State of Washington v. Tamara Louise Cooke ( 2019 )

FILED
AUGUST 15, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 35933-6-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
TAMARA LOUISE COOKE, )
)
Appellant. )
PENNELL, J. — A jury convicted Tamara Louise Cooke of first degree burglary
and first degree assault. We affirm Ms. Cooke’s convictions but remand for revisions to
the judgment and sentence.
FACTS
In April 2017, Timothy Ahrens permitted his best friend’s widow, Tamara Cooke,
to stay with him “for a few days” because she was “down and out and was in need of a
place to stay.” Report of Proceedings (Mar. 5, 2018) at 76. Ms. Cooke’s stay at Mr.
Ahrens’s home ended abruptly; one morning, Mr. Ahrens woke up and found Ms. Cooke
was gone, along with his truck. Mr. Ahrens inferred Ms. Cooke had taken his truck. It
was never recovered.
On August 7, 2017, Mr. Ahrens arrived home from work between 7:00 p.m. and
7:30 p.m. When he entered the house, he noticed “none of [his] lights were working” and
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some were “disabled.” Id. at 78. As Mr. Ahrens turned around to shut his front door, he
“was hit from behind” in his back. Id.
After finally finding a working light, Mr. Ahrens discovered Ms. Cooke standing
behind him:
I turned around, and [saw] that it was Tammy [Cooke], and I asked her
what she was doing in my house. And she’s like, “I wanted to talk to you.”
And I said, “If you needed to talk to me, come talk to me.” And I asked her
how she got in, and she was very vague.
Id. at 78-79. This was the first time the two had spoken since she had left his home in
April.
Mr. Ahrens saw Ms. Cooke holding an ice pick that was approximately 8-10
inches long. He theorized that Ms. Cooke had used the pick to stab him. Mr. Ahrens
asked Ms. Cooke if she had stabbed him. She denied doing so.
Mr. Ahrens and Ms. Cooke argued and then Ms. Cooke asked Mr. Ahrens if he
would “ ‘let [her] leave.’ ” Id. at 79. Mr. Ahrens responded: “ ‘You better leave, because,
you know, I’m not happy.’ ” Id. When Ms. Cooke left, she grabbed a white handbag and
walked away from the house.
After Ms. Cooke left, Mr. Ahrens confirmed he had been stabbed in the back and
called some friends, who took him to an urgent care facility. He was then transported to a
hospital. Hospital staff contacted the police and an investigation ensued. Mr. Ahrens was
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diagnosed with a collapsed lung. He remained in the hospital for five days. It took a
month for Mr. Ahrens to sufficiently recover from his injuries so that he could return to
work.
When Mr. Ahrens returned home from the hospital, he discovered evidence of a
break-in through the back door to his house. Several valuable belongings were missing.
Ms. Cooke was arrested and went to trial on charges of first degree burglary and
first degree assault with a deadly weapon enhancement. The jury convicted Ms. Cooke of
the substantive charges, but it did not reach a finding on the deadly weapon enhancement.
At sentencing, the State asked the court to impose a low-end standard range
sentence along with restitution, as set forth in a proposed judgment and sentence. The
State also commented that Ms. Cooke’s assault conviction was subject to a mandatory
minimum term of five years. Defense counsel concurred with the State’s sentencing
recommendations and Ms. Cooke declined allocution.
After hearing from the parties, the court accepted the State’s recommendations and
imposed a low-end sentence of 111 months’ incarceration. The written judgment and
sentence states that this term of incarceration is subject to a 5-year mandatory minimum
for Ms. Cooke’s assault conviction. Consistent with the State’s unchallenged
recommendation, the court imposed restitution totaling $19,413.23. The court waived
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discretionary legal financial obligations based on Ms. Cooke’s indigence, but imposed a
$500 crime victim penalty assessment, a $200 criminal filing fee, and a $100 DNA 1
collection fee.
Ms. Cooke timely appeals.
ANALYSIS
Sufficiency of the evidence
Ms. Cooke claims the State produced insufficient evidence to secure her burglary
and first degree assault convictions. “Sufficient evidence supports a conviction if, ‘after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime [are met] beyond a reasonable
doubt.’” State v. Boyle, 183 Wash. App. 1, 6, 335 P.3d 954 (2014) (quoting State v. Green,
94 Wash. 2d 216, 221, 616 P.2d 628 (1980)).
Ms. Cooke attacks her burglary conviction by claiming the State failed to prove
she entered or remained unlawfully in Mr. Ahrens’s home.
The crime of burglary requires proof that the accused unlawfully entered or
remained in a building. RCW 9A.52.020(1). Entry is unlawful if it is not “licensed,
invited, or otherwise privileged.” RCW 9A.52.010(2). The State can (and typically does)
1
Deoxyribonucleic acid.
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meet its burden of proving unlawful entry through circumstantial evidence. State v.
McDaniels, 39 Wash. App. 236, 240, 692 P.2d 894 (1984).
Viewed in the light most favorable to the State, the evidence here supports a jury
finding of unlawful entry. Although Ms. Cooke had permission to live in Mr. Ahrens’s
home at one time, that permission was temporary. According to Mr. Ahrens, Ms. Cooke
was allowed to stay at his home only for a few days while she had nowhere else to stay.
Once Ms. Cooke rebuffed Mr. Ahrens’s hospitality, stole his vehicle, and began living
elsewhere, her permission to be inside the home expired. See State v. Collins, 110 Wash. 2d
253, 259, 751 P.2d 837 (1988). At that point, Ms. Cooke could no longer enter Mr.
Ahrens’s residence without additional permission. The evidence at trial indicates no such
additional permission was ever granted. To the contrary, the evidence indicates Ms.
Cooke knew she lacked permission to be inside Mr. Ahrens’s home: she entered the
residence through force and then was vague with Mr. Ahrens when he asked her how she
got inside. We therefore disagree with Ms. Cooke’s sufficiency challenge to her burglary
conviction.
Ms. Cooke also claims the evidence was insufficient to support her conviction for
first degree assault. She argues the State failed to prove she had specific intent to cause
“great bodily harm” as required by RCW 9A.36.011. In this context, “great bodily harm”
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means “bodily injury which creates a probability of death, or which causes significant
serious permanent disfigurement, or which causes a significant permanent loss or
impairment of the function of any bodily part or organ.” RCW 9A.04.110(4)(c).
We find the evidence sufficient to permit an inference of the requisite intent. The
State’s evidence showed Ms. Cooke stabbed Mr. Ahrens in the back with an 8-10 inch
long ice pick. Ms. Cooke used enough force to not only pierce Mr. Ahrens’s skin, but
also puncture his lung. Ms. Cooke’s conduct was indicative of more than an intentional
assault. It evoked an attempted assassination. While Mr. Ahrens was fortunate not to
have died or suffered permanent injury or disfigurement, this outcome was not inevitable;
his survival and recovery does not negate Ms. Cooke’s apparent intent.
Jury trial rights 2
Ms. Cooke was sentenced to concurrent terms of 26 months’ confinement for
burglary and 111 months for first degree assault. The judgment and sentence also states
Ms. Cooke’s term of confinement for assault “contains a mandatory minimum term of
5 years.” Clerk’s Papers (CP) at 135. The parties agree that the 5-year mandatory
minimum term is inapplicable because the jury did not make findings contemplated by
2
U.S. CONST. amend. VI; WASH. CONST., art. I, § 22.
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RCW 9.94A.540(1)(b). Based on this agreement, we order the mandatory minimum
designation be struck from Ms. Cooke’s judgment and sentence.
Restitution
Ms. Cooke challenges the trial court’s imposition of restitution, arguing the court’s
order lacked factual support. We decline to review Ms. Cooke’s challenge pursuant to
RAP 2.5(a). The reason the record lacks detail regarding restitution is that Ms. Cooke
failed to challenge the State’s restitution request at sentencing. Given Ms. Cooke’s lack
of objection, the trial court did not err in imposing restitution in the amount requested by
the State.
Recognizing that her arguments against restitution have not been preserved,
Ms. Cooke claims her attorney performed ineffectively in failing to object to restitution.
This claim fails for lack of factual support. The record is devoid of any information
regarding Mr. Ahrens’s losses. Thus, we cannot say that it was unreasonable for defense
counsel to concur with the State’s restitution request. Ms. Cooke’s attorney was
presumably provided information on Mr. Ahrens’s loss amounts through discovery and
this information was then used as a basis for the State’s restitution request. Assuming
this occurred, Ms. Cooke’s attorney likely concurred with the State’s restitution request
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because counsel determined the request was justified. We lack any basis to find
ineffective assistance of counsel.
Legal financial obligations
As the parties agree, recent changes to Washington’s legal financial obligation
statutes warrant striking the $200 criminal filing fee based on Ms. Cooke’s indigence and
$100 DNA collection fee based on its prior collection from her judgment and sentence.
RCW 36.18.020(2)(h) (filing fee “shall not be imposed on a defendant who is indigent as
defined in RCW 10.101.010(3)(a) through (c)”); RCW 43.43.7541 (collection fee is
inapplicable if “the state has previously collected the offender’s DNA as a result of a
prior conviction”); see also State v. Ramirez, 191 Wash. 2d 732, 748-49, 426 P.3d 714
(2018).
Repayment schedule
The parties agree that Ms. Cooke should not be required to begin payment of her
court-imposed financial obligations immediately. Nevertheless, they dispute whether
the court has required immediate payment. To clarify this issue, the trial court shall strike
the “commencing immediately” language from section 4.1 of the judgment and sentence.
CP at 134.
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CONCLUSION
Ms. Cooke's convictions are affirmed. This matter is remanded with instructions
to strike the following from the judgment and sentence: (1) the five-year mandatory
minimum designation, (2) $200 criminal filing fee, (3) $100 DNA collection fee, and
(4) the statement that collection of any fees, costs, or financial obligations be commenced
immediately. Pursuant to the State's agreement, appellate costs shall not be imposed.
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.
Pennell, J.
WE CONCUR:
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