                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       September 22, 2015



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

 STATE OF WASHINGTON,                                               No. 45959-1-II

                                                                   Consolidated with
                                   Respondent,                      No. 46848-4-II

         v.

 CONLAN JADEN SHAW,                                           UNPUBLISHED OPINION

                                   Appellant.
 In the Matter of the                                               No. 46848-4-II
 Personal Restraint Petition of

 CONLAN JADEN SHAW,


                                   Petitioner.

       WORSWICK, J. — Conlan Shaw appeals his juvenile court adjudications of first degree

arson, residential burglary, and first degree malicious mischief. Shaw argues that the State

produced insufficient evidence to prove he (1) caused the fires inside the residence, (2) acted

maliciously, (3) entered the residence with the intent to commit a crime therein, or (4) caused

property damage in an amount exceeding $5,000. Shaw also challenges his adjudications in a

consolidated personal restraint petition (PRP) arguing his counsel was ineffective for failing to

call an available alibi witness.

       Because sufficient evidence supports Shaw’ s convictions and because his attorney was

not ineffective, we affirm Shaw’ s adjudications, and deny Shaw’ s petition.
No. 45959-1-II
Cons. with No. 46848-4-II




                                              FACTS

        On June 20, 2013, between 8:30 AM and 9:00 AM, next door neighbor Mary Casey heard

glass breaking from inside the house next door. According to Casey, these noises continued until

Tacoma Police Officer James Pincham arrived outside the house just after noon.

        Officer Pincham responded to the residence after a 911 caller reported hearing sounds of

breaking glass at the residence. Upon arriving at the residence, Officer Pincham observed

several broken windows and two metal dining room chairs in the driveway that appeared to have

been thrown from the residence’ s window. As Officer Pincham approached the residence, he

noticed the smell of smoke coming from inside the house and called for Tacoma Fire Department

to be dispatched. Upon entering the residence, Officer Pincham found extensive vandalism

throughout the home. He determined the likely point of entry into the home was through a

window in one of the lower bedrooms. The screen from that window had been removed and the

glass was shattered. Blood evidence was found on the window’ s interior and exterior frames.

        In the hallway just outside of the first bedroom, the officers found two areas where

apparent blood evidence had been smeared on the walls as Shaw worked his way through the

residence. Later testing matched the DNA (deoxyribonucleic acid) from the blood at the scene to

Shaw.

        Three fires had been started in separate areas of the residence. First, inside the second

bedroom on the home’ s lower level, Officer Pincham found a pile of burning toilet paper on the

carpet. An investigator found a fingerprint matching Shaw’ s fingerprint on a piece of broken

window glass in that room.



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Cons. with No. 46848-4-II




       Second, in the lower level bathroom, a burned roll of toilet paper was found resting on

the floor directly beneath the toilet paper holder. The bathroom exhibited significant damage.

       Third, a fire burned in the family room of the residence’ s lower level. When Officer

Pincham entered the family room, an approximately eight-by-five-foot burned area of the carpet

was still smoldering.

       Arson investigator, Kenneth Hansen, investigated the three fires inside the house. It was

Hansen’ s opinion that the fires were intentionally set based on their nature, origins, and multiple

locations throughout the lower level, plus the lack of any other source of natural or accidental

ignition and the degree and volume of other contemporaneous damage throughout the house.

       There was damage throughout the rest of the house. Soot and smoke blackened the walls,

and broken glass covered the floors from shattered windows, light fixtures, a bathroom mirror,

and a glass table. In the kitchen, the refrigerator was tipped over and dented. The upstairs

bathroom mirror was shattered and the light/fan fixture broken. Several floor lamps were

knocked over and destroyed. A fingerprint collected from one of the broken floor lamps

matched Shaw’ s. One additional fingerprint collected at the residence remains unidentified.

       Esther Mbajah and her husband own the residence. The residence was used as a rental

house and several people other than Shaw, including Mbajah and her real estate agent, were

frequently inside. Mbajah habitually checked on the residence every morning on her way to

work. When she drove by the house around 7:30 AM on the morning of June 20, the windows

were intact and no debris lay in the driveway. Mbajah had been inside the house one or two days




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Cons. with No. 46848-4-II




prior and saw no damage. Following the fire, Mbajah spent well over $5,000 to repair the

residence.

       The State charged Shaw with first degree arson, residential burglary, and first degree

malicious mischief. Prior to trial, Shaw and his grandmother, Nancy Pringle, met with Shaw’ s

court appointed attorney. At that meeting Pringle informed counsel that Donald Spencer would

be available to testify that he was with Shaw from 10:00 AM until 2:00 PM on the day of the

events in question. Spencer states, “ I woke Conlan up when I came over around 10:00 AM.

Conlan ate as we talked about what I needed from him. He used the computer to look up

information for me, mostly employment possibilities.” PRP (App. C).

       Spencer attended every day of the trial, but counsel chose not to call Spencer as a

witness. Pringle states that when she told counsel she wanted Spencer to testify, counsel told her

to “ sit down and be quiet because the prosecutor didn’ t have a case.” PRP (App. B). At the

close of the State’ s case in chief defense rested. Pringle states that Shaw’ s counsel told her the

State “ didn’ t have any evidence” and there was “ no way they can prove arson in the first degree,

so all charges would be dropped.” PRP (App. B).

       Following the bench trial on January 28, 2014, the juvenile court found that Shaw had

committed all three charges. Shaw appeals his adjudications and also petitions to be released

from personal restraint.




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No. 45959-1-II
Cons. with No. 46848-4-II




                                            ANALYSIS

                                 I. SUFFICIENCY OF THE EVIDENCE

       Shaw argues that the State produced insufficient evidence to support his adjudications

because the State did not prove that Shaw (1) was at the house at the relevant time, (2) started

fires or caused substantial damage at the residence, or (3) acted maliciously. We disagree.

       To determine whether sufficient evidence supports an adjudication, we view the evidence

in the light most favorable to the State and determine whether any rational fact finder could have

found the crime’ s elements beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72

P.3d 735 (2003). Specifically, following a bench trial, our review is limited to determining

whether substantial evidence supports the challenged findings of fact and, if so, whether the

findings support the conclusions of law. State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d

699 (2005).

       We treat unchallenged findings of facts as verities on appeal. Stevenson, 128 Wn. App.

at 193. Shaw does not assign error to any of the juvenile court’ s findings of fact. Therefore, we

look only to see whether the juvenile court’ s findings of fact support its conclusions of law. We

review challenges to a trial court’ s conclusions of law de novo. State v. Gatewood, 163 Wn.2d

534, 539, 182 P.3d 426 (2008).

A.     First Degree Arson

       Shaw offers two arguments to challenge his adjudication for first degree arson. First,

Shaw argues that the State failed to produce sufficient evidence to prove that he was present in

the home at the time the fires started, or that he caused the fires within the residence.



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Cons. with No. 46848-4-II




Alternatively, Shaw argues that even if the State proved he started the fires, there is insufficient

evidence to find that he did so maliciously. We disagree.

       A person is guilty of first degree arson if he knowingly and maliciously causes a fire or

explosion which damages a dwelling. RCW 9A.48.020. Shaw does not dispute that someone

caused the fires which damaged a dwelling. He argues only that the State was unable to prove

that he maliciously caused the fires.

       Arson is a crime of particularly secret preparation and commission, and the State can

seldom produce witnesses to the actual setting of the fire. State v. We, 138 Wn. App. 716, 729,

158 P.3d 1238 (2007); State v. Plewak, 46 Wn. App. 757, 764-65, 732 P.2d 999 (1987). Thus,

arson is a crime most often proven by circumstantial evidence. We, 138 Wn. App. at 729. We

consider direct evidence and circumstantial evidence equally reliable. State v. O’ Meara, 143

Wn. App. 638, 643, 180 P.3d 196 (2008).

       1. Shaw Was Present At the Relevant Time and Caused the Fires

       Shaw does not contest that his DNA and fingerprints were found at the point of entry,

throughout the residence, and near all three fires. But Shaw argues that this evidence shows only

that he was present at the scene at some point, not that he caused any fires or was present when

the fires started. Additionally, he points to the one unidentified fingerprint found in the house as

evidence that someone else may have caused the damage and started the fires.

       In reviewing the sufficiency of the evidence, we take all evidence and inferences in the

light most favorable to the State, not to Shaw. And the evidence and inferences prove that Shaw

was at the home and caused the fires.



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Cons. with No. 46848-4-II




       The uncontested findings of fact provide physical and temporal evidence that the property

damage and fires were contemporaneous. When Mbajah drove around the house on her way to

work around 7:30 AM the house was not damaged. Shortly thereafter, next door neighbor Casey

heard sounds of excessive breaking glass from inside the house. The sounds of breaking glass

and destruction heard by Casey was consistent with the damage found inside the home. Two of

the three fires were still smoldering when Officer Pincham entered the house, indicating that they

had been recently set. Furthermore, the DNA and fingerprint evidence collected from the scene

tie Shaw to the damage. Shaw’ s fingerprint and DNA were found on the broken window entry

point to the house. Shaw’ s blood and fingerprints were also found near the fires.

       The juvenile court’ s findings provide a compelling circumstantial case supporting the

conclusion that Shaw was present at the home and caused the fires. And because circumstantial

evidence is as reliable as direct evidence, Shaw’ s arguments fail.

       2. Shaw Acted Maliciously

       Shaw argues alternatively that the State failed to prove he maliciously caused the fires,

and that, at most, he committed only reckless burning. Again, we disagree.

       Arson investigator Hansen, determined that the fires were intentionally set based on the

fires’ nature, origins, and multiple locations throughout the lower level, plus the lack of any other

source of natural or accidental ignition and the degree and volume of other contemporaneous

damage throughout the house. A trial court may infer malice when the State provides

circumstantial evidence that a defendant intentionally caused a fire. State v. Clark, 78 Wn. App.




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No. 45959-1-II
Cons. with No. 46848-4-II




471, 481, 898 P.2d 854 (1995). The juvenile court’ s unchallenged findings support its

conclusion that Shaw knowingly and maliciously caused the fires. Shaw’ s arguments fail.

B.     Residential Burglary

       Shaw argues that the State failed to produce sufficient evidence to prove his intent to

commit a crime against a person or property within the residence. We disagree.

       A person is guilty of residential burglary if the person enters or remains unlawfully in a

dwelling with the intent to commit a crime against a person or property therein. RCW

9A.52.025. An individual’ s intent may be inferred if his conduct and the surrounding facts and

circumstances indicate such intent as a matter of logical probability. State v. Vasquez, 178

Wn.2d 1, 8, 309 P.3d 318 (2013).

       In determining Shaw unlawfully entered the residence and had the intent upon entry or

while remaining in the residence to commit a crime against the property of another, the juvenile

court found (1) Shaw never had permission to be in the home or to cause any of the damage, ( 2)

the DNA and fingerprint evidence proves Shaw unlawfully entered the residence by breaking a

window, and (3) the fingerprint evidence found on the broken floor lamp and a piece of broken

window glass proves that, once inside the house, Shaw continued to damage the property. These

unchallenged findings of fact are sufficient to support the juvenile court’ s conclusion that Shaw

unlawfully entered the residence with the intent to commit a crime and therefore committed

residential burglary.




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No. 45959-1-II
Cons. with No. 46848-4-II




C.     First Degree Malicious Mischief

       Shaw argues that insufficient evidence supports his adjudication for malicious mischief

because “[ n]o evidence establishes any significant level of property damage having been done

while appellant was at the residence,” and he points to the one unidentified fingerprint as

evidence that someone else may have caused the damage. Am. Br. of Appellant at 14. We

disagree.

       A person is guilty of first degree malicious mischief if he knowingly and maliciously

causes physical damage to the property of another in an amount exceeding five thousand dollars.

RCW 9A.48.070. As we discussed above, the juvenile court found, and Shaw does not contest,

that Shaw’ s blood and fingerprints were identified at the point of unlawful entry and throughout

the home, including on the damaged property. Shaw is asking us to reweigh the evidence in his

favor, but we view the evidence in the light most favorable to the State. One unidentified

fingerprint found on a floor lamp does not negate the uncontested findings of fact supporting the

trial court’ s conclusion that Shaw knowingly and maliciously caused physical damage to the

property. Our review is limited to whether the juvenile court’ s findings of fact support its

conclusions of law. Stevenson, 128 Wn. App. at 193. Here, we conclude that they do. Shaw’ s

argument fails.

       To summarize, we hold that the juvenile court’ s uncontested findings support the court’ s

conclusions that Shaw committed first degree arson, residential burglary, and first degree

malicious mischief. We now turn to Shaw’ s personal restraint petition.




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No. 45959-1-II
Cons. with No. 46848-4-II




                                 II. PERSONAL RESTRAINT PETITION

A.       Ineffective Assistance of Counsel

         Shaw argues his trial counsel was deficient for failing to call Donald Spencer as an alibi

witness. We disagree.

         Generally, to prevail on a collateral attack on a judgment and sentence by way of a

personal restraint petition, a petitioner must first establish that a constitutional error has resulted

in actual and substantial prejudice or that a nonconstitutional error has caused a complete

miscarriage of justice. In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212, 227 P.3d 285

2010). However, “ if a personal restraint petitioner makes a successful ineffective assistance of

counsel claim, he has necessarily met his burden to show actual and substantial prejudice.” In re

Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012). Although Shaw need

not show more prejudice on collateral attack than on direct appeal, he must satisfy the

Strickland1 test to have his personal restraint petition granted. Crace, 174 Wn.2d at 846-47.

         To prevail on an ineffective assistance of counsel claim, the petitioner must show both

deficient performance and resulting prejudice. In re Pers. Restraint of Yates, 177 Wn.2d 1, 35,

296 P.3d 872 (2013). If a petitioner fails to establish either prong of the ineffective assistance of

counsel test, we need not inquire further. State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726

2007). Counsel’ s performance is deficient if it falls below an objective standard of

reasonableness. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). To show




1
    Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).


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Cons. with No. 46848-4-II




deficient performance, the petitioner must show the absence of any conceivable legitimate tactic

supporting counsel’ s action. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). Our

scrutiny of counsel’ s performance is highly deferential; it strongly presumes reasonableness.

Strickland, 466 U.S. at 689, 104 S. Ct. 2052. Because ineffective assistance of counsel claims

present mixed questions of law and fact, we review them de novo. In re Pers. Restraint of Brett,

142 Wn.2d 868, 873, 16 P.3d 601 (2001).

       Shaw argues that his trial counsel was ineffective for failing to call Donald Spencer as an

alibi witness. Generally, an attorney’s decision to call a witness to testify is “a matter of

legitimate trial tactics,” which “ will not support a claim of ineffective assistance of counsel.”

State v. Kolesnik, 146 Wn. App. 790, 812, 192 P.3d 937 (2008). There are a number of reasons

counsel may decide whether to call a particular witness. The ultimate decision requires the

attorney to evaluate the strength of the witness testimony in light of the witness’ s credibility and

the strategy of the case. If defense counsel’ s actions go to the theory of the case, we will not find

ineffective assistance of counsel. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004).

       The affidavit from Shaw’ s grandmother shows that counsel’ s decision not to call Spencer

as a witness was a tactical one. “ She told me to sit down and be quiet because the prosecutor

didn’ t have a case. . . . She said that the prosecutor didn’ t have any evidence.” PRP (App. C).

Counsel’ s strategy appeared to be to argue that the State had not met its burden of proof.

       Moreover, the physical evidence worked against an alibi defense. Shaw concedes his

blood and fingerprints were found on the broken window entry point to the house, inside the

home near the fires, and on the damaged property inside the house. Spencer’ s anticipated



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testimony could have done nothing to explain why Shaw’ s blood and fingerprints were found on

broken windows throughout the house, which had been seen intact that very morning. It is likely

counsel recognized this and did not want to undermine her strategy. We hold that counsel’ s

decision not to call Spencer as a witness was tactical and was therefore not deficient.

       Shaw’ s trial attorney made a tactical decision in not calling Spencer as an alibi witness.

Although counsel’ s strategy was unsuccessful, her tactical decision did not fall below an

objective standard of reasonableness. Consequently, we deny Shaw’ s personal restraint petition.

       In conclusion, we affirm Shaw’ s adjudications and deny Shaw’ s petition.

       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

2.06.040, it is so ordered.




                                                                      Worswick, J.
 We concur:



 Johanson, C.J.




 Melnick, J.




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