IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
LIBAN O. WARSAME,
Appellant.
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NO. 65275-3-I
DIVISION ONE
UNPUBLISHED OPINION
FILED: May 2, 2011
Lau, J. — Liban Warsame challenges his juvenile court attempted residential
burglary conviction. Because the State presented sufficient evidence to support the
conviction and trial counsel’s performance was not deficient, we affirm.
FACTS
We view the facts in the light most favorable to the State. Maryjane Fontanilla
lives in a house on South Kenyon Street in Seattle. The front of the house faces east,
the rear faces west. There is no street behind the house. The front of the house is set
back from the street, and access to the house exists through an easement.
On January 7, 2009, around 10:55 a.m., Fontanilla was home alone and heard
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the doorbell ring. She looked outside and saw a shadow moving across her backyard.
She looked out her kitchen window and observed three males on the property. One
was African-American with a striped shirt and a black backpack. Another was AsianAmerican and wearing gray. She heard someone pulling the doorknob and someone
trying to open the door to the house.
Fontallia then called 911 and hid in her bathroom. While on the 911 call, she
heard someone trying to come in through the doors or windows. She also heard the
doorbell ring again and heard glass breaking.
Seattle Police Officers Nicholas Carter and Craig McRae arrived at Fontanilla’s
house in response to the 911 call. Officer Carter approached Fontanilla’s house,
walking through the easement from the north to the south. Officer Carter detained an
African-American male and an Asian-American male on the property. Officers Carter
and McRae then observed Warsame walking across Fontanilla’s yard, toward the front
of the house, coming from the rear (west). As other officers detained Warsame, Officer
Carter heard glass breaking, observed a fourth male coming around the northwest
corner of the house, and detained him.
The officers found a broken kitchen window and a screen pulled off the
bathroom window, both on the west side of the house. Officer Carter spoke with
Fontanilla, who appeared frightened and shaken. She told Officer Carter that neither
the kitchen nor the bathroom windows were damaged before this incident. Fontanilla
did not give permission to Warsame or the other males to enter her property or the
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house.
Warsame testified that his friend Maxie gave him a ride home from school, and
two other males were also in the car. Warsame said Maxie stopped to see his friend at
a house on Kenyon but that Warsame did not know why he was stopping. Warsame
said that Maxie parked at a grocery store near the friend’s house. Warsame stated he
went into the store and purchased cigarettes and then caught up to his three friends
who were walking “towards the house.” Report of Proceedings (RP) (Mar. 15, 2010) at
107. He said, “We approached the front of the door,” and Maxie rang the doorbell
several times. Warsame “walked towards the back of the house because they had a
shelter to protect [his] cigarette.” RP (Mar. 15, 2010) at 107. He gave another male
half his cigarette and then walked to the front of the house, where the police detained
him.
The State charged Warsame in juvenile court with attempted residential
burglary. In a fact-finding hearing, the court heard testimony from Fontanilla, Officers
Carter and McRae, and Warsame. The court found Warsame guilty of attempted
residential burglary as an accomplice. The court entered findings of fact and
conclusions of law that incorporated by reference the court’s oral findings and
conclusions.
ANALYSIS
Warsame argues that there was insufficient evidence to convict him of attempted
residential burglary. Warsame argues that the evidence shows only that he was
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present but not that he assisted in the attempted residential burglary. The State
counters that the evidence, with all inferences drawn in favor of the State, adequately
supports the trial court’s findings and Warsame’s conviction. We agree.
The test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found guilt beyond a reasonable doubt. When the sufficiency of
the evidence is challenged in a criminal case, all reasonable inferences from the
evidence must be drawn in favor of the State and interpreted most strongly
against the defendant. A claim of insufficiency admits the truth of the State's
evidence and all inferences that reasonably can be drawn therefrom.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citations omitted). In
reviewing a juvenile court adjudication, we must decide whether substantial evidence
supports the trial court's findings of fact and, in turn, whether the findings support the
conclusions of law. State v. Alvarez, 105 Wn. App. 215, 220, 19 P.3d 485 (2001). We
treat unchallenged findings of fact as verities on appeal. State v. Levy, 156 Wn.2d
709, 733, 132 P.3d 1076 (2006). We review conclusions of law de novo. Levy, 156
Wn.2d at 733. Circumstantial evidence and direct evidence are equally reliable. State
v. Liden, 138 Wn. App. 110, 117, 156 P.3d 259 (2007). “Credibility determinations are
for the trier of fact and are not subject to appellate review. We must defer to the [trier
of fact] on issues of conflicting testimony, credibility of witnesses, and persuasiveness
of the evidence.” Liden, 138 Wn. App. at 117 (citation omitted).
“A person is guilty of residential burglary if, with intent to commit a crime against
a person or property therein, the person enters or remains unlawfully in a dwelling
other than a vehicle.” RCW 9A.52.025(1). Criminal intent can be inferred from the
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facts and circumstances surrounding the commission of an act or acts. State v. Bergeron,
105 Wn.2d 1, 19-20, 711 P.2d 1000 (1985). A trier of fact may infer intent from conduct
that plainly indicates such intent as a matter of logical probability. State v. Bright, 129
Wn.2d 257, 270, 916 P.2d 922 (1996). “A person is guilty of an attempt to commit a
crime if, with intent to commit a specific crime, he or she does any act which is a
substantial step toward the commission of that crime.” RCW 9A.28.020(1).
A person is guilty of a crime committed by the conduct of another person for
which he or she is legally accountable. This includes an accomplice. RCW
9A.08.020(1)-(2).
A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the
crime, he
(i) solicits, commands, encourages, or requests such other person to
commit it; or
(ii) aids or agrees to aid such other person in planning or committing it;[1]
or
(b) His conduct is expressly declared by law to establish his complicity.
RCW 9A.08.020(3).
Our review of the record demonstrates that sufficient evidence supports
Warsame’s conviction for attempted residential burglary. Fontanilla observed three
males she did not know standing in her yard. She heard the doorbell ring, someone
1
“ ‘The word “aid” means all assistance whether given by words, acts,
encouragement, support, or presence. A person who is present at the scene and ready
to assist by his or her presence is aiding in the commission of the crime.’ ” State v.
Dove, 52 Wn. App. 81, 87, 757 P.2d 990 (1988) (quoting WPIC 10.51, in part).
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pulling the doorknob, and glass breaking. Police officers observed the broken window
and ripped screen.
Police arrested Warsame on Fontanilla’s property, and Warsame admitted he
was there with the other males. Warsame also admitted he arrived at the property in a
car with the other males. And the trial court made specific findings of fact that the
testimony by Fontanilla and Officers Carter and McRae was credible. The trial court
also specifically found Warsame’s testimony not credible. “Credibility determinations
are for the trier of fact and are not subject to appellate review.” Liden, 138 Wn. App. at
117. Warsame assigns no error to the court’s findings of fact, so they are verities on
appeal.
Viewing the evidence in a light most favorable to the State, a reasonable trier of
fact could determine that the males intended to commit a crime inside the home. Their
actions were not equivocal. They indicated an intention to commit a crime as a matter
of a logical probability. No legitimate reason existed to ring Fontanilla’s doorbell
repeatedly, try to open her back door, break her kitchen window, or remove her
bathroom window screen.
And one could also reasonably infer that Warsame took a substantial step
toward assisting the other males in their entry into the home that was more than mere
presence. Police detained Warsame on the property, he admitted to traveling to the
property with the other males, and the trial court specifically found his version of
events—that he went to the back of a stranger’s property to smoke a cigarette—not
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credible. And the sequence and timing of events also supports our conclusion.
Warsame walked toward the front, east side of the house, from the back, west side of
the house, as glass broke on the west side. Shortly thereafter, another male rounded
the northwest corner where police detained him. This supports the inference that
Warsame was assisting the male who later broke the glass immediately before police
detained Warsame. Our review of the record demonstrates that the evidence, and all
inferences reasonably drawn from it, amply supports Warsame’s conviction.
Ineffective Assistance
Warsame argues that defense counsel was ineffective for failing to ask the
juvenile court to consider the lesser included offense of attempted criminal trespass.
The State counters that defense counsel did make such a request. We agree.
A criminal defendant has the right under the Sixth Amendment to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686,104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). To establish ineffective assistance of counsel, a defendant
must show both deficient performance and resulting prejudice. State v. McFarland, 127
Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant fails to satisfy either prong,
the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d
563 (1996). There is a strong presumption of effective assistance, and defendant
bears the burden of demonstrating the absence of a strategic reason for the challenged
conduct. McFarland, 127 Wn.2d at 334-35; State v. McNeal, 145 Wn.2d 352, 362, 37
P.3d 280 (2002).
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Warsame demonstrates no deficient performance. During closing argument,
defense counsel argued, “Well, at the most the State has proven criminal trespass,
your Honor.” RP (Mar. 15, 2010) at 118. This shows defense counsel did request, in
the alternative, attempted criminal trespass as a lesser included offense.2 But even
assuming deficient performance, Warsame demonstrates no prejudice. Because the
court specifically found the elements of attempted residential burglary, it did “not reach
the lesser-included which would have to be attempted criminal trespass.” RP (Mar. 17,
2010) at 135. We conclude Warsame received effective assistance of counsel.
CONCLUSION
Because sufficient evidence supports Warsame’s conviction for attempted
residential burglary and he received effective assistance of counsel, we affirm.
WE
CO
NCUR:
2
Attempted criminal trespass is a lesser included offense of attempted
residential burglary. State v. Pittman, 134 Wn. App. 376, 384, 166 P.3d 720 (2006).
Although defense counsel here stated “criminal trespass” rather than “attempted
criminal trespass,” our review of the record demonstrates that the court was aware that
attempted criminal trespass was a lesser included offense based on its statement
during its oral findings, discussed below.
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