   IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                                    DIVISION ONE


STATE OF WASHINGTON,                              No. 75643-5-

                     Respondent,


                                                  UNPUBLISHED OPINION

JEREMY OLSON and SANTANA
TEMPLER,

                     Appellants.
                                                  FILED: November 14, 2016



       SPEARMAN, J. — Jeremy Olson and Santana Templer appeal their convictions

for second degree burglary challenging the sufficiency of the evidence. The State

presented sufficient evidence for the jury to convict Olson so we affirm his conviction.

We reverse Templer's conviction because the evidence only established that she was

aware of, and in proximity to, the stolen equipment. Olson also challenges his sentence,

claiming that the trial court miscalculated his offender score. The record is insufficient to
consider Olson's contention so we decline to address this issue.

                                                FACTS


       Olson and Templer were each charged with one count of burglary in the second

degree and tried as co-defendants in a consolidated trial commencing March 2, 2015.
Four witnesses testified for the prosecution.
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      White River Alternative School maintenance employee Martin Brewer testified

that at 5:30 p.m. on August 30, 2014, the security monitoring company notified him that

an alarm on door 12 at the school had been tripped and motion had been detected in

one of the classrooms.


       Brewer contacted school employee David Bonn who testified that he responded

to the activated entry and motion alarms at the School and after finding that the exterior

door to room 12 was not securely closed, he locked the door and reset the alarm. He

checked around the outside of the school and around rooms 12 and 13, but did not see

anyone in the area nor any electronics equipment or other School property on the

sidewalk outside of room 12.

       Brewer received another alarm activation call around 8:09 p.m. The monitoring

company told him that the doors to rooms 12 and 13 had been opened and that motion

was detected in the inside area connecting the two rooms.

       Pierce County Sheriff Deputy Eric Jank was dispatched to the School at

approximately 8:24 p.m., and arrived around 8:36 p.m. As Deputy Jank approached the

exterior door to room 12, he saw Olson loading a large audio speaker into his red Jeep

Cherokee (jeep). When Olson saw Deputy Jank, he jumped into the jeep and tried to

drive away. Deputy Jank stopped the jeep and saw Templer sitting in the front

passenger seat. Templer's child was secured in a car seat in the back. In the back of
the jeep, Deputy Jank saw two large audio speakers, two sound boards, a stage light,
and a stage light stand. He saw a chisel, a screwdriver, and a flashlight on the
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floorboard of the driver's side. He also noticed that a metal plate was missing from the

exterior door of room 12, which exposed the door handle's locking mechanism and

enabled the door to be opened with a screwdriver or similar tool.

       Brewer arrived and identified the equipment in Olson's jeep as belonging to the

school district and having been stored in room 12. He testified that school personnel

would not have put this equipment in a dumpster or out on the sidewalk because it still

had value.


       Olson told Deputy Jank that he had found the equipment on the sidewalk outside

of room 12. When Deputy Jank told Olson that he was responding to an alarm at the

school, Olson asked him whether they could "make a deal." Verbatim Report of

Proceedings (VRP) at 170. The trial court instructed the jury that it could only consider

Olson's statement as evidence against him, but not as evidence against Templer.

       Deputy Filleau testified that he questioned Templer separately from Olson, and

she told both him and Deputy Jank that Olson had removed the equipment from the

trash dumpster outside of room 12. A construction dumpster containing old chairs and a

filing cabinet and having about three to five inches of water in the bottom was located

about fifty feet from where the jeep was parked.

       Deputy Jank and Brewer testified that it had rained that day and there were

several inches of water in the bottom of the dumpster. The equipment in the jeep was

dry.
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       The jury found Olson and Templer guilty of burglary in the second degree. They

appeal.

                                           DISCUSSION

                                    Sufficiency of the Evidence

       Due process requires the State to prove, beyond a reasonable doubt, every

element of the crime charged. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L.

Ed. 2d 368 (1970). Evidence is sufficient to support the conviction if, after viewing it in

the light most favorable to the State, a rational trier of fact could find each element of

the crime beyond a reasonable doubt. State v. Witherspoon, 180 Wn.2d 875, 883, 329

P.3d 888 (2014). The reviewing court draws all reasonable inferences from the

evidence in the State's favor and interprets the evidence "most strongly against the

defendant." State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v.

Partin. 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)). It considers both circumstantial

and direct evidence as equally reliable and defers to the trier of fact on issues of

conflicting testimony, witness credibility, and the persuasiveness of the evidence. State

v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103

Wn.2d 361, 367, 693 P.2d 81 (1985)).

       To convict Olson and Templer of second degree burglary, the jury had to find

beyond a reasonable doubt that each ofthem (1) entered or remained unlawfully in a
building, (2) with intent to commit a crime therein. RCW 9A.52.030(1). Olson and
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Templer each contend that there was insufficient evidence to support a finding that they

entered or remained unlawfully in a building.

       Turning first to Olson, there was evidence showing that: (1) he was found outside

of room 12 loading school equipment into his jeep less than 30 minutes after alarms had

alerted staff that the door to room 12 had been opened and that motion had been

detected inside; (2) the equipment found in his jeep had been stored in room 12; (3)

there was no equipment on the sidewalk three hours earlier; (4) it had rained that day

and there was rain in the dumpster, but the equipment was dry; (5) school staff would

not have placed the equipment on the sidewalk or in the dumpster because it still had

value; (6) a screwdriver, chisel, and flashlight were on the driver's side floorboard of

Olson's jeep; (6) Olson attempted to drive away once Deputy Jank arrived; and (7) after

learning that Deputy Jank was responding to an alarm, Olson asked if they could make

a deal. This was sufficient to support his conviction. State v. Mace, 97 Wn.2d 840, 843,

650 P.2d 217 (1982) ("[Pjossession of recently stolen property [along with] slight

corroborative evidence of other inculpatory circumstances tending to show his guilt will

support a conviction.") (quoting State v. Portee, 25 Wn.2d 246, 253-54, 170 P.2d 326

(1946)).

       Olson argues that there is no evidence of illegal entry because no one saw him

entering or leaving the school building and there were no fingerprints or footprints found

therein. Unlawful entry "may be proved by circumstantial evidence, as may any other

element." State v.J.P., 130 Wn. App. 887, 893, 125 P.3d 215 (2005) (quoting State v.

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McDaniels, 39 Wn. App. 2236, 240, 692 P.2d 894 (1984)). Olson's possession of the

stolen material coupled with the circumstantial evidence of his presence at the scene,

his statements to Deputy Jank, his attempt to flee, and the altered door plate are

sufficient to support his conviction for burglary. Mace, 97 Wn.2d at 843 (quoting Portee

at 254) (possession plus additional circumstances such as "flight or the presence of the

accused near the scene of the crime" will support a burglary conviction); State v.

Ehrhardt. 167 Wn. App. 934, 943, 276 P.3d 332 (2012) (affirming the defendant's

second degree burglary conviction even though no one saw him enter any structure

pursuant to Mace).

      Turning to Templer, she argues that the jury had to improperly speculate in order

to find that she entered the school building because, even in the light most favorable to

the State, the evidence only shows that she was seated in a car while the driver loaded

some stolen items in the back; no one ever saw her outside of the car much less inside

of the building. We agree.

      As previously discussed, possession of stolen property coupled with evidence of

other inculpatory circumstances will support a conviction for burglary. Mace, 97 Wn.2d

at 843; Ehrhardt, 167 Wn. App. at 943 (possession of recently stolen property plus slight

corroborative evidence is sufficient). However, the evidence introduced at trial failed to

establish that Templer was ever in possession of the stolen equipment.

       "Possession may be actual or constructive." State v. Lakotiy. 151 Wn. App. 699,

714, 214 P.3d 181 (2009) (quoting Partin. 88 Wn.2d at 906). A person actually

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possesses something that is in his or her physical custody, and constructively

possesses something that is not in his or her physical custody, but is still within his or

her "dominion and control." Id. Templer was not in actual possession of the stolen

equipment because none of it was in her physical custody. Nor was she in constructive

possession because "[mjere proximity to stolen property or one's presence at the place

where it is found, without proof of dominion and control over the property or the

premises, is not sufficient proof of possession." State v. Summers, 45 Wn. App. 761,

764-65, 728 P.2d 613 (1986).

       The evidence showing that Templer was sitting in the jeep outside of room 12

while the stolen equipment was being loaded is insufficient to establish dominion and

control. There was no evidence that Templer owned the jeep and no evidence she was

driving it. "Courts have found sufficient evidence of constructive possession, and

dominion and control" when the defendant was either the owner or the driver of the

vehicle containing the contraband, but "hesitate to find sufficient evidence of dominion

or control" when the defendant is a passenger. State v. Chouinard, 169 Wn. App. 895,

899-900, 282 P.3d 117 (2012)

       In State v. George, 146 Wn. App. 906, 920-23, 193 P.3d 693 (2008), the

defendant's conviction for possession of drugs and drug paraphernalia was reversed

due to insufficient evidence. The defendant was a passenger in the backseat of a

vehicle and the drugs were found on the floorboard behind the driver's seat, next to

where the defendant was sitting. The court observed that "[t]he State's evidence boils
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down to mere proximity. While there is evidence that a crime was committed, the State

did not succeed in clearly associating the crime with [the defendant]." jd. at 923.

Likewise, in Chouinard. the court reversed the defendant's conviction for unlawful

possession of a firearm because he did not own or drive the vehicle, and thus he did not

exercise dominion and control over the firearm even though it was located directly

behind his seat. 169 Wn. App. at 902-03.

       Because the evidence against Templer fails to establish that she was in

possession of the stolen equipment, the reasoning of Mace is inapplicable—it is only

possession coupled with circumstantial collaborative evidence that supports a

conviction for burglary. Accordingly, there was insufficient evidence to support her

conviction for burglary.1 We reverse her conviction.

                                  Statement of Additional Grounds

       Olson contends that the trial court miscalculated his offender score for purposes

ofsentencing because his four prior class C felonies should have "wash[ed] out" once
he was in the community for over five years without committing another crime.

Statement of Additional Grounds at 2-3. See RCW 9.94A.525(2)(c). Although Olson

claims he was released from confinement and in the community between July 2006 and

August 2014 when he was arrested for burglary, the record is devoid of any information
on this issue. Instead, it only indicates the dates Olson was convicted and sentenced for


        1Because the jury was not instructed on accomplice liability, we do not consider whether the
evidence is sufficient to convict Templer under that theory.

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the prior crimes. At the sentencing hearing, Olson conceded that his offender score was

9 and we are unable to determine the length of his sentence or the date of release. See

9.94A.525(2)(c); State v. Gauthier. 189 Wn. App. 30, 40-41, 354 P.3d 900 (2015) review

denied, 185 Wn.2d 1010, 368 P.3d 171 (2016) (noting that washout period begins to

accrue when the defendant is released from confinement),

       If Olson seeks to have a reviewing court consider this matter which is outside the

record, he must raise it in a personal restraint petition, not a statement of additional

grounds.2 State v. Alvarado. 164 Wn.2d 556, 569, 192 P.3d 345 (2008) ("If material

facts exist that have not been previously presented and heard . . . recourse is to bring a

properly supported personal restraint petition.") See RAP 16.4.

                                                     Costs


       In their briefs, Olson and Templer ask this court to deny the State its costs. See

RAP 14.2 (costs awarded to party that "substantially prevails on review" unless

appellate court directs otherwise in its decision terminating review); RCW 10.73.160(1)
(court may order offender to pay appellate costs). The issue of costs is moot as to

Templer because her conviction is reversed.

       As to Olson, an order of indigency was filed in the trial court, and the record does

not reflect a finding by the trial court that his financial condition has improved. In
addition, Olson will be incarcerated for at least four years and already owes $1,036 in

        2In addition, we notethat the State disputes whether Olson has spent five crime free years in the
community as he claims. But because the record before us is incomplete on this question, we decline to
resolve the matter here.
No. 75643-5-1/10



restitution. In light of Olson's indigency, we exercise our discretion "to rule that an award

to the State of appellate costs is not appropriate." State v. Sinclair. 192 Wn. App. 380,

393, 367 P.3d 612. review denied. 185 Wn.2d 1034, 377 P.3d 733 (2016).

       We affirm Olson's conviction and reverse Templer's conviction due to insufficient

evidence. Appellate costs will not be awarded.




WE CONCUR:




       LjUL^J.           </.




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