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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                     No. 73296-0-1
                     Respondent,
                                                     DIVISION ONE



GILJON LEE-SEAN JOHNSON,                             UNPUBLISHED OPINION


                     Appellant.                      FILED: October 10, 2016


      Leach, J. — Giljon Lee-Sean Johnson appeals from his conviction for residential

burglary. He challenges the sufficiency of the evidence to support his conviction. But

the State presented evidence establishing that Johnson either unlawfully entered the

residence with the intent to commit a crime or facilitated the commission of the crime by

carrying stolen items away from the house.         Thus, sufficient evidence supports

Johnson's conviction, either as a principal or as an accomplice. Based on Johnson's

age, the length of his sentence, and his employment history, we decline his request to

deny appellate costs to the State. We affirm.

                                         FACTS


      At about 1:00 a.m. on July 19, 2014, Eric Hull had just turned out the lights to go

to sleep in his south Seattle home when he heard a loud "scraping or grinding" noise

outside.   Hull looked out of the second-floor bedroom window into the backyard and

side yard of his neighbors' house at 4016 39th Avenue South. He saw no lights on in
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the house and knew that the residents, Katherine Francis and Mark Cuthebert, were

traveling out of the country. The backyard was also dark, but Hull could see the light

from two flashlights and heard voices from "at least" two people.

       Hull went downstairs and called 911.       While speaking to the operator, Hull

described seeing flashlights inside several rooms of the house and in the basement.

Hull estimated that he heard the police arrive and announce themselves within five

minutes of the 911 call.   Hull then heard the sounds of a scuffle, what sounded like

items being dropped, and an officer announcing that one of the suspects was in

custody. Hull later saw "a lot of flashlights" trained on the roof of a detached garage

behind the neighbors' backyard.

       Seattle Police Officer Terry Persun responded to the 911 call and approached

the front of the Francis/Cuthebert house on foot with Officer Lee.       Through a front

window, Persun saw a man inside with a flashlight. The man was wearing gloves and

carrying a flat-screen television. Persun did not get a good look at the man's face.
       While looking through the window, Persun heard a "huge noise" at the back of
the house and what sounded like "ten people running" in the fenced side yard on the

north side of the house. Officer Lee announced the officers' presence, and Persun

immediately heard "whoever it was running . . . basically stop, turnaround, and then just
run in the opposite direction away from us." Persun and Lee then opened the gate at
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the northwest corner of the property and followed the suspects into the backyard.

Persun estimated that no more than five to seven minutes had elapsed since he arrived.

      In the northeast corner of the backyard, Persun saw a man attempting to hide

under some bushes. Persun arrested the man, later identified as Queshawn Maxwell.

A pair of purple gloves lay on the ground nearby.

      Officers Andrew Wilkes and Andrew Belgarde approached the front of the house

about the same time as Persun and Lee.          Wilkes saw two people inside carrying

flashlights and moving around.     When asked how many flashlights he saw inside,

Belgarde replied, "I didn't get a good count. But it was more than two. So there was

quite a few flash lights inside." Belgarde added that he was not "100 percent sure," but

"I know I saw two, three."    Based on the flashlights and the noise inside, Belgarde

"guesstimated" there were "three or four, maybe five people" inside. He acknowledged

that he tended to "over-estimate" in such situations to avoid surprises.

       While other officers went around the north side of the house, Wilkes and

Belgrade went around to the south side yard. Almost immediately, Wilkes arrested a

young man, later identified as Lamondo Williams, as he fell out of a window. Williams

was wearing a pair of purple gloves and not carrying any items.

       After ascertaining that Wilkes had Williams under control, Belgarde kicked

through the side yard fence to assist the other officers in the backyard. Belgarde saw
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the officers near the northeast corner of the backyard attempting to take Maxwell into

custody.   Belgarde then heard a third suspect, later identified as appellant Johnson,

running through the bushes toward the southeast corner of the backyard.

      Officer Benjamin Kelly parked his patrol car on Cascadia Avenue, the street

directly to the east of 39th Avenue South. He then walked toward a fence at the rear of

a house on Cascadia that bordered the Francis/Cuthebert backyard. Kelly heard a lot of

noise on the other side of the fence but could not see anything. Kelly thought someone

was repeatedly running up against the fence and trying to climb over it.

      A short time later, Kelly saw Johnson attempting to conceal himself in a small

gap between a detached garage and a fence. When Kelly ordered Johnson to show his

hands, Johnson stood up slowly, turned around, and climbed onto the flat roof of the

garage. He lay down and ignored repeated commands to climb down. Johnson later

stood up and wandered back and forth on the roof.

      Johnson eventually jumped down and started running east through the side yard

of a house on Cascadia.      As he approached a fence at the end of the side yard,

Johnson "just launched himself, trying to jump over the fence."            Johnson was

unsuccessful and fell back, with Kelly just behind him.

      When Kelly reached for Johnson's shoulder, Johnson hit him in the face. Kelly

responded by striking Johnson in the head with his fist, and the two men wrestled for a
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time.   At some point during the struggle, Kelly felt his "gun and gun hand become

trapped." Concerned that Johnson was attempting to take the gun, Kelly jerked the gun

away and shot Johnson twice in the abdomen, causing serious injuries. Seattle police

detectives found a pair of purple gloves on the ground nearby after Johnson was

arrested.


        Johnson testified that he spent the early evening of July 18 playing basketball

with his friends Maxwell and Williams. The three men then walked to nearby Othello

Park and smoked marijuana for a few hours.

        At some point, Williams suggested they "hit a house," meaning commit a

burglary. Johnson and Maxwell responded, "Whatever, let's do it." Maxwell, Williams,

and Johnson took a bus to south Seattle, where Williams had seen a house with a

computer in the window.

        After getting off the bus, the men walked toward the house. All three put on

purple gloves that Williams provided. Johnson claimed he suddenly changed his mind

when he approached the house at around 1:30 a.m.:

        [A]t the time we was talking about it, it sounded good, but, urn, when we
        got there, I realized that we didn't have no car to carry a lot of things out,
        and I wasn't going to carry anything out. So I basically told him, like, "I am
        not going inside the house."

Johnson was also concerned someone might be home.
No. 73296-0-1/6




      Johnson waited in the backyard while Maxwell and Williams entered the house.

He denied having a flashlight, going into the house, or carrying any of the stolen

property.

      When the two men came out, Maxwell was carrying a computer screen and

keyboard and had a bag over his shoulder. Williams had a backpack. The three

attempted to leave through the side yard on the north side of the house. As they

approached the gate, they heard a police officer announce himself. The men turned

around and ran in the other direction, toward the backyard.

       Johnson ran to the back of the house and up some stairs into the backyard. He

then hopped over a fence and climbed onto a roof. Johnson initially lay down on the

roof, attempting to hide. Johnson had no idea where Maxwell and Williams went.

       Johnson eventually jumped down from the roof and ran through the yard of a

house on Cascadia. As Johnson tried to climb over a gate, Officer Kelly grabbed him by

the ankles and pulled him back. Because Kelly was pointing a gun, Johnson tried to

surrender by raising his hands and dropping to his knees. Johnson claimed that Kelly

struck him in the head with a pistol and then shot him in the abdomen. Johnson denied

ever touching Kelly or wrestling with him.

       Medics transported Johnson to the hospital for treatment of the gunshot wounds.

On July 20, 2014, while recovering from surgery, Johnson agreed to speak with police
No. 73296-0-1/7




detectives. During the interview, Johnson admitted that he had entered the house along

with Williams and Maxwell and that he was "the look-out for this burglary." The trial

court admitted the statements for impeachment purposes during Johnson's cross-

examination.


      Francis and Cuthebert identified various items strewn around the backyard that

were taken from the house, including a guitar, a large computer monitor, costume

jewelry, and a bag with a Bose speaker system. Several of the items lay on the ground

between the stairway and the southeast corner of the backyard.

      The State charged Johnson with one count of residential burglary, one count of

resisting arrest, and one count of assault in the third degree. The court instructed the

jury on both principal and accomplice liability for the burglary charge. The jury found
Johnson guilty as charged of residential burglary and resisting arrest and not guilty of

assault in the third degree.

       The court imposed a 15-month sentence on the burglary conviction, the midpoint

of the 13- to 17-month standard range.

                                      ANALYSIS


Sufficiency of the Evidence

       Johnson contends that the State failed to present sufficient evidence to support

his conviction for residential burglary, either as a principal or as an accomplice. He



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No. 73296-0-1/8




argues that because no one saw him inside the house or carrying any of the stolen

property, the evidence was insufficient to prove beyond a reasonable doubt that he

entered the residence or that he aided or facilitated commission of the crime.       We

disagree.

       When reviewing a challenge to the sufficiency of the evidence, we determine

whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could find the essential elements of the crime beyond a reasonable

doubt.1 A claim of insufficiency admits the truth of the evidence and all reasonable

inferences that a trier of fact can draw from that evidence.2 Circumstantial evidence and

direct evidence are equally reliable.3

       To convict Johnson of residential burglary, the State needed to prove that

Johnson or an accomplice "enter[ed] or remain[ed] unlawfully" in the Francis/Cuthebert

home with the intent to commit a crime.4 A person is an accomplice in the commission

of a crime if,

       [w]ith knowledge that it will promote or facilitate the commission of the
       crime, he or she:
                 (i) Solicits, commands, encourages, or requests such other person
       to commit it; or



       1 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       2 Salinas, 119 Wn.2d at 201.
       3 State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
       4RCW9A.52.025(1).


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            (ii) Aids or agrees to aid such other person in planning or
      committing it.[5]

Mere presence and knowledge of the criminal activity is insufficient to establish

accomplice liability.6 A person is not guilty as an accomplice unless he "associates

himself with the venture and takes some action to help make it successful."7

      Johnson     acknowledged       that he   agreed to   participate in the burglary,

accompanied Maxwell and Williams to the house, and put on gloves to wear inside.

The evidence indicated that the three men were at the house only a short time before

the police arrived. Although he was not completely sure, Officer Belgarde believed he

saw at least three persons inside.

      The stolen items were found scattered widely around three sides of the house.

The police arrested Williams as he came out of a window on the south side of the

house, away from the backyard. Williams was not carrying any property. The officers

arrested Maxwell as he attempted to hide in the northeast corner of the backyard.

      The evidence, including Johnson's testimony, indicated that when he heard the

police arrive, Johnson fled into the backyard, went up the steps, and then ran toward

the southeast corner, on the opposite side of the property from Maxwell. A necklace, a

black bag, and Bose speakers taken from the house lay along the route that Johnson


       5 RCW 9A.08.020(3)(a)(i), (ii).
       6 State v. Truonq, 168 Wn. App. 529, 540, 277 P.3d 74 (2012).
       7 Truong, 168 Wn. App. at 539.
No. 73296-0-1/10




took, supporting a reasonable inference that he was carrying the items and dropped

them as he fled.


       Johnson relies heavily on his own testimony denying that he entered the house

or that he carried any of the stolen items. But the State impeached Johnson's testimony

with his postarrest statements admitting that he entered the house and acted as the

"look-out" during the burglary.    The jury's rejection of Johnson's account therefore

involved a credibility determination that we cannot review. We necessarily defer to the

trier of fact on    issues of conflicting testimony,      credibility of witnesses,   and

persuasiveness of the evidence.8

       Viewed in the light most favorable to the State, the evidence permitted the jury to

find beyond a reasonable doubt that Johnson either entered the house with the intent to

commit a crime or that he directly facilitated the crime by carrying stolen property away

from the house.    Substantial evidence supports Johnson's conviction for residential

burglary.




       8 State v.Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

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No. 73296-0-1/11




Appellate Costs


       Johnson asks this court to deny an award of appellate costs should the State

prevail on review.9   He relies primarily on the trial court's determination that he was

indigent for purposes of appeal and the court's waiver of any discretionary legal

financial obligations. He also contends that his history of multiple juvenile felonies will

hinder any future employment. He maintains that there is no reasonable likelihood he

will ever be able to pay appellate costs.

       An appellate court has discretion to consider appellate costs if a party raises the

issue in its brief.10 In State v. Sinclair,11 we exercised our discretion to deny appellate

costs to the State. Based on the defendant's continued indigency, his age (66 years

old), and the length of his sentence (280 months), we concluded there was "no realistic

possibility" that the defendant would be able to pay appellate costs.12

       The circumstances here are distinguishable. Johnson was 20 years old at the

time of sentencing. At sentencing, Johnson informed the court that at the time of the

burglary, he had been working at two fast-food restaurants "basically every day of the



    9 See RAP 14.2 (appellate court commissioner or clerk "will" award costs to the
substantially prevailing party on review "unless the appellate court directs otherwise in
its decision terminating review").
    10 State v. Sinclair, 192 Wn. App. 380, 389-90, 367 P.3d 612, review denied. 185
Wn.2d 1034(2016).
    11 192 Wn. App. 380, 367 P.3d 612, review denied, 185 Wn.2d 1034 (2016).
    12 Sinclair, 192 Wn. App. at 393.

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No. 73296-0-1/12




week" and had also been studying "criminal justice" at Everett Community College. The

court imposed a relatively short 15-month sentence.       Even though the court found

Johnson indigent for purposes of appeal, the limited record before us, including his age,

length of sentence, prior employment, and education efforts, suggests he may have a

future ability to pay appellate costs.

       Accordingly, we exercise our discretion and decline to preclude the State from

seeking an award of appellate costs. Johnson may always seek remission of costs

should payment "impose manifest hardship on the defendant [or] the defendant's

immediate family."13

       Affirmed.




WE CONCUR:
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    13 Former RCW 10.73.160(4) (1995).


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