State Of Washington v. Jesus G. Navarro ( 2014 )


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  •                                                                              )HOr p.-
    201^ SEP 23 An 9- *♦ |
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,
    DIVISION ONE
    Appellant,
    No. 70359-5-
    UNPUBLISHED OPINION
    JESUS G. NAVARRO, a.k.a.
    JESUS GASPAR-NAVARRO,
    Respondent.                     FILED: September 29, 2014
    Dwyer, J. — Jesus Navarro appeals from the judgment entered on a jury's
    verdict finding him guilty of trafficking in stolen property in the second degree.
    He contends that (1) the State failed to establish the corpus delicti1 of the
    charged crime, and (2) his constitutional right to a public trial was violated during
    the exercise of peremptory challenges. Finding no error, we affirm.
    I
    On September 9, 2012, Frederick and Sue Ayre woke to discover that
    their Bellevue home had been burglarized during the night. Many items were
    missing from their home, including three digital cameras, one desktop computer,
    three laptop computers, four iPads, three cell phones, one iPod, one handmade
    leather bag, one purse, one Bluetooth headset, credit cards, and their son's
    1Corpus delicti literally means "body of the crime." State v. Aten. 
    130 Wash. 2d 640
    , 655,
    
    927 P.2d 210
    (1996).
    No. 70359-5-1/2
    ADD2 medication.
    During its investigation of the burglary, the Bellevue Police Department
    obtained information indicating that Navarro had purchased some of the stolen
    items. After obtaining a search warrant for Navarro's home in SeaTac,
    Washington, the police—while waiting to execute the warrant—observed Navarro
    leave his home in a vehicle. The police followed Navarro to a local convenience
    store where they arrested him. Navarro was then transported back to a location
    near his home. There, Officer Gregory Oliden read Navarro his Miranda3 rights.
    Navarro waived his rights and agreed to speak with Oliden.
    Oliden told Navarro that the police intended to recover stolen property at
    his home and asked Navarro where the stolen items were located. When Oliden
    described each item, Navarro "would tell [Oliden] exactly where it was inside of
    his house." Navarro told Oliden that his friend Luis and another person had
    brought him some electronics items, which he placed in a small room at his
    home. Navarro provided a description of Luis and told Oliden that Luis brought
    him things occasionally.
    Based on Navarro's description of Luis, Oliden formed a belief that Luis
    was actually Brandon Rangel, who had been arrested in connection with the
    burglary of the Ayres' home. Navarro stated that he paid Luis $200 for two
    cameras, one laptop, and one iPod. Navarro admitted that he pawned the iPod,
    sold the laptop to a friend, and kept the cameras stored in the small room at his
    2Attention deficit disorder (also known as attention deficit hyperactivity disorder).
    3 Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966).
    -2-
    No. 70359-5-1/3
    home.
    When Oliden asked Navarro whether he knew from whence Luis had
    obtained the property, Navarro said that he did not know where the property had
    come from, but he admitted, "everyone knows it was stolen." When Oliden asked
    Navarro how he knew that the items had been stolen, "[Navarro] just said that he
    didn't know exactly because they didn't tell him exactly where it came from. But
    [Navarro] said, again, I believe he said multiple times, everyone knows it was
    stolen."
    The police executed the search warrant and entered the small room that
    Navarro had described to Oliden. The "very small room" was "messy" and was
    detached from the house. Inside the room, the police found items belonging to
    the Ayre family, including one handmade leather bag, one Bluetooth headset,
    two cameras,4 and bottles of ADD medication prescribed to the Ayres' son. Also
    found was a Social Security card belonging to a woman named Betty Gordon.
    Although Gordon's purse containing her Social Security card had been taken
    from her car in September 2012, she had not reported the incident to the police
    because she did not believe that the purse contained anything of value.
    On October 2, 2012, the State charged Navarro with trafficking in stolen
    property in the first degree. The State later amended the information to add a
    count of identity theft in the second degree.
    During jury selection, the trial judge directed the attorneys to exercise their
    peremptory challenges in writing. The judge informed the parties that the court
    4The cameras still contained a memory card with pictures belonging to the Ayre family.
    -3-
    No. 70359-5-1/4
    clerk would record which party struck which juror in the clerk's minutes. This
    occurred while court was in session, the courtroom remained accessible to the
    public during the exercise of peremptory challenges, and the court reporter made
    a verbatim record of which jurors had been excused and the order in which they
    had been excused. The clerk's minutes stated, in pertinent part, "Peremptory
    challenges are exercised."
    The jury was then empaneled, and the State proceeded to present its
    case in chief. At the close of the State's case in chief, Navarro moved to dismiss
    the charge of trafficking in stolen property in the first degree, arguing that the
    State had failed to establish the corpus delicti of the charged crime. This was so,
    he contended, because any evidence tending to show his intent to sell or
    otherwise dispose of stolen property came in the form of statements that Navarro
    had given to members of law enforcement. Navarro's motion was denied.
    Thereafter, the jury was instructed as to the charged crimes and the lesser
    offense of trafficking in stolen property in the second degree. The jury did not
    reach a verdict as to either of the crimes charged in the information. Instead, it
    found Navarro guilty of trafficking in stolen property in the second degree.
    On April 12, 2013, Navarro was sentenced to 196 days in custody with
    credit for time served, ordered to pay restitution to the victims, and prohibited
    from contacting the victims.
    Navarro appeals.
    II
    According to Navarro, the State failed to present sufficient evidence to
    -4-
    No. 70359-5-1/5
    independently corroborate the crime described in his incriminating statements.
    Given the absence of independent evidence, Navarro argues, the trial court erred
    by denying his motion to dismiss the charges against him and by permitting the
    jury to consider his incriminating statements in reaching a verdict. Consequently,
    he argues, the State's failure to establish the corpus delicti of the charged crime
    should result in a reversal of his conviction. We disagree.
    "The corpus delicti rule was established to protect a defendant from the
    possibility of an unjust conviction based upon a false confession alone." State v.
    Vangerpen, 
    125 Wash. 2d 782
    , 796, 
    888 P.2d 1177
    (1995); accord State v. Dow,
    
    168 Wash. 2d 243
    , 249, 
    227 P.3d 1278
    (2010). The rule is often summarized as
    follows:
    "The confession of a person charged with the commission of
    a crime is not sufficient to establish the corpus delicti, but if there is
    independent proof thereof, such confession may then be
    considered in connection therewith and the corpus delicti
    established by a combination of the independent proof and the
    confession.
    The independent evidence need not be of such a character
    as would establish the corpus delicti beyond a reasonable doubt, or
    even by a preponderance of the proof. It is sufficient if it prima
    facie establishes the corpus delicti."
    State v. Aten, 
    130 Wash. 2d 640
    , 656, 
    927 P.2d 210
    (1996) (quoting State v. Meyer,
    
    37 Wash. 2d 759
    , 763-64, 
    226 P.2d 204
    (1951)). "The independent evidence need
    not be sufficient to support a conviction, but it must provide prima facie
    corroboration of the crime described in a defendant's incriminating statement."
    State v. Brockob. 
    159 Wash. 2d 311
    , 328, 
    150 P.3d 59
    (2006). "'Prima facie,' in this
    context, means that there is evidence of sufficient circumstances which would
    -5-
    No. 70359-5-1/6
    support a logical and reasonable inference of the facts sought to be proved."
    
    Vangerpen, 125 Wash. 2d at 796
    . In reviewing whether sufficient independent
    evidence exists, the evidence must be viewed in the light most favorable to the
    State. 
    Brockob, 159 Wash. 2d at 328
    ; 
    Aten, 130 Wash. 2d at 658
    .
    "A person who knowingly . . . traffics in stolen property, is guilty of
    trafficking in stolen property in the first degree." RCW 9A.82.050(1).5 "Traffic'
    means to sell, transfer, distribute, dispense, or otherwise dispose of stolen
    property to another person, or to buy, receive, possess, or obtain control of
    stolen property, with intent to sell, transfer, distribute, dispense, or otherwise
    dispose of the property to another person." RCW 9A.82.010(19).
    Viewing the evidence in the light most favorable to the State, we conclude
    that the State adduced evidence independent of Navarro's incriminating
    statements that provided prima facie corroboration of the crime that was
    described in his incriminating statements. The significant independent evidence
    offered by the State is summarized below.
    •      Navarro had a small room on his property that was inaccessible from his
    home;
    •      The room was "messy" and in "disarray;"
    5 Navarro's motion to dismiss was directed to the charged crime of trafficking in stolen
    property in the first degree. We, thus, analyze his claim accordingly. Our decision would be no
    different had he sought dismissal of the charge of trafficking in stolen property in the second
    degree.
    No. 70359-5-1/7
    •   A number of the items stolen from the Ayre family were found stored in the
    room, including a handmade leather bag, a Bluetooth headset, two of the
    cameras, and bottles of ADD medication prescribed to the Ayres' son;
    •   The items stolen from the Ayre family were all valuable; and
    •   Other stolen property was found stored in the small room.
    Viewed in the light most favorable to the State, a logical and reasonable
    inference to be drawn from this evidence is that Navarro used the small room on
    his property as a location to store the Ayres' stolen property (that he had come to
    possess) while he attempted to sell or otherwise dispose of the stolen goods.
    The valuable items of stolen property, which were kept haphazardly along with
    other stolen property in a small and messy room detached from Navarro's home,
    were being stored in a manner that was at odds with retention for personal use
    and enjoyment. Given these facts, it is logical and reasonable to infer that
    Navarro "inten[ded] to sell... or otherwise dispose of the property to another
    person." RCW9A.82.010(19).6
    Furthermore, the facts in this case are distinguishable from those in
    Brockob, which Navarro argues is controlling. In Brockob. our Supreme Court
    concluded that possession of 15 to 30 packages of stolen Sudafed was
    insufficient to establish an intent to manufacture methamphetamine. 
    159 Wash. 2d 6
    Navarro cites to Aten in support of his assertion that, even in the event that the
    independent evidence supported a logical and reasonable inference of the facts sought to be
    proved by the State, so long as the independent evidence also supported a hypothesis of
    innocence, it was insufficient to corroborate his admission of guilt. We have previously rejected
    this interpretation of Aten. State v. Hummel. 
    165 Wash. App. 749
    , 766-70, 
    266 P.3d 269
    (2012),
    review denied. 
    176 Wash. 2d 1023
    (2013V State v. Rooks. 
    130 Wash. App. 787
    , 803-06, 
    125 P.3d 192
    (2005). Relying on our reasoning in Hummel and Rooks, we again reject it here.
    -7
    No. 70359-5-1/8
    at 331-32. However, in that case, the State offered no independent evidence—
    such as proof that the defendant possessed other items used in the
    manufacturing process—to corroborate the defendant's incriminating statement.
    
    Brockob. 159 Wash. 2d at 331-32
    . In contrast, the State here offered sufficient
    independent evidence to corroborate Navarro's incriminating statements.
    Nevertheless, again citing to Brockob, Navarro argues that the
    independent evidence was required to be, in and of itself, sufficient to support his
    conviction: "Without Navarro's statements, the State cannot prove the charge."
    Navarro's interpretation of Brockob is untenable. See 
    Brockob, 159 Wash. 2d at 328
    ("The independent evidence need not be sufficient to support a conviction,
    but it must prove prima facie corroboration of the crime described in a
    defendant's incriminating statement").
    Yet, our Supreme Court recently observed, "the State must still prove
    every element of the crime charged by evidence independent of the defendant's
    statement." 
    Dow. 168 Wash. 2d at 254
    . Ostensibly, this observation substantiates
    Navarro's position; however, as we explained in State v. Hummel, 
    165 Wash. App. 749
    , 
    266 P.3d 269
    (2012), review denied, 
    176 Wash. 2d 1023
    (2013), the Dow
    court's statement was unfounded dictum.
    First, the sentence was entirely unnecessary to resolve Dow. It
    was undisputed that there was no evidence, other than the
    defendant's statements, to establish that the charged crime had
    been committed. Thus, the court had no reason to analyze or
    elaborate on the quantum of proof necessary to establish the
    corpus delicti because there was none, and the court's statement
    on this issue was "wholly incidental" to the decision. Statements
    made in the course of the Supreme Court's reasoning that are
    "wholly incidental" to the basic decision constitute dicta and do not
    -8-
    No. 70359-5-1/9
    bind us. See Burress v. Richens, 
    3 Wash. App. 63
    , 66, 
    472 P.2d 396
               (1970).
    . . . Although the statement. . . was followed by a citation to
    Brockob, as noted in the citation itself, that case held only that "[a]
    defendant's incriminating statement alone is not sufficient to
    .         establish that a crime took place." 
    Brockob. 159 Wash. 2d at 328
    ,                                 V
    ^       X O- •• Moreover, the Brockob court explicitly stated, "The   A
    independent evidence need not be sufficient to support a
    conviction, but it must provide prima facie corroboration of the
    crime described in a defendant's incriminating statement." 
    Id. 165 Wn. App.
    at 764-66.
    Neither Brockob nor Dow stands for the proposition that evidence
    independent of a defendant's incriminating statement must be, in and of itself,
    sufficient to prove a defendant's guilt. Instead, it remains true that the corpus
    delicti of a crime may be established by offering evidence independent of a
    defendant's incriminating statement, so long as that evidence provides prima
    facie corroboration of the crime that was described in the incriminating statement.
    In this case, because the evidence adduced by the State provided prima facie
    corroboration of the crime that was described in Navarro's incriminating
    statements, we conclude that the corpus delicti was established.
    Ill
    Navarro next contends that the trial court improperly allowed the parties'
    counsel (while court was in open session) to exercise peremptory challenges in
    writing. This, Navarro asserts, was a court closure7 and—given that no Bone-
    7 In violation of the Sixth Amendment to the United States Constitution, U.S. Const.
    amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
    trial."), and both article I, section 10 ("Justice in all cases shall be administered openly, and
    No. 70359-5-1/10
    Club8 inquiry was undertaken—constituted structural error.9
    Similar arguments have recently and consistently been rejected by
    Washington's appellate courts. State v. Webb. No. 43179-3-11, 
    2014 WL 4212735
    (Wash. Ct. App. August 26, 2014); State v. Dunn. 
    180 Wash. App. 570
    ,
    
    321 P.3d 1283
    (2014): State v. Love. 
    176 Wash. App. 911
    , 
    309 P.3d 1209
    (2013).10
    There was no error.
    Affirmed.
    We concur:
    without necessary delay.") and article I, section 22 ("In criminal prosecutions the accused shall
    have the right... to have a speedy public trial.") of the Washington Constitution,
    s State v. Bone-Club, 
    128 Wash. 2d 254
    , 
    906 P.2d 325
    (1995).
    9 State v. Wise, 176Wn.2d 1,288 P.3d 1113(2012).
    10 The court reporter made a verbatim record ofwhich jurors were excused. The court
    clerk's inadvertentfailure to follow the court's direction and record in the clerk's minutes which
    party struck which jurordoes not present an open court issue.
    -10-