                                                                                                      i          11 ED
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                                                                                                    2015 JUL 2'8
                                                                                                                         S. 25


                                                                                                    k5

    IN THE COURT OF APPEALS. OF THE STATE OF WASHIN

                                                    DIVISION II

 STATE OF WASHINGTON,                                                              No. 45876 -4 -II


                                         Respondent,


              V.

                                                                            UNPUBLISHED OPINION
 MAHDI ELISAH SHARRIEFF,




          MAXA, J. —          Mandi Sharrieff challenges his convictions as an accomplice for trafficking

in stolen property in the first degree and theft in the first degree. We hold that ( 1) testimony by a

police officer did not impermissibly comment on Sharrieff s right to remain silent, (2) Sharrieff

waived his claim of prosecutorial misconduct by failing to object to the prosecutor' s reference to

facts   not   in   evidence   during   closing   argument, (   3) the trial court did not err in including

Shafrieff' s past conviction for second degree taking a motor vehicle without permission in his

offender score, and ( 4) Sharrieffs statement of additional grounds ( SAG) contentions have no


merit. However, the trial court made a scrivener' s error by stating an incorrect offender score in

the judgment and sentence, even though the sentence was based on the correct offender score.


          Accordingly, we affirm Sharrieff s convictions but remand for correction of a scrivener' s

error   in the judgment        and sentence   regarding Sharrieff s     offender score.
45876 -4 -II



                                                         FACTS


         In June 2013, Sharrieff and Joseph Warren walked into a camera store in Lakewood. The


store' s video footage showed the pair speaking with the store clerk about various cameras.

Sharrieff stated that he had to get something out of the car and left the store. A few minutes

later, Warren grabbed two cameras when the clerk was not looking and rani out of the store with

the cameras. The clerk chased him, but did not see either Warren or Sharrieff outside the store.


         Tod Wolf, the store owner/manager, monitored Craigslist to see if the stolen cameras

were posted on the website. He spotted two cameras that he suspected were the stolen property.

Wolf contacted the police and was instructed to arrange a meeting with the seller, which the

police would attend rather than Wolf. Wolf contacted the seller, who he later identified as


Warren, and arranged to meet at a McDonald' s restaurant at a particular time.


         At the time of the arranged meeting, one police officer was positioned inside the

McDonald' s, while other police officers sat in unmarked cars around the restaurant. The seller


did   not arrive on   time,   so an officer —through      Wolf —arranged to meet the seller outside the


McDonald' s.


         While they waited for the meeting, several police officers saw Sharrieff walk toward the

McDonald' s and recognized him as one of the individuals depicted in the surveillance video.


Sharrieff entered the McDonald' s and walked to the counter. The police then detained him and


moved him outside. The officers positively identified Sharrieff as one of the suspects by

comparing him to       a   figure   shown   in   surveillance photos.   Sharrieff   stated, "   You don' t have me


on video   stealing any     cameras."       Report of Proceedings ( RP) at 495. The officers arrested


Sharrieff and informed him of his right to remain silent.



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45876 -4 -II



          A short while later the police observed Nina Ricketts in the driver' s seat and Warren in

the back seat of a parked car near the McDonald' s. The front passenger seat was empty. When

Ricketts and Warren spotted a police officer, Ricketts began to pull out of their parking spot.

Warren ducked down in his seat. The police stopped the car. While speaking with Ricketts and

Warren, the police noticed that Warren was attempting to conceal two cameras on the floor of

the car. After arresting Warren and Ricketts, the police obtained a search warrant for the car and

found the stolen cameras.


          Sharrieff was charged as an accomplice to trafficking in stolen property in the first degree

and theft in the first degree. Sharrieff testified at a CrR 3. 5 hearing regarding the admissibility of

the   statement   he   made   that there     was no video of     him stealing     cameras.    Sharrieff testified that he


had a social relationship with Ricketts and that she owned the car that she was driving when

Warren was apprehended..


          At trial, the prosecutor asked Officer Henson, one of the officers who detained Sharrieff,


if he   was present    for any   statements        Sharrieff   made.    Henson   replied, " He   made a few little


statements. I' m not sure about the statement that he made. He essentially said that he didn' t

have anything to say to        us."    RP    at   339. Sharrieff did not object to or move to strike this


testimony. The prosecutor stated outside the presence of the jury that he did not intentionally

introduce testimony that Sharrieff did not have anything more to say to the officers.

          Henson also testified that he and another officer interviewed both Warren and Ricketts.


Then on a second occasion, another officer testified that he assisted with the investigation " while


Henson     and   Martin   conducted      interviews." RP at 409. The officer also mentioned that he


downloaded the interviews             onto   DVDs ( digital     video   disks)   and   booked them into   evidence.
45876 -4 -II




Defense counsel objected to this testimony on the grounds that the prosecutor was eliciting

testimony that indirectly referenced Sharrieff s exercise of his right to remain silent. The court

overruled the objection, reasoning that the jury would be instructed that they could not use

Sharrieff s exercise of his right to remain silent against him.


        In closing argument, the prosecutor argued:

        The    circumstances are   pretty   damning in this   case.   I   mean,    Mr. Sharrieff —there' s

        an empty front passenger seat in the Mazda. Mr. Sharrieff we know is acquainted
        with   Mr. Warren because     we' ve   seen them together         in the   video.   We' re told that
        Mr. Sharrieff has a relationship of some type with Ms. Ricketts, who' s apparently
        the owner of this   vehicle   though it may actually     be in     someone else' s name.       He' s

        the only one that got hungry?

       elffl



        The prosecutor also referred to Sharrieff s relationship with Ricketts in his rebuttal

argument:




         W]e also know that Ms. Ricketts relationship with the defendant, the empty front
        passenger seat, Mr. Warren sitting in the back seat, we know that they arrived there
        together.   Is that because of      circumstantial evidence?         Yes.    But that' s sufficient

        evidence to reach that conclusion without any doubts whatsoever.

RP at 655. However, the State had presented no evidence at trial that Sharrieff had a relationship

with Ricketts or that Ricketts owned the car she was driving. Defense counsel for Sharrieff did

not object to either of these statements.


        The jury found Sharrieff guilty of trafficking in stolen property in the first degree and

theft in the first degree. At sentencing, the State contended that Sharrieff had a prior conviction

for second degree taking of a motor vehicle without permission. The only evidence of this

conviction in the appellate record is a disposition form showing that Sharrieff pled guilty to

attempted taking of a motor vehicle without permission. However, a transcript of the sentencing


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45876 -4 -II




hearing establishes that the State provided to the trial court the actual order.of disposition for the

conviction, which shows that Sharrieff pled guilty to the completed crime.

        The trial court also concluded that Sharrieff had an offender score of 8, and sentenced


him based on that offender score. However, the judgment and sentence incorrectly stated the

offender score as 9.


        Sharrieff appeals.


                                                    ANALYSIS


A.      COMMENT ON RIGHT TO REMAIN SILENT


         Sharrieff argues that Officer Henson' s testimony was a direct comment on Sharrieff s

right to remain silent and therefore violated his right against self-incrimination. We disagree.

         1.    Legal Principles


        The Fifth Amendment to the United States Constitution               states   that "[   n] o person ..:   shall




be   compelled   in any   criminal case   to be   a witness against   himself" Article I, section 9 of the


Washington State Constitution       states   that "[   n] o person shall be compelled in any criminal case to

give evidence against      himself." Both provisions guarantee a defendant the right to be free from


self-incrimination, including the right to silence. State v. Knapp, 148 Wn. App. 414, 420, 199

P. 3d 505 ( 2009).   We liberally construe a defendant' s constitutional right to remain silent. See

State v. Easter, 130 Wn.2d 228, 236, 922 P. 2d 1285 ( 1996).


         Our Supreme Court has distinguished between a " comment" on the constitutional right to


remain silent and a " mere reference" to silence. State v. Burke, 163 Wn.2d 204, 216, 181 P. 3d 1

 2008). A " comment" involves the State' s use of a defendant' s silence to its advantage either as


substantive evidence of guilt or to invite an inference that the defendant' s silence was an



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45876 -4 -II



admission of guilt. Id. at 217; see also State v. Lewis, 130 Wn.2d 700, 707, 927 P. 2d 235 ( 1996).

Such a comment violates the United States and Washington constitutions. Burke, 163 Wn.2d at

217.


           Conversely, a " mere reference" is a statement that only indirectly refers to a defendant' s

silence.    See State     v.   Pottorff, 138   Wn.   App.    343, 347, 156 P. 3d 955 ( 2007).            Such a statement


will not   be    considered a comment on         the      right   to   remain silent   if it   was " ` so subtle and so



brief"     that it did not necessarily emphasize the defendant' s silence. Burke, 163 Wn.2d at 216

 quoting State      v.   Crawford, 21 Wn.       App.      146, 152, 584 P. 2d 442 ( 1978)).            A mere reference to


silence is not a constitutional violation unless the defendant shows some prejudice. Burke, 163


Wn.2d at 216.


           2.     Analysis


           In   response   to the prosecutor'    s   questioning, Henson testified that, "[             SharrieffJ made a few

little statements. I' m not sure about the statement that he made. He essentially said that he

didn' t have anything to say to         us."    RP   at   339. We hold that Henson' s statement was a mere


reference to Sharrieff' s silence. First, the State did not deliberately elicit a statement that

touched on Sharrieff' s silence. The prosecutor emphasized outside.the presence of the jury that

he did not intend to elicit any testimony regarding Sharrieff' s failure to answer questions, and

that Officer Henson' s answer was inadvertent. I




1 It appears that the prosecutor was attempting to elicit testimony regarding the spontaneous
statement that Sharrieff made to the police that they did not have him on video stealing cameras.

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45876 -4 -II




         Second, the State did not attempt to use Officer Henson' s testimony to its advantage.

The State did not ask the jury to use the statement as substantive evidence of guilt or to infer an

admission of guilt. In fact, the prosecutor never mentioned the statement again.


         Third, Officer Henson' s testimony was very subtle and very brief. Henson' s statement

that Sharrieff "essentially said that he didn' t have anything to say to us" came after he stated that

Sharrieff had   made " a    few little   statements."     RP at 339. The jury would not necessarily have

interpreted the testimony as a comment on Sharrieff s silence.

         A mere reference to a defendant' s silence is not constitutional error unless a defendant


shows prejudice. Burke, 163 Wn.2d at 216. Here, Sharrieff fails to show that he was prejudiced


by Henson' s reference to his silence. There is no witness testimony or argument by the

prosecutor in the record to imply that the jury could infer Sharrieff s guilt from his silence. And

as our   Supreme Court      stated    in Lewis, "[ m] ost jurors know that an accused has a right to remain


silent and, absent any statement to the contrary by the prosecutor, would probably derive no

implication    of guilt   from   a   defendant'   s silence."       130 Wn.2d at 706.


         We hold that Henson' s testimony was a mere reference to Sharrieff s silence, and

Sharrieff has failed to demonstrate prejudice from that testimony. Therefore, we hold that the

State did not violate Sharrieff s right to remain silent.Z




2 Sharrieff also argues that witness testimony regarding police interviews with Ricketts and
Warren was an indirect comment on his right to remain silent. However, Sharrieff cited no cases
standing for the principle that a mere reference to a co -perpetrator' s interview constituted a
comment on a different coperpetrator' s right to remain silent. We hold that this argument has
no merit.


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45876 -4 -II




B.        PROSECUTORIAL MISCONDUCT


          Sharrieff argues that the prosecutor committed misconduct by arguing facts not in

evidence   in his closing      argument —        Sharrieff s relationship to Ricketts. Sharrieff contends that

without the reference to this relationship, the State would have been unable to connect Sharrieff

to the car where the stolen property was located. Moreover, Sharrieff argues that the prosecutor

  by   asking, " He'   s   the only   one   that   got
                                                         hungry?" = implied that Sharrieff admitted to being with

Warren and Ricketts. Br. of Appellant at 19. We hold that Sharrieff waived his right to claim


prosecutorial misconduct by failing to object to the statements below.

          To prevail on a claim of prosecutorial misconduct, a defendant must show that in the

context of the record and all of the circumstances of the trial, the prosecutor' s conduct was both


improper    and prejudicial.      State     v.   Thorgerson, 172 Wn.2d 438, 442, 258 P..3d 43 ( 2011).             We


analyze the prosecutor' s conduct and whether prejudice resulted therefrom based on the full trial


context including the evidence presented, the issues in the case, the prosecutor' s total argument,

and the instructions given to the jury. State v. Monday, 171 Wn.2d 667, 675, 257 P. 3d 551

 2011).    Misconduct is prejudicial if there is a substantial likelihood it affected the verdict. State


v. Emery, 174 Wn.2d 741, 760, 278 P. 3d 653 ( 2012).

          However, a defendant waives any error by failing to object to the prosecutor' s improper

conduct, unless that conduct was so flagrant and ill -intentioned that an instruction could not have


cured   the resulting      prejudice.    Id. at 760- 61.     In assessing whether a failure to object should

operate as a waiver, we " focus less on whether the prosecutor' s misconduct was flagrant or ill


intentioned    and   more    on whether      the resulting prejudice could have        been    cured."    Id. at 762.


Therefore, to   avoid waiver          the defendant       must show   that   no curative   instruction   would   have
45876 -4 -II



eliminated      the   prejudicial effect of   the   prosecutor' s conduct.     Id.   at   760- 61.   This is the case only

where     the   misconduct " engendered an          incurable   feeling   of prejudice     in the    mind of   the   jury."   Id.


at 762.


          Here, the prosecutor did state that Sharrieff and Ricketts had a relationship, which was

not in the record. However, Sharrieff did not object below to that portion of the prosecutor' s


argument. If Sharrieff had objected, the trial court could have struck the prosecutor' s arguments


from the record and instructed the jury to disregard any arguments that the evidence did not

support. This would have cured any possible prejudice.

          Further, Sharrieff s claim that this statement prejudiced him because this relationship was

all that connected him to the car has no merit. Warren was in the car, and the State knew that

Warren and Sharrieff had gone into the camera store together. This evidence connected Sharrieff


to the car, regardless of whether he had any relationship with Ricketts. This failure to show

prejudice precludes Sharrieff s claim of prosecutor misconduct. Therefore, we hold that Sheriff

waived his right to claim misconduct on the basis of these statements.


           We reject Sharrieff s prosecutorial misconduct claim.


C.         OFFENDER SCORE CALCULATION


           Sharrieff argues that the trial court erred by including his past conviction for taking a

motor vehicle without permission in his offender score. He argues that the evidence shows that


this conviction was for attempted taking of a motor vehicle without permission, which is a gross

misdemeanor that cannot be included in the offender score. We disagree because the State


provided evidence at sentencing showing that the conviction was for the completed crime, which

is a felony that must be included in the offender score.


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45876 -4 -II



         A trial court' s sentence following a conviction depends on a defendant' s offender score,

which is calculated based on the defendant' s current offenses and prior convictions. RCW

9. 94A. 525,.   530. Generally, only felonies can be included in an•offender score. RCW

9. 94A. 525( 2).   We review a sentencing court' s calculation of an offender score de novo. State v.

Hernandez, 185 Wn. App. 680, 684, 342 P. 3d 820 ( 2015).

         In order to establish a defendant' s criminal history for sentencing purposes, the State

must prove a defendant' s. prior convictions by a preponderance of the evidence. Former RCW
                           3
9. 94A. 500( 1) ( 2008);       State   v.   Hunley,   175 Wn.2d 901, 909- 10, 287 P. 3d 584 ( 2012). The best


evidence of a prior conviction is a certified copy of the judgment, but the State also may produce

other comparable documents or transcripts from prior hearings to prove prior convictions.


Hunley, 175 Wn.2d at 910- 11 ( listing with approval cases discussing other sufficient evidence to

prove a prior conviction).




         Here, the State' s sentencing memorandum asserted that Sharrieff had been convicted of

taking a motor vehicle without permission, which is a class C felony if the crime is charged in

the   second    degree. RCW 9A. 56. 075( 2).           The only direct evidence of this conviction in the

appellate record. is a disposition form showing that Sharrieff pled guilty to attempted taking of a

motor vehicle without permission.               Under RCW 9A.28. 020( 3)( d),   an attempted class C felony is

a gross misdemeanor.




         However, the transcript of the sentencing hearing shows that the State provided the trial

court with the disposition order of his conviction, which shows that Sharrieff pled guilty to the



3 RCW 9. 94A.500 was amended in 2014. However, this amendment does not affect the
subsection cited. LAWS of 2013, ch. 200, § 33.



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45876 -4 -II




completed crime of taking a motor vehicle without permission in the second degree. The State

provided a copy of this order as an appendix to its brief. The completed crime of taking a

vehicle without permission   in the   second   degree is   a   felony.   RCW 9A. 56. 075( 2). Therefore,


that conviction was required to be included in Sharrieff s offender score..


        We hold that the preponderance of the evidence shows that Sharrieff was convicted of


taking a motor vehicle without permission in the second degree, a felony. Therefore, we hold

that the trial court did not err in including this conviction in Sharrieff s offender score.

D.      SCRIVENER' S ERROR


        Sharrieff argues, and the State concedes, that the trial court mistakenly stated Sharrieff s

offender score as 9 instead of 8 in the judgment and sentence. We agree.


        The trial court concluded during sentencing that Sharrieff s offender score was 8 and

sentenced him based on that offender score. However, the judgment and sentence incorrectly

states an offender score of 9. We remand for the trial court to correct the scrivener' s error.


E. _    SAG ASSERTIONS


        Sharrieff s SAG argues ( 1) the State presented insufficient evidence to convict him as an

accomplice, and ( 2) the court erred by including a point in his offender score that encompassed

the same criminal conduct as another offense. We hold that neither of these claims has merit.


               Sufficiency of Evidence to Prove Accomplice Liability

        Sharrieff contends that the evidence is insufficient to prove the knowledge element of


accomplice liability. Specifically he contends that there was no evidence linking him to the

offenses. We disagree.




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45876 -4 -II




                     a.     Standard of Review


         The test for determining sufficiency of the evidence is whether, after viewing the

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

beyond    a reasonable       doubt. State   v.   Homan, 181 Wn.2d 102, 105, 330 P. 3d 182 ( 2014). In


evaluating a sufficiency of the evidence claim, we assume the truth of the State' s evidence and

all reasonable inferences drawn from that evidence. Id. at 106. We consider direct and

circumstantial evidence equally reliable in weighing sufficiency of the evidence. City ofSeattle

v.   Meah, 165 Wn.        App.   453, 456, 267 P. 3d 536 ( 2011).        We defer to the trier of fact' s resolution


of conflicting testimony and evaluation of the persuasiveness of the evidence. Homan, 181

Wn.2d at 106.


                b.        Accomplice Liability

         To prove that Sharrieff was an accomplice to the theft and trafficking of the stolen

property, the State needed to show that he knowingly promoted or facilitated the commission of

these crimes ( 1) by soliciting, commanding, encouraging, or requesting another person to

commit the crimes; or ( 2) by aiding or agreeing to aid another in the planning or committing of

the   crimes.   RCW 9A.08. 020( 3)(       a)(   i)-( ii).   A person aids or abets a crime by associating himself

with the undertaking, participating in it as in something he desires to bring about, and seeking by

his action to make it succeed. State v. Knight, 176 Wn. App. 936, 949, 309 P. 3d 776 ( 2013),

review   denied, 179 Wn.2d 1021 ( 2014).                A person' s physical presence during the offense is not

required for accomplice liability. Id.




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45876 -4 -II



          Here, there is some evidence that allowed the jury to rationally infer that Sharrieff

facilitated the theft of the cameras and subsequent trafficking of the cameras by giving Warren

aid in the commission of those crimes. The State presented evidence that Sharrieff arrived with


Warren at the camera store and actively engaged the clerk in conversation. From this the jury

could reasonably infer that Sharrieff must have known that his conversation with the clerk would

put the clerk at ease and facilitate Warren' s opportunity to grab the cameras a short time later.

Similarly, the jury was presented with evidence that Sharrieff arrived at the McDonald' s shortly

after the   seller of   the   camera was meant   to   arrive, and   that he blurted   out, "   You don' t have me on


video   stealing any     cameras" when   detained. RP       at   495:   This evidence allowed the jury to

reasonably conclude that Sharrieff knew the sale of the cameras would be at that location and

that he was aiding Warren in making the sale. Lulling the clerk into a false sense of security and

attempting to interact with the potential buyers of stolen goods both fall within the meaning of

 aid" in the accomplice liability statute. RCW 9A.08.020( 3)( a)( ii).

          Sharrieff argues that his mere presence, even with knowledge of the crimes, was


insufficient to prove accomplice liability. He is correct that the mere presence of the defendant

without     aiding the   principal — despite knowledge      of    the ongoing   criminal
                                                                                           activity —is not


sufficient to establish accomplice liability. State v. Truong, 168 Wn. App. 529, 540, 277 P. 3d 74

 2012).     However, as discussed above, here the State presented the jury with more than just

Sharrieff s presence: it presented the jury with evidence of Sharrieffs conversation with the

clerk, his arrival at the place of the purported sale at McDonald' s, and his unprovoked statement

at the time of his detainment. This circumstantial evidence was sufficient to show Sharrieff s




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45876 -4 -II




knowledge and actions to aid in the commission of the crimes sufficient to allow a rational jury

to convict him as an accomplice.


        We hold that the State presented sufficient evidence of accomplice liability for Sharrieff s

theft and trafficking of the stolen property convictions.

        2.     Same Criminal Conduct


        Sharrieff argues that the trial court erred in counting his 2006 theft and second degree

assault convictions separately in calculating his offender score, contending that they arose from

one single incident. We disagree.


        For    crimes   to be treated   as   the   same   criminal conduct under   RCW 9. 94A. 589( 1)(   a),   they

must have the same criminal intent, be committed at the same time and place, and involve the


same victim. State v. Davis, 174 Wn. App. 623, 641, 300 P. 3d 465, review denied, 178 Wn.2d

1012 ( 2013). Here, the record shows that Sharrieff committed theft and second degree assault on


the same date in 2006. However, there is insufficient direct evidence in the record to determine


whether these two crimes involved the same criminal intent, were committed at the same time, or


involved the same victim.4 Therefore, this claim relies, at least in part, on facts outside the

record. We do not address issues on direct appeal that rely on facts outside the record. State v.

Alvarado, .164 Wn.2d 556, 569, 192 P. 3d 345 ( 2008).               They are more properly raised in a

personal restraint petition. Id.




4 The State' s sentencing memorandum and the amended information for the original offenses
state that these crimes involved a different victim, but there is no evidence in the record of this
fact.

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45876 -4 -II



                                       CONCLUSION


        We affirm Sharrieff' s convictions, but remand for correction of a scrivener' s error in the


judgment and sentence regarding Sharrieff' s offender score.

        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.




                                                        MAXA, 7.




We concur:




 Wt RSWICK, P. J.




 L - i, J.




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