             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                                                                )   No 75037-2-I           ~
                                                                                                               ~f’         -4~

                                         Respondent,                                )   DIVISION ONE

             v.                                                                     )   UNPUBLISHED OPINION                 u

BLAINEW.WHITEHEAD,                                                                  )
                                                                                                                     C.,
                                        Appellant.                                  )   FILED: June 20, 2016         c~         ~

_________________________________________________________________________________   )
              LEAcH, J.           —     A jury convicted Blame Whitehead of burglary in the second

degree. Whitehead challenges the sufficiency of the evidence supporting his

conviction. He also contends that trial counsel provided ineffective assistance by

failing to object to testimony and closing remarks that impermissibly commented

on his right to silence.                              Sufficient evidence supports Whitehead’s conviction.

Because the State did not impermissibly comment on Whitehead’s silence, he

fails to establish deficient performance or prejudice. We affirm.

                                                                           FACTS

              The State charged Blame Whitehead with burglary in the second degree,

alleging that he committed a burglary at the Christ Lutheran Church in Belfair,

Washington.

              At trial, the pastor of the Belfair church testified that when she arrived at

church for Sunday services on September 29, 2013, she saw an unlocked door

and signs of a forced entry. She also discovered that several items, including
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laptop computers, were missing. The pastor viewed video surveillance footage

from the previous day and called the Mason County Sheriff’s Office. During the

pastor’s testimony, the jury viewed still images from the church’s video

surveillance system. These photos showed a man, who was not a member of

the congregation, walking around inside the church the previous afternoon, when

the church had been locked and closed to the public. The footage also showed

the man carrying a black bag.

      Deputy Sheriff Larry Ellis responded to the reported robbery. He met the

pastor at the church and viewed the video footage from the previous day.

Without describing what steps he took, Deputy Ellis testified that his

“investigation” led him to a residence on NE Cherokee Lane. When he knocked

at the residence, a man partially opened the door. Deputy Ellis testified that he

was “95%” certain the man who opened the door was the same person he had

just seen on the church’s video footage. The person identified himself as Mark

Dillinger. Deputy Ellis told the man he wanted to speak with him, but the man

said he was not the homeowner and shut the door. The deputy continued to

knock but received no response.

      When the deputy returned to the residence the following day, a different

man, Courtney Burrell, opened the door. Burrell told the deputy that his friend

Marlin Schauer lived at the house with his uncle, Billy Whitehead. Burrell said


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that no one named Mark lived at the residence.             Deputy Ellis retrieved a

photograph of Blame Whitehead from a database and showed it to Burrell, who

confirmed that the person in the photograph was his friend’s Uncle Billy. When

he viewed the still photographs from the church’s video surveillance system,

Burrell said the person in the church resembled Whitehead, but he could not

definitively identify him. The police did not recover any of the church’s stolen

property.

       The jury convicted Whitehead as charged. He appeals.

                         SUFFICIENCY OF THE EVIDENCE

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

every element of the crime charged.1 Sufficient evidence supports a 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.2 We defer to

the jury on questions of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence.3

          For the jury to convict Whitehead of the charged burglary, it had to find

beyond a reasonable doubt that he (1) entered or remained unlawfully in a

building, (2) with intent to commit a crime therein.4

       1    In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368
(1970).
       2 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       ~ State v. Killingsworth, 166 Wn. App. 283, 287, 269 P.3d 1064 (2012).
       ~ RCW 9A.52.030(1).
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       According to Whitehead, there was no direct evidence that he was the

person who entered the church and stole property. He claims that the strongest

conclusion the jury could reach from the evidence is that he resembled the

person who committed the crime. Whitehead compares this case to State v.

Mace,5 where the only evidence connecting the defendant to the residential

burglary was a bag and receipt bearing the defendant’s fingerprints found near

an ATM6 where stolen bank cards were used.

       We disagree. The surveillance photographs provided direct evidence of

the burglary. And, unlike Mace, Whitehead’s conviction was not based solely on

proof of possession of recently stolen property.         Viewed in the light most

favorable to the State, the photographic evidence was sufficient to allow the jury

to determine that Whitehead, who appeared in court, was the same person

depicted in the still photographs and video footage. The persuasiveness of that

evidence is a question for the trier of fact—here, the jury.7

       Other evidence corroborated the photographic evidence.         Deputy Ellis

encountered the man at the Cherokee Lane residence the day after the burglary

and testified that the person he spoke to was unquestionably the same person in

the video footage. And Burrell testified that only Whitehead and Schauer lived at

       597 Wn.2d 840, 842-43, 650 P.2d 217 (1982).
       6 Automated teller machine.
         See State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992),
abrogated on other grounds by In re Pers. Restraint of Cross, 180 Wn.2d 664,
681 n.8, 327 P.3d 660 (2014).
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the residence and that Schauer was working out of town at the time of the

burglary.    A rational trier of fact could find, based on this evidence, that

Whitehead was the person who committed the crime.

                    INEFFECTIVE ASSISTANCE OF COUNSEL

       Whitehead contends that trial counsel rendered ineffective assistance by

failing to object when the State (1) elicited testimony that Whitehead refused to

speak to Deputy Ellis and (2) urged the jury to infer guilt from his exercise of the

right to silence.

       The Fifth Amendment of the United States Constitution and article I,

section 9 of the Washington Constitution “guarantee a criminal defendant the

right to be free from self-incrimination, including the right to silence.”8 The right to

silence applies in both prearrest and postarrest situations.9               The State

impermissibly comments on silence when it uses the defendant’s silence “as

substantive evidence of guilt or to suggest to the jury that the silence was an

admission of guilt.”1° An impermissible comment on silence requires more than

merely referencing the silence.11        We must consider “whether the [State]

manifestly intended the remarks to be a comment on that right.”12


       8State v. Knapp, 148 Wn. App. 414, 420, 199 P.3d 505 (2009).
      ~ State v. Easter, 130 Wn.2d 228, 243, 922 P.2d 1285 (1996).
      10 State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).
      11 State v. Slone, 133 Wn. App. 120, 127, 134 P.3d 1217 (2006).
      12 State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1 (2008) (quoting State v.
Crane, 116 Wn.2d 315, 331, 804 P.2d 10(1991)).
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       To prove ineffective assistance of counsel, an appellant must show that

(1) counsel provided representation so deficient that it fell below an objective

standard of reasonableness and (2) the deficient performance prejudiced him.13

A defendant shows prejudice when there is a reasonable probability that but for

counsel’s errors, the result of the trial would have been different.14 An ineffective

assistance of counsel claim fails if a defendant does not establish either prong.

       Deputy Ellis testified that in response to his request to speak to the person

who answered the door, the person “closed the door and went back inside the

residence.”   The prosecutor referred to this encounter in closing argument,

saying that “when Deputy Ellis basically says we have something to discuss, the

person backs off into the house.   .   .   and doesn’t—doesn’t talk anymore.”

       Neither Deputy Ellis’s testimony nor the prosecutor’s remark amounted to

an impermissible comment on Whitehead’s silence. Deputy Ellis did not directly

refer to Whitehead’s silence when he described the man’s retreat into the

residence.    Deputy Ellis did not say that he told the man that he wanted to

discuss a burglary. Neither did he testify that Whitehead refused to answer any

questions.    The record does not show that the State intentionally elicited

testimony about Whitehead’s silence.



       13Strickland v. Washington, 466 U.S. 668, 687, 104 5. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
      14 State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).

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         The prosecutor’s reference to silence in closing argument was isolated

and brief. He focused his argument on Deputy Ellis’s certainty that the person

who answered the door was the same person he had just viewed in surveillance

footage. He also emphasized the fact that only Whitehead and Schauler lived at

the residence at that time and that the person who answered the door provided a

false name. The prosecutor did not ask the jury to use the evidence of silence as

substantive evidence of guilt or to infer an admission of guilt.    Under these

circumstances, Whitehead fails to demonstrate that counsel’s performance was

deficient or that he was prejudiced. His ineffective assistance of counsel claim

fails.

         Affirmed.




WE CONCUR:




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