      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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JOSEPH ALLEN KELLY,                             UNPUBLISHED OPINION             ...



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                    Appellant.                  FILED: April 28, 2014           UD     2:<




       Leach, J. — Joseph Kelly appeals his conviction for residential burglary.

He claims that insufficient evidence supports his conviction because the State

failed to prove the house Kelly entered was a dwelling.         In a statement of

additional grounds, Kelly also contends the court erred by excluding "motive

testimony for why [Errol Hanson] would lie."        Because the record includes

evidence sufficient to support the jury's finding that Kelly entered a dwelling and

the exclusion of "motive testimony" was harmless error, we affirm.

                                   Background

       In October 2010, Errol and Laura Hanson1 acquired a property in Conway,

Washington, that included "an old house," a barn, and "some outbuildings." In



       1 For clarity, we refer to Errol, Laura, and their son Troy Hanson by their
first names.
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July 2011, Errol hired Kelly to work on the property and allowed him to stay in a

room in the barn.      Kelly does not dispute that Errol and his family were

remodeling the house with the intention of living there.       However, while Kelly

worked for them, neither Errol nor Laura ever lived or slept in the house. They

stored antiques inside the house and kept it locked. Errol visited the house and

the large barn almost every day.

        On October 18, 2011, Laura reported a theft of certain items from their

barn.   The Hansons found a slip in the barn showing Kelly had pawned their

battery charger. Also, the Hansons reported 300 feet of "very old wood molding"

missing from inside the house.

        On September 10, 2012, the State charged Kelly with theft in the first

degree, residential burglary, and four counts of trafficking in stolen property in the

first degree.

        At trial, Deputy Morgan testified about his investigation and determination

that Kelly pawned a battery charger and a grease gun. Also, Deputy Morgan

testified Kelly admitted to taking a flagpole and "several other items of metal from

the Hanson property."      Errol told Deputy Morgan approximately 300 feet of

molding was stolen from the house. Deputy Morgan further testified Kelly denied

"ever removing any of the molding off of the property itself, just from the

residence into the barn."        Deputy Morgan testified that there was "some

discrepancy over the title [of a car], and a dispute between the parties" about a

loan.




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         Also at trial, Errol testified that he hired Kelly to "work off the loan" Kelly

owed him. He further testified that Kelly previously signed over the title of a car

and annuity proceeds in a checking account to him as collateral for the loan.

Errol testified that he learned Kelly closed the checking account, and Kelly put

the car title in his daughter's name.

         Errol, Laura, and their son Troy each testified that Kelly did not have a key

to the house, and they "made it clear to [Kelly]" that they did not want him in the

house.     Troy and Deputy Morgan testified that Kelly admitted to entering the

house and to taking "some of the molding from inside the house out to the barn."

         Kelly maintained that Errol hired Kelly to do maintenance around the farm

and that he had permission from Errol to clean up inside the house and dispose

of the scrap metal in the barn. Kelly testified that Errol never told him he "could

not go into the house." Kelly further testified that Errol instructed him to open and

shut the windows each day and fix the plumbing leaks in the house.

         Kelly testified he worked in order to earn money and not to pay off the

loan. Defense counsel attempted to ask Kelly about his daughter's car that was

collateral for the loan he owed Errol. The following exchange occurred at trial:

         [Defense]: Okay. Could you tell us about the car that Errol took from you
         that you signed over to him?

         [State]: Objection. Relevance.

         The Court: Sustained.


         [Defense]:   Okay.     Is the Court going to make the same ruling if I ask
         about the annuities?
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       [State]: I would make the same objection.

      The Court: Same ruling.

       [Defense]: Okay. Okay.

Defense counsel did not pursue this issue further.

      The jury convicted Kelly of residential burglary and other counts.      Kelly

appeals.

                                     Analysis

Sufficiency of the Evidence

       Kelly first contends that insufficient evidence supports his residential

burglary conviction because the State did not prove he entered a "dwelling."

When reviewing a sufficiency challenge, we view the evidence in the light most

favorable to the prosecution and ask whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.2 We draw

all reasonable inferences from the evidence in favor of the State.3 Circumstantial

evidence is as reliable as direct evidence.4         A defendant challenging the

sufficiency of the evidence "admits the truth of the State's evidence."5 We do not

review credibility determinations, which are for the trier of fact.6 Thus, we defer

to the jury on      issues of conflicting testimony, witness credibility,      and

persuasiveness of the evidence.7


      2 State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).
      3 Hosier. 157Wn.2dat8.
      4 State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
      5 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
      6 State v. Camarillo. 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
      7 State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
No. 69369-7-1 / 5




       To convict Kelly of residential burglary, the State had to prove Kelly

"enter[ed] or remain[ed] unlawfully in a dwelling other than a vehicle," as defined

in RCW 9A.52.025(1). RCW 9A.04.110(7) defines a "dwelling" as "any building

or structure . . . which is used or ordinarily used by a person for lodging." Kelly

argues that the evidence at trial showed the Hansons kept the house as "a place

for storage" and "never lived nor slept there," and thus the house was not a

"dwelling."

       The State presented evidence that the Hansons were remodeling the

house in order to live there. They stored antiques inside, kept the house locked,

did not allow Kelly inside the house, did not provide Kelly with a key to the house,

and visited the house and the large barn almost every day.

       The question whether a house is a dwelling "turns on all relevant factors

and is generally a matter for the jury to decide."8 The jury here could have found

that the Hansons' house was not being "used or ordinarily used by a person for

lodging" at the time of the burglary.9 But the fact that the house was currently

unoccupied did not preclude it from being considered a "dwelling" under RCW

9A.04.110(7).10 Viewed in the light most favorable to the State, the evidence was

sufficient to support the jury's finding that Kelly entered a dwelling when he

entered the Hansons' house.




       8 State v. McDonald, 123 Wn. App. 85, 91, 96 P.3d 468 (2004).
       9 See McDonald, 123 Wn. App. at 90.
       10 McDonald. 123 Wn. App. at 91.


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Statement of Additional Grounds


       Kelly was the only defense witness. During direct examination, defense

counsel attempted to ask questions about "the car that Errol took from [Kelly]"

and "the annuities." The trial court sustained the State's relevance objections to

them. In a statement of additional grounds, Kelly contends that the court erred

by denying him the "opportunity to present motive testimony for why Mr. Hanson

would lie" about "improperly seizing [Kelly's] daughter's car in retaliation for an

unpaid loan."

       We need not decide whether the court abused its discretion by excluding

this "motive testimony" because any alleged error was harmless. An evidentiary

error is harmless if, within reasonable probabilities, it did not materially affect the

outcome of the trial.11 The jury received similar evidence through testimony from

Errol Hanson and Deputy Morgan; therefore, the "motive testimony" offered by

Kelly is "cumulative at best and, as such, any error in its exclusion may be

deemed harmless."12 Thus, there is no reasonable probability that the exclusion

of this cumulative testimony affected the outcome of the trial.




       11 State v. Smith. 106 Wn.2d 772, 780, 725 P.2d 951 (1986); see also
State v. Wanrow. 88 Wn.2d 221, 237, 559 P.2d 548 (1977).
      12 Latham v. Hennessey. 13 Wn. App. 518, 526, 535 P.2d 838 (1975); see
also ER 403; Havens v. C&D Plastics. Inc.. 124 Wn.2d 158, 169-70, 876 P.2d
435 (1994) (the erroneous exclusion of cumulative evidence is harmless error).

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                                  Conclusion


       Because the State presented sufficient evidence to support a jury finding

that the Hansons' house was a dwelling and the exclusion of the "motive

testimony of why Mr. Hanson would lie" was harmless error, we affirm.




WE CONCUR:




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