            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                           ,   Jo,

STATE OF WASHINGTON,                            No. 69934-2-1                            1* ^o

                         Respondent,            DIVISION ONE

                v.
                                                UNPUBLISHED OPINION                          4?
                                                                                             TO    -2C
GREGORY JAMES THOMAS,

                         Appellant.             FILED: May 27, 2014

         Schindler, J. —A jury convicted Gregory James Thomas of trafficking in stolen

property in the first degree and bail jumping. Thomas appeals, arguing his attorney
provided ineffective assistance of counsel by failing to object to the admission of an
exhibit that was admitted at trial to prove the bail jumping charge. Because Thomas

cannot show prejudice, we affirm.

                                         FACTS

         Leslie Brinkman owns a two-story house with a large detached garage in

Snohomish County. Brinkman has purchased and sold antiques for approximately 30

years.

         Beginning in December 2008, Brinkman rented the house to Connie Roundtree
and her daughter Candace Loomey. The garage is excluded from the lease, and only
Brinkman had keys to the garage. Brinkman uses the garage to store her antiques,
No. 69934-2-1/2


collectibles, and personal property. Sometime in December 2009, Gregory James

Thomas moved into the house with his mother and sister.

       In June or July 2010, Brinkman noticed two vintage bicycles were missing from

the garage. Brinkman told Roundtree and family members that the bicycles were

missing.

       In February 2011, Brinkman saw several items that she owned on display at an

antique mall in Snohomish, including a china set, vases, jewelry, and fur coats. The

following week, Brinkman conducted an inventory of the garage with the help of her

family and friends. A number of items were missing including the china set, vases,

jewelry, fur coats, and antique furniture. Brinkman valued the missing items as worth

approximately $30,000. Brinkman reported the theft to the police.

      Brinkman and a police officer then returned to the antique mall to talk to the

owners of the mall space where Brinkman saw her missing items. The owners Todd

and Jan Humphrey returned a number of items that they purchased from Thomas to

Brinkman including the two vintage bicycles, a Chinese rug, glassware, mugs, vases,

lamps, and collectible cookie jars. Brinkman estimated the returned property was worth

approximately $15,000 to $16,000.

      On June 24, 2011, the State charged Thomas with trafficking in stolen property in

the first degree in violation of RCW 9A.82.050. On December 14, 2012, the State filed

an amended information charging Thomas with additional counts for burglary in the

second degree in violation of RCW 9A.52.030, and bail jumping in violation of RCW

9A.76.170(1). As to the bail jumping charge, the State alleged Thomas was released by
No. 69934-2-1/3


a court order on his personal recognizance on the condition that he appear at all court

dates, and that he did not appear for the court hearing on June 15, 2012.

      The State called a number of witnesses during the three-day jury trial including

Brinkman, Todd Humphrey, a family member who helped inventory the contents of the

garage, the police officer who assisted Brinkman in recovering her property from the

antique mall, and the manager of the Snohomish County Clerk's Office.

       Brinkman testified that she typically visited the garage three to five times a year

and that after 2009, Thomas was present each time she was there. Brinkman testified

she was the only one who had possession of the two keys to the garage and she never

gave permission to Thomas or anyone in else in his family to enter her garage.

      Todd Humphrey testified that Thomas sold boxes of costume jewelry to Jan

Humphrey sometime in late spring or early summer 2010. Todd said that during the

summer and fall of 2010, he and Jan purchased many items from Thomas including

jewelry, the vintage bicycles, fur coats, and lunch boxes. Thomas told Todd that he

obtained the items from his grandmother who recently passed away.

       To prove the bail jumping charge, the State introduced certified copies of the

"Information" filed on June 24, 2011 charging Thomas with trafficking in stolen property

in the first degree, Exhibit 1; a clerk minute entry dated August 1, 2011, Exhibit 2; the

August 1, 2011 order on release, Exhibit 3; a minute entry dated April 5, 2012, Exhibit 4;

an agreed trial continuance order filed April 5, 2012, Exhibit 5; a June 15, 2012 minute

entry, Exhibit 27; and Thomas's driver's license, Exhibit 17. The second page of Exhibit

1, the Information charging Thomas with trafficking in stolen property in the first degree,

lists Thomas's address, date of birth, height, weight, eye color, hair color, race, the
No. 69934-2-1/4


originating agency, the agency case number, and the alphanumeric notations "DOL:

THOMAGJ403N4[,] SID: WA11466419[,] FBI: 832500T8[, and] DOC: 273820."1

        Thomas testified on behalf of the defense. Thomas said that after the garage

flooded on two separate occasions, Brinkman gave him several boxes of items to throw

away. According to Thomas, the boxes contained wet and moldy costume jewelry,

dolls, a lunch box, and many other items. Thomas said that he restored and sold many

of the items to the Humphreys. Thomas testified that Brinkman gave him the two

bicycles as payment for landscaping work and that he sold the vintage bicycles to the

Humphreys.

        During his testimony, Thomas admitted the items he sold to the Humphreys did

not belong to his deceased grandmother. Thomas testified, in pertinent part:

        Q.      Did you tell Todd and Jan Humphrey that the property came from
                your deceased grandmother?
        A.      Yes, ma'am, I did.
        Q.      Why did you do that?
        A.      Just like the same old thing, like being a car salesmen [sic]. You
                tell them a little lady owned it and she only drove it on Sundays. It
                was just a way to make the sale, to make it easier, get more - - you
                know, like I told them the first time, I don't want to leave with the
                stuff, I just want to get rid of it. So, you know, I fabricated a story
                that this was my grandmother's that passed away and I'm just
                looking to get rid of it.

        Thomas also admitted that he did not appear for the June 15, 2012 court hearing:

        Q.      Mr. Thomas, did you miss court on June 15, 2012?
        A.      Yes, ma'am, I did.
        Q.      Why?
        A.      Just work, not paying attention to the court dates written down. Got
                home that evening, looked at my paperwork and of course I missed
                court that day.



         1 DOL (Washington State Department of Licensing), SID (security identifier), FBI (Federal Bureau
of Investigation), DOC (Washington State Department of Corrections).
No. 69934-2-1/5


       The State called Brinkman and Todd Humphrey as rebuttal witnesses. Brinkman

testified she never gave Thomas any property from the garage or disposed of any

property stored in the garage because of water damage or mold. Brinkman also

testified that she did not ask Thomas to do any landscaping and never gave Thomas

the bicycles as payment for landscaping. Todd Humphrey testified there was no sign of

water damage or mold on any of the items or boxes he purchased from Thomas.

       During closing, defense counsel argued that Brinkman gave Thomas the

antiques and collectibles but conceded Thomas was guilty of bail jumping.

       The jury found Thomas not guilty of burglary in the second degree. The jury

found Thomas guilty of trafficking in stolen property in the first degree and bail jumping.

The court imposed a concurrent standard-range sentence of 29 months.

                                         ANALYSIS

       Thomas contends his attorney provided ineffective assistance of counsel by

failing to object to the irrelevant and prejudicial reference to the numeric notations for

"FBI: 832500T8" and "DOC: 273820" on page 2 of Exhibit 1, the Information charging

him with trafficking in stolen property in the first degree.

       A criminal defendant has the right under the Sixth Amendment to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). In order to prevail on a claim of ineffective assistance of

counsel, the defendant must show (1) deficient performance by counsel and (2) that the

deficient performance prejudiced the defendant. State v. Turner, 143 Wn.2d 715, 730,

23 P.3d 499 (2001). Ifthe defendant fails to establish either part of the test, we need

inquire no further. State v. Hendrickson. 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
No. 69934-2-1/6


       To show prejudice, the defendant must show "counsel's errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466

U.S. at 687. 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." Hendrickson,

129 Wn.2d at 78. A "reasonable probability" is a probability sufficient to undermine

confidence in the outcome. Strickland. 466 U.S. at 694.

       Thomas cannot show there is a reasonable probability that the result of the trial

would have been different but for the failure of his attorney to object to the admission of

the FBI and DOC notations appearing on the second page of Exhibit 1. Thomas does

not dispute there was overwhelming evidence that he committed the crime of bail

jumping. During the State's case in chief, the prosecutor introduced into evidence

certified copies of court records to establish Thomas was guilty of bail jumping,

including the Information filed on June 24, 2011, Exhibit 1. While the second page of

Exhibit 1 lists a number of alphanumeric notations, including "FBI: 832500T8" and

"DOC: 273820," there is no explanation of the numeric notations and there was no

reference to the notations at trial. Further, during his testimony, Thomas admitted he

did not appear at the court hearing on June 15, 2012. And in closing argument, defense

counsel conceded Thomas was guilty of bail jumping. Because there was no dispute

Thomas was guilty of bail jumping, it is highly unlikely the jury gave any consideration to

Exhibit 1 or the numeric notations on the second page of Exhibit 1.

       The out-of-state case Thomas cites, State v. Brown. 369 So. 2d 881 (Ala. Crim.

App. 1979), is inapposite. In Brown, over the objection of defense counsel, the court

admitted into evidence a fingerprint card that listed five prior aliases used by the


                                               6
No. 69934-2-1/7


defendant, an FBI number, and date of arrest. Brown. 369 So. 2d at 883. A police

officer testified the defendant "had been admitted to jail and fingerprinted 'about a year

or two ago.'" Brown. 369 So. 2d at 883. On appeal, the court reversed on the grounds

that the State not only introduced into evidence the fingerprint card referring to previous

convictions, but the testimony of the police officer called attention to the prejudicial

information contained in the fingerprint card. Brown. 369 So. 2d at 884. Here, unlike in

Brown. Thomas admitted he was guilty of the crime of bail jumping, and no one referred

to or called attention to the DOC and FBI numbers noted on the second page of Exhibit

1.


       We affirm.




                                                          \aW)Qd
WE CONCUR:




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