                                                                                   FILED
                                                                             COURT -
                                                                                 DI,
                                                                                     OF A11
i.

                                                                           2013 SEP -yo- AM 10. 0
                                                                                              2
                                                                            STATE Or WASHINGTON

                                                                            BY




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II

                                                                        No. 42675 7 II
                                                                                  - -

     STATE OF WASHINGTON,
                                    Respondent,

              V.

                                                                 UNPUBLISHED OPINION
     GINGER LEANNE CRANDALL,
                                    Appellant.


              LEE, J. . jury returned verdicts finding Ginger Crandall guilty of second degree
                   T.
                    PA

     burglary and second degree theft. Crandall appeals her convictions, asserting ( ) the trial
                                                                                   1 that

     court violated her CrR 3. time - trial right by granting the State's continuance motion, and ( )
                             3      for -                                                         2

     that insufficient evidence supported her convictions. The trial court properly exercised its

     discretion in granting a trial continuance to allow the State time to test new evidence and

     sufficient evidence support's Crandall's convictions. Therefore, we affirm.

                                                   FACTS



              In March, 2010, Marcus Taft discovered that his garage door had been left open

     overnight and that items had been stolen from his vehicles. The stolen items included new

     1
         Judge Linda Lee is serving as judge pro tempore of the Court of Appeals, Division II,under
     CAR 21( ).
           c
    I




            No. 42675 7 II
                      - -



            clothing Taft had purchased for his wife's birthday ( alued at $ 00 to $
                                                                v          7       800), pair of sunglasses
                                                                                       a

            valued at $ 29), a key fob for one of his vehicles ( alued at $ 00 to $
                      3    and                                 v          3       400).
                                                                                      Taft reported

            the incident to law enforcement authorities.


                    While inspecting the garage, Cowlitz County Deputy Sheriff Kelly Pattison and Taft

            noticed a cigarette butt four to five feet inside the garage behind the one of the rear tires on

            Taft's vehicle. Pattison noted that the cigarette butt appeared to have been dropped from within

            the garage because it appeared fresh, was not flattened, and was dry,while the ground outside

            was wet from rain. Taft stated that neither his family nor recent guests smoked cigarettes.
        i

            Pattison collected and submitted the cigarette butt to the Washington State Patrol Crime

            Laboratory for deoxyribonucleic (
                                            DNA)testing. The DNA profile taken from the cigarette butt

            matched a DNA profile for Ginger Buck, which is Crandall's known alias.
                    Deputy sheriffs executed a warrant to search a U Haul storage unit that was leased to
                                                                     -

            Ginger Crandall's husband. The U Haul general manager stated that he had seen Crandall access
                                             -

            her husband's storage unit on multiple occasions.

                    The deputies found Taft's stolen property and Crandall's checkbook inside the storage

            unit. Crandall admitted to police that she used the storage unit,but stated that she had been

            denied access the unit for a couple of weeks because her husband had put a second lock on it.

                    The State charged Crandall with second degree burglary and second degree theft. On

            December 14, 2010, Crandall appeared for arraignment and entered pleas of not guilty to both

            charges. The trial court scheduled trial for February 14, 2010. Crandall filed a speedy trial


            2 At a pretrial hearing, Crandall stated that her maiden name was Buck.



                                                               2



i
    No..
       42675 7 II
             - -



    waiver on January 25, 2011, and again on April 14,2011. In her second speedy trial waiver,

    Crandall accepted May 1, 2011 as her new commencement date.
                On May 24, 2011,the State filed a motion to compel Crandall to submit to DNA

    swabbing. The State asserted that although a previous DNA test showed that.the DNA sample

    taken from the cigarette butt matched a profile belonging to Crandall, Crandall's DNA sample in

    the Washington State Combined DNA Index System ( CODIS)did not contain an adequate
                                                           "

    amount of DNA necessary to present a true match."RP at 5 6. The State said that it could not
                                                             -
i


    present the existing DNA test as evidence at trial because of a chain of custody issue with regard

    to Crandall's CODIS DNA sample. On June 2,2011, the trial court heard, but did not rule on,

    the State's motion to compel. Instead, the trial court asked the State to provide a statistical basis

    for its match on the current DNA test to establish the probable cause necessary to order a DNA

    swab for a second test. The trial court then set a new hearing date on the State's motion for June

    9,i 2011.

                The following discussion took place at the June 9 hearing after the trial court reviewed a

    document provided by the State regarding DNA testing:

                    THE COURT]:It doesn't break down the test, but I think it does say
                that the match, based upon the profile, would match thewould be 1
                that—
                    that—                                                —
        i
                in 1. quintillion.
                    2
                       DEFENSE COUNSEL]: [              T]at paragraph, I think, and I may be
                                                          h
                incorrect, I believe it stated that, you know, that chance of it matching any
                random person is 1. or one point whatever quintillion. What we don't have here
                                    2
                               We took Sample A and we compared.it to Sample B ", and they
                is, they said, "
            j   don't give any kind.of, you know, ratio about how close of a match that is. We
                simply have no information on that test. The 1. quintillion simply, if they had
                                                                1
                taken a sample and matched it up against any other random sample, it would be a
                1. quintillion chance of matching it,not if we matched two specific examples
                  1

    3
        At the time Crandall executed her second time to-
                                                      - trial waiver, she was not in custody.



                                                         3
No. 42675 7 II
          - -



       what is the ration of the match.    What, you know, what likelihood it isis it?
                                                                                —
       And that's what we need to get at here, and that's simply not present.
                THE COURT]: That really is a terribly written sentence. Do you agree
       with that, State]?
                  [
                STATE]:Your Honor, I was not pleased with the outcome of that letter, I
       will admit.
               THE COURT]:Do you want to call them?
               STATE]:
                     I—
               THE COURT]:Do you want to take another week and find out?
               STATE]: Well, the longer we take, the less likelihood we are going to
       have a test performed in time for trial....
               THE COURT]:Well,this isn't even signed by the laboratory manager.
               STATE]:Exactly. The laboratory manager is not available.
               THE COURT]: So somebody signed it for the laboratory manager. All
       right. I am not going to order it. All right. I am not going to order it based upon
       somebody signing for somebody, and also a paragraph that could be written in
       plain English to mean something.

              STATE]: Wouldwould the Court allow the State one more week to
                                —
       attempt to get that?We do know that the—
              THE COURT]: You can always renew your motion if you get something
       closer than what I see here.


Report of Proceedings at 16 18.
                            -

       On July 11, 2011,the State filed a motion to reconsider its motion to compel Crandall to

submit a DNA swab for testing. The trial court heard the State's motion on July 14, 2011.

       At the July 14 hearing, the State presented the testimony of Teresa Shank, a forensic

DNA analyst with the Washington State Patrol Crime Laboratory. After hearing Shank's

testimony, the trial court determined that probable cause existed to require Crandall to submit a

DNA swab for testing. The State orally moved to continue the trial date beyond the 90 day time
                                                                                      -

limit of CrR 3. (
             b)(based on newly obtained DNA evidence, as well as availability of
              3)
              3

witnesses. Crandall objected to a continuance and requested that the State file a written motion.

The trial court set July 19, 2011 for a hearing on the State's continuance motion.




                                                 M
No. 42675 7 II
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       On July 19, the trial court ruled that good cause existed to continue the trial based on the

newly obtained DNA swab and the time necessary to conduct DNA testing on the swab.

However, the trial court rejected the State's proposed October trial date and instead continued

the trial to August 29, 2011.

       At trial,Crandall's husband testified that he alone had burglarized Taft's garage. He also

testified that he regularly took Crandall's used cigarettes and used the remaining tobacco in a

hand-
    rolled cigarette. Crandall's husband stated that on the night of the burglary, he stood

outside Taft's garage, hand -rolled a cigarette with tobacco from used cigarette butts, smoked the

cigarette, and then entered Taft's vehicle. The jury returned verdicts finding Crandall guilty of

second degree burglary and second degree theft. Crandall timely appeals her convictions.

                                            ANALYSIS


1.
 1     CRIMINAL RULE 3.
                      3


       Crandall first asserts that the trial court violated her right to a timely trial under CrR 3.
                                                                                                   3

by granting the State's motion for a continuance. We disagree.
       We review alleged violations of CrR 3. 'time -for trial rule de novo. State v. Kenyon,
                                           s3             -

167 Wn. d 130, 135, 216 P. d 1024 ( 009).
      2                  3        2     However,the decision to grant or deny a motion for

a continuance rests within the trial court's discretion, and we will not disturb that decision unless

there is a clear showing that the trial court was manifestly unreasonable. Kenyon, 167 Wn. d at
                                                                                         2

135.

        CrR 3. (
            b)(requires a defendant who is detained to be brought to trial within 60 days
             1)
             3

after being arranged. But a defendant who " s released from jail before the 60 day time limit has
                                          i                                    -

expired"must be brought to trial within 90 days. CrR 3. ( criminal defendant may
                                                     b)( A
                                                      3).
                                                      3



                                                  5
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    No. 42675 7 II
              - -



    specify a new commencement date for purposes of CrR 3. by filing a written waiver of his or
                                                         3

    her rights under the time -for trial rule. CrR 3. (
                                    -              i).
                                                   c)(Delays in commencing trial due to a
                                                    2)(
                                                    3

i
    trial court's grant of a continuance under CrR 3. ( excluded from the computation of the
                                                   f)
                                                    3 are

    time for trial. CrR 3. ( trial court may grant a party's motion for a continuance if the
                        e)( A
                         3).
                         3

    continuance is required in the administration of justice and the defendant will not be prejudiced

    in the presentation of his or her defense."CrR 3. (
                                                   f)(
                                                    2).
                                                    3

           In general, a trial court does not abuse its discretion in granting a.continuance to permit

    the parties adequate time to prepare for the case or to permit the parties time to obtain new

    evidence. State v. Flinn, 154 Wn. d 193, 200 201, 110 P. d 748 (2005);
                                    2            -         3             State v. Cauthron, 120

    Wn. d 879, 910, 846 P. d 502 (1993),
      2                  2             overruled in part on other grounds by State v. Buckner,

    133 Wn. d 63, 65 67,941 P. d 667 (1997).A trial court must dismiss with prejudice charges
          2          -       2

    not brought to trial within the time required by CrR 3. . CrR 3. (
                                                          3       h).
                                                                   3

           Citing State v. Wake, 56 Wn.App. 472, 783 P. d 1131 (1989),Crandall contends that
                                                      2

    the trial court abused its discretion by granting the State's motion for a continuance based on

    delays that were caused by inadequate funding for the Washington State Patrol Crime

    Laboratory. In Wake, Division Three of this court held that the trial court abused its discretion

    by granting the State's motion for a continuance based on the unavailability of an expert witness

    from the State crime lab. 56 Wn.App. at 473. In so holding, the Wake court reasoned:

            T] e State has failed to keep pace with the growing number of drug' ases, has an
               h                                                                  c
            inadequate staff available for court testimony and, as a result, a logjam is being
            created. If congestion at the State crime lab excuses speedy trial rights, there is
            insufficient inducement for the State to remedy the problem.

    119 Wn. d at 475.
          2




                                                      6
No. 42675 7 II
          - -



       Wake does not assist Crandall. The trial court here found good cause to grant the State's

continuance motion to allow the state crime lab time to conduct testing on Crandall's newly

obtained DNA sample. There is nothing in the record suggesting that the continuance was

necessary to accommodate delays at the crime lab due to inadequate funding. Instead, the trial
court reasoned that continuing the start of trial until August 29, 2011, was necessary to allow the

state crime lab time to conduct its DNA test on the newly obtained evidence. Crandall fails to

show,the trial court's decision to grant the trial continuance was manifestly unreasonable.

       Crandall also contends that the trial court abused its discretion in granting the State's

continuance motion based on the State's failure to adequately prepare for trial, citing State v.

Nguyen, 131 Wn. App. 815, 129 P. d 821 (2006).In Nguyen, Division One of this court held
                               3

that the trial court abused its discretion in granting the State's continuance " olely on the
                                                                               s

suspicion that the defendant mi be linked to some other crime."131 Wn. App. at 821. That
   p                         ght
                              g                                         Pp


situation was not present here and, thus,Nguyen does not assist Crandall. In contrast with

Nguyen, the State did not seek a continuance based on the mere possibility that it might discover

new evidence linking Crandall to another crime. Rather, the State had obtained evidence linking

Crandall to the charged crimes, but the State needed to conduct further DNA testing to satisfy the

chain of custody so that it could present the evidence at trial.

        In Cauthron, our Supreme Court held that the trial court did not abuse its discretion by

granting the State's continuance motions where " he continuances were necessary to obtain the
                                               t

required evidence"and where the defendant was not prejudiced by the delay in starting trial. 120

Wn. d at 910, overruled in part on other grounds by Buckner, 133 Wn. d at 65 67. Similarly
  2                                                                2         -

here, the State's request for a continuance was necessary to process newly obtained DNA



                                                  7
    No. 42675 7 II
              - -


    evidence, and Crandall does not demonstrate any prejudice stemming from the trial court's

    decision to grant the State's motion. Accordingly, we hold that the trial court did not violate

    Crandall's time -for trial right under CrR 3. .
                          -                     3

    SUFFICIENCY OF THE EVIDENCE


           Crandall asserts that the State presented insufficient evidence at trial to support her

    convictions. Again,we disagree.

           Sufficient evidence exists to support a conviction if any rational trier of fact could find

    the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the

    light most favorable to the State. State v. Hosier, 157 Wn. d 1, 8, 133 P. d 936 (2006).A
                                                              2              3

    defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all

    inferences that reasonably can be drawn from the evidence. State v. Salinas, 119 Wn. d 192,
                                                                                       2

    201, 829 P. d 1068 (1992).Circumstantial evidence and direct evidence are equally reliable.
              2

    State v. Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980).We defer to the trier of fact on
                             2                  2

    issues of conflicting testimony, credibility.of witnesses, and the persuasiveness of the evidence.

    State v. Walton, 64 Wn. App. 410, 415 16,824 P. d 533 (1992).
                                          -       2

            To convict Crandall of second degree burglary,the State had to prove beyond a

    reasonable doubt that she (1)
                                entered or remained unlawfully in a building other than a vehicle or

    a dwelling ( )
               2 with intent to commit a crime against a person or property therein. RCW

    030(
    9A. 2. also State v. Brunson, 128 Wn. d 98, 104 105, 905 P. d 346 (1995).To
       1 see
       5 );                             2           -         2

    convict Crandall of second degree theft,the State had to prove beyond a reasonable doubt that

    1) wrongfully obtained or exerted unauthorized control over the property of another ( )
      she                                                                               2

    exceeding $ 50 in value and not more than $ , in value. RCW 9A. 6.
              7                               5000              020;
                                                                  5 RCW 9A. 6.
                                                                        040.
                                                                          5



                                                      8
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        No. 42675 7 II
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               Here,the State presented evidence that a cigarette butt containing only Crandall's DNA

        was found in Taft's garage shortly after Taft discovered that items valued over $ 50 had been
                                                                                        7

        taken from within his garage. The State also presented evidence that the cigarette butt had been

        dropped from inside of Taft's garage and that Taft did not give Crandall permission to be in his

        garage. Finally, the State's evidence showed that the stolen items were found in a storage unit to

        which Crandall had access and that her checkbook was also found in the storage unit. Viewed in

        a light most favorable to the State, this evidence was sufficient for the jury to find that Crandall

        1)
         unlawfully entered Taft's garage (2)
                                            with intent to commit theft. Thus,the evidence supports

        the jury's verdict finding her guilty of second degree burglary.

               Likewise, the State's evidence was sufficient for the jury to find that Crandall ( )
                                                                                                1

        wrongfully obtained property belonging to Taft and ( ) property was valued in excess of
                                                           2 the

        750 and less than $ 000. Although Crandall's husband testified that he alone entered Taft's
                          5,

        garage and took items from Taft's vehicles,his testimony has no bearing on our review of the

        sufficiency of evidence to convict, as the jury was free to disbelieve his testimony. See State v.

        Camarillo; 115 Wn.2d 60; 71, 794 P. d 850 (1990) Credibility determinations are for the trier
                                          2              ("




i




                                                           9
    i
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No. 42675 7 II
          - -


 of fact and cannot be reviewed   on   appeal. "). Accordingly, we affirm Crandall's convictions.

       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




                                                     LEE,J. .
We concur:




W RSWICK, Cl




                                                   10
