State v. Thomas
| Decision Date | 01 July 2013 |
| Docket Number | 68220-2-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CORY LAMONT THOMAS, Appellant. |
UNPUBLISHED OPINION
Cory Thomas appeals his conviction for burglary in the second degree. He challenges the sufficiency of the evidence. In a statement of additional grounds, Thomas alleges that the State filed a deficient information; that the court improperly denied his motion for a bill of particulars prosecutorial vindictiveness; denial of his right to counsel ineffective assistance of counsel; violations of the court's witness exclusion ruling and the confrontation cause that the trial court gave an improper jury instruction and that the State improperly argued an aggravating factor at sentencing. Because, viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of second degree burglary beyond a reasonable doubt and Thomas's remaining claims are meritless, we affirm.
At approximately 2:06 a.m. on May 12, 2009, police officers responded to an alarm at the Edmonds Smoke Shop. When they arrived, they found the front door locked but the door's glass broken. Inside, an A-frame sign lay on the floor behind the door. The officers found a rock on the carpet inside the store. They found no sign of forced entry through the other entrance, the back door. The officers also observed cut wires in front of the building and wires disconnected from an electrical box serving the building.
One officer reported that when he arrived, he saw that This officer noticed a crooked cigarette pack on a shelf and found "a big empty void" behind it. Although the store's owner, Muhammad Anwar, initially reported no stolen merchandise, he later estimated that he could not account for 82 cartons of cigarettes and two or three boxes of cigars. He also told police officers that the A-frame sign usually stood upright inside the door and that he straightened up the merchandise before closing the store.
As they drove to work between 2:00 a.m. and 3:00 a.m. that day, Shane Crum and Kevin Stone saw two men cross the street and enter the passenger side of a silver car parked in a bowling alley parking lot. The silver car traveled down the street, turned into a grocery store parking lot, pulled into the back entrance, and traveled back to the bowling alley parking lot. When police arrived and asked if Crum saw anyone in the area of the smoke shop, Crum pointed out this car.
Police officers followed the silver car and stopped it. They questioned the driver, Thomas, as well as the two passengers. With a warrant, police officers searched the car. They found three masks, a hat, gloves, and a bandana. They also found a portable light in the driver's side door and two Tupperware tubs in the back seat. Additionally, the officers found a screwdriver, a wrench, and five sockets in the trunk. They found no evidence of cigarettes or cigarette packaging in the car.
The State charged Thomas with second degree burglary. A jury convicted him as charged. Thomas appeals.
Thomas first claims that insufficient evidence supported his conviction. Sufficient evidence supports a conviction only if, when viewed in the light most favorable to the State, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.[1] For this analysis "[circumstantial evidence is just as reliable as direct evidence."[2]
Under former RCW 9A.52.030 (1989), "[a] person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling." Thomas argues that the State "did not prove beyond a reasonable doubt that anyone entered the store."
Thomas challenges only Mr. Anwar's testimony that Mr. Anwar could not account for 82 cartons of cigarettes and two or three boxes of cigars. Thomas offers a variety of reasons for questioning Mr. Anwar's credibility, including the fact that the trial court denied the State's request for restitution for the missing merchandise. But even though police officers found no evidence of the missing merchandise "[credibility determinations are for the trier of fact and are not subject to review."[3]
The evidence shows that someone broke and removed all of the glass from the store's front door and knocked over the A-frame sign onto the floor. Additionally, the alarm tripped at the back door, suggesting that someone entered through the front door, without setting off an alarm, and exited through the back. Further, although Mr. Anwar testified that he straightened up the merchandise before closing the store the previous evening, police found a "big empty void" on a store shelf behind a crooked package. Moreover, witnesses saw two men run from the store's vicinity and get into a car that Thomas was driving.
The fact that the court denied the State's request for restitution is not relevant to whether sufficient evidence supported Thomas's conviction. At sentencing, Thomas argued that he should not pay restitution for the missing merchandise because he did not personally take it. The court treated the issue as a legal argument that did not require a factual determination. The trial court maintains considerable discretion in determining restitution, [4] and nothing in the record indicates a factual determination that no burglary occurred. Because the jury, not the court, evaluates a witness's credibility and Thomas fails to establish that insufficient evidence supported the jury's determination that he entered the store, we reject his claim.
In a statement of additional grounds, Thomas alleges that the original information, in which the State charged him with attempted second degree burglary under RCW 9A.28.020(1) and RCW 9A.52.030, "was deficient insofar as it failed to state what 'specific' crime the defendants intended to commit while within the building or dwelling at question." To give notice to an accused of the nature and cause of the accusation against him, the charging document must include all essential elements of the crime.[5]
The State's original information, filed November 29, 2010, charged Thomas with attempted second degree burglary. The State tried htm on the third amended information, however, which charged him with second degree burglary. Any purported defect in the original information is not germane. Under CrR 2.1{2)(d), the court may permit the prosecutor to amend the information at any time before the verdict or finding if the amendment will not substantially prejudice the defendant. Because Thomas does not challenge the third amended information, he fails to establish that he did not have proper notice of the nature and cause of the accusation against him.
Thomas also claims that the trial court erroneously denied his motion for a bill of particulars under CrR 2.1(2)(c). We review a trial court's ruling on a bill of particulars for abuse of discretion.[6]
Thomas's motion related only to the attempted second degree burglary charge in the original information. We need not address this issue. As previously noted, the State tried Thomas on the third amended information, and Thomas does not challenge the third amended information. Thus, Thomas's argument lacks merit.
For his fourth claim, Thomas contends that amending the information to charge him with second degree burglary instead of attempted second degree burglary constituted prosecutorial vindictiveness. He asserts that "the facts of this case are one of those clear and undisputable cases of actual vindictiveness and of a defendant being effectively punished for his lawful exercise of a constitutional right, that being a challenge to the charging information and a request for a bill of particulars." We reject Thomas's arguments.
Prosecutorial vindictiveness occurs when the State charges the defendant with a more serious crime "'in retaliation for a defendant's lawful exercise of a procedural right.'"[7] The Sentencing Reform Act of 1981[8] gives prosecutors great discretion in determining which charges to file against a defendant.[9] An initial charging decision does not, however, end prosecutorial discretion.[10] "A prosecutor may increase an initial charge when a fully informed and represented defendant refuses to plead guilty to a lesser charge."[11]
Again under CrR 2.1(2){d), the court may permit the prosecutor to amend the information. In a pretrial setting, a defendant bears the burden of proving either "'(1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness.'"[12] If the defendant makes this showing, the State must provide legitimate, articulable, and objective reasons for its actions.[13] "If the only showing of vindictiveness is the addition before trial of new charges for which the State believes there is sufficient evidence to support a conviction, constitutionally impermissible conduct has not been shown."[14]
Here in response to Thomas's objection to the amendment, the prosecutor explained, The prosecutor also noted, "[W]e...
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