State Of Washington v. Steven Peschl ( 2017 )


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  •                                                                                                Filed
    Washington State
    Court of Appeals
    Division Two
    October 3, 2017
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    STATE OF WASHINGTON,                                             No. 48365-3-II
    Respondent,
    v.
    STEVEN THOMAS PESCHL,                                     UNPUBLISHED OPINION
    Appellant.
    JOHANSON, P.J. — Steven T. Peschl appeals his bench trial convictions of second
    degree burglary and third degree theft.1 Peschl argues that (1)(a) specific findings of fact are not
    supported by substantial evidence, (b) there is insufficient evidence to support a conviction for
    second degree burglary, and (2) he received ineffective assistance of counsel at trial because his
    attorney failed to request that the trial court consider the lesser-included offense of second degree
    criminal trespass. We affirm Peschl’s convictions.
    FACTS
    I. BACKGROUND
    In November 2013, Wayne Martin called the Skamania County Sheriff’s Office after
    witnessing suspicious movement on fenced property owned by Skamania County. Deputies Jay
    1
    RCW 9A.52.030 and RCW 9A.56.050, respectively.
    No. 48365-3-II
    Johnston and Christopher Helton responded and found Peschl next to his truck, near the area where
    Martin had witnessed the movement. The officers observed scrap metal and metal pieces in
    Peschl’s truck and a “fuel jug and red hose” next to the truck. Report of Proceedings (RP) (Nov.
    24, 2015) at 24. Believing that Peschl had been siphoning fuel from county vehicles and stealing
    scrap metal and other items, the officers arrested Peschl. The State charged Peschl with second
    degree burglary and third degree theft. Peschl waived his right to a jury trial.
    II. BENCH TRIAL TESTIMONY
    At Peschl’s bench trial, Martin, Deputies Johnston and Helton, and county employee Clay
    Moser testified for the State. Martin, who was familiar with the area, had observed what appeared
    to be a figure in the “fenced area of the county yard.” RP (Nov. 24, 2015) at 6. Martin called the
    sheriff’s office after he saw the figure cross Rock Creek Drive, walking south, and enter another
    area, near the county motor pool building.
    Deputies Johnston and Helton reported to the scene and found Peschl and his truck “next
    to the motor pool building,” immediately south of Rock Creek Drive. RP (Nov. 24, 2015) at 17.
    Peschl told Deputy Johnston that Peschl’s truck had run out of gasoline and that he had purchased
    gasoline and was filling his truck with it. The officers observed a fuel jug and a red rubber siphon
    hose near Peschl’s truck and metal scrap and various other items in the back of Peschl’s truck.
    Suspicious that the items in Peschl’s truck had been taken from the southern area, Deputy
    Johnston investigated the vicinity of the motor pool building. Deputy Johnston walked behind the
    motor pool building and confirmed that surplus metal stored in that area matched the items in the
    back of Peschl’s truck. One vehicle in the southern area also had material matching Peschl’s red
    2
    No. 48365-3-II
    siphon hose on its fuel door. Deputy Johnston testified that the area behind the motor pool building
    was partially enclosed by a fence.
    Deputy Helton investigated the area north of Rock Creek Drive, including a fenced area
    where county vehicles were parked. In this area, Deputy Helton smelled gasoline fumes and
    observed a spout that appeared to be a size that would fit Peschl’s fuel jug and that had been left
    on a county vehicle. Both Deputy Helton and Moser, who worked in the northern area, testified
    that this area was completely enclosed by a fence.
    III. CLOSING ARGUMENT
    In closing argument, defense counsel articulated weaknesses in the State’s evidence and
    argued that the State had failed to prove the charged crimes’ elements beyond a reasonable doubt.
    He argued that the State failed to prove that Peschl was ever in the enclosed area because Martin
    “could not even identify who that shadow belonged to. He definitely did not say that was Mr.
    Peschl, my client, who was in that . . . fenced in area.” RP (Nov. 24, 2015) at 64. In addition,
    defense counsel argued that the State’s arguments were “speculative” and required “leaps and
    bounds of faith” to conclude that “Mr. Peschl must have been in there.” RP (Nov. 24, 2015) at 64-
    65. And counsel argued that, although Peschl and his truck were in an unfenced area near the two
    locations where the crimes allegedly occurred, he was there for a lawful purpose because his truck
    ran out of gasoline and he had pulled over to put gasoline in his truck.
    IV. CONVICTION, APPEAL, AND ENTRY OF WRITTEN FINDINGS
    The trial court convicted Peschl of second degree burglary and third degree theft and
    sentenced Peschl to 40 days in jail. Peschl appeals his convictions.
    3
    No. 48365-3-II
    The trial court subsequently entered written findings and conclusions including, as relevant
    to this appeal, that there was a fully enclosed area in which a witness observed movement, an
    officer smelled gasoline, and a fuel spout fitting Peschl’s fuel jug was found. The trial court found
    that Peschl “penetrated into the completely enclosed area to the north” with the intent to steal
    gasoline and accordingly was guilty of second degree burglary. Clerk’s Papers (CP) at 96. The
    trial court also found that Peschl was guilty of third degree theft, having taken scrap metal and
    other items from the County.
    ANALYSIS
    I. SUFFICIENCY OF THE EVIDENCE
    Peschl argues that the evidence presented at trial is insufficient to support a conviction for
    second degree burglary.2 Specifically, Peschl contends that there is insufficient evidence to prove
    that he “entered” a “building” as defined by statute or that he had the intent to commit a crime
    therein. We disagree.
    A. RULES OF LAW
    “To determine whether sufficient evidence supports a conviction, we view the evidence in
    the light most favorable to the prosecution and determine whether any rational fact finder could
    have found the elements of the crime beyond a reasonable doubt.” State v. Homan, 
    181 Wn.2d 102
    , 105, 
    330 P.3d 182
     (2014). Following a bench trial, we review “whether substantial evidence
    supports the findings of fact and, if so, whether the findings support the conclusions of law.”
    2
    Peschl also assigns error to the trial court’s determination that he was guilty of “third degree
    theft.” Suppl. Br. of Appellant at 2. But Peschl provides no argument that there is insufficient
    evidence to support his third degree theft conviction, and accordingly we do not address the third
    degree theft conviction. See RAP 10.3(a)(6).
    4
    No. 48365-3-II
    Homan, 
    181 Wn.2d at 105-06
    . Substantial evidence is “evidence sufficient to persuade a fair-
    minded person of the truth of the asserted premise.” Homan, 
    181 Wn.2d at 106
    . Unchallenged
    findings of fact and those supported by substantial evidence are verities on appeal. Homan, 
    181 Wn.2d at 106
    .
    We review de novo challenges to conclusions of law. Homan, 
    181 Wn.2d at 106
    . “Where
    a conclusion of law is erroneously labeled as a finding of fact, we review it de novo as a conclusion
    of law.” State v. Z.U.E., 
    178 Wn. App. 769
    , 779 n.2, 
    315 P.3d 1158
     (2014), aff’d, 
    183 Wn.2d 610
    ,
    
    352 P.3d 796
     (2015).
    “‘Circumstantial evidence and direct evidence are equally reliable’ in determining the
    sufficiency of the evidence.” State v. Kintz, 
    169 Wn.2d 537
    , 551, 
    238 P.3d 470
     (2010) (quoting
    State v. Thomas, 
    150 Wn.2d 821
    , 874, 
    83 P.3d 970
     (2004)). Credibility determinations are up to
    the fact finder and are not reviewable on appeal. State v. Camarillo, 
    115 Wn.2d 60
    , 71, 
    794 P.2d 850
     (1990).
    A person is guilty of second degree burglary “if, with intent to commit a crime against a
    person or property therein, [he] enters or remains unlawfully in a building other than a vehicle or
    a dwelling.” RCW 9A.52.030(1). A “‘[b]uilding’” includes a “fenced area” or any other structure
    used to lodge people, carry on business, or use, sell, or deposit goods. RCW 9A.04.110(5). To
    constitute a “fenced area,” the area must be “completely enclosed,” either by fencing alone or a
    combination of fencing and other structures. State v. Engel, 
    166 Wn.2d 572
    , 580, 
    210 P.3d 1007
    (2009).
    5
    No. 48365-3-II
    B. SUBSTANTIAL EVIDENCE SUPPORTS THE CHALLENGED FINDINGS OF FACT
    Peschl challenges findings of fact 2, 6, 7, 8, 10, 16, and 17. 3 Peschl argues that there was
    not substantial evidence to support the trial court’s findings of fact insofar as the trial court found
    that Peschl entered an area that was fully enclosed with the intent to commit a crime.4 We disagree.
    1.     SUBSTANTIAL EVIDENCE OF FULLY ENCLOSED AREA
    Challenged findings of fact 2, 7, 8, 10, 16, and 17 include findings that the northern area
    was fully enclosed and fenced. At trial, two State witnesses testified that the area north of Rock
    Creek Drive was fully enclosed: Deputy Helton testified that entire area was surrounded by fences
    and gates, and Moser testified that the area was “totally enclos[ed]” and secured with gates. RP
    (Nov. 24, 2015) at 53. Peschl’s arguments on this point conflate the testimony about the southern
    area where the scrap metal was located—which was partially enclosed—with the testimony about
    3
    Peschl also challenges finding of fact 1 (that he was “caught in the act of stealing gas and scrap
    metal,” CP at 94), 11 (that the scrap metal and items in Peschl’s truck matched metal scrap stored
    in the southern area), 20 (that he was guilty of second degree burglary), and 21 (that he was guilty
    of third degree theft). Because the facts independently support that Peschl entered the fenced,
    northern area with the intent to commit a crime, it is not necessary to determine whether there is
    substantial evidence that Peschl actually stole gasoline, and we do not review the challenge to
    finding of fact 1. See State v. Caldera, 
    66 Wn. App. 548
    , 551, 
    832 P.2d 139
     (1992). Similarly,
    whether or not Peschl stole scrap metal from a “building” is immaterial to his second degree
    burglary conviction, which was based upon his having entered the fenced northern area, not the
    partially fenced southern area where the scrap metal was stored. Accordingly, we do not review
    the challenge to finding of fact 11. See Caldera, 
    66 Wn. App. at 551
    . Findings of fact 20 and 21
    are properly characterized as conclusions of law and are addressed below. See Z.U.E., 178 Wn.
    App. at 779 n.2.
    4
    Additionally, Peschl claims that the challenged findings were intentionally tailored to rebut the
    arguments in Peschl’s appeal filed prior to the entry of findings. This argument is without merit
    because the entered findings of fact track the trial court’s oral findings almost verbatim. See State
    v. Ritter, 
    149 Wn. App. 105
    , 108-09, 
    201 P.3d 1086
     (2009) (finding no error when findings of fact
    entered after an appeal was filed were “almost identical to the court’s oral ruling”).
    6
    No. 48365-3-II
    the northern area where the spout was found—which was fully enclosed.5 Deputy Helton’s and
    Moser’s testimony constitute substantial evidence to support findings that the area north of Rock
    Creek Drive was fully enclosed. See Homan, 
    181 Wn.2d at 106
    .
    2.     SUBSTANTIAL EVIDENCE PESCHL ENTERED THE FULLY ENCLOSED AREA
    Challenged findings of fact 2, 8, and 16 include findings that Peschl entered the fully
    enclosed northern area. No witness testified to actually witnessing Peschl inside the fenced area.
    However, three witnesses’ testimony provided circumstantial evidence that Peschl had entered the
    area—evidence that is just as reliable as direct evidence. See Kintz, 
    169 Wn.2d at 551
    . Martin
    testified that he saw a figure in the fenced area north of Rock Creek Drive. And the officers
    explained that when they reported to the scene, they found a fuel jug and siphon hose near Peschl’s
    truck. Deputy Helton found a spout that fit the fuel jug on a county vehicle inside the fenced area
    and smelled gasoline fumes in the area. Viewing these three witnesses’ testimony in the light most
    favorable to the State and drawing the reasonable inferences therefrom, there is substantial
    evidence that Peschl entered the fully enclosed northern area, leaving behind his fuel spout.
    5
    Much of Peschl’s argument rests on his premise that the trial court convicted him of burglary
    because it conflated the southern and northern areas. Peschl relies on the State’s closing argument.
    It is true that the State argued that the southern area was a building as defined by statute, although
    the evidence was that the southern area was only partially enclosed by a fence, in addition to
    arguing its theory that the northern area was a building. But closing arguments are not evidence,
    and “[i]n the absence of evidence to the contrary, we presume the judge in a bench trial does not
    consider improper matters or inadmissible evidence in rendering a verdict.” In re Det. of H.N.,
    
    188 Wn. App. 744
    , 765, 
    355 P.3d 294
     (2015), review denied, 
    185 Wn.2d 1005
     (2016). Here, the
    trial court’s written findings and conclusions show that the trial court properly rested its decision
    that Peschl entered a building upon the completely fenced northern area, and Peschl’s concern
    regarding conflation of the two areas is unfounded.
    7
    No. 48365-3-II
    3.     SUBSTANTIAL EVIDENCE TO SUPPORT INTENT TO COMMIT A CRIME
    Challenged finding 17 includes the finding that Peschl’s entry was “with the intent to steal,
    at the very least petrol.” CP at 96. Challenged finding 6 includes that Peschl admitted that he
    needed fuel to fill his truck when the officers contacted him.
    Deputy Johnston testified that Peschl stated that his truck had run out of gasoline and that
    Peschl was refilling it with gasoline that he had purchased. This evidence not only directly
    supports finding of fact 6 but also shows that Peschl “needed fuel.” CP at 95.
    The State also provided evidence that upon investigation, Deputy Johnston found material
    matching Peschl’s siphon hose on the fuel door of one vehicle in the southern area, supporting an
    inference that Peschl had been siphoning fuel from county vehicles in both areas. And as
    discussed, Deputy Helton found a spout that fit Peschl’s fuel jug on a vehicle in the northern, fully
    fenced area and smelled gasoline fumes in that area. Moser testified that Peschl did not have
    permission to enter the northern, fully fenced area. Thus, Deputy Helton’s and Moser’s testimony
    support an inference that Peschl had entered the northern, fully fenced area, was siphoning fuel
    from county vehicles, and left his fuel spout behind.
    It is a reasonable inference from this evidence, taken collectively, that Peschl had entered
    the fully fenced northern area in order to steal gasoline and had left behind his fuel spout in the
    process. Neither is the evidence of intent to steal gasoline equivocal, as Peschl asserts. To the
    contrary, there was sufficient evidence to persuade a fair-minded trier of fact that the purpose of
    Peschl’s entry into the northern area was to siphon gasoline from county vehicles. See Homan,
    
    181 Wn.2d at 106
    . Accordingly, there is substantial evidence to support finding of fact 17, in
    addition to finding of fact 6. See Homan, 
    181 Wn.2d at 106
    .
    8
    No. 48365-3-II
    4.     CONCLUSION: FINDINGS OF FACT BINDING ON APPEAL
    There is substantial evidence to support that Peschl entered a fully enclosed area with the
    intent to commit a crime—stealing gasoline. Accordingly, we hold that findings of fact 2, 6, 7, 8,
    10, 16, and 17 are verities on appeal and that Peschl’s challenges to these findings of fact fail. See
    Homan, 
    181 Wn.2d at 106
    . Next, we look to whether the findings of fact support the conclusions
    of law. Homan, 
    181 Wn.2d at 105-06
    .
    C. CONCLUSIONS OF LAW
    Peschl argues that the findings of fact are insufficient to support a conclusion that Peschl
    committed second degree burglary. In doing so, Peschl assigns error to the trial court’s conclusions
    that he was guilty of second degree burglary, that a person commits second degree burglary when
    that person enters a building other than a vehicle or dwelling with the intent to commit a crime
    therein, and that a building includes a fenced area as defined by case law.6 This argument fails.
    The trial court correctly determined that the elements of second degree burglary are
    satisfied if there is proof that a person “with intent to commit a crime against a person or property
    therein” “enters or remains unlawfully in a building other than a vehicle or dwelling.” RCW
    9A.52.030(1). Indeed, conclusion of law 1 is a near verbatim statement of the second degree
    burglary statute. The trial court’s conclusions also correctly reflect that a building includes a
    completely fenced area. See Engel, 
    166 Wn.2d at 580
    .
    6
    Also addressed herein is Peschl’s assignment of error to finding of fact 20, which is properly
    categorized as a conclusion of law. See Z.U.E., 178 Wn. App. at 779 n.2. Finding of fact 21, that
    Peschl was guilty of third degree theft, is also challenged and is also properly considered a
    conclusion of law. However, Peschl provides neither argument nor citation to authority related to
    his guilt of third degree theft, and accordingly we consider this argument no further. See RAP
    10.3(a)(6).
    9
    No. 48365-3-II
    As discussed, substantial evidence supports the trial court’s findings that the northern area
    was completely enclosed by a fence, that Peschl entered this area, and that Peschl did so with the
    intent to steal gasoline. These findings establish the elements required for second degree burglary:
    intent to commit a crime and unlawful entry into a building other than a vehicle or dwelling. See
    RCW 9A.52.030(1); Engel, 
    166 Wn.2d at 580
    . In this case, as the trial court correctly determined,
    the requirement of entry into a “building” was satisfied by Peschl’s entry into a fully enclosed,
    fenced area. See Engel, 
    166 Wn.2d at 580
    . Accordingly, the trial court’s findings support its
    conclusion that Peschl was guilty of second degree burglary, and we affirm Peschl’s second degree
    burglary conviction.
    II. INEFFECTIVE ASSISTANCE OF COUNSEL
    Peschl argues that he is entitled to a new trial because he received ineffective assistance of
    counsel. We reject this argument.
    A. RULES OF LAW
    Ineffective assistance of counsel is a mixed question of law and fact that we review de
    novo. State v. Sutherby, 
    165 Wn.2d 870
    , 883, 
    204 P.3d 916
     (2009).
    Counsel’s performance is deficient when it falls below an objective standard of
    reasonableness under prevailing professional norms. State v. Townsend, 
    142 Wn.2d 838
    , 843-44,
    
    15 P.3d 145
     (2001). To establish ineffective assistance of counsel, a defendant must show (1) that
    counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.
    State v. Carson, 
    184 Wn.2d 207
    , 216, 
    357 P.3d 1064
     (2015). “A failure to satisfy either prong is
    fatal to an ineffective assistance of counsel claim.” State v. McLean, 
    178 Wn. App. 236
    , 246, 313
    10
    No. 48365-3-II
    P.3d 1181 (2013) (citing Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984)).
    Courts engage in a strong presumption that counsel’s representation was effective.
    Townsend, 
    142 Wn.2d at 843
    . The defendant alleging ineffective assistance of counsel bears the
    burden of establishing deficient representation. State v. McFarland, 
    127 Wn.2d 322
    , 335, 
    899 P.2d 1251
     (1995). A “defendant can rebut the presumption of reasonable performance by
    demonstrating that ‘there is no conceivable legitimate tactic explaining counsel’s performance.’”
    State v. Grier, 
    171 Wn.2d 17
    , 33, 
    246 P.3d 1260
     (2011) (quoting State v. Reichenbach, 
    153 Wn.2d 126
    , 130, 
    101 P.3d 80
     (2004)). A defendant establishes prejudice by showing that there is a
    reasonable probability that the outcome of the proceeding would have been different but for
    counsel’s deficient performance. Grier, 
    171 Wn.2d at 34
    . “‘A reasonable probability is a
    probability sufficient to undermine confidence in the outcome.’” Grier, 
    171 Wn.2d at 34
     (quoting
    Strickland, 
    466 U.S. at 694
    ).
    Counsel does not provide ineffective assistance for failing to argue for a lesser-included
    offense when a general denial of allegations is a legitimate strategy under the circumstances and
    raised by the defense at trial. State v. Breitung, 
    173 Wn.2d 393
    , 399-401, 
    267 P.3d 1012
     (2011).
    And where arguments of guilt of a lesser-included offense would weaken the defendant’s
    innocence claim, the failure to make these arguments is a reasonable strategy. Breitung, 
    173 Wn.2d at 399-400
    .
    A person is guilty of second degree criminal trespass if he knowingly enters or remains
    unlawfully in or upon another’s premises under circumstances not constituting first degree
    criminal trespass. RCW 9A.52.080.
    11
    No. 48365-3-II
    B. DEFICIENT PERFORMANCE
    Peschl argues that his counsel was deficient when he failed to argue that Peschl committed
    only the lesser-included offense of second degree criminal trespass.7            This argument is
    unpersuasive.
    Peschl asserts that his counsel could have argued at trial that Peschl committed only the
    lesser-included offense. However, defense counsel is not required to raise every possible defense
    but instead must meet an objective standard of reasonableness under prevailing professional
    norms. Townsend, 
    142 Wn.2d at 843-44
    .
    When defense counsel uses a general denial strategy that is legitimate under the
    circumstances, he does not act deficiently by failing to argue for a lesser-included offense. See
    Breitung, 
    173 Wn.2d at 399-401
    . Here, in closing argument, defense counsel asserted a general
    denial that Peschl was ever present within the fenced area to the north and a general denial that
    Peschl committed the charged crimes. Counsel also argued that the State’s evidence failed to prove
    Peschl’s guilt beyond a reasonable doubt. It was reasonable for Peschl to raise a general denial to
    force the State to provide evidence to establish elements of the charged crimes beyond a reasonable
    doubt. See Breitung, 
    173 Wn.2d at 399-401
    . Under the general denial defense, Peschl was able
    to challenge the State’s evidence by calling it “speculative” and asserting that the State had failed
    to show that Peschl entered the northern area, let alone that he stole anything there and manifested
    the necessary intent. Defense counsel argued that the State failed to prove that Peschl was ever in
    the fully enclosed area because Martin’s testimony that he saw a figure moving in the fully
    7
    Peschl also argues that the conviction must be vacated due to jury instruction error. However,
    this argument is without merit because the case proceeded as a bench trial.
    12
    No. 48365-3-II
    enclosed area failed to prove that Peschl was the person in the area. If Peschl’s counsel had argued
    that Peschl committed criminal trespass instead of burglary, defense counsel would necessarily
    concede that Peschl had actually entered the fully fenced area to the north. Instead, the State was
    forced to produce evidence proving Peschl’s presence at the alleged burglary’s location.
    In addition, a general denial was reasonable because it allowed Peschl to provide innocent
    explanations for potentially incriminating facts and arguing that he committed the lesser-included
    offense would have undermined his claims of innocence. See Breitung, 
    173 Wn.2d at 399-400
    .
    Counsel argued in closing that, although Peschl and his truck were in an unfenced area near the
    two locations where the crimes allegedly occurred, he was there for a lawful purpose because his
    truck ran out of gasoline and he had pulled over to put gasoline in his truck. These innocent
    explanations for Peschl’s proximity to the crime scenes would be undermined by argument that
    Peschl did, in fact, unlawfully enter the fenced area to the north. See Breitung, 
    173 Wn.2d at
    399-
    400.
    Because counsel’s decision to not argue for a lesser-included offense was a legitimate tactic
    to bolster Peschl’s claims of innocence, counsel’s performance was not deficient. See Grier, 
    171 Wn.2d at 33
    . Accordingly, Peschl’s ineffective assistance claim fails.
    C. PREJUDICE
    Even assuming defense counsel’s tactical decision not to argue the lesser-included offense
    constituted deficient performance, Peschl has failed to demonstrate that he was prejudiced.
    Peschl argues that he was prejudiced because, if defense counsel had argued for the lesser-
    included offense, the fact finder could have convicted him of the less serious offense, which in
    turn would have resulted in less severe penalties. He argues that the evidence could have supported
    13
    No. 48365-3-II
    that Peschl was present in the fully enclosed area but did not steal or intend to steal anything, such
    that trespass, not burglary, would be the appropriate crime. We disagree.
    There is significant evidence that Peschl intended to commit a crime in the fenced area:
    namely, the siphon found next to his vehicle, the fresh odor of gasoline smelled by Deputy Helton
    within the fully enclosed area to the north, observations by Deputy Johnston that Peschl had
    siphoned fuel from vehicles in the nearby southern area, officers’ observations of metal pieces in
    Peschl’s truck matching metal pieces from behind the motor pool building, and Peschl’s admission
    to officers that he was out of fuel. Given the considerable circumstantial evidence, there is not a
    reasonable probability that the outcome would have been different had defense counsel argued
    Peschl committed the lesser-included offense of first degree criminal trespass. See Grier, 
    171 Wn.2d at 34
     (quoting Strickland, 
    466 U.S. at 694-95
    ).
    In addition, the trial court judge, as the trier of fact in a bench trial, may consider the
    charged offense as well as any lesser-included offense. In re Pers. Restraint of Heidari, 
    159 Wn. App. 601
    , 611, 
    248 P.3d 550
     (2011), aff’d, 
    174 Wn.2d 288
    , 
    274 P.3d 366
     (2012); see also State v.
    Peterson, 
    133 Wn.2d 885
    , 892-93, 
    948 P.2d 381
     (1997). And the trial court may, sua sponte,
    convict a defendant of a lesser-included offense. State v. Jollo, 
    38 Wn. App. 469
    , 474, 
    685 P.2d 669
     (1984). Thus, there is no prejudice resulting from defense counsel’s failure to argue that
    Peschl committed the lesser-included offense.
    Peschl has failed to demonstrate any prejudice resulted from the decision of defense
    counsel not to argue the lesser-included offense of second degree trespass, and his ineffective
    assistance claim fails.
    14
    No. 48365-3-II
    CONCLUSION
    All necessary challenged findings of fact are supported by substantial evidence and all
    challenged conclusions of law are supported by the findings of fact. Accordingly, we conclude
    that the evidence is sufficient to support Peschl’s second degree burglary conviction. Further,
    Peschl did not receive ineffective assistance of counsel. We affirm.
    A majority of the panel having determined that this opinion will not be printed in the
    Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
    it is so ordered.
    JOHANSON, P.J.
    We concur:
    LEE, J.
    MELNICK, J.
    15