the three individuals outside of the SUV to put their hands up. One individual put his hands up while the other two, Turley and Lee, returned to the residence, closing the door. Spangler was approximately 30 feet from the front door at this point. As Spangler was talking to the individual who stayed outside, that individual yelled, 2 RP at 49. A few seconds later, Turley and Lee came back outside. About the same time, Tacoma Police Department Officers Nick Jensen, Dave Johnson, and Eric Barry arrived at the scene.
Turley claimed she lived at the house, so Officers Spangler and Jensen took her inside to see if she could locate any mail or other verifying documentation. Walking into the living room, Spangler immediately noticed a flat screen TV off its console, leaning up against the wall. While conducting the search for documents to verify that the home was Turley's residence, Jensen looked in Hamilton's bedroom. "[P]ower tools and garden tools [were] strewn about the floorand the bed, . . . there was a safe that had been attached to the wall and the electronic key pad which was plastic had been ripped off the wall" and was "broken and in several pieces laying on the floor."2 3 RP at 209. In the other bedroom, Jensen noticed a "slightly damp" sweater with "grass clippings and small bits of dirt on it" draped over a heater directly below a window. 3 RP at 210. Jensen also saw handprints that appeared to him to be on the outside of the window and "the streaks from the fingers actually went up toward the top of the window as if someone were pushing up on the window." 3 RP at 211. He also found several "freshly used" needles. 3 RP at 209. Jensen noticed that Turley had "fresh needle marks, on her right arm in the bend of her elbow." 3 RP at 208.
Despite looking in every drawer in the home, the only evidence Officer Jensen could find that supported Turley's claim that she lived there, was a few unframed photographs on the fireplace mantle, lying flat, that Turley pointed out. Because Turley claimed to have a key to the home, Jensen let her try every key on her key ring, "probably 15 to 20," to see if any of them worked in the front door. 3 RP at 207. None fit. Turley also told Jensen that "she typically had a garage door opener, but at this time she did not" and that she thought the key to Hamilton's home "was probably at her house." 3 RP at 207. Jensen arrested Turley.
While Officers Jensen and Spangler were inside with Turley, Officer Barry made contactwith three other individuals, including Lee. One of the individuals, a Mr. Holmes, had a television remote sticking out of his front pant pocket and another, Ms. Lococo, was carrying a crack pipe. Barry handcuffed and gave Miranda3 warnings to all three individuals, including Lee. Following this, Barry escorted Lee to his police vehicle.
Inside the police vehicle, Officer Barry asked Lee if he was ever inside the residence, and Lee responded, "I don't know what you're talking about."4 3 RP at 192. Moments later, Lee admitted to having sex with Turley on the couch inside the house and said that, during the interaction, "the girl looked up at the TV and asked . . . if he knew anyone that would want to buy it." 3 RP at 195. Lee maintained that he thought Turley lived there, that he did not know how she got inside the home and, further, that he did not know how he got inside the house.
Tacoma Police Department Crime Scene Technician Shea Wiley arrived at the scene after the other four officers. While there, Wiley photographed a "suspected toolmarking or damage" to Hamilton's front door and the window in Hamilton's bedroom because it was "determined as a possible point of entry due to the window screen on the ground." 3 RP at 223. Wiley also collected eight fingerprint impressions. A fingerprint analyst later verified three as belonging to Turley: one on the front of the TV in the living room, one on a bottle of alcohol, and one on the interior closet door of the closet containing Hamilton's safe. None of the identified prints belonged to Lee.
On November 24, the State charged Lee with one count of residential burglary "as anaccomplice" and one count of making a false or misleading statement to a public servant. Clerk's Papers (CP) at 1. A jury trial commenced on ...
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