State Of Washington, V. Corey L. Brock ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 81666-7-I
)
Respondent, )
) DIVISION ONE
v. )
)
COREY L. BROCK, )
) UNPUBLISHED OPINION
Appellant. )
)
MANN, C.J. — Corey Brock appeals his judgment and sentence for one count of
theft of a motor vehicle. Brock argues that the trial court erred in admitting irrelevant
evidence over defense objection, and that his defense counsel was ineffective for failing
to object to unduly prejudicial and inadmissible evidence under ER 403 and ER 404(b).
We affirm.
FACTS
The Auburn U-Haul location houses a storage facility, equipment rental, u-Box
rentals, and an onsite shop. Customers renting a storage unit can access the facility
after hours with an access card. Customers are also able to rent vehicles after hours
using a lockbox. Upon arriving to the facility on April 28, 2018, assistant manager
Geena San Nicholas discovered a U-Haul cargo van missing from the parking lot. The
lockbox was broken and the keys to the cargo van were missing. San Nicholas
Citations and pin cites are based on the Westlaw online version of the cited material.
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informed the police and then reviewed the security footage. The video showed a man
swiping his access card multiple times attempting to enter the storage facility around
10:30 p.m. Brock’s card was the only access card swiped and denied that night. The
video then showed the man leave and return with a crowbar-like object used to break
open the lockbox containing keys to the U-Haul cargo van. A still image from the video
shows a close up of the man’s face. The theft of the van and the identity of who drove it
were not caught on camera or seen by eyewitnesses.
Auburn Police Officer Joseph Vojir obtained Brock’s address from the law
enforcement databases and asked Detective Vincent Martinez to look for the van at the
address. Martinez found the stolen van in the alley behind Brock’s residence. The door
was open and the engine was running. Brock was standing less than four feet away
from the open driver’s side door. Martinez arrested Brock, searched him incident to
arrest, and located the U-Haul access card in his wallet.
The State charged Brock with one count of theft of a motor vehicle. At trial, the
prosecutor asked San Nicolas why Brock’s access card was denied. Brock objected on
relevance grounds. The court overruled the objection and San Nicolas answered, “if it’s
suspended, that means that they haven’t paid their rent.” The jury found Brock guilty as
charged.
Brock appeals.
ANALYSIS
A. Relevance
Brock argues that the trial court erroneously admitted irrelevant evidence that
Brock failed to pay his U-Haul storage unit rent over defense objection. We disagree.
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Under ER 401, evidence is relevant when it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” “Evidence is relevant
if a logical nexus exists between the evidence and the fact to be established.” State v.
Burkins, 94 Wn. App. 677, 692, 973 P.2d 15 (1999). Irrelevant evidence is not
admissible, however, when the threshold to admit relevant evidence is low and “even
minimally relevant evidence is admissible.” ER 402; State v. Darden, 145 Wn.2d 612,
622, 41 P.3d 1189 (2002). We review a trial court’s ruling on relevance for abuse of
discretion. State v. Scherf, 192 Wn.2d 350, 387, 429 P.3d 776 (2018). “A trial court
abuses its discretion if its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940
P.2d 1362 (1997).
Here, in order to prove that it was Brock that stole the van, the State presented
evidence that the same person who broke the lockbox also tried to swipe their access
card eight times—an access card attached to Brock’s suspended account. Brock
concedes that this fact is relevant, however, he argues that the reason the account is
suspended is irrelevant. San Nicholas testified that a suspended account is due to
failure to pay rent. This testimony is relevant to show that it was more probable that
Brock tried to enter the storage building but his access card was denied because his
account was suspended due to missed payments.
Conversely, if Brock’s account had been current, his access card would not have
been denied and thus it would have been less likely that Brock stole the cargo van.
Again, even minimally relevant evidence is admissible. Darden, 145 Wn.2d at 622.
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Because the trial court’s decision was not manifestly unreasonable or based on
untenable grounds, the court acted within its discretion to admit the testimony.
B. Ineffective Assistance of Counsel
Brock argues alternatively, that even if the testimony that he failed to pay his rent
was relevant, his trial counsel was ineffective for failing to object to the evidence of
nonpayment as inadmissible under ER 403 and ER 404(b). We disagree.
The defendant bears the burden to establish ineffective assistance of counsel.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). “First, the defendant
must show that counsel’s performance was deficient” and “second, the defendant must
show that the deficient performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Failure to demonstrate
either prong ends the inquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d 489(2018). We review a claim of ineffective assistance of counsel de novo. State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
Counsel’s performance is deficient if it falls below an objective standard of
reasonableness. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Scrutiny
of counsel’s performance is highly deferential and counsel’s conduct is presumed
reasonable. In re Pers. Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). This
presumption is rebutted “where there is no conceivable legitimate tactic explaining
counsel’s performance.” State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80(2004). “Decisions on whether and when to object to trial testimony are classic
examples of trial tactics.” State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541, review
denied, 193 Wn.2d 1038, 449 P.3d 664 (2019). “To prove that failure to object rendered
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counsel ineffective, Petitioner must show that not objecting fell below prevailing
professional norms, that the proposed objection would likely have been sustained, and
that the result of the trial would have been different if the evidence had not been
admitted.” In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004).
“Only in egregious circumstances, on testimony central to the State’s case, will the
failure to object constitute incompetence of counsel justifying reversal.” State v.
Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).
Here, Brock fails under the first prong because he cannot show that counsel’s
performance was deficient for failing to object under ER 403 or 404(b). Strickland, 466
U.S. at 687. Brock cannot establish that the objection would have likely been sustained
or that the results of the trial would have been different if the evidence was not admitted.
Davis, 152 Wn.2d at 715.
ER 403 “requires exclusion of evidence, even if relevant, if its probative value is
substantially outweighed by the danger of unfair prejudice.” State v. Smith, 106 Wn.2d
772, 776, 725 P.2d 951 (1986). Brock argues that his counsel should have objected to
evidence that he was late paying rent as unduly prejudicial because the purpose of the
evidence was to demonstrate that Brock was impoverished and thus more likely to steal
a motor vehicle. However, the State did not present testimony regarding Brock’s
character and did not use the late payment of rent to characterize or prejudice Brock; it
was used to show the likelihood that because Brock’s access card was suspended it
was more likely that he broke into the lockbox. Nor did the State argue that Brock was
impoverished or that his poverty made it more likely that he would steal the van. The
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speculative possibility that the jury might have implied such a conclusion does not
substantially outweigh the probative value of the evidence linking Brock to the theft.
ER 404(b) prohibits admission of prior bad acts “to prove a defendant has a
criminal propensity.” State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). “It
may, however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” ER
404(b). The evidence that his account was suspended because he had not paid his
rent was not introduced for propensity purposes. Instead, it was introduced to prove
identity—that the person who stole the van was first denied access at the card reader.
Moreover, even if Brock’s counsel believed that the nonpayment evidence was
unduly prejudicial, a second objection and request to strike the testimony might only
have drawn further attention to it. In such circumstances, “[d]efense counsel’s decision
to avoid emphasizing the testimony with an objection was purely tactical and entirely
reasonable.” State v. Davis, 17 Wn. App. 2d 264, 274, 486 P.3d 136, review denied,
198 Wn.2d 1008, 493 P.3d 734 (2021).
Additionally, Brock is unable to establish that the late payment of rent evidence
likely changed the results of the trial. Strickland, 466 U.S. at 487. The evidence against
Brock was overwhelming. His face was visible in the video preceding the van theft,
police found Brock standing next to the van behind his address, and Brock was in
possession of the access card that was swiped at the same time and location of the
theft. Also, the State did not use the nonpayment of rent evidence to defame or
characterize Brock; it is unlikely that a speculative inference between nonpayment of
rent and thievery altered the jury’s outcome.
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Affirmed.
WE CONCUR:
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