State of Washington v. Donald Allen Cowden ( 2014 )

FILED
DEC 23, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31546-1-111
Respondent, ) (consolidated with
) No. 32004-9-111)
v. )
)
DONALD ALLEN COWDEN, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, C.J. - Donald Cowden was convicted of several property crimes
committed on two days in the spring of2012 in which his girl friend, Kristina Shelton,
was also a participant. He argues on appeal that his trial lawyer provided ineffective
assistance of counsel in failing to object to consolidating Mr. Cowden's trial with Ms.
Shelton's and in failing to object to evidence of his uncharged participation in one of the
crimes with which Ms. Shelton was charged. He also argues that his convictions of theft
of a motor vehicle and possession of the same stolen vehicle violate his due process
rights and that his trial lawyer was ineffective in failing to request instruction that would
have avoided that result.
Nos. 31546-I-III; 32004-9-II1
State v. Cowden
We agree with Mr. Cowden that his convictions of both theft and possession of the
stolen motor vehicle cannot stand. We reverse his conviction of possession of a stolen
vehicle and remand with instructions to dismiss that charge. We find no reversible
ineffective assistance of counsel and affirm his conviction on the remaining counts.
FACTS AND PROCEDURAL BACKGROUND
In the spring of2012, Donald Cowden was living with his girl friend, Kristina
Shelton, and his cousin-in-Iaw, Jonathan Harper, in an apartment in Milton-Freewater,
Oregon. The three were not only roommates, but partners in the several crimes at issue in
this appeal.
On May 14, Mr. Cowden, Ms. Shelton, and Mr. Harper stole checks from the
Touchet Valley TV (TVTV) drop box in Dayton, Washington. One of the stolen checks
belonged to Kayla Kirk, a TVTV customer who had made the check out to TVTV in the
amount of$74. Mr. Cowden, Ms. Shelton, and Mr. Harper "washed" Ms. Kirk's check
with brake fluid and a strong cleaner/degreaser, removing the original writing. The three
then made the check payable to "John Harper" for $230, and Ms. Shelton attempted to
cash the check at the Walla Walla Quick Cash.
A week later, the three arrived at a plan to burglarize the General Store, a
convenience store in Dayton by which Ms. Shelton had formerly been employed. Mr.
Harper and Mr. Cowden decided to steal a vehicle, so that Mr. Harper's Jeep would not
be identifiable from surveillance videos. At around 3 :00 a.m. on May 21, having stolen a
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Nos. 31546-1-III; 32004-9-III
State v. Cowden
plumbing van, Mr. Harper and Mr. Cowden traveled to the General Store in hooded
sweatshirts and masks. Mr. Harper used a sledge hammer from the plumbing van to
break the glass on the front doors and gain entry. Once inside, the pair stole cash register
drawers and cigarettes. They then drove toward Walla Walla where they met up with
Ms. Shelton, who was driving Mr. Harper's Jeep. Mr. Harper and Mr. Cowden
transferred the goods stolen from the General Store and tools from the plumbing van into
the Jeep. They abandoned the van on a country road.
In June 2012, Mr. Cowden, Ms. Shelton and Mr. Harper were arrested for burglary
in Franklin County. Mr. Harper's Jeep was seized by the Pasco Police Department and
was found to match the car captured by video surveillance cameras in connection with a
check theft and a forged check cashing in Columbia County. A sledgehammer found in I
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the Jeep matched one that was stolen from the plumbing van and used in the May 21
General Store robbery. Mr. Harper was charged with crimes in Columbia County and
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entered into a plea agreement under which he identified Mr. Cowden and Ms. Shelton as
his partners in the crimes.
Mr. Cowden was eventually charged with (1) burglary in the second degree for the
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May 21 burglary of the General Store, (2) theft of a motor vehicle for the May 21 theft of I
the plumbing van, (3) possession of a stolen vehicle for the possession ofthe stolen II
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plumbing van, (4) theft in the second degree for the May 21 theft of the money and ;
cigarettes from the General Store, (5) theft in the third degree for the May 14 theft of the
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Nos. 31546-1-111; 32004-9-III
State v. Cowden
checks from the TVTV drop box, (6) malicious mischief in the third degree for the
physical damage to the TVTV drop box on May 14, and (7) malicious mischief in the
third degree for the physical damage to the front door of the General Store during the
course of the May 21 burglary.
Six weeks before trial, the State moved for joinder and consolidation of Mr.
Cowden's trial with the trial of the charges it had filed against Ms. Shelton. Ms. Shelton
was charged with crimes associated with the burglary of the General Store on May 21.
She was also charged with identity theft in the second degree, forgery, and theft in the
third degree for a check washing and cashing incident that took place on April 22, as to
which Mr. Cowden was not charged. Mr. Cowden's lawyer raised no objection to
consolidation, stating, "From my view of it there's no legal basis to object." Report of
Proceedings (RP) at 12. The court granted the State's motion.
The consolidated cases proceeded to a three-day jury trial. In addition to the May
14 and 21 crimes with which Mr. Cowden was charged, the jury heard evidence about the
April 22 crimes with which Ms. Shelton was charged. Mr. Harper testified that sometime
before April 22, Mr. Cowden and Mr. Harper stole checks from a mailbox in Milton-
Freewater. Mr. Cowden and Ms. Shelton washed the checks and altered one to make it
payable to "Dave Brenniman" for $400. On April 22, Mr. Cowden, Ms. Shelton and Mr.
Harper went to the General Store in Dayton, where, as a result of her prior employment,
Ms. Shelton was acquainted with the employees. She thought she could get them to cash
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Nos. 31546-1-111; 32004-9-111
State v. Cowden
the check for her, and she was right. While Mr. Cowden stayed outside, Ms. Shelton told
Daniel Mendoza, her former co-worker, that Mr. Harper was Mr. Brenniman, the payee
of the forged check. Mr. Mendoza cashed the check for Mr. Harper. The transaction was
recorded on surveillance cameras.
At the conclusion of trial, the jury found Mr. Cowden guilty as charged on all
counts except the charge of malicious mischief charge for damage to the front door of the :
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General Store. He appeals.
ANALYSIS
Mr. Cowden assigns error to the court convicting him of both theft and possession
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of the plumbing van, which he argues violates due process, and to ineffective assistance
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of counsel. He argues that his trial lawyer failed to oppose the State's motion for joinder,
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failed to object to the admission of evidence that he participated in crimes with which he
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was not charged, and failed to request a jury instruction that jurors need not decide the I
possession of stolen vehicle charge if they found him guilty of theft of a motor vehicle.
We address the assignments of error in tum.
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I. Conviction ofboth theft and possession ofthe stolen van
Conviction of both theft and possession of stolen property arising out of the same
act of theft are not barred by double jeopardy. But they are barred under a separate legal
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doctrine under which "one cannot be both the principal thief and the receiver of stolen Ir
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Nos. 31546-1-III; 32004-9-III
State v. Cowden
goods." State v. Melick, 131 Wn. App. 835, 842,129 P.3d 816 (2006) (quoting State v.
Hancock, 44 Wn. App. 297, 301, 721 P.2d 1006 (1986».
In Melick, the defendant was charged with taking a motor vehicle without
permission and possessing that same vehicle as stolen property. Division One of this
court rejected the defendant's double jeopardy challenge, but relied on this division's
decision in Hancock in concluding that both convictions could not stand. It observed that
Milanovich v. United States, 365 U.S. 551, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961) and later
federal cases support the doctrine that a defendant cannot be convicted of theft and
possession arising out of the same act. Melick also relied on Hancock and United States
v. Gaddis, 424 U.S. 544,547,96 S. Ct. 1023,47 L. Ed. 2d 222 (1976), as authority for
how the jury in such a case should be instructed:
If the State charges both theft (or in this case, TMV) and possession arising
out of the same act, the fact finder must be instructed that ifit finds that the
defendant committed the taking crime, it must stop and not reach the
possession charge. Only if the fact finder does not find sufficient evidence
of the taking can it go on to consider the possession charge.
Melick, 131 Wn. App. at 841.
The State characterizes Mr. Cowden's challenge to his conviction of both crimes
as "specious." Br. ofResp't at 6. It argues that here, Mr. Cowden engaged in "separate
appropriation[ s]" by driving to different places, for different purposes, and picking up
passengers. Id. at 7. But the authority it cites is Melick, which states that for convictions
of both theft and possession to stand, there must be "a possession separate in time or by
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Nos. 31546-1-III; 32004-9-III
State v. Cowden
actor from the original theft." Melick, 131 Wn. App. at 843. Mr. Cowden's theft and
possession are not separate by actor; the State's evidence established that Mr. Cowden
was the thief as well as the possessor. And when it comes to the amount of time
involved, Melick observes that the possession charge in Hancock was dismissed despite
the fact that the defendant constructively possessed stolen goods for a full 24 days. Id. at
843, n. 4. Moreover, the stolen goods at issue in Hancock were in the actual possession
of a third party during that several week period. Hancock, 44 Wn. App. at 301-02.
The State's bald assertion to the contrary, Hancock and Melick apply here. Mr.
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Cowden, as the principal thief of the van, cannot be convicted for its possession. The
remedy is to reverse Mr. Cowden's conviction on the possession charge and remand with I
instructions to dismiss.
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II. Ineffective assistance ofcounsel
Given our decision to reverse Mr. Cowden's conviction of possession ofa stolen
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vehicle, we need not address his argument that his trial lawyer provided ineffective
assistance by failing to request proper instruction on the manner in which the jury should
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decide the related theft and possession charges.
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Mr. Cowden's remaining allegations of ineffective assistance are to his lawyer's II
failure to oppose joinder and consolidation of his and Ms. Shelton's trials, and failure to
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object under ER 404(b) to evidence that Mr. Cowden participated in uncharged criminal I
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conduct.
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Nos. 31546-1-III; 32004-9-III
State v. Cowden
"A claim of ineffective assistance of counsel presents a mixed question of fact and
law reviewed de novo." State v. Sutherby, 165 Wn.2d 870, 883,204 P.3d 916 (2009). It
requires the defendant to show "that defense counsel's conduct was deficient, Le., that it
fell below an objective standard of reasonableness," and "that the deficient performance
resulted in prejudice, Le., that there is a reasonable possibility that, but for the deficient
conduct, the outcome of the proceeding would have differed." State v. Reichenbach, 153
Wn.2d 126, 130, 101 P.3d 80 (2004) (citing Strickland v. Washington, 466 U.S. 668,687,
104 S. Ct. 2052,80 L. Ed. 2d 674 (1984)).
Under the first prong, there is a strong presumption that the defendant was
properly represented. State v. Lord, 117 Wn.2d 829,883,822 P.2d 177 (1991). Where it
can be shown that the matters go to trial strategy or tactics, there is no deficient
performance. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994).
It is the defendant's burden to prove both deficient performance and prejudice to
prevail on ineffective assistance of counsel. Strickland, 466 U.S. at 687. "A failure to
demonstrate either deficient performance or prejudice defeats an ineffective assistance
claim." See State v. McFarland, 127 Wn.2d 322,334-35,899 P.2d 1251 (1995); see also
Strickland, 466 U.S. at 700.
A. Failure to oppose the State's motion/or jOinder
In moving under CrR 4.3 and 4.3.1 for joinder of defendants and to consolidate
trial of the charges against Mr. Cowden and Ms. Shelton, the State represented that
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Nos. 31546-1-III; 32004-9-III
State v. Cowden
"[n]early the same evidence will be submitted and the same witnesses will testify in
regards to all charges in the matters" and "[j]udicial economy requires joinder." Clerk's
Papers (CP) at 10. It argued:
It is proper to allow joinder of defendants involving different offenses when
the acts are so closely related in respect to time, place and occasion that it
would be difficult to separate proof of one from the other. The close
connection justifies a j oint trial even absent proof of a common scheme.
CP at 10 (quoting 12 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL
PRACTICE AND PROCEDURE § 1705 (3d ed. 2004)). In granting the motion, the court
found, "In the interest ofjudicial economy, with the same nucleus of facts, the case
should be consolidated." CP at 44. Whether to join defendants and consolidate trial is a
matter within the sound discretion of the trial court and will not be disturbed unless there
is a manifest abuse of discretion. State v. Kinsey, 20 Wn. App. 299, 304, 579 P.2d 1347(1978).
Where error in joining defendants is raised through an argument that counsel was
ineffective in failing to oppose it, then "[t]o demonstrate prejudice ... the defendant must
show that the trial court likely would have granted a severance motion ... and that ifhe I
were tried separately there was a reasonable probability he would have been acquitted." I
In re Pers. RestraintojDavis, 152 Wn.2d 647, 711,101 P.3d 1 (2004). !
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Mr. Cowden argues that the result of the joinder was that evidence relevant to the
April 22 crimes with which Ms. Shelton was charged implicated him. He argues
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Nos. 31546-1-III; 32004-9-II1
State v. Cowden
conclusorily that it resulted in "serious prejudice to [the] defense." Br. of Appellant at
16. But Mr. Mendoza, the General Store employee who cashed the forged check on April
22, testified that he knew Mr. Cowden but didn't see him at the General Store on that
day. The victim of the washed check that was cashed on April 22 testified to having no
knowledge of Mr. Cowden. Only Mr. Harper implicated Mr. Cowden in the theft and
washing of the check cashed on April 22. And Mr. Harper was the State witness who
testified that Mr. Cowden committed all of the crimes charged by the State.
It defies reason to suggest that the jury would have disbelieved Mr. Harper and
acquitted Mr. Cowden if Mr. Harper had testified only to the many crimes committed by
Mr. Cowden on May 14 and May 21. Mr. Cowden fails to meet his burden of
demonstrating a reasonable probability that it was Mr. Harper's testimony about Mr.
Cowden's involvement with the April 22 check cashing that was the difference between
conviction and acquittal.
B. Failure to object to evidence ofuncharged criminal activity
Mr. Cowden argues that his trial lawyer should at least have objected to the State's
evidence of his uncharged involvement with the forged check cashed on April 22. In
demonstrating prejudice by counsel's failure to object, the defendant must show "but for
counsel's failure to object, the outcome would have been different." State v. Hendrickson,
129 Wn.2d 61, 79, 917 P.2d 563 (1996). To determine whether the outcome would have
been different, the defendant must prove that ( 1) the trial court would have sustained an
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Nos. 31546-1-111; 32004-9-111
State v. Cowden
objection and (2) the admission of the objectionable evidence prejudiced the defendant's
right to a fair trial. ld. at 79-80.
Mr. Cowden argues that an objection to evidence of his involvement with the
April 22 crime would have been sustained under ER 404(b) because evidence of his
involvement with that check theft and forgery was not relevant and was highly
prejudicial. The State responds, however, that the evidence of Mr. Cowden's
involvement in stealing other checks and washing them for the purpose of forging and
cashing them was relevant both to complete the story of Ms. Shelton's Apri122 crime and
as evidence of a common scheme or plan by Mr. Cowden and his confederates. See State
v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995) ("[E]vidence of other crimes is
admissible '[t]o complete the story of the crime on trial by proving its immediate context
of happenings near in time and place.' "); ER 404(b) (evidence of other wrongs or acts
"may, however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.")
The trial court had already been persuaded in granting joinder that the crimes with
which Mr. Cowden and Ms. Shelton were charged involved the same nucleus of facts.
Given two bases on which the evidence might have been admitted under ER 404(b), Mr.
Cowden fails to demonstrate that the court would have sustained an objection. And we
have already addressed the unlikelihood that the limited evidence tying Mr. Cowden to
uncharged criminal involvement with the check cashed on April 22 was the difference
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Nos. 31546-I-III; 32004-9-III
State v. Cowden
between conviction and acquittal. Mr. Cowden fails to demonstrate ineffective assistance
of counsel.
We reverse Mr. Cowden's conviction of possession of stolen property and remand
with directions to dismiss that charge. We otherwise affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Brown, 1.
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