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      IN THE COURT OF APPEALS OF THE STATE OF WASH]                                                                  ON
                                                                                                                                  0 T Old
                                                         DIVISION II                                         0
                                                                                                                          UTY
STATE OF WASHINGTON,                                               I                    No. 43915 -8 -II


                                            Respondent,


         V.




VICTOR WHALEN,                                                                  UNPUBLISHED OPINION




          PENOYAR, J. —              Victor Whalen appeals his conviction for attempted motor vehicle theft.


He argues that the evidence is insufficient to support his conviction and that the trial judge


violated the appearance of fairness doctrine by not disclosing that the judge had once represented

Whalen. He also includes a statement of additional grounds ( SAG) alleging that his counsel was

ineffective      and     that his     statements    to   police    should   have been       suppressed.    The evidence is


sufficient to support Whalen' s conviction, he waived his appearance of fairness argument by not

objecting below, and neither of the issues in his SAG requires reversal. We affirm.

                                                                 FACTS


          Richard Leventon had parked his Isuzu Rodeo in a gravel lot at the corner of Highway 6

and   Scheuber Road.            People often parked their vehicles in the lot when they were trying to sell

them.    At about 1: 30 A.M. on June 12, 2012, Deputy Brady Taylor drove past the gravel lot and

noticed    that the Isuzu'       s    hazard lights   were   flashing. Taylor had noticed the Isuzu parked in the

lot   earlier   in the    day,   and     its hazard lights       were not   flashing   at   that time.    Taylor entered the


parking lot to investigate and noticed someone crouched down and moving along the passenger

side of the Isuzu. The person stood up when he reached the front of the car and ran south across

Highway         6 into   a   field.    He   was   wearing    a   dark   shirt or coat with red or orange stripes on        the
43915 -8 - II



sleeves.     He fled into a swampy area near the river, and Taylor called for backup, including a K-

9 unit.


          While waiting for the K -
                                  9                  unit,    Taylor heard something moving in the               water.     The dog

initially    tracked   a   scent       to the     water' s     edge,   near   some    recently disturbed bushes.            The dog

handler     was not able     to safely follow the track into the                   water.    The dog then tracked a scent to a

white   Dodge Neon         parked       in   a   driveway      on    Scheuber Road.         The police had recently received a

 suspicious vehicle"        call   regarding the Neon. Report                 of   Proceedings ( RP) ( Aug.       15, 2012) at 89.

          The police inspected the Isuzu and found that the passenger door' s keyhole and the


steering     column were      damaged,            and   there    were   two   screwdrivers,)       a Global Positioning System

 GPS),      and pieces of the steering column lying on the seats and floorboard. The police contacted

Leventon and he stated that the vehicle was clean, locked, and undamaged when he last saw it


and that the screwdrivers and GPS were not his

            Several hours later,         at about       7   A. M.,   Officer Michael Lowrey was driving on Highway 6

near Scheuber Road when he noticed Whalen walking across a field, coming from the direction

of the river. Whalen' s clothing fit the description of the suspect from the attempted vehicle theft,

so Lowrey stopped to talk to him. Lowrey noticed that Whalen was soaking wet and covered in

grass. When Lowrey asked Whalen what he was doing in the area, Whalen said he was " taking a

walk" and "     looking for        a    fishing     hole."      RP (   Aug.   15, 2012)     at   117.   When asked why he was

wet,    Whalen first       said   it   was       from the      rain.    Lowrey pointed out that it had just now started

sprinkling.      Whalen then           said      he had fallen into the       river while        looking for   a place   to fish.   He




1 Screwdrivers are commonly used to steal vehicles; they can be jammed into the ignition to
force the vehicle to start without a key.
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later   said    he   was   wet   from   falling   onto   wet    grass.    Lowrey called for a deputy who arrested

Whalen.


          The     deputy     searched   Whalen incident to his.           arrest and   found      a car   key. The car key

started   the    white     Neon.   Whalen admitted that he had been driving the white Neon and that he

had walked by the Isuzu the morning of the attempted theft. Taylor confirmed that the sweatshirt

Whalen was arrested in matched the shirt of the person he had seen at the Isuzu.


          The State        charged   Whalen   with attempted motor vehicle              theft.    The jury found Whalen

guilty    as   charged.      At sentencing, Whalen spoke on his own behalf and, when asking the trial

court for leniency, mentioned that the sentencing judge had represented Whalen when Whalen

was a teenager. The trial court sentenced him to 42. 75 months of confinement. Whalen appeals.

                                                          ANALYSIS


I.        INSUFFICIENT EVIDENCE


          First, Whalen argues that the State failed to present sufficient evidence that he committed

attempted motor vehicle            theft. The evidence placed Whalen in the area at the time of the crime


and     Whalen       matched     the description   of    the   person    Taylor   saw at   the Isuzu.     There is sufficient


evidence for the jury to conclude that Whalen was guilty of attempted motor vehicle theft.

           Evidence is legally sufficient to support a guilty verdict if any rational trier of fact,

viewing the evidence in the light most favorable to the State, could find the elements of the

charged crime         beyond      a reasonable    doubt. State v. Longshore, 141 Wn.2d 414, 420 -21, 5 P. 3d


1256 ( 2000).         We interpret      all reasonable     inferences in the State'        s   favor.   State v. Hosier, 157


Wn.2d 1,         8, 133 P. 3d 936 ( 2006).         Direct and circumstantial evidence carry the same weight.

State    v.    Varga, 151 Wn.2d 179, 201, 86 P. 3d 139 ( 2004).                   Credibility determinations are for the



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trier   of   fact   and are not subject     to   review.       State v. Cantu, 156 Wn.2d 819, 831, 132 P. 3d 725


 2006).


             A person is guilty of attempted motor vehicle theft if, with intent to commit motor

vehicle       theft, he     takes   a   substantial    step toward committing                motor    vehicle     theft.       RCW


9A.28. 020( 1).         A person commits motor vehicle theft if he wrongfully obtains or exerts

unauthorized         control over another' s vehicle with                intent to deprive him        of   the   vehicle.      RCW


9A.56. 020( l)( a); RCW 9A.56. 065( 1).


             Here, there is sufficient evidence that Whalen took a substantial step toward committing

motor vehicle        theft.   The Isuzu' s door and steering column had been damaged, the hazard lights

were on, and        there   were screwdrivers —        tools   often used      in   motor vehicle    thefts —on the seats and


floorboard.         The only person in the area when the attempted theft was discovered matched

Whalen' s description.          Taylor saw someone wearing the same shirt as Whalen skulking around

the Isuzu; the person then took off toward the river; Taylor heard noises in the water; the K -
                                                                                              9


unit dog tracked a scent to the water and to the white Neon Whalen was driving; and Lowrey

later   saw    Whalen walking from the direction                of   the   river,   drenched   and covered       in   grass.   When


Lowrey        questioned      Whalen     about   his   appearance,         Whalen     gave   conflicting    answers.        Whalen


also admitted that he had walked past the Isuzu before the attempted theft, and the vehicle he had


been driving was discovered nearby. Looking at the facts in the light most favorable to the State,

the jury could have reasonably concluded that Whalen was the person Taylor discovered

attempting to steal the Isuzu and that he ran into the river to hide until the police left.

II.          APPEARANCE OF FAIRNESS DOCTRINE


             Whalen next argues that the trial judge violated the appearance of fairness doctrine

because the judge failed to disclose that he had previously                         represented   Whalen. Whalen waived

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43915 -8 -II




this   challenge     by    not   objecting   at   trial. RAP 2. 5(   a).   In fact, the record indicates that Whalen was


attempting to use his prior relationship with the judge to obtain leniency.

          In any case, the mere fact that Judge Lawler may have represented Whalen many years

ago raises no reasonable question about                   his   impartiality in        the   present case.   Judges in smaller


jurisdictions often have some acquaintance with those appearing before them and should only

disqualify themselves when there is something about their relationship with or knowledge about

a   party that   raises a reasonable question about              impartiality.         CJC 2. 11( A).    Judges have a duty to

hear cases and not disqualify themselves unnecessarily. See CJC 2. 7.

III.      SAG


          Finally,     in his SAG, Whalen argues that his counsel was ineffective and that his


statements to Lowrey should have been suppressed. Neither of these issues requires reversal.

          A.          Ineffective Assistance


          Whalen asserts that his counsel. was ineffective because counsel did not present a defense

and    did    not object     to the   jury   seeing Whalen in            restraints.    He fails to demonstrate ineffective


assistance on either issue.

                            Strickland2

          Under the                          test, the defendant must show that counsel' s performance was


deficient      and   that this deficient      performance prejudiced            him. State v. Grier, 171 Wn.2d 17, 32-


33, 246 P. 3d 1260 ( 2011) (               quoting State v. Thomas, 109 Wn.2d 222, 225 -26, 743 P. 2d 816

    1987)).      Performance          is   deficient     only    if it "[ falls]        below     an    objective   standard   of


reasonableness."            Strickland, 466 U. S.        at   688.   Deficient performance is prejudicial only if the

defendant        shows      that "`   there is a reasonable probability that, but for counsel' s deficient

performance,         the   outcome of      the proceedings       would      have been different. "' Grier, 171 Wn.2d at



2 Strickland v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).
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43915 -8 -II



34 ( quoting State          v.   Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009)). "`                                    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).        Failure to satisfy either prong of the test

defeats an ineffective assistance claim. Strickland, 466 U.S. at 697.


         Whalen         cannot    satisfy the      prejudice      prong for           either   issue. He does not argue, nor does


the record indicate, that there were any witnesses or evidence that would have changed the

outcome of       the    case   if only     counsel    had       called   the     witnesses or offered       the   evidence.    Thus, he


was not prejudiced          by        counsel' s   decision to      rest at       the   close of   the State'   s case.   Furthermore,


there is    no    evidence       in the     record    that the      jury         saw    Whalen in    restraints.    There is also no


evidence that counsel was even aware or made aware that jurors may have seen Whalen in

restraints.      See State       v.    Hutchinson,. 135 Wn.2d 863, 888, 959 P. 2d 1061 ( 1998) ( a defendant


must    show     that the      restraints "    had a substantial or injurious effect or influence on the jury' s

verdict ").     Counsel was not ineffective.


         B.            Suppression


           Whalen       next     contends     that   his    statements           to   Lowrey    violated    his Miranda3 rights and


they should have been suppressed. After the CrR 3. 5 hearing, the trial court concluded that all of

Whalen' s statements to Lowrey were made prior to his arrest and that Whalen was not in custody

at   the time he       made    the     statements.      Therefore, Miranda                protections   did   not   apply.    We affirm


the trial court.


           In deciding whether Miranda warnings were necessary, courts must determine whether

the defendant was ( 1) in custody and ( 2) subject to interrogation. State v. Grogan, 147 Wn. App.

511, 517, 195 P. 3d 1017 ( 2008). "                  A defendant is in custody for the purposes of Miranda when


3 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
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his   or   her freedom   of action     is   curtailed     to   a `   degree    associated with   formal   arrest. "'   Grogan,


147 Wn. App. at 517 ( quoting State v. Solomon, 114 Wn. App. 781, 787, 60 P. 3d 1215 ( 2002)).

           Here, the trial court correctly concluded that Whalen' s freedom was not curtailed to a

degree associated with formal arrest. Lowrey was the only officer present. He and Whalen were

conversing     outside near     the   field      where    Lowrey         saw   Whalen.   Lowrey did not block Whalen' s

path,   handcuff him,    arrest   him,      or   tell   him he   was not       free to leave. Because Whalen was not in


custody, when he spoke with Lowrey, the trial court correctly denied Whalen' s suppression

motion.




           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.




We concur:




                            1
           Maxa, J.




           Lee, J.




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