                                                                                         FILED
                                                                                COU OF APPEALS
                                                                                       DIVISIMN ZI

                                                                               2013 JUL 16 AM $:     45
                                                                               sT rE         s       o

                                                                               OY
                                                                                        H    Y



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO.

                                       DIVISION II

STATE OF    WASHINGTON,                                          No. 43618 3 II
                                                                           - -


                             Respondent,

       V.




JAMES PATRICK PAYNE,                                      UNPUBLISHED OPINION


                             Appellant.

       HUNT, P. . —
              J    James Patrick Payne appeals his jury conviction for attempted residential

burglary. He argues that the State did not present sufficient evidence to support the elements of

this crime.' We affirm.

       Evidence is sufficient if,when viewed in a light most favorable to the State, it permits

any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.

State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).A claim of insufficiency admits
                        2                  2               "`

the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. "'

Salinas, 119 Wn. d at 201.(
               2         quoting State V. Theroff, 25 Wn. App. 590, 593, 608 P. d 1254, aff'd,
                                                                              2

95 Wn. d 385, 622 P. d 1240 (1980)). order to find Payne guilty of attempted residential
     2             2               In                           .

burglary, the jury had to find beyond a reasonable doubt that, with intent to commit a crime

against a person or property once inside, he did "an act which is a substantial step" toward



  A commissioner of this court initially considered Payne's appeal as a motion on the merits
under RAP 18. 4 and then transferred it to
            1                             a panel of judges.
No. 43618 3 II
          - -



entering or remaining unlawfully in a dwelling other than a vehicle. RCW 9A. 8.
                                                                         020(
                                                                            1 RCW
                                                                            2 );

025(
9A. 2.
   1
   5 ).

        Taken in the light most favorable to the State, the evidence at trial established the

following facts: At about 7:0 PM on June 29, 2011, Barbara Woodfolk saw a man, whom she
                           0

did not recognize, walk into her neighbor's backyard. Less than five minutes later, she heard her

neighbor's alarm go off; she started dialing 911 and had a verbal exchange with the man, who

was   walking briskly   away. The man   said, S]
                                              "[ omebody tried   to break in that house "; Woodfolk



replied, Y]ah, you."Verbatim Report of Proceedings (VRP)Mar. 6, 2012) at 56. The man
         "[ e                                           (

walked down the street, and she lost sight of him. Woodfolk gave the 911 operator a description

of the man and the direction in which he was headed.


        Responding several minutes later, at about 7:0 PM, Officers Caber and Frisbie saw a
                                                    0

man matching the description riding a bicycle a few blocks away from Woodfolk's

neighborhood and pull into the driveway of a residence. By the time they reached the residence,

the man had abandoned the bicycle. When the officers did not find him at the residence, they

searched adjoining Blueberry Park. About 15 minutes later, they found the maxi, lying on the

ground between rows of blueberry bushes, appearing to be asleep. He told the officers he was

sleeping in the park because he had had too much to drink. The officers thought he was only

moderately intoxicated.

         Officers Williams and Betts    responded   to Woodfolk's   neighbor's   house. In the back


yard, they saw a screen lying on the ground below a window, from which it appeared to have

been pried. Woodfolk later identified Payne as the man she had seen in her neighbor's backyard

on June 29.




                                                    2
No. 43618 3 II
          - -




       Woodfolk's neighbor, Maurice Taylor, testified that when he had left for work on June

29, 2012, 1) pried off screen had been in place on the window, 2) house had an alarm
          ( the    -                                           ( his

system, which he had turned on June 29, 3) audible alarm responded to any movement of a
                                        ( an

door or window, and ( ) had never seen Payne before and had not given him permission to try
                    4 he

to enter his house or to remove his window screens. From this evidence, a rational trier of fact

could find beyond a reasonable doubt that by prying off the window screen, Payne took a

substantial step toward preparing to enter Taylor's house unlawfully with the intent to commit a

crime inside.


       Payne argues, however, that the jury could reach this conclusion only by engaging in an

improper "pyramiding of inferences" — Payne had pried off the screen, that he did.so in an
                                  that

attempt to enter Taylor's house, and that he had the intent to commit a crime once in Taylor's

house. Br. of Appellant at 7. He also notes that crime scene technicians found no evidence of

Payne's fingerprints    on     the   screen   or   the window.   The lack of fingerprint evidence is

inconsequential given the State's presentation of evidence that (1)Payne entered Taylor's

backyard; 2)
          ( within five minutes the alarm sounded; and (3) screen, which had been on the
                                                          the

window when Taylor left for work, had been pried off. In addition, Payne made the unsolicited

comment to Woodfolk, as he was walking away, that somebody tried to break into the house.

       This is sufficient evidence for the jury to infer that Payne had pried off the screen and

attempted to open the window. This evidence, plus Payne's implausible explanation for lying

between rows of blueberry bushes in the early evening after having been pursued by police,

permitted the jury to infer that Payne had attempted to enter Taylor's house unlawfully with the

intent to commit   a   crime    once   inside.     State v. Brunson, 128 Wn. d 98, 109, 905 P. d 346
                                                                           2                 2



                                                        3
No. 43618 3 II
          - -



1995);
     State v. Bergeron, 105 Wn. d 1, 11, 711 P. d 1000 (1985).We hold, therefore, that the
                              2               2

State presented sufficient evidence to support Payne's conviction.

       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

040,
2.6.it is so ordered.
  0




                                                     Hunt, P. .
                                                            J
We concur:




                                                11
