State Of Washington, Respondent V. William Harsh, Appellant (Majority)
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PILED COURT OF APPEALS DIVISION 11 2014 MAY - G IU1 8: 30 IN THE COURT OF APPEALS OF THE STATE O ff - HMT TON BY_ DIVISION II E UT Y No. 44085 -7 -II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION WILLIAM KEITH HARSH, Appellant. MELNICK, J. William Harsh appeals his six convictions of residential burglary as well as his single conviction of theft of a firearm, arguing that there was insufficient evidence to prove that he committed the specific burglaries charged or that he was an accomplice to the firearm theft. Because the evidence was sufficient to show that Harsh committed the six burglaries to which he confessed and that he knowingly aided in the firearm theft, we affirm his convictions. FACTS Following a investigation focused interviewed from series on prison of Harsh burglaries and in Clallam Joseph Demmon in March 2009. County in the spring as possible suspects. of 2008, the Harsh agreed to be During that interview, he explained that he wanted to turn his life around and confessed to helping Demmon with several burglaries in the Sequim area habit. He supplied details about the burglaries but denied knowing that any firearms had been taken. He admitted, however, that Demmon might have taken some to support firearms. his former drug 44085 -7 -II The State originally charged Harsh with 18 offenses but ultimately reduced the charges to 7 counts of residential burglary and a single count of theft of a firearm, with all counts occurring within the same general area. Following a suppression hearing, the trial court ruled that Harsh' s interview statements were admissible. During Detective Sergeant Lyman Moores' s testimony, the State played his interview for the jury. Harsh explained in the interview that he and Demmon usually used his black Honda Civic during the burglaries. Harsh then described entering a single -story home at the corner of a Y intersection. The home had a Ford Explorer parked in the driveway. Harsh said that Demmon pried open the Sequim home back door took television that they Olson Road on and was burglarized in a May set. 2008. William Davis testified that his A photograph taken at that time showed that his home was a single -story residence at the corner of a Y intersection with a Ford Explorer in the carport. Davis testified that the back door of his home was forced open and that a television was taken. Harsh also confessed to entering a brown two -story home that was right up the street. This home had a balcony in back overlooking the valley and a big shop in front. He and Demmon gained entry through the back door after Demmon pried it open with a crowbar from. Harsh' s car. Harsh did not remember anything of value being taken from that home. James Bishop testified that his home on Lost Mountain Road, which is on property that neighbors the Davis property, was burglarized in May 2008. A photograph showed that his brown two -story residence has a large shop in front, and Detective Sergeant Moores testified that it has a balcony overlooking the view from the back. Bishop testified that his back door was forced open and that some pain pills and a pistol were taken. A few days later, a deputy recovered a pillowcase containing a pill bottle in Bishop' s name farther up Lost Mountain Road. 2 44085 -7 -II During his interview, Harsh also remembered a burglary at a home on Blue Mountain Road that from the R Corner across residence. highway some Burl King testified that his home on Blue Mountain Road, which is across the from the R Corner jewelry Grocery. He and Demmon took a computer and jewelry from were Grocery, missing, among was other burglarized in May 2008. His computer, a gun, and items. His neighbor testified that he saw an unfamiliar black car parked in King' s yard on the day of the burglary and heard a house door shut. Harsh also recalled entering a doublewide trailer that had a two -car garage with white doors next change jar, lives in a home He and Demmon forced open the front door and took a desktop computer, a to it. a camera, and some doublewide trailer in Sequim that shows that it adjoins a car two - Marilyn McNamara testified that she from that home. jewelry was burglarized in garage with white May 2008. The photograph of her doors. She added that her desktop computer, a change jar, some jewelry, and a camera docking device were taken, and that there were crowbar marks on the front door. Harsh also described entering a small house in a cul -de -sac with a hot tub behind a shop. He took items including a television, some jewelry, several DVD' s, and a surround sound unit. Megan Waldron testified that her small home is in de -sac and a cul - has a hot tub. In May 2008, her front door was forced open and her surround sound system, television, DVD' s, and jewelry were taken. Harsh further described entering a one -story house with natural wood siding and hardwood floors. gutters. He said that Demmon knew the owners because he had done work on their Harsh took 'a testified that laptop his Sequim home computer on and a few other Humble. Hill Road 3 was items from that home. burglarized in May Joseph Sauve 2008. His house is 44085 -7 -II a single -story residence with natural wood shingles; half of the interior has hardwood flooring. Cole' s Gutters had recently done work on Sauve' s home. His laptop computer was missing. After Wolover Sheryl was unable to testify, Deputy Andrew Wagner described investigating the burglary to her home on Lost Mountain Road on May 20, the same night he learned Wagner also described his contact with Harsh and Bishop burglary. the nearby of Demmon in the vicinity of Lost Mountain Road about six hours before he responded to the Wolover burglary. Harsh said that he worked for a construction company and Demmon said that he for Cole' worked s Gutters. black Honda Civic did They told Wagner they were going fishing, but a search of their not reveal any fishing gear. Wagner did find a Sony remote and a pry bar. At the close of the State' s evidence, Harsh moved to dismiss the charges. He argued that the evidence was insufficient to show that he committed the specific burglaries charged and that there was no evidence that he stole a firearm or knew that one was stolen during any of the The trial court dismissed the count concerning the Wolover burglary but declined to burglaries. dismiss the remaining charges. With regard to the theft charge, the trial court reasoned that Harsh had acted with the intent to facilitate the theft of any item within a residence and that he knew Demmon had a propensity to steal firearms. Harsh then testified in his own defense. He admitted participating in a number of burglaries, and when shown photographs of the homes supporting the charges, Harsh thought that it was residences. homes on possible that he had burglarized the Davis, McNamara, Waldron, and Sauve The Bishop and King residences did not look familiar, but he admitted burglarizing Blue Mountain Road, which was where King lived. Harsh testified that he was not aware that any guns had been taken during the burglaries and that Demmon had agreed not to 4. 44085 -7 -II take guns when Harsh was helping him. Harsh also explained that once he and Demmon entered a home, they went through it separately, and he admitted that he never checked afterward to see if Demmon had pocketed anything without his knowledge. Harsh acknowledged that Demmon would look through any guns he found in a house and that he had prevented Demmon from taking firearms on a couple of occasions. During closing, the State argued that the evidence showed that Harsh was an accomplice to theft and firearm. The State asserted that Harsh' s purpose was to facilitate the crime of theft . of a that he was responsible for the scope of his partner' s theft. The State also maintained that Harsh' s knowledge that Demmon might take firearms supported his conviction of the firearm theft as an accomplice. After the jury found Harsh guilty as charged, the trial court imposed an exceptional sentence of sufficiency 126 of months the based on his offender supporting his evidence of score 25. On appeal, Harsh challenges the 1 convictions. ANALYSIS I SUFFICIENCY OF THE EVIDENCE A. STANDARD OF REVIEW Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). " A claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably can be Salinas, 119 Wn.2d drawn therefrom." 1 Because Harsh' s pro se statement at Circumstantial and direct evidence are equally 201. of additional grounds ( SAG) addresses the accomplice liability issue that his appellate attorney raises, we do not discuss the SAG separately. 5 44085 -7 -II State reliable. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). v. We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415 -16, 824 P. 2d 533 ( 1992). We now apply these standards to Harsh' s convictions. THEFT OF A FIREARM B. Harsh argues initially that because he did not know Demmon was going to take a firearm during their burglaries, the evidence was insufficient to prove that he was an accomplice to theft of a firearm. A person is guilty of theft of a firearm if he or she commits a theft of any firearm." There was no evidence that Harsh took a firearm during the burglaries; the RCW 9A. 56. 300( 1). only issue was whether he was an accomplice to Demmon' s firearm theft. The trial court instructed the jury on accomplice liability as follows: A person is an accomplice in the commission of a crime if, with knowledge or intent that it will promote or facilitate the commission of the crime, he aids or agrees to aid another person in planning or committing the crime. The word " encouragement, aid" means all assistance support, or presence. whether given by words, acts, _ 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. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice. Clerk' s Papers at 46. As the trial court instructed the jury, a person must have knowledge that he or she was promoting or facilitating the Restraint of Wilson, 169 Wn. crime App. charged be proved, an accomplice to that 379, 390, 279 P. 3d 990 ( 2012) ( Wn. 2d 568, 579, 14 P. 3d 752 ( 2000)). crime need not to be however, to crime. In re Pers. citing State v. Cronin, 142 Specific knowledge of each element of the principal' s convict a person as an accomplice. 6 State v. Roberts, 142 44085 -7 -II Wn.2d 471, 513, 14 P. 3d 713 ( 2000); State v. Rice, 102 Wn.2d 120, 125, 683 P. 2d 199 ( 1984). General knowledge of the crime is sufficient to support a finding of accomplice liability. Roberts, 142 Wn.2d at 513. Both the trial court and the State reasoned below that the underlying crime was theft and that Harsh was an accomplice to his partner' s theft regardless of his knowledge of the specific Harsh does not dispute that the evidence was sufficient to support a finding of items taken. accomplice liability under the general theft statute. See RCW 9A. 56. 020( 1)( a) ( theft means to wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services "). The issue is whether evidence sufficient to sustain accomplice liability for theft is also sufficient to sustain accomplice liability for theft of a Because the definition of theft in the general theft firearm. statute applies to the crime of theft of a firearm, theft of a firearm is simply a theft where the property taken is applies to a gun. crime of facilitate the theft See RCW 9A.56. 300( 4) ( definition of theft under general theft statute of a firearm). An particular conduct that is one whose purpose forms the basis for the quoting MODEL PENAL CODE ยง 2. 06, conduct accomplice cmt. that formed the basis for theft of 6( b) ( 1985)) ( a firearm was charge.'" promote or Roberts, 142 Wn.2d at 510 emphasis omitted). theft. is to "' Here, the particular RCW 9A. 56. 020. Harsh clearly knew that his purpose in entering the residences unlawfully with Deminon was to assist him in committing theft, and his general knowledge of that intended crime was sufficient to support his conviction of theft of a firearm as an accomplice. The evidence also showed that Harsh knew Demmon liked to take firearms and might do so during the burglaries in which Harsh participated despite their agreement to the contrary. Harsh testified that Demmon would look through any firearms found in a residence and that he 7 44085 -7 -II had prevented Demmon from taking firearms on multiple occasions. During his interview, Harsh did not remember any guns being taken but added that Demmon could have taken some: Cuz I caught him that in could just taken guns without put a couple doing times Ex. 2, your waistband." telling him. Like a gun or something, you know, you that too.... at 128. He admitted that Demmon would have The trial court summarized the evidence concerning Harsh' s knowledge of the potential for firearm theft as follows: Mr. Harsh was aware that Mr. Demmon had a propensity to steal firearms, even though Mr. Harsh contended in his statement, and I have no reason to disbelieve his contention, that he was categorically against the theft of firearms, uh, the theft of firearms did occur. And he indicated that he had caught Joey Demmon stealing firearms and knew that that was a possibility any time they entered a house, particularly with regard to a handgun which could be readily concealed. 3 Report of Proceedings at 316. Consequently, in addition to showing that Harsh knew that he was promoting the crime of theft, the evidence showed that he knew such theft might include firearms. When viewed in the light most favorable to the State, the evidence was sufficient to show that Harsh knowingly aided in the theft of a firearm and that he was an accomplice to that crime. RESIDENTIAL BURGLARY C. Harsh also argues that the evidence was insufficient to support his convictions for burglarizing six specific residences. He asserts that the State relied on his confession to committing several burglaries to prove that he committed the specific burglaries charged, rather than actually presenting evidence that he committed the charged burglaries. We disagree. Our statement of facts shows that the State introduced several witnesses who provided details that, when combined with Harsh' s interview statements, showed that he burglarized the six specific residences that formed the basis of the burglary 8 charges. When viewed in the light most 44085 -7 -II favorable to the State, the evidence was sufficient to support Harsh' s six residential burglary convictions. Affirmed. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: 9
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