                                                                             )HOr p.-




                                                                           201^ SEP 23 An 9- *♦ |




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                       DIVISION ONE
                       Appellant,
                                                       No. 70359-5-


                                                       UNPUBLISHED OPINION
JESUS G. NAVARRO, a.k.a.
JESUS GASPAR-NAVARRO,

                       Respondent.                     FILED: September 29, 2014


       Dwyer, J. — Jesus Navarro appeals from the judgment entered on a jury's

verdict finding him guilty of trafficking in stolen property in the second degree.

He contends that (1) the State failed to establish the corpus delicti1 of the

charged crime, and (2) his constitutional right to a public trial was violated during

the exercise of peremptory challenges. Finding no error, we affirm.

                                               I


       On September 9, 2012, Frederick and Sue Ayre woke to discover that

their Bellevue home had been burglarized during the night. Many items were

missing from their home, including three digital cameras, one desktop computer,

three laptop computers, four iPads, three cell phones, one iPod, one handmade

leather bag, one purse, one Bluetooth headset, credit cards, and their son's



       1Corpus delicti literally means "body of the crime." State v. Aten. 130 Wn.2d 640, 655,
927 P.2d 210 (1996).
No. 70359-5-1/2



ADD2 medication.

       During its investigation of the burglary, the Bellevue Police Department

obtained information indicating that Navarro had purchased some of the stolen

items. After obtaining a search warrant for Navarro's home in SeaTac,

Washington, the police—while waiting to execute the warrant—observed Navarro

leave his home in a vehicle. The police followed Navarro to a local convenience

store where they arrested him. Navarro was then transported back to a location

near his home. There, Officer Gregory Oliden read Navarro his Miranda3 rights.

Navarro waived his rights and agreed to speak with Oliden.

      Oliden told Navarro that the police intended to recover stolen property at

his home and asked Navarro where the stolen items were located. When Oliden

described each item, Navarro "would tell [Oliden] exactly where it was inside of

his house." Navarro told Oliden that his friend Luis and another person had

brought him some electronics items, which he placed in a small room at his

home. Navarro provided a description of Luis and told Oliden that Luis brought

him things occasionally.

       Based on Navarro's description of Luis, Oliden formed a belief that Luis

was actually Brandon Rangel, who had been arrested in connection with the

burglary of the Ayres' home. Navarro stated that he paid Luis $200 for two

cameras, one laptop, and one iPod. Navarro admitted that he pawned the iPod,

sold the laptop to a friend, and kept the cameras stored in the small room at his


      2Attention deficit disorder (also known as attention deficit hyperactivity disorder).
      3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 70359-5-1/3



home.


        When Oliden asked Navarro whether he knew from whence Luis had

obtained the property, Navarro said that he did not know where the property had

come from, but he admitted, "everyone knows it was stolen." When Oliden asked

Navarro how he knew that the items had been stolen, "[Navarro] just said that he

didn't know exactly because they didn't tell him exactly where it came from. But

[Navarro] said, again, I believe he said multiple times, everyone knows it was

stolen."

        The police executed the search warrant and entered the small room that

Navarro had described to Oliden. The "very small room" was "messy" and was

detached from the house. Inside the room, the police found items belonging to

the Ayre family, including one handmade leather bag, one Bluetooth headset,

two cameras,4 and bottles of ADD medication prescribed to the Ayres' son. Also

found was a Social Security card belonging to a woman named Betty Gordon.

Although Gordon's purse containing her Social Security card had been taken

from her car in September 2012, she had not reported the incident to the police

because she did not believe that the purse contained anything of value.

        On October 2, 2012, the State charged Navarro with trafficking in stolen

property in the first degree. The State later amended the information to add a

count of identity theft in the second degree.

        During jury selection, the trial judge directed the attorneys to exercise their

peremptory challenges in writing. The judge informed the parties that the court

        4The cameras still contained a memory card with pictures belonging to the Ayre family.

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No. 70359-5-1/4



clerk would record which party struck which juror in the clerk's minutes. This

occurred while court was in session, the courtroom remained accessible to the

public during the exercise of peremptory challenges, and the court reporter made

a verbatim record of which jurors had been excused and the order in which they

had been excused. The clerk's minutes stated, in pertinent part, "Peremptory

challenges are exercised."

       The jury was then empaneled, and the State proceeded to present its

case in chief. At the close of the State's case in chief, Navarro moved to dismiss

the charge of trafficking in stolen property in the first degree, arguing that the

State had failed to establish the corpus delicti of the charged crime. This was so,

he contended, because any evidence tending to show his intent to sell or

otherwise dispose of stolen property came in the form of statements that Navarro

had given to members of law enforcement. Navarro's motion was denied.

       Thereafter, the jury was instructed as to the charged crimes and the lesser

offense of trafficking in stolen property in the second degree. The jury did not

reach a verdict as to either of the crimes charged in the information. Instead, it

found Navarro guilty of trafficking in stolen property in the second degree.

       On April 12, 2013, Navarro was sentenced to 196 days in custody with

credit for time served, ordered to pay restitution to the victims, and prohibited

from contacting the victims.

       Navarro appeals.

                                           II


       According to Navarro, the State failed to present sufficient evidence to

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No. 70359-5-1/5



independently corroborate the crime described in his incriminating statements.

Given the absence of independent evidence, Navarro argues, the trial court erred

by denying his motion to dismiss the charges against him and by permitting the

jury to consider his incriminating statements in reaching a verdict. Consequently,

he argues, the State's failure to establish the corpus delicti of the charged crime

should result in a reversal of his conviction. We disagree.

       "The corpus delicti rule was established to protect a defendant from the

possibility of an unjust conviction based upon a false confession alone." State v.

Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995); accord State v. Dow,

168 Wn.2d 243, 249, 227 P.3d 1278 (2010). The rule is often summarized as

follows:

             "The confession of a person charged with the commission of
       a crime is not sufficient to establish the corpus delicti, but if there is
       independent proof thereof, such confession may then be
       considered in connection therewith and the corpus delicti
       established by a combination of the independent proof and the
       confession.

              The independent evidence need not be of such a character
       as would establish the corpus delicti beyond a reasonable doubt, or
       even by a preponderance of the proof. It is sufficient if it prima
       facie establishes the corpus delicti."

State v. Aten, 130 Wn.2d 640, 656, 927 P.2d 210 (1996) (quoting State v. Meyer,

37 Wn.2d 759, 763-64, 226 P.2d 204 (1951)). "The independent evidence need

not be sufficient to support a conviction, but it must provide prima facie

corroboration of the crime described in a defendant's incriminating statement."

State v. Brockob. 159 Wn.2d 311, 328, 150 P.3d 59 (2006). "'Prima facie,' in this

context, means that there is evidence of sufficient circumstances which would

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No. 70359-5-1/6



support a logical and reasonable inference of the facts sought to be proved."

Vangerpen, 125 Wn.2d at 796. In reviewing whether sufficient independent

evidence exists, the evidence must be viewed in the light most favorable to the

State. Brockob, 159 Wn.2d at 328; Aten, 130 Wn.2d at 658.

          "A person who knowingly . . . traffics in stolen property, is guilty of

trafficking in stolen property in the first degree." RCW 9A.82.050(1).5 "Traffic'

means to sell, transfer, distribute, dispense, or otherwise dispose of stolen

property to another person, or to buy, receive, possess, or obtain control of

stolen property, with intent to sell, transfer, distribute, dispense, or otherwise

dispose of the property to another person." RCW 9A.82.010(19).

          Viewing the evidence in the light most favorable to the State, we conclude

that the State adduced evidence independent of Navarro's incriminating

statements that provided prima facie corroboration of the crime that was

described in his incriminating statements. The significant independent evidence

offered by the State is summarized below.

   •      Navarro had a small room on his property that was inaccessible from his

          home;

   •      The room was "messy" and in "disarray;"




          5 Navarro's motion to dismiss was directed to the charged crime of trafficking in stolen
property in the first degree. We, thus, analyze his claim accordingly. Our decision would be no
different had he sought dismissal of the charge of trafficking in stolen property in the second
degree.
No. 70359-5-1/7



   •   A number of the items stolen from the Ayre family were found stored in the

        room, including a handmade leather bag, a Bluetooth headset, two of the

        cameras, and bottles of ADD medication prescribed to the Ayres' son;

   •   The items stolen from the Ayre family were all valuable; and

   •   Other stolen property was found stored in the small room.

       Viewed in the light most favorable to the State, a logical and reasonable

inference to be drawn from this evidence is that Navarro used the small room on

his property as a location to store the Ayres' stolen property (that he had come to

possess) while he attempted to sell or otherwise dispose of the stolen goods.

The valuable items of stolen property, which were kept haphazardly along with

other stolen property in a small and messy room detached from Navarro's home,

were being stored in a manner that was at odds with retention for personal use

and enjoyment. Given these facts, it is logical and reasonable to infer that

Navarro "inten[ded] to sell... or otherwise dispose of the property to another

person." RCW9A.82.010(19).6

        Furthermore, the facts in this case are distinguishable from those in

Brockob, which Navarro argues is controlling. In Brockob. our Supreme Court

concluded that possession of 15 to 30 packages of stolen Sudafed was

insufficient to establish an intent to manufacture methamphetamine. 159 Wn.2d


        6 Navarro cites to Aten in support of his assertion that, even in the event that the
independent evidence supported a logical and reasonable inference of the facts sought to be
proved by the State, so long as the independent evidence also supported a hypothesis of
innocence, it was insufficient to corroborate his admission of guilt. We have previously rejected
this interpretation of Aten. State v. Hummel. 165 Wn. App. 749, 766-70, 266 P.3d 269 (2012),
review denied. 176 Wn.2d 1023 (2013V State v. Rooks. 130 Wn. App. 787, 803-06, 125 P.3d 192
(2005). Relying on our reasoning in Hummel and Rooks, we again reject it here.

                                                -7
No. 70359-5-1/8



at 331-32. However, in that case, the State offered no independent evidence—

such as proof that the defendant possessed other items used in the

manufacturing process—to corroborate the defendant's incriminating statement.

Brockob. 159 Wn.2d at 331-32. In contrast, the State here offered sufficient

independent evidence to corroborate Navarro's incriminating statements.

       Nevertheless, again citing to Brockob, Navarro argues that the

independent evidence was required to be, in and of itself, sufficient to support his

conviction: "Without Navarro's statements, the State cannot prove the charge."

Navarro's interpretation of Brockob is untenable. See Brockob, 159 Wn.2d at

328 ("The independent evidence need not be sufficient to support a conviction,

but it must prove prima facie corroboration of the crime described in a

defendant's incriminating statement").

       Yet, our Supreme Court recently observed, "the State must still prove

every element of the crime charged by evidence independent of the defendant's

statement." Dow. 168 Wn.2d at 254. Ostensibly, this observation substantiates

Navarro's position; however, as we explained in State v. Hummel, 165 Wn. App.

749, 266 P.3d 269 (2012), review denied, 176 Wn.2d 1023 (2013), the Dow

court's statement was unfounded dictum.

       First, the sentence was entirely unnecessary to resolve Dow. It
       was undisputed that there was no evidence, other than the
       defendant's statements, to establish that the charged crime had
       been committed. Thus, the court had no reason to analyze or
       elaborate on the quantum of proof necessary to establish the
       corpus delicti because there was none, and the court's statement
       on this issue was "wholly incidental" to the decision. Statements
       made in the course of the Supreme Court's reasoning that are
       "wholly incidental" to the basic decision constitute dicta and do not

                                         -8-
    No. 70359-5-1/9



           bind us. See Burress v. Richens, 3 Wn. App. 63, 66, 472 P.2d 396
           (1970).

                 . . . Although the statement. . . was followed by a citation to
           Brockob, as noted in the citation itself, that case held only that "[a]
           defendant's incriminating statement alone is not sufficient to
.         establish that a crime took place." Brockob. 159 Wn.2d at 328,                                 V
^       X O- •• Moreover, the Brockob court explicitly stated, "The   A
           independent evidence need not be sufficient to support a
           conviction, but it must provide prima facie corroboration of the
           crime described in a defendant's incriminating statement." Id.

    165 Wn. App. at 764-66.

           Neither Brockob nor Dow stands for the proposition that evidence

    independent of a defendant's incriminating statement must be, in and of itself,

    sufficient to prove a defendant's guilt. Instead, it remains true that the corpus

    delicti of a crime may be established by offering evidence independent of a

    defendant's incriminating statement, so long as that evidence provides prima

    facie corroboration of the crime that was described in the incriminating statement.

    In this case, because the evidence adduced by the State provided prima facie

    corroboration of the crime that was described in Navarro's incriminating

    statements, we conclude that the corpus delicti was established.

                                                    Ill


            Navarro next contends that the trial court improperly allowed the parties'

    counsel (while court was in open session) to exercise peremptory challenges in

    writing. This, Navarro asserts, was a court closure7 and—given that no Bone-



            7 In violation of the Sixth Amendment to the United States Constitution, U.S. Const.
    amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
    trial."), and both article I, section 10 ("Justice in all cases shall be administered openly, and
No. 70359-5-1/10



Club8 inquiry was undertaken—constituted structural error.9

       Similar arguments have recently and consistently been rejected by

Washington's appellate courts. State v. Webb. No. 43179-3-11, 2014 WL

4212735 (Wash. Ct. App. August 26, 2014); State v. Dunn. 180 Wn. App. 570,

321 P.3d 1283 (2014): State v. Love. 176 Wn. App. 911, 309 P.3d 1209 (2013).10

There was no error.


       Affirmed.




We concur:




without necessary delay.") and article I, section 22 ("In criminal prosecutions the accused shall
have the right... to have a speedy public trial.") of the Washington Constitution,
        s State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
        9 State v. Wise, 176Wn.2d 1,288 P.3d 1113(2012).
        10 The court reporter made a verbatim record ofwhich jurors were excused. The court
clerk's inadvertentfailure to follow the court's direction and record in the clerk's minutes which
party struck which jurordoes not present an open court issue.

                                                -10-
