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

STATE OF WASHINGTON,                            No. 78429-3-1

                          Respondent,

                  V.                            UNPUBLISHED OPINION

HARVEY, MICHAEL MATTHEW,
DOB: 01/21/1995,

                          Appellant.            FILED: November 18, 2019

       SCHINDLER, J. — A jury convicted Michael Matthew Harvey of committing the

crime of possession of a stolen motor vehicle while on community custody. Harvey

seeks reversal, arguing insufficient evidence supports the jury finding that he knew the

vehicle was stolen and prosecutorial misconduct during closing argument deprived him

of the right to a fair trial. We affirm.

                                           FACTS

       In November 2017, Brandi and Adam Skinner lived at 22930 35th Avenue

Southeast in Bothell. The Skinners were in the process of moving to a new home.

There was a "for sale" sign posted at the end of their driveway. The Skinners packed

and stored personal items in their garage. The Skinners also stored snowboards and
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speakers in the garage. The garage included a "shop" section where Adaml stored his

tools. Brandi kept her green Ford Mustang and the keys to the car in the garage. The

Mustang "had been sitting [in the garage]for a little over two years. It wasn't running."

Brandi had not renewed the registration for the Mustang or insured it for a couple of

years. The Skinners "had just got it up and running" around the end of October. The

garage door was broken and did not lock.

       Brandi left home at around 4:50 a.m. on November 8, 2017 to drive to work in her

Kith Rio. Adam left to drive to work in his truck at 6:05 a.m. The Skinners parked the

Kia and the truck in the driveway.

       At around noon on November 8, Lynnwood Police Officer Russ Sattarov noticed

a green Ford Mustang had expired registration tabs. The person driving the car was

male. Officer Sattarov also noticed the car was "incredibly clean, as if it just came out

from the garage," which was unusual because most cars in November are "covered in

. . grayish film." Officer Sattarov checked the registration and learned the tabs had

been expired "for a little bit over two years" and the car was registered to Brandi

Skinner.

       Officer Sattarov made a U-turn. Officer Sattarov was driving "immediately

behind" the Mustang when he activated the lights and siren on the police car. The

driver did not stop. "The driver took a really sharp turn without slowing down,""drove

into a dead-end cul-de-sac type of street," "abruptly turned into a private driveway[,] and

stopped."

       Officer Sattarov got out of his patrol car and approached the Mustang. Officer

Sattarov asked the driver, later identified as Michael Matthew Harvey, for his driver's

       1 For clarity, we refer to the parties by their first names. We intend no disrespect.

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No. 78429-3-1/3

license. Harvey responded," 'I don't have it.'" Officer Sattarov asked Harvey what he

meant and Harvey told Officer Sattarov, "'I'm working on it.'" Officer Sattarov asked

Harvey to identify himself. Harvey refused to provide his name. Officer Sattarov

explained that he "could use his name to find out what his driver's status is" and asked

for his name again. Harvey refused to give his name. Officer Sattarov told Harvey that

"it is unlawful for a driver to refuse to identify himself during a traffic stop." When

Harvey still refused to provide his name, Officer Sattarov arrested him.

       Officer Sattarov called Brandi at around 12:15 p.m. Brandi gave Officer Sattarov

permission to search the Mustang. Officer Sattarov sent Brandi photographs of the

personal property found in the Mustang. Brandi identified the snowboards in the

backseat. Brandi said no one had placed the snowboards that had been in their garage

in the Mustang. Brandi identified the speakers, tools, nail guns, and drills found in the

trunk of the Mustang that had been stored in their garage.

       The State charged Harvey with possession of a stolen vehicle committed while

on community custody in violation of RCW 9A.56.068 and RCW 9.94A.525(19) and

possession of stolen property in the second degree in violation of RCW 9A.56.160(1)(a).

       The State called a number of witness to testify at trial, including Officer Sattarov,

Brandi, and Adam. The State also admitted a number of exhibits into evidence at trial,

including photographs of the Mustang, photographs of the property that was in the

Mustang when Officer Sattarov arrested Harvey, and a printout from the Washington

State Department of Licensing showing Harvey's identification card issued five days

before the Mustang was stolen. The identification card includes Harvey's driver's

license number, his photograph, and his address.



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No. 78429-3-1/4

       Officer Sattarov testified that after identifying Harvey as the driver of the

Mustang, he compared the address on Harvey's identification card with the address of

the registered owner of the Mustang. Officer Sattarov testified that Harvey lived near

the area where Officer Sattarov pulled over the Mustang and it would take

approximately 11 minutes to walk from Harvey's house to the Skinners' house.

       Brandi testified she had never met Harvey and did not give him or anyone else

permission to drive her Mustang. Brandi testified she had not given anyone permission

to put any of the personal property that was in their garage in the Mustang. Brandi

identified the snowboards found in the backseat of the Mustang and the speakers and

tools found in the trunk as item that were stored in the garage and belonged to her

family. Brandi testified a black backpack, a pair of gloves, and tinfoil found in the

Mustang after Harvey's arrest did not belong to her or her family.

       Adam testified that the green Mustang was in the garage when he left for work

the morning of November 8, 2017. Adam testified that he did not know Harvey or give

Harvey permission to drive the Mustang. Adam testified the personal property found in

the Mustang was stored in the garage belonging to him and his family. In addition to the

property Brandi identified, Adam identified nail guns, finish guns, a drill motor, a screw

gun, boots, and a laser level that were found in the Mustang when Harvey was arrested

as property that he stored in the garage.

       The jury found Harvey guilty of the crime of possession of a stolen motor vehicle

committed while on community custody. The jury found Harvey not guilty of possession

of stolen property in the second degree.




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No. 78429-3-1/5

                                        ANALYSIS

Possession of a Stolen Vehicle

       Harvey contends insufficient evidence supports the conviction of possession of a

stolen motor vehicle. Harvey argues the State did not prove that he knowingly

possessed a stolen motor vehicle.

       The State has the burden to prove every element of the crime charged beyond a

reasonable doubt. U.S. CONST. amend.XIV; WASH. CONST. art. 1, § 3; In re Winship, 397

U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). "[T]he Due Process Clause

protects the accused against conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which he is charged." Winship, 397

U.S. at 364; State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). The sufficiency

of the evidence is a constitutional question we review de novo. Rich, 184 Wn.2d at 903.

       Evidence is sufficient if after viewing the evidence in a light most favorable to the

State, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. State v. Owens, 180 Wn.2d 90, 99, 323 P.3d 1030 (2014).

A challenge to the sufficiency of the evidence admits the truth of the State's evidence.

State v. Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888 (2014). "[A]ll reasonable

inferences from the evidence must be drawn in favor of the State and interpreted most

strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068

(1992). We consider both direct and circumstantial evidence as equally reliable and

defer to the trier of fact on the persuasiveness of the evidence and issues of witness

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




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No. 78429-3-1/6

       A person commits the crime of possession of a stolen vehicle in violation of

RCW 9A.56.068(1) "if he or she . . . possesses. . . a stolen motor vehicle." The State

must prove Harvey "knowingly" possessed a stolen motor vehicle. RCW 9A.56.140(1);

State v. Porter, 186 Wn.2d 85, 90, 375 P.3d 664 (2016). A person "acts knowingly"

when he is "aware of a fact" or "has information which would lead a reasonable person

in the same situation to believe that facts exist" that are "described by a statute defining

an offense." RCW 9A.08.010(1)(b).

       Evidence of either actual or constructive knowledge can support an inference of

knowledge. State v. Rockett, 6 Wn. App. 399, 402, 493 P.2d 321 (1972). Inferences

based on circumstantial evidence must be reasonable and cannot be based on

speculation. State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013). "Although

knowledge may not be presumed because a reasonable person would have knowledge

under similar circumstances, it may be inferred." State v. Womble, 93 Wn. App. 599,

604, 969 P.2d 1097 (1999).

       Mere possession of recently stolen property is insufficient to establish that the

possessor knew the property was stolen. State v. Couet, 71 Wn.2d 773, 775, 430 P.2d

974 (1967); Womble, 93 Wn. App. at 604. Constructive knowledge is determined by

looking at the context surrounding the defendant's possession of the vehicle. Rockett, 6

Wn. App. at 402. A jury may infer guilty knowledge when the State proves possession

of a recently stolen vehicle and provides "slight corroborative evidence of other

inculpatory circumstances tending to show guilt." State v. Ford, 33 Wn. App. 788, 790,

658 P.2d 36 (1983). Slight corroborative evidence of other inculpatory circumstances

showing a defendant's guilt will support a conviction. State v. Portee, 25 Wn.2d 246,


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No. 78429-3-1/7

253-54, 170 P.2d 326 (1946). A jury may infer actual knowledge when the defendant

cannot explain his possession of a recently stolen vehicle. Rockett,6 Wn. App. at 403.

          Viewing the evidence and all reasonable inferences in the light most favorable to

the State, sufficient evidence supports the jury finding Harvey knew the Mustang was

stolen. There is no dispute the Mustang was in the garage when Brandi and Adam left

for work on November 8 and they did not know Harvey or give him or anyone else

permission to drive the Mustang.

          A "for sale" sign was posted at the end of the driveway of the Skinners' house.

The keys to the Mustang were in the garage on November 8. The uncontroverted

evidence established the Mustang had been in the garage for approximately two years,

Brandi had not renewed the registration or paid insurance, and they had only recently

fixed the Mustang. Personal property, including snowboards and tools, were stored in

the garage. The garage door was broken and could not be locked.

          Officer Sattarov noted the registration tabs on the Mustang had been expired for

two years and the Mustang looked "as if it just came out from the garage." Harvey did

not immediately stop when Officer Sattarov tried to pull him over at approximately 12:00

p.m. on November 8. Harvey admitted he did not have a driver's license but refused to

give his name to Officer Sattarov despite multiple opportunities to comply with the

request. The uncontroverted evidence established snowboards, tools, and other

personal property from the Skinners' garage were in the Mustang. The identification

card issued to Harvey five days before the Mustang was stolen shows he lives near the

Skinners. Sufficient evidence supports the jury finding Harvey knew the Mustang was

stolen.


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No. 78429-3-1/8

Closing Argument

       Harvey argues the prosecutor committed misconduct during closing argument by

commenting on his constitutional right to silence. The record does not support his

argument.

       We review allegations of prosecutorial misconduct during closing argument for

abuse of discretion. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). To

prevail on a claim of prosecutorial misconduct, the defendant must "show that in the

context of the record and all of the circumstances of the trial, the prosecutor's conduct

was both improper and prejudicial." In re Pers. Restraint of Glasmann, 175 Wn.2d 696,

704, 286 P.3d 673(2012).

       The prosecutor may not comment on a defendant's "constitutionally permitted

silence as substantive evidence of guilt." State v. Romero, 113 Wn. App. 779, 787, 54

P.3d 1255 (2002).2 However, the State may introduce evidence that does not implicate

the constitutional right to silence as evidence of consciousness of guilt. State v.

Mecham, 186 Wn.2d 128, 150, 380 P.3d 414 (2016). Evidence of resistance to arrest,

concealment, assumption of a false name, and other related conduct is proper if it

allows a reasonable inference of consciousness of guilt of the charged crime. State v.

Freeburg, 105 Wn. App. 492, 497-98, 20 P.3d 984 (2001).

      At the CrR 3.5 hearing, the prosecutor argued that the statements Harvey made

to Officer Sattarov before being advised of his Miranda3 rights were admissible.

Defense counsel conceded that "prior to" the arrest, Harvey's "statements are




      2   Emphasis added.
      3   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 78429-3-1/9

admissible as part of a Terry[41 stop." The defense attorney argued the statements

Harvey made after he was advised of his Miranda rights and invoked his right to remain

silent were not admissible. The court ruled the statements Harvey made before he was

advised of his Miranda rights and invoked his right to silence were admissible but the

statements he made after he invoked his right to remain silent were not admissible.

         During the hearing on the motions in limine, defense counsel reiterated the

court's ruling that any statements made after Harvey invoked his right to silence were

inadmissible. In response, the prosecutor notes her understanding of the court's ruling:

        Prior to [Harvey] saying that I have nothing further to say, the defendant
        said he didn't have his license, he was working on getting it. When asked
        his name, he would say I don't know if I have to give that to you, or I don't
        want to give it to you. So I want to make sure that those things are okay,
        and it's just the "I have nothing further to say" that the officers are not
        allowed to repeat or comment on.

Defense counsel agreed that the statements Harvey made before Officer Sattarov read

him his Miranda rights are admissible—"That's my understanding of the 3.5 rulings, is

exactly that."5

        The State argued it should also be allowed to introduce evidence that Officer

Sattarov read Harvey his Miranda rights. Defense counsel objected. The court ruled
       •
the evidence is inadmissible because "[i]f there's going to be testimony that the rights




        4 Terry   v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889(1968).
         5 Case law supports the defense attorney's concession that the statements Harvey made before
he was arrested and read his Miranda rights were admissible. See State v. Stratton, 139 Wn. App. 511,
515-16, 161 P.3d 448(2007)(holding defendant's refusal to answer an officer's multiple identification
questions during a traffic stop did not violate the right to remain silent under the Fifth Amendment to the
United States Constitution). Under RCW 46.61.021(3), "[a]ny person requested to identify himself or
herself to a law enforcement officer pursuant to an investigation of a traffic infraction has a duty to identify
himself or herself and give his or her current address." Harvey does not challenge the constitutionality of
RCW 46.61.021.

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No. 78429-3-1/10

were read and then no further discussion about what was said, I don't want to give the

jury any sort of inference that they could latch onto."

       Without objection during closing argument, the prosecutor properly addressed

the statements Harvey made before he was arrested as evidence that Harvey knew the

Mustang was stolen:

              When the defendant was stopped by Deputy Sattarov, he testified
       on cross that other than the expired tabs, there's nothing about the
       defendant's driving that really would have caused him to stop him. So
       why would the defendant refuse to give his name or refuse to give his
       identification? He doesn't want the officer to know that the car doesn't
       belong to him.

       During the defense closing argument, counsel addressed the refusal of Harvey to

identify himself:

                Now, the evidence that the State is relying on is pretty simple.
       They want you to infer guilt because Mr. Harvey was nervous when he
       was pulled over. The first thing he says is he doesn't have a license. The
       first thing he says is that I'm working on getting it. Clearly he didn't know
       how to react, knew that he had been caught driving without a license, and
       didn't know how to react to that. That's a reasonable inference for why
       he's acting that way.

       During rebuttal, the prosecutor responded to the defense argument:

       Well, it's one thing to not turn over your license to the officer because your
       license is suspended, and it's one thing to be nervous that you've just
       been stopped because you're driving with your driver's license suspended.
       But so what? What is that? Like an infraction? He also refused to give
       his name because he knew the information returned on the vehicle isn't
       going to match him. It isn't his.

       Because the uncontroverted record establishes the prosecutor did not improperly

comment on Harvey's constitutional right to silence, we reject his prosecutorial

misconduct argument.




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No. 78429-3-1/11

      We affirm the jury conviction of possession of a stolen motor vehicle committed

while on community custody.




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WE CONCUR:




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