State v. Taplin

• Decision Date: 20 August 1973
• Docket Number: No. 1360--I,1360--I
• Parties: STATE of Washington, Respondent, v. Sandy Junior TAPLIN, Appellant.
• Court: Washington Court of Appeals

Page 545

9 Wn.App. 545

513 P.2d 549

STATE of Washington, Respondent, v. Sandy Junior TAPLIN, Appellant.

No. 1360--I.

Court of Appeals of Washington, Division 1, Panel One.

Aug. 20, 1973.

Rehearing Denied Sept. 19, 1973.

Review Denied Nov. 20, 1973.

James R. Short, Federal Way, court-appointed, for appellant.

Christopher T. Bayley, King County Pros. Atty., Kenneth W. Sharaga, Deputy Pros. Atty., Seattle, for respondent.

WILLIAMS, Judge.

Sandy Junior Taplin appeals from a judgment entered upon his conviction by a jury of second degree burglary. The errors claimed concern two instructions given and the competence of trial counsel. We affirm.

The facts which the jury had a right to find from the evidence are these: On August 20, 1971, the manager of a motel in Seattle left her apartment on an errand which took from 3 to 5 minutes. As she was returning to her apartment, she saw a woman, later identified as Ms. Estill, sitting in the passenger seat of a car parked in the driveway adjacent to the office of the motel. The manager asked Ms. Estill what she wanted and was told that her husband was looking for someone from whom to rent a unit. The manager then continued on and, as she rounded the turn to her apartment, met Taplin, who was walking by her door. He rented a room, giving his name as 'Thomas', and with Ms. Estill drove off. The manager then went to her apartment and found that while she had been on the errand it had been forcibly entered, and that checks, credit cards, other identifiable property, and money had been stolen. About 2 hours later, Taplin registered in the names of 'Mr. and Mrs. McLeod' at another motel in Seattle. Both he and Ms. Estill occupied the room, and when they left the stolen property was found there.

Taplin's first assignment of error is directed to the instruction on the statutory presumption of criminal intent 'unless such unlawful breaking and entering or unlawful entry shall be explained by testimony satisfactory to the jury . . .' He contends that this language, which is carried verbatim from the statute, RCW 9.19.030, is an unlawful comment on his not testifying in his own behalf, in violation of the Fifth Amendment to the United States Constitution. The Washington Supreme Court has held that the instruction does not shift the burden of proof to the defendant to prove his innocence, State v. Reid, 74 Wash.2d 250, 444 P.2d 155 (1968); State v. Durning, 71 Wash.2d 675, 430 P.2d 546 (1967). The quoted language refers to the absence of satisfactory evidence generally and not to the silence of the accused. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

Taplin next assigns error to the instruction which was given on aiding and abetting, contending that there was no evidence to support it. It is true that, if there is no proof that anyone else committed the offense, the giving of an aiding and abetting instruction may be prejudicial error. State v. Nikolich, 137 Wash. 62, 241 P. 664 (1925) ¹. However, there was sufficient evidence to warrant the giving of the instruction. Ms. Estill was in close proximity to the scene of the crime when it was committed, she was a passenger in the car in which the stolen property was probably transported, and she occupied the motel room in which the property was subsequently found. This establishes a prima facie case of burglary against her and justifies the giving of the instruction. State v. Frazier, 76 Wash.2d 373, 456 P.2d 352 (1969); State v. Razey, 54 Wash.2d 422, 341 P.2d 149 (1959).

The defense seems to argue that there was no evidence implicating Ms. Estill in the commission of the crime because, with Taplin seen at the doorway, it is obvious that, as between the two, Taplin did it. The evidence as to the person or persons entering the apartment was entirely circumstantial. The jury could not know absolutely whether it was Taplin, Ms. Estill, or both, or someone else. It is enough under the statute. RCW 9.01.030, that there be substantial evidence, which there was, that Taplin participated either as principal or accessory. State v. Nichols, 148 Wash. 412, 269 P. 337 (1928).

Finally, Taplin contends that he did not receive a fair trial because his counsel (who was other than appellate counsel) was incompetent. We have examined the record and find that trial counsel was not only competent but ably represented his client.

The judgment is affirmed.

CALLOW, Judge (concurring).

The complexity of the problem concerning whether giving an aiding and abetting instruction was prejudicial error under the circumstances compels this further comment.

I believe that it is also pertinent, to some extent, that when the manager returned from her errand, she noticed the automobile occupied by Ms. Estill and stopped to talk to Ms. Estill who said, 'My husband is looking to rent a unit . . .' When the manager then asked where the 'husband' was, Ms. Estill then said, 'Well, he went looking for you.' A very few minutes later the manager came upon the defendant near the front door of her apartment at the motel. When later the same day the defendant and Ms. Estill rented a room at another motel in Seattle, the name used was the name of the manager of the burglarized motel. At this second motel, the night clerk discovered that a lamp was missing from the unit occupied by them; and the defendant was challenged concerning the missing lamp. The lamp was replaced by the defendant, and the night clerk then locked the unit. Later when the defendant attempted to re-enter, saying he had left money in the room, he was refused re-entry. The next morning, the maid in the second motel found the property taken from the manager of the first motel in the room that had been occupied by the defendant and Ms. Estill.

The evidence, insofar as Ms. Estill is concerned, could be interpreted as proving that: (1) she stood by or (2) she participated or (3) she was the sole breaker and entered or (4) she broke and entered the building with Taplin. However, when we examine the evidence insofar as she is concerned, standing alone, it is apparent only that she was present at the scene of the crime and in the second motel with the defendant. During that time, the defendant was in possession of the stolen property shortly after the burglary and has been identified as being present at the scene of the crime. A prima facie case of burglary in the second degree could be made out insofar as Ms. Estill is concerned, except only for the weakness of the evidence pertaining to her possession of the goods. The contention could be raised that only the defendant was in possession of the goods in the second motel.

The evidence insofar as the defendant is concerned is that he (1) stood by or (2) participated or (3) perpetrated the breaking and entering alone or (4) perpetrated the breaking and entering with Ms. Estill. Under the evidence, there is no plausible explanation that the defendant merely stood by. The requirements for proving a prima facie case of burglary in the second degree have been presented as to him. See State v. Palmer, 1 Wash.App. 152, 157, 459 P.2d 812 (1969). He could be found, under the circumstantial evidence required to establish a prima facie case to have: (a) been ready to assist a perpetrator by his presence, State v. Palmer, supra; or (b) participated as an aider and abettor, (as illustrative only: by driving the getaway car, acting as a lookout, See State v. Naples, 51 Wash.2d 525, 319 P.2d 1096 (1958), acting as a decoy or cover, or by helping load or unload the loot); or (c) perpetrated the breaking and entering alone; or (d) perpetrated the breaking and entering with another.

The evidence of the prosecution was disputed by an alibi witness for the defendant who indicated that the defendant was elsewhere at the time of the commission of the crime. This evidence did not, from the standpoint of the jury verdict, refute the evidence that the defendant was found in possession of the stolen property and that the defendant registered at the second motel falsely using the name of the victim of the burglary.

The elements that must be shown by substantial evidence to prove a prima facie case of burglary are: (a) the defendant broke into and entered a building and (b) the act was done with an intent to commit a crime therein. State v. Sewell, 49 Wash.2d 244, 299 P.2d 570 (1956); State v Galen, 5 Wash.App. 353, 358, 487 P.2d 273 (1971). To convict a person of burglary, evidence must be presented that the crime was committed and by the defendant. State v. Allen, 67 Wash.2d 238, 406 P.2d 950 (1965).

The possession of recently stolen property has been held sufficient to establish that the person possessing such property was wrongfully in the burglarized building. State v. Davis, 60 Wash.2d 233, 373 P.2d 128 (1962). While mere possession of stolen goods unaccompanied by other evidence of guilt is not prima facie evidence of burglary, the rule is otherwise where there is evidence on collateral matters such as the character of the explanation of the possession (as here, the use of the stolen property with the fictitious use of the name of the true owner) or the presence of the accused near the scene of the crime. State v. Garske, 74 Wash.2d 901, 447 P.2d 167 (1968). In State v. Razey, 54 Wash.2d 422, 341 P.2d 149 (1959), where possession of stolen goods was coupled with evidence placing the defendant in the vicinity of the burglared premises and the possession of the stolen property was in the defendant a short time later, a prima facie case of burglary was established. In any event, in this case, it can be said that this particular burglary had been committed by someone, and a remaining question for the jury was whether or not the defendant committed the crime as the perpetrator or as an aider and abettor.

The instruction given on aiding and abetting stated as follows:

You are instructed that under the statutes of the State of Washington...