State Of Washington v. Joshua Cuevas Quimpo ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 76868-9-I
Respondent,
v. DIVISION ONE
JOSHUA CUEVAS QUIMPO, UNPUBLISHED OPINION
Appellant. FILED: March 4, 2019
LEACH, J. — Joshua Cuevas Quimpo challenges the sufficiency of the
evidence supporting his conviction for residential burglary. Because sufficient
evidence establishes that he aided as an accomplice in committing the crime, we
affirm.
BACKGROUND1
On September 13, 2015, Bonnie Mitchell left for church at 9:30 a.m. and
returned home about 11:20 a.m. As she entered her house from the garage, she
noticed lights on that she had not left on. She saw a cabinet was open that had
previously been closed. Upstairs, she noticed the front door ajar and the slider
RAP 10.3(5) requires that a party cite to the record for each factual
1
statement that it makes in its statement of the case section of its brief. Here, the
State does not do this. Instead, it cites to a range of pages in the record at the
end of each paragraph. Although we consider the State’s brief, we note that this
is improper.
No. 76868-9-I I 2
off her kitchen open. Her laptop was not on the dining room table where she had
left it. She noticed items on the back deck that were not hers, including a sewing
machine, a small bag with a power drill, and another bag filled with a number of
items. She heard the front door slam but did not see anyone in the front or back
of her home. She called 911.
That same day, Madison Farrell visited her parents who live near Mitchell.
She saw two males and one female out of her parents’ living room window
walking quickly down the cul-de-sac. She described them as a white male, a
petite white female, and a male of “another ethnicity.” The person she described
as a white male appeared to be testing each car door handle to determine if it
was unlocked and was wearing a backpack. Farrell and her father stepped
outside, and her father asked them what they were doing. Farrell testified that
they ‘took off faster.” Farrell and her father searched for them in her father’s car
and found them in the backyard of a house. Farrell called 911 to report that three
individuals had been checking car doors. She and her father approached
Sergeant Kevin Fairchild who was in the area looking for the burglary suspects.
They took him to the house of the backyard where they had found them.
Fairchild saw a man’s head pop up, whom he described as “an Asian
looking male.” The male was seated next to a female. The male, later identified
as Quimpo, and the female, later identified as Whitney Paterno, began running.
Fairchild testified that Quimpo later told police that he ran because he had a
warrant. Fairchild chased them. Another officer took photographs of the area.
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No. 76868-9-I I 3
Fairchild testified that the photographs show the black gym bag and gray
backpack that police found where Quimpo and Paterno were hiding. The
photographs also show a black Nike tennis shoe near the garage door of the
house where Quimpo and Paterno were hiding. Fairchild found Mitchell’s laptop
in the backpack.
Fairchild waited for Officer Brandon Gill who is a K-9 officer. Gill
explained that his K-9, Quay, tracks a suspect’s scent. He testified that while
tracking Quimpo, Quay led him to the bags left where Quimpo and Paterno had
been hiding. Gill testified,
Quay was very, very interested in that bag. And by ‘interested,” I
mean he was trying to carry it in his mouth, didn’t want to leave it.
That’s an indication to me as a handler that that is chalked [sic] full
of what we call enhanced scent, this kind of stress odor, if you will.
So I felt very confident that we had an item that was discarded by a
burglary suspect.
Quay also found two black Nike tennis shoes. Gill stated that Quay “grabbed
hold of a black Nike sneaker and shook it in his mouth pretty emphatically. So
again I believed that at that point one of the suspects had essentially run out of
his shoe.” Quay found Quimpo covered in grass and leaves in a backyard a few
houses away. Quimpo was not wearing shoes. Another civilian directed police
to the third suspect, later identified as Aleksandr Lezhnyak. Police found him
hiding a few houses away. Police found and arrested Paterno four hours later.
Police returned the laptop and some jewelry to Mitchell. On September
15, 2015, Detective Michael Atwood took photographs of Mitchell’s house.
Atwood testified about these photographs, which showed pry marks around a
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No. 76868-9-1/4
window, cuts in the wood frame of the door that someone made with a sharp-
edged tool, a broken-off knife tip in an open doorway, and what appeared to be
the knife tip’s matching handle “on a ladder’s edge” below a window. Atwood
stated that as part of his investigation, he obtained video surveillance from a
nearby Fred Meyer store. Still images from the surveillance video taken about
10:30 a.m. on the day of the incident showed Quimpo, Lezhnyak, and Paterno
together. They showed Quimpo wearing black Nike shoes and Lezhnyak and
Paterno carrying the backpack and bag, respectively, that police recovered.
The State charged Quimpo with residential burglary. A jury found him
guilty as charged. He appeals.
ANALYSIS
Quimpo challenges the sufficiency of the evidence to prove that he was an
accomplice to the crime of residential burglary. When reviewing a sufficiency
challenge, an appellate court views the evidence in the light most favorable to the
State and determines whether any rational trier of fact could have found the
defendant guilty beyond a reasonable doubt.2 Sufficient evidence must support
every element of the charged offense.3 A reviewing court treats circumstantial
evidence the same as direct evidence.4 This court defers to the trier of fact on
2 State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
~ State v. Alvarez, 128 Wash. 2d 1, 19, 904 P.2d 754 (1995).
~ State v. Garbaccio, 151 Wash. App. 716, 742, 214 P.3d 168 (2009).
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No. 76868-9-I I 5
issues of conflicting testimony, witness credibility, and persuasiveness of the
evidence.5
To find Quimpo guilty of residential burglary, the State had to prove that
he (1) entered or remained unlawfully in a dwelling and (2) intended to commit a
crime against a person or property therein.6 Here, the court instructed the jury
that to convict, it needed to specifically find that Quimpo intended to commit a
crime of theft.
The trial court also instructed the jury about the Stat&s theory of
accomplice liability. Accomplice liability supports a conviction for the crime if the
defendant, with knowledge that doing so will promote or facilitate the commission
of the crime, either
(1) solicits, commands, encourages, or requests another
person to commit the crime; or
(2) aids or agrees to aid another person in planning or
committing the crime.
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. 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.
A person who is an accomplice in the commission of a crime
is guilty of that crime whether present at the scene or not.~7~
~ State v. Mehrabian, 175 Wash. App. 678, 699, 308 P.3d 660 (2013).
6RCW 9A.52.025(1).
~ 11 WASHINGTON PRAcTIcE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 10.51, at 234 (4th ed. 2016).
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No. 76868-9-I /6
Accomplice liability allows the jury to reach a conviction by splitting the
elements between accomplices.
A conviction based on split elements may be affirmed “[sb long as
the State proved beyond a reasonable doubt to the satisfaction of
all of the jurors that at least one of the participants [had the
requisite intent] and at least one but not necessarily that same
participant [committed the criminal act].”t8]
Washington’s accomplice liability statute9 requires that the accomplice
have actual knowledge that the principal is engaging in the crime charged.
While the State must prove actual knowledge, it may do so through
circumstantial evidence. Thus, Washington’s culpability statute
provides that a person has actual knowledge when “he or she has
information which would lead a reasonable person in the same
situation to believe” that he was promoting or facilitating the crime
eventually charged. RCW 9A.08.01 0(1 )(b)(ii).110]
Here, Mitchell called police around 11:20 a.m. to report that her home had
been burglarized. Atwood confirmed that marks around a window and door in
Mitchell’s house showed that someone tried to pry them open. On the day of the
incident, Farrell saw Quimpo walking with Lezhnyak who was carrying the
backpack containing Mitchell’s laptop. And Fairchild found Quimpo hiding next to
this backpack. Quimpo ran from police. This act can be considered as evidence
that the defendant had “an instinctive or impulsive reaction arising from
consciousness of guilt or [made] a deliberate attempt to avoid arrest or
prosecution.”11
8 State v. Walker, 182 Wash. 2d 463, 483, 341 P.3d 976 (2015) (alterations in
original) (quoting State v. Haack, 88 Wash. App. 423, 429, 958 P.2d 1001 (1997)).
~ RCW 9A.08.020(3).
10 State v. Allen, 182 Wash. 2d 364, 374, 341 P.3d 268 (2015).
~ State v. Gellerman, 42 Wash. 2d 742, 749, 259 P.2d 371 (1953).
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No. 76868-9-I I 7
In addition, Gill testified that Quay’s interest in the backpack and the
abandoned black Nike shoes indicated they had an “enhanced scent” or “stress
odor.” This means that a burglary suspect likely discarded them. Further, still
images from the Fred Meyer surveillance showed Quimpo with Lezhnyak and
Paterno about 10:30 a.m. on the day of the incident. These images also showed
Quimpo wearing black Nike shoes. And when Quay found Quimpo in the grass
clippings, Quimpo was not wearing shoes. Sufficient evidence supports
Quimpo’s conviction.
CONCLUSION
We affirm.
WE CONCUR:
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