State v. Peschl
| Decision Date | 03 October 2017 |
| Docket Number | 48365-3-II |
| Parties | STATE OF WASHINGTON, Respondent, v. STEVEN THOMAS PESCHL, Appellant. |
| Court | Court of Appeals of Washington |
UNPUBLISHED OPINION
Steven T. Peschl appeals his bench trial convictions of second degree burglary and third degree theft.[1] Peschl argues that (1)(a) specific findings of fact are not supported by substantial evidence, (b) there is insufficient evidence to support a conviction for second degree burglary, and (2) he received ineffective assistance of counsel at trial because his attorney failed to request that the trial court consider the lesser-included offense of second degree criminal trespass. We affirm Peschl's convictions.
In November 2013, Wayne Martin called the Skamania County Sheriffs Office after witnessing suspicious movement on fenced property owned by Skamania County. Deputies Jay Johnston and Christopher Helton responded and found Peschl next to his truck, near the area where Martin had witnessed the movement. The officers observed scrap metal and metal pieces in Peschl's truck and a "fuel jug and red hose" next to the truck. Report of Proceedings (RP) (Nov. 24, 2015) at 24. Believing that Peschl had been siphoning fuel from county vehicles and stealing scrap metal and other items, the officers arrested Peschl. The State charged Peschl with second degree burglary and third degree theft. Peschl waived his right to a jury trial.
At Peschl's bench trial, Martin, Deputies Johnston and Helton, and county employee Clay Moser testified for the State. Martin, who was familiar with the area, had observed what appeared to be a figure in the "fenced area of the county yard." RP (Nov. 24, 2015) at 6. Martin called the sheriffs office after he saw the figure cross Rock Creek Drive, walking south, and enter another area, near the county motor pool building.
Deputies Johnston and Helton reported to the scene and found Peschl and his truck "next to the motor pool building, " immediately south of Rock Creek Drive. RP (Nov. 24, 2015) at 17. Peschl told Deputy Johnston that Peschl's truck had run out of gasoline and that he had purchased gasoline and was filling his truck with it. The officers observed a fuel jug and a red rubber siphon hose near Peschl's truck and metal scrap and various other items in the back of Peschl's truck.
Suspicious that the items in Peschl's truck had been taken from the southern area, Deputy Johnston investigated the vicinity of the motor pool building. Deputy Johnston walked behind the motor pool building and confirmed that surplus metal stored in that area matched the items in the back of Peschl's truck. One vehicle in the southern area also had material matching Peschl's red siphon hose on its fuel door. Deputy Johnston testified that the area behind the motor pool building was partially enclosed by a fence.
Deputy Helton investigated the area north of Rock Creek Drive, including a fenced area where county vehicles were parked. In this area, Deputy Helton smelled gasoline fumes and observed a spout that appeared to be a size that would fit Peschl's fuel jug and that had been left on a county vehicle. Both Deputy Helton and Moser, who worked in the northern area, testified that this area was completely enclosed by a fence.
In closing argument, defense counsel articulated weaknesses in the State's evidence and argued that the State had failed to prove the charged crimes' elements beyond a reasonable doubt. He argued that the State failed to prove that Peschl was ever in the enclosed area because Martin RP (Nov. 24, 2015) at 64. In addition, defense counsel argued that the State's arguments were "speculative" and required "leaps and bounds of faith" to conclude that "Mr. Peschl must have been in there." RP (Nov. 24, 2015) at 64-65. And counsel argued that, although Peschl and his truck were in an unfenced area near the two locations where the crimes allegedly occurred, he was there for a lawful purpose because his truck ran out of gasoline and he had pulled over to put gasoline in his truck.
The trial court convicted Peschl of second degree burglary and third degree theft and sentenced Peschl to 40 days in jail. Peschl appeals his convictions.
The trial court subsequently entered written findings and conclusions including, as relevant to this appeal, that there was a fully enclosed area in which a witness observed movement, an officer smelled gasoline, and a fuel spout fitting Peschl's fuel jug was found. The trial court found that Peschl "penetrated into the completely enclosed area to the north" with the intent to steal gasoline and accordingly was guilty of second degree burglary. Clerk's Papers (CP) at 96. The trial court also found that Peschl was guilty of third degree theft, having taken scrap metal and other items from the County.
Peschl argues that the evidence presented at trial is insufficient to support a conviction for second degree burglary.[2] Specifically, Peschl contends that there is insufficient evidence to prove that he "entered" a "building" as defined by statute or that he had the intent to commit a crime therein. We disagree.
"To determine whether sufficient evidence supports a conviction, we view the evidence in the light most favorable to the prosecution and determine whether any rational fact finder could have found the elements of the crime beyond a reasonable doubt." State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). Following a bench trial, we review "whether substantial evidence supports the findings of fact and, if so, whether the findings support the conclusions of law." Homan, 181 Wn.2d at 105-06. Substantial evidence is "evidence sufficient to persuade a fair-minded person of the truth of the asserted premise." Homan, 181 Wn.2d at 106. Unchallenged findings of fact and those supported by substantial evidence are verities on appeal. Homan, 181 Wn.2d at 106.
We review de novo challenges to conclusions of law. Homan, 181 Wn.2d at 106. "Where a conclusion of law is erroneously labeled as a finding of fact, we review it de novo as a conclusion of law." State v. Z.U.E., 178 Wn.App. 769, 779 n.2, 315 P.3d 1158 (2014), aff'd, 183 Wn.2d 610, 352 P.3d 796 (2015).
'"Circumstantial evidence and direct evidence are equally reliable' in determining the sufficiency of the evidence." State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010) (quoting State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004)). Credibility determinations are up to the fact finder and are not reviewable on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
A person is guilty of second degree burglary "if, with intent to commit a crime against a person or property therein, [he] enters or remains unlawfully in a building other than a vehicle or a dwelling." RCW 9A.52.030(1). A "'[b]uilding'" includes a "fenced area" or any other structure used to lodge people, carry on business, or use, sell, or deposit goods. RCW 9A.04.110(5). To constitute a "fenced area, " the area must be "completely enclosed, " either by fencing alone or a combination of fencing and other structures. State v. Engel, 166 Wn.2d 572, 580, 210 P.3d 1007 (2009).
Peschl challenges findings of fact 2, 6, 7, 8, 10, 16, and 17.[3] Peschl argues that there was not substantial evidence to support the trial court's findings of fact insofar as the trial court found that Peschl entered an area that was fully enclosed with the intent to commit a crime[4] We disagree.
Challenged findings of fact 2, 7, 8, 10, 16, and 17 include findings that the northern area was fully enclosed and fenced. At trial, two State witnesses testified that the area north of Rock Creek Drive was fully enclosed: Deputy Helton testified that entire area was surrounded by fences and gates, and Moser testified that the area was "totally enclos[ed]" and secured with gates. RP (Nov. 24, 2015) at 53. Peschl's arguments on this point conflate the testimony about the southern area where the scrap metal was located-which was partially enclosed-with the testimony about the northern area where the spout was found-which was fully enclosed.[5] Deputy Helton's and Moser's testimony constitute substantial evidence to support findings that the area north of Rock Creek Drive was fully enclosed. See Homan, 181 Wn.2d at 106.
Challenged findings of fact 2, 8, and 16 include findings that Peschl entered the fully enclosed northern area. No witness testified to actually witnessing Peschl inside the fenced area. However, three witnesses' testimony provided circumstantial evidence that Peschl had entered the area-evidence that is just as reliable as direct evidence. See Kintz, 169 Wn.2d at 551. Martin testified that he saw a figure in the fenced area north of Rock Creek Drive. And the officers explained that when they reported to the scene, they found a fuel jug and siphon hose near Peschl's truck. Deputy Helton found a spout that fit the fuel jug on a county vehicle inside the fenced area and smelled gasoline fumes in the area. Viewing these three witnesses' testimony in the light most favorable to the State and drawing the reasonable inferences therefrom, there is substantial evidence that Peschl entered the fully enclosed northern area, leaving behind his fuel spout.
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