State v. Martin

• Decision Date: 16 December 2019
• Docket Number: No. 77908-7-I,77908-7-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. BRADLEY MICHAEL MARTIN, Appellant

STATE OF WASHINGTON, Respondent, v. BRADLEY MICHAEL MARTIN, Appellant

No. 77908-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

December 16, 2019

UNPUBLISHED OPINION

APPELWICK, C.J. — Martin appeals his burglary conviction, his sentence, and the imposition of certain LFOs. He argues that the State presented insufficient evidence that he was an accomplice to the burglary. He further argues that the trial court impermissibly commented on the evidence in the accomplice liability jury instruction. He argues that the State committed prosecutorial misconduct by mischaracterizing the law and shifting the burden of proof during closing argument. He also argues that he received ineffective assistance of counsel because his lawyer improperly included three foreign convictions in calculating his offender score. Last, he argues that the trial court erred in ordering him to pay a DNA fee, criminal filing fee, victim assessment fee, and interest on those fees. We affirm his conviction and sentence, but remand to the trial court to: strike the DNA fee, criminal filing fee, and interest on the LFOs and to add language indicating the victim assessment fee may not be enforced against his SSI income.

FACTS

At 4:00 a.m. on April 28, 2016, a motion detector in Janet Anderson's driveway alerted her neighbor, Douglas Dahl, to movement on the property. Dahl went to investigate the disturbance. He heard what he believed to be the sound of items being put in the bed of a truck. Upon hearing this, he retreated to his property to call 911 and report a burglary in progress. After the call, Dahl again moved close to Anderson's property. After about five minutes, Dahl witnessed a truck exiting Anderson's property. He was unable to see the license plate, but was able to get to his car and pursue the truck. He caught up with the truck about 900 feet down the street. It had been pulled over by sheriff's deputies.

Sheriff's deputies discovered three people in the truck: Trevor Bush, Bradley Martin, and Gabriel Vogan. Bush was driving the truck. Vogan was in the passenger seat. Martin was sitting in the back seat behind Vogan, at an angle facing towards the driver seat.

Police recovered a flashlight from Bush. They recovered a headlamp from the driver's seat. And, they recovered a headlamp from Vogan. There were gloves and other equipment in the cab of the truck. There was a pair of gloves in the center console. Clothing and multiple pairs of gloves were strewn on the driver's side in the back seat. On the floor on passenger side where Martin had been sitting was a pair of gloves and an asp. An asp is an extendable baton most commonly used as an impact weapon.

The bed of the truck contained several items that Anderson identified as having come from her shop. Anderson had not given anyone permission to takethe items from the shop. The items included a rototiller, a saw sharpener, and a box of her son's personal belongings. The rototiller weighed about 250 pounds. The saw sharpener was very tall and had most of the weight distributed at the top. It took multiple sheriff's deputies to lift these machines out of the truck.

Deputy Jacob Navarro took photos of the truck, and impounded it and its contents. A sheriff's deputy also accompanied Anderson to her property and took several photos of the shop where the break-in had occurred. They did not attempt to collect fingerprint or DNA (deoxyribonucleic acid) evidence from the truck or shop. Deputy Jonathan Krajcar testified that they did not believe that usable fingerprints could be gathered from the shop. He further testified that their policy is not to conduct DNA testing for property crimes due to cost.

The State charged Martin with one count of second degree burglary. The State's theory of the case was that Martin was present and ready to assist with the burglary. The State attempted to illustrate this point in closing argument by saying, "Some people should still be held accountable when they're present and they see a crime happen and those people are distinguishable because they are ready to assist by their presence in aiding the commission of the crime." Also during closing, the prosecutor asserted that conducting DNA testing under these circumstances would not be reasonable. Specifically, she stated, "There wasn't a single expert witness that said that's a reasonable thing to do or that any valuable information could have been gleaned from that. DNA on a glove doesn't put an individual person inside the shop. Nothing could."

The to convict instruction listed elements that the jury must find beyond a reasonable doubt in order to return a guilty verdict. The first element stated, "That on or about the 28^th day of April, 2016, the defendant or a person to whom the defendant was an accomplice entered or remained unlawfully in a building."

A jury found Martin guilty as charged. The trial court sentenced Martin to 63 months of confinement. This sentence was based on an offender score of 10. The court included three foreign convictions in Martin's offender score. The court also ordered Martin to pay a $500 victim assessment, $200 criminal filing, and $100 DNA fee, despite finding Martin was indigent.

Martin appeals.

DISCUSSION

Martin raises essentially six issues on appeal. First, he contends that the State failed to present sufficient evidence to support his conviction. Second, he argues that the court impermissibly commented on the evidence in the to convict instruction. Third, he asserts that the prosecutor impermissibly shifted the burden of proof in her closing arguments. Fourth, he contends that the prosecutor impermissibly mischaracterized the law in her closing arguments. Fifth, he asserts that the court improperly calculated his offender score by including three foreign convictions that were not comparable to Washington offenses. Last, he argues that the court should strike all legal financial obligations (LFOs) and interest from his sentence due to his indigency.

I. Sufficiency of the Evidence

Martin argues that the State failed to present sufficient evidence to support his conviction.

Sufficiency of the evidence is a question of constitutional law that this court reviews de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). The State is required to prove all elements of the charged offense beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Evidence is sufficient to support a conviction if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (emphasis omitted). In reviewing the sufficiency of the evidence, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In conducting this review, circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Specific criminal intent of the accused may be inferred from the conduct where it is plainly indicated as a matter of logical probability. Id.

Conviction for burglary in the second degree requires proof beyond a reasonable doubt that a person entered or remained unlawfully in a building other than a vehicle or a dwelling and that he did so with the intent to commit a crime against a person or property therein. RCW 9A.52.030(1); Apprendi, 530 U.S. at 477. A person is guilty of a crime committed by another if they are an accomplicein the commission of that crime. RCW 9A.08.020(1), (2)(c). Mere presence with knowledge that criminal activity is taking place is insufficient to establish accomplice liability. State v. Truong, 168 Wn. App. 529, 540, 277 P.3d 74 (2012). However, accomplice liability may be established if the defendant is present and ready to assist in the commission of the crime. State v. Rotunno, 95 Wn.2d 931, 933, 631 P.2d 951.

Martin contends that the evidence proves only that he was present in the truck, and therefore cannot support accomplice liability. He dismisses any inference of knowledge or readiness to assist as "pure speculation."

Martin was apprehended at 4:30 a.m. in a truck with stolen property, as the truck was driving away from the scene of the theft. The location was remote and rural. The stolen property was so heavy and large that it required multiple sheriff's deputies to lift it out of the bed of the truck. There was a pair of gloves and a weapon on the floor next to Martin.

The evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Martin was present at the robbery and ready to assist. We affirm the jury's verdict.

II. Judicial Comment on the Evidence

Martin contends that the trial court impermissibly commented on the evidence in the "to convict" instruction. We review jury instructions de novo within the context of the jury instructions as a whole. State v. Lew, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). Any remark that has the potential effect of suggesting thatthe jury need not consider an element of an offense could qualify as a judicial comment. Id.

The to convict instruction provided that, in order to convict the defendant, the jury must find certain facts proved beyond a reasonable doubt. The instruction then listed the facts that must be proven:

(1) That on or about the 28^th day of April, 2016, the defendant or a person to whom the defendant was an accomplice entered or remained unlawfully in a building;

(2) That the entering or remaining was with the intent to commit a crime of theft against property therein; and

(3) That the acts occurred in the State of Washington.

(Emphasis added.)

Martin argues that the emphasized language constituted a judicial comment on the evidence because it presupposed that the...