                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           January 5, 2016
              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

    STATE OF WASHINGTON,                                              No. 46580-9-II

                                Respondent,

         v.

    DANIEL MIKEL STIEF,                                        UNPUBLISHED OPINION

                                Appellant.

        MAXA, J. — Daniel Stief appeals his conviction and sentence for second degree burglary

and first degree robbery.1 The convictions arose from Stief’ s theft of old radiators from Ray

Bettger’ s property, which were in Stief’ s car along with a television with a removed serial

number sticker. We hold that (1) even if the trial court erred in admitting evidence that the

television was in Stief’ s car, the error was harmless; (2) the State presented sufficient evidence of

both second degree burglary and first degree robbery, and (3) the trial court made a clerical error

by failing to note in the judgment and sentence that the burglary and robbery convictions

involved the same criminal conduct. Accordingly, we affirm Stief’ s convictions, but remand for

the trial court to correct the clerical error in the judgment and sentence.

                                               FACTS

        Bettger lives in rural Clark County on property that is set back from the main road and

accessible by a single driveway. The property is enclosed by a fence on which a private property

sign and no trespassing sign are posted.


1
 Stief also was convicted of possession of methamphetamine, but he does not appeal that
conviction.
No. 46580-9


       On May 22, 2014, Bettger heard his door bell ring. He assumed it was a delivery and did

not answer the door. When Bettger checked outside a few minutes later, he saw an unfamiliar

car on his property. He went outside to investigate. Bettger saw Stief nearby and asked what he

was doing. Stief said he was there to pick up a water heater. Bettger replied by telling Stief that

he was trespassing.

       Stief moved rapidly toward his car, and Bettger followed. Bettger noticed that inside the

car were three old radiators that he recognized as his property. Stief got into his car, and Bettger

moved in front of the open door. Stief tried to close the door at least three times, but the door hit

and injured Bettger’ s leg each time. Bettger then displayed a handgun and grabbed Stief’ s keys.

Stief ran away on foot, but was arrested by a responding officer.

       Deputy Alan Earhart obtained a search warrant for Stief’ s car and discovered a flat screen

television buckled into the back seat. The television did not have its serial number sticker

attached, but Earhart found the sticker inside a toolbox in the car. Earhart took photographs of

the television without the sticker and again after replacing the sticker.

       In a motion in limine, Stief argued that the television and serial number sticker were

inadmissible because they were not relevant to any of the charged crimes. He argued that the

State provided no details about the television or whether it was stolen, and that the evidence was

unfairly prejudicial. The State argued that the evidence was admissible as res gestae or to show

intent to steal. The trial court ruled the television and sticker were relevant and admissible for

the purpose of showing “ common scheme, plan, lack of accident or something along those

lines.” Report of Proceedings (RP) at 6-7. Stief did not argue that the television evidence was

inadmissible under ER 404(b).



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No. 46580-9


         At trial, Earhart testified about finding the television, noticing there was no serial number

sticker, and finding a serial number sticker in a toolbox in the car. The trial court admitted the

photographs of the television and sticker into evidence. Aside from Earhart’ s testimony, the

State made only a brief reference in closing argument to the television without the serial number.

         The jury found Stief guilty of second degree burglary and first degree robbery. At

sentencing, the trial court treated the burglary and robbery convictions as the same criminal

conduct for purposes of calculating Stief’ s offender score. However, the trial court did not note

this same criminal conduct determination on the judgment and sentence.

         Stief appeals his convictions and sentence.

                                             ANALYSIS

A.       ADMISSION OF TELEVISION EVIDENCE

         Stief argues that the trial court erred by admitting evidence regarding the television with a

removed serial number sticker because it was inadmissible under ER 403.2 ER 403 provides that

    a] lthough relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Stief argues

that the television evidence unfairly prejudiced him because it allowed the jury to infer that he




2
 Stief primarily argues that the television evidence was inadmissible under ER 404(b).
However, Stief did not object to the television evidence based on ER 404(b) in the trial court.
Clerk’ s Papers (CP) at 17; RP 6. Therefore, he waived the error on appeal. State v. Powell, 166
Wn.2d 73, 82-84, 206 P.3d 321 (2009) (refusing to reverse the trial court's decision to admit
evidence where the defendant argues for reversal based on an evidentiary rule not raised at trial).
Accordingly, we decline to consider Stief’ s ER 404(b) argument.


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No. 46580-9


had stolen the television and was a thief. We hold that even if the television evidence was

inadmissible under ER 403, the trial court’ s admission of that evidence was harmless.

       Evidentiary errors require reversal only if the error was not harmless. State v. Slocum,

183 Wn. App. 438, 456-57, 333 P.3d 541 (2014). Under the applicable nonconstitutional

harmless error test, the question is whether there is a reasonable probability that the outcome of

the trial would have been materially affected had the error not occurred. Id. at 456. Improperly

admitted evidence is harmless if the evidence is of minor significance in reference to the

evidence as a whole. State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001).

       Here, there was only minimal discussion of the television and the removed serial number

sticker at trial. Deputy Earhart testified briefly about the removed sticker, but the State did not

emphasize the evidence. The State never argued that the television evidence should be used to

infer Stief’ s guilt, and made only a passing reference to the television and the serial number

sticker in closing argument. As a result, the fact that Stief had a television that may have been

stolen in his car was of minor significance in reference to the evidence as a whole.

       Further, the evidence of burglary was overwhelming. The undisputed testimony at trial

established that Bettger’ s property was surrounded by a fence and posted as private property, and

that Stief did not have permission to be on Bettger’ s property or to put the radiators in his car.

Stief did not challenge that evidence. Therefore, evidence of the television with a removed serial

number sticker would not have materially affected the outcome of Stief’ s burglary conviction.

       Regarding the robbery conviction, the only issue was whether Stief intentionally

slammed the door on Bettger’ s leg and injured him. Even if the television evidence caused the

jury to believe Stief had stolen the television, that evidence was immaterial to whether Stief used



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No. 46580-9


intentional force in an attempt to steal the radiators. Therefore, the television evidence would

not have materially affected the outcome of Stief’ s robbery conviction.

       Accordingly, we hold that even if admission of the television evidence and the removed

serial number sticker was error, that error was harmless.

B.     SUFFICIENCY OF THE EVIDENCE

       Stief asserts in a statement of additional grounds (SAG) that the State presented

insufficient evidence to show that he committed second degree burglary by (1) entering or

remaining unlawfully in a building, because he never entered any dwelling or enclosure or closed

gate; ( 2) taking Bettger’ s personal property, because he did not remove the radiators from

Bettger’ s property. He also asserts that the State presented insufficient evidence to show that he

committed first degree robbery by inflicting bodily harm, because he was unable to reach the car

door while Bettger stood in the open doorway. We disagree.

       When evaluating the sufficiency of evidence for a conviction, the test is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the fact at issue beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330

P.3d 182 (2014). We will assume the truth of the State’ s evidence and all reasonable inferences

drawn from that evidence when evaluating whether sufficient evidence exists. Id. at 106. We

will also defer to the trier of fact’ s resolution of conflicting testimony and evaluation of the

persuasiveness of the evidence. Id.

       Second degree burglary requires the State to prove that the defendant (1) entered or

remained unlawfully in a building other than a vehicle or a dwelling (2) with intent to commit a




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No. 46580-9


crime against a person or property therein. RCW 9A.52.030. The State presented sufficient

evidence of both elements.

       First, there was sufficient evidence that Stief entered or remained unlawfully in a

 building.” The to-convict instruction stated that the State must prove that the defendant entered

or remained unlawfully in a building, and an additional instruction specified that “[ b]uilding, in

addition to its ordinary meaning, includes any dwelling or fenced area.” CP 36 (emphasis

added). Bettger testified about his property and photographs of the property, showing that it was

enclosed by a fence and had posted “ private property” and “ no trespassing” signs. Earhart

testified that during his questioning of Stief, Stief confirmed that he saw the no trespassing signs

and that he did not have permission to enter the property. Viewing the evidence in the light most

favorable to the State, a rational trier of fact could conclude beyond a reasonable doubt that Stief

entered or remained unlawfully in Bettger’ s fenced property.

       Second, there was sufficient evidence that Stief took Bettger’ s radiators. Bettger testified

that, prior to Stief’ s arrival, the radiators were leaning against the cement foundation outside of

his shop. Bettger then testified that when he went outside to speak with Stief he saw the

radiators in Stief’ s car. Earhart also testified that during the execution of the search warrant on

Stief’ s car, he saw the radiators in the back seat. From the evidence, a rational trier of fact could

conclude beyond a reasonable doubt that Stief took the radiators from in front of Bettger’ s

garage and placed them in his own car. There is no authority for Stief’ s suggestion that the State

needed to prove that he removed the radiators from Bettger’ s property in order to meet its

burden.




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No. 46580-9


       First degree robbery requires the State to prove that the defendant inflicted bodily injury

in the commission of a robbery or in immediate flight therefrom. RCW 9A.56.200. Here, the

State presented sufficient evidence that Stief closed the car door on Bettger and injured him.

Bettger testified that although he did not see Stief’ s hands on the car door, he was certain that

Stief tried to close the door on him. Bettger also testified that he could not have closed the door

on himself. Finally, Bettger testified that each time Stief tried to close the door, it hit and injured

Bettger’ s leg. Viewing the evidence in the light most favorable to the State, a rational trier of

fact could conclude beyond a reasonable doubt that Stief closed the car door on Bettger’ s leg and

caused bodily harm.

       Accordingly, we hold that the State presented sufficient evidence to sustain Stief’ s

convictions for second degree burglary and first degree robbery.

C.     CLERICAL ERROR

       Stief argues, and the State concedes, that the trial court made a clerical error in

sentencing when it failed to note in the judgment and sentence that the burglary and robbery

involved the same criminal conduct. We accept the State’ s concession.

       The trial court did not expressly find that the burglary and robbery convictions

constituted the same criminal conduct and therefore counted as one crime for purposes of

calculating Stief’ s offender score. However, the State calculated that the sentencing range for

the robbery was 46 to 61 months if the convictions did not constitute the same criminal conduct

and 41 to 54 months if they did. The trial court sentenced Stief to 42 months, which is only

consistent with a finding that the burglary and robbery convictions constituted the same criminal




                                                   7
No. 46580-9


conduct. But the judgment and sentence does not reflect that the trial court made this

determination.

        We hold that the trial court made a clerical error by not noting in the judgment and

sentence that the burglary and robbery convictions constituted the same criminal conduct. The

remedy for clerical error in a judgment and sentence is to remand to the trial court for correction.

In re Pers. Restraint of Mayer, 128 Wn. App. 694, 701-02, 117 P.3d 353 (2005). Accordingly,

we remand with instructions that the trial court state in the judgment and sentence that the

burglary and robbery conviction constitute the same criminal conduct for sentencing purposes.

        We affirm Stief’ s convictions, but remand for the trial court to correct the clerical error in

the judgment and sentence.

        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.




                                                       MAXA, J.

 We concur:




 JOHANSON, C.J.




 MELNICK, J.




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