                                                                                      FILED
                                                                              COURT OF APPEALS
                                                                                     DIVISION II
                                                                            1014 NOV -   4 AM 10 03
                                                                             STATE   OF' WASHINGTON
                                                                             BY




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

    STATE OF WASHINGTON,                                                  No. 43737 -6 -II


                                     Respondent,


           v.




    THOMAS DEAN ESPEY,                                            PART PUBLISHED OPINION


                                     Appellant.


          JOHANSON, C. J. —     Following three separate trials, Thomas Espey appeals from his jury

convictions for first degree burglary ( count II),1 first degree unlawful possession of a firearm

    count III),2 and unlawful possession of a controlled substance ( count V).3 He argues that ( 1) the

vehicle    search warrant   lacked   probable cause, (   2) the prosecutor improperly relied on Espey' s

silence and his consultation with an attorney as substantive evidence of guilt, and ( 3) the trial court




1 RCW 9A.52. 020( 1)( b).

2 RCW 9. 41. 040( 1)( a).

3
    Former RCW 69. 50. 4013( 1) ( 2003).
No. 43737 -6 -II



violated      his   public   trial   rights. '   In his statement of additional grounds, he further argues that the


evidence was insufficient to sustain his conviction for first degree burglary.

             In the published portion of the opinion, we agree with Espey that the State improperly

commented on Espey' s constitutional right to counsel by relying on his consultation with an

attorney to discredit him and, accordingly, we reverse his first degree burglary conviction (count

II).    In the unpublished portion of this opinion, we agree with Espey that the State violated his

constitutional protection against unreasonable search and seizure and we reverse his first degree

unlawful possession of a firearm conviction ( count III) and unlawful possession of a controlled


substance       conviction ( count         V).      In addition, we reject Espey' s insufficiency of the evidence

contention as to count II and we do not reach Espey' s public trial or right to silence arguments.

We reverse and remand count II for retrial, and reverse and dismiss counts III and V.

                                                                FACTS


             In April 2011, Espey, Mario Falsetta, and two unidentified men entered the home of Sonny

Campbell.           Espey   told Campbell, "' You know why I'               m   here. You know    what   time it is. '   Report


of   Proceedings ( RP) ( Mar. 19, 2012) at 23. He then put on a pair of gloves and grabbed Campbell


by     the   collar.    Campbell fell into his bathtub, where three of the four men began to beat him.


During the beating, Campbell' s assailants accused him of drugging and raping Katie Bass, a

mutual acquaintance of Campbell and Espey. The bathroom was crowded and the men took turns

hitting      Campbell.       Espey     threw     a punch "   here   and   there."   RP ( Mar. 19, 2012) at 25.


             During the assault, Falsetta broke into the bedroom where Campbell' s girlfriend, Kimberly

Bischof, was           hiding. Falsetta took a cell phone and a bag containing money and drugs from the

bedroom;        one of      the unidentified       men   took   a paintball gun.       In addition, a laptop computer and



                                                                     2
No. 43737 -6 -II



various pieces       of   jewelry      were stolen.      Finally, Espey and his three accomplices departed in a

truck. Campbell was left with injuries to his head and neck.


          Campbell        contacted      the   police,   identifying Espey     as   the "` ringleader' of the incident."


Clerk' s Papers ( CP)        at   22.     The State      obtained an arrest warrant       for   Espey.   Detective Jason


Laliberte of the Pierce County Sheriff' s Department spent a month and a half attempting to serve

the arrest warrant, during which period he attempted to contact Espey approximately 25 times.

The search for Espey was particularly difficult because Espey was aware the police were looking

for him   and   took " extreme         measures   to   elude capture ...   by distancing himself from co- participants

in this   case and   avoiding      areas of which        he [ was] known to frequent."      CP at 22. During this time,

Espey spoke to Falsetta' s attorney, Chip Mosley, who checked for outstanding warrants for Espey.

Espey also spoke to an attorney named Gary Clower, who advised him to make a video statement

and then turn himself in to police. Espey did not follow this advice and did not retain Clower.

          On May 25, 2011, police located Espey driving a Cadillac registered to another person.

Police followed       Espey       to   a casino where      he   retrieved a shirt   from the Cadillac'   s   trunk.   Police


continued to follow Espey as he drove to a gas station to use the bathroom, at which point they

arrested him. Espey agreed to a recorded interview with police during which he stated that he had

gone to Campbell' s house by himself, he was there only to discuss Bass, he had been invited inside,

he had not hit Campbell, and he had not taken anything.




                                                                  3
No. 43737 -6 -II



         The Pierce       County Prosecuting Attorney' s                 Office       charged   Espey    with   five   counts:   first


degree robbery ( count I),4 first degree burglary ( count II),5 first degree unlawful possession of a
firearm ( count III),6 possession of a stolen firearm ( count IV),7 and unlawful possession of a

                                               8
controlled substance ( count             V).       Espey had     three   separate      jury   trials.   At the first trial, he was


convicted of unlawful possession of a controlled substance ( count                             V). At the second trial, he was


convicted of        first degree   burglary ( count        II). At the third trial, he was convicted of first degree


unlawful possession of a           firearm ( count III). He alleges error in each trial.


         At the second trial, the prosecutor argued in closing that the jury should consider Espey' s

statement to police in light of the time he had spent in flight and his consultation with attorneys:

                     Where I suggest you start is, start with his own recorded statement that he
          gave to the police. Keep in mind that he had been on the run for approximately six
         weeks.  Keep in mind that he had already consulted with two attorneys, Chip
         Mosley and Gary Clower. He had lots of time to figure out what story he was going
         to tell the police.

                     If you have ever dealt with somebody who is a good liar, they have a pattern.
          What      they do is   this:      Admit everything that you can' t [ sic] admit without getting
          into trouble and only deny the stuff that you have to... .
                  You heard Tom Espey' s story in there. I' m not guilty of burglary because
          I   was   invited into the house. I' m free. You                 can'   t   get me guys.      I' m not guilty of
          robbery because I didn' t personally take anything. I' m free. Okay, I did everything
          else, but guess what? You can' t touch me. And he is wrong. He is wrong because

          it doesn' t   understand what            it   means   to be    an accomplice.         He doesn' t understand
          what accomplice liability means.



4 RCW 9A.56. 190, . 200( 1)( a)( iii).

5 RCW 9A.52. 020( 1)( b).

6 RCW 9. 41. 040( 1)( a).

7
    RCW 9A.56. 140( 1), .        310( 1).


8 Former RCW 69. 50. 4013( 1).



                                                                   4
No. 43737 -6 -II



RP ( Mar. 20, 2012)           at   27 -28.   The   prosecutor reiterated     that "[   he], talked to the lawyers, Mosley

and    Clower. He told them why he              went [ to   Campbell'   s   home]. He didn' t     deny   going." RP ( Mar.


20, 2012) at 28. Espey did not object at any time during closing.

            Juries convicted Espey of count V (unlawful possession of a controlled substance) in the

first trial, count II (first degree burglary) in the second trial, and count III (unlawful possession of

a firearm) in the third trial.9 He timely appealed.

                                                          ANALYSIS


                                     I. IMPROPER COMMENT ON RIGHT TO COUNSEL


            Espey alleges that during the second trial, the prosecutor' s closing argument improperly

relied on the fact that Espey consulted with two attorneys during his flight. Espey also argues that

the   prosecutor violated           his   state and   federal   constitutional right     to   counsel.   We agree that the


prosecutor improperly commented on Espey' s right to counsel and that this error was not harmless.

Accordingly, we reverse Espey' s first degree burglary conviction.'°

                                                          A. WAIVER


            As a threshold matter, we must determine whether Espey waived his argument here by

failing     to   object at   trial to the    prosecutor' s comments or        to   request a curative    instruction. If the


defendant did not object at trial, the defendant is deemed to have waived any error, unless the

prosecutor' s misconduct was so flagrant and ill intentioned that an instruction could not have cured


the resulting       prejudice.       State v. Stenson, 132 Wn.2d 668, 726 -27, 940 P. 2d 1239 ( 1997) cert.



9
     The        jury
           second               Espey on count I (first degree                robbery). The court dismissed count IV
    possession of a stolen firearm) on Espey' s motion.
1°
     Accordingly, we do not address Espey' s arguments concerning his right to remain silent.



                                                                  5
No. 43737 -6 -II



denied, 523 U. S. 1008 ( 1998).              Under this heightened standard, the defendant must show that ( 1)

 no    curative    instruction       would     have    obviated       any   prejudicial     effect    on   the   jury"   and ( 2) the


misconduct resulted in prejudice that " had a substantial likelihood of affecting the jury verdict."

State   v.   Thorgerson, 172 Wn.2d 438, 455, 258 P. 3d 43 ( 2011).                        A defendant' s failure to object to


an improper remark on his constitutional right to silence does not waive the issue on appeal so


long as the remark amounts to a manifest error. See RAP 2. 5( a)( 3).

             Having failed to object at trial or request a curative instruction, Espey has waived the error

unless we find the prosecutor' s comments " so flagrant and ill-intentioned" that no instruction could

have    cured    the resulting prejudice.            State v. McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006)


 quoting State      v.   Brown, 132 Wn.2d 529, 561, 940 P. 2d 546 ( 1997)).                    In making this determination,

the courts are to " focus less on whether the prosecutor' s misconduct was flagrant or ill intentioned

and more on whether               the resulting   prejudice could         have been   cured."        State v. Emery, 174 Wn.2d

741, 762, 278 P. 3d 653 ( 2012).


             In order to determine waiver we must first analyze the prejudice Espey suffered, and

therefore we must preview the merits of Espey' s claim.

             A defendant has         a right   to   counsel under         the   state and   federal    constitutions.       See U.S.


CONST.       amend.   VI; WASH. CONST.              art.   1, §   22. Several federal courts have held that a prosecutor


violates this right by using " an accused' s decision to meet with counsel, even shortly after the

incident giving       rise   to   a criminal   indictment,"         to imply guilt or suggest that the defendant hired an




                                                                      6
No. 43737 -6 -II


                                         11
attorney to      concoct an alibi.             Sizemore      v.   Fletcher, 921 F.2d 667, 671 ( 6th Cir. 1990).   No


prosecutor may employ language which denigrates the right of a criminal defendant to retain the

counsel of his choice, or otherwise limits the fundamental due process right of an accused to


present a vigorous defense. Sizemore, 921 F.2d at 671; see also United States v. McDonald, 620


F. 2d 559, 562 -64 ( 5th Cir. 1980); United States ex rel. Macon v. Yeager, 476 F.2d 613, 615 ( 3d


Cir.), cert. denied, 414 U.S. 855 ( 1973).


          We agree with the reasoning of these decisions. The State " strike[ s] at the core of the right

to counsel" when it seeks to create an inference of guilt out of a defendant' s decision to meet with


counsel, even if the defendant meets with counsel shortly after the alleged crime takes place.

Sizemore, 921 F. 2d         at   671.     That is precisely what the State did when it argued that Espey' s

meetings with attorneys helped him to formulate the account he gave to police upon arrest. See


RP ( Mar. 20, 2012)       at   27 ( "Keep      in mind he had already consulted with two attorneys, Chip Mosley

and Gary Clower. He had lots of time to figure out what story he was going to tell the police. ").

That is, the State argued that because Espey exercised his constitutional right to counsel, he was

lying. The State thereby improperly commented on and penalized Espey' s exercise of the right to

counsel, a right guaranteed by the state and federal constitutions. U. S. CoNsT. amend. VI; WASH.

CONST.    art.   1, §   22. See also Sizemore, 921 F. 2d at 671; McDonald, 620 F. 2d at 562 -64; Macon,


476F.2dat615.




11 While no Washington Supreme Court authority is directly on point, our Supreme Court
discussed prosecutorial comment on the right to counsel in State v. Yates, 161 Wn.2d 714, 779,
168 P. 3d 359 ( 2007),           cert.   denied, 554 U. S. 922 ( 2008).         Although the court did not hold that
Yates' s right to counsel had been violated, it recognized the possibility of an improper inference
 that,   because he had        counsel,       he   was   guilty."   Yates, 161 Wn.2d at 779.




                                                                    7
No. 43737 -6 -1I



           This error was both incurable and substantially likely to affect the jury verdict because it

attacked Espey' s credibility, which was the dispositive question in this case. The State' s evidence

consisted of (1) Espey' s statement to police in which he admitted entering Campbell' s home and

grabbing him, ( 2) testimonial         and   photographic           evidence    of    Campbell'   s   injuries,   and (   3) the


testimony of both Campbell and Bischof, who stated that Espey and three others entered their

home    without    announcing themselves           or    asking for     permission.     Campbell and Bischof further


testified that Espey and the three other intruders had come into the home together and left together

in Espey' s truck. Both witnesses identified Espey and Falsetta as the leaders of the group, stating

that the   other men " were   just duck    and    dive   or   dodge,"   RP (Mar. 19, 2012) at 27, and were " tagging

along   or   something....    It didn' t   seem   like they knew        what   they   were   doing."    RP ( Mar. 19, 2012)


at64.




           On the other hand, Espey presented the testimony of Campbell' s then -roommate Donny

Resnick, who testified that Campbell invited Espey' s group in, that he had not seen or heard any

fighting, and that Espey' s group was not carrying anything when they left. Espey also pointed to

his own prior statement where he claimed he had not intended to rob Campbell, only to talk with

him. In the same statement, Espey emphasized that his accomplices acted on their own and that


he did not even know anything had been stolen until a couple days later.

           Aside from the photographs of Campbell' s injuries, the only evidence either side presented

was   testimonial.     Therefore, the      entire   trial turned        on a   determination     of    credibility:   whether




                                                                8
No. 43737 -6 -II



Campbell       and      Bischof    were    telling   the truth   or rather   Resnick     and   Espey. 12 The prosecution' s

comments, brief as they were, were designed to weigh on that exact question by framing Espey' s

story   as   false      or at   least incomplete.       RP ( Mar. 20, 2012)        at   27 ( " If you have ever dealt with


somebody        who      is   a good   liar, they have    a pattern.   What they do is this:          Admit everything that

you can'     t [ sic]   admit without      getting into trouble     and   only   deny the   stuff   that   you   have to. "). The


prosecution created an inference that Espey was lying because he consulted with attorneys, and

this improper inference went to the central issue of the case. In the specific circumstances of this


case, we find that the prosecutor' s remarks were too prejudicial to be remedied by a curative

instruction, and had a substantial likelihood of affecting the jury verdict. Accordingly, Espey has

not waived the issue and we proceed to the merits.


                                                 B. NOT HARMLESS ERROR


         As we note above, the State improperly commented on Espey' s right to counsel by urging

the jury to conclude that Espey was lying because he had met with an attorney. But the question

remains whether the error was harmless. When a prosecutor' s improper argument directly violates

a constitutional right, we apply the constitutional harmless error standard. See, e. g., State v. Easter,

130 Wn. 2d 228, 242, 922 P. 2d 1285 ( 1996) ( prosecutor commented on defendant' s pre -arrest




12
     The State     argued    jury could convict Espey even if it believed his story —Espey said he
                                that the

had not personally taken anything but even if that were true, he would still be liable as an
accomplice. See RP ( Mar. 20, 2012) at 30 ( "
                                              When you look at Sunny [ sic] Campbell' s testimony
and Kimberly Bischof' s testimony, their testimonies don' t really differ that much with what Mr.
Espey, himself, has to say. "). But Espey' s account differed from Campbell' s in important ways.
Espey told the police that he was invited into Campbell' s home, while Campbell testified that
Espey' sgroup walked directly in without                     permission. Espey told the police that he was " by
 himself] in [his] truck," Ex. C at 13, while               Campbell testified that Espey and the three other men
left together in Espey' s truck.



                                                                   9
No. 43737 -6 -II



silence);    State   v.   Fricks, 91 Wn.2d 391, 396 -97, 588 P. 2d 1328 ( 1979) ( prosecutor                  commented on



                                              13 "
defendant'    s post -arrest silence).                A constitutional error is harmless only if the reviewing court

is convinced beyond a reasonable doubt that any reasonable jury would reach the same result

absent the error and where the untainted evidence is so overwhelming it necessarily leads to a

finding of guilt."        State   v.   Burke, 163 Wn.2d 204, 222, 181 P. 3d 1 ( 2008) ( citing            Easter, 130 Wn.2d

at   242).   Because the prosecutor' s closing argument constituted an impermissible comment on

Espey' s exercise of a constitutional right, the State bears the burden of showing the error was

harmless. Easter, 130 Wn.2d at 242.


         Under these facts, the State fails to carry its heavy burden of showing the error was

harmless. As described above, Espey' s credibility was the central issue in this case, where the jury

was offered a choice            between two          versions of events:      Campbell' s and Bischof' s, or Espey' s and

Resnick' s.     Again, the State' s comments on Espey' s meetings with counsel were designed to

discredit    Espey' s     and   Resnick' s story. See RP ( Mar. 20, 2012)            at   27 ( "Keep   in mind he had already

consulted with        two     attorneys,    Chip Mosley        and     Gary   Clower. He had lots of time to figure out


what    story he     was     going to tell the        police. ").   But even after taking the prosecution' s comments

into consideration, the jury acquitted Espey of assault, which indicates that the jury may not have

believed everything Campbell                 and     Bischof   said.     Absent the prosecution' s improper reliance on


Espey' s meetings with counsel, there is a reasonable doubt that the jury may have reached a




13 Our analysis is different when the prosecutor only indirectly violates a constitutional right, such
as by misstating the State' s burden of proof. Emery, 174 Wn.2d at 757 -58; State v. Warren, 165
Wn.2d 17, 26         n. 3,   195 P. 3d 940 ( 2008), cert. denied, 556 U.S. 1192 ( 2009).




                                                                    10
No. 43737 -6 -II



different result. Accordingly, we reverse the guilty verdict on the charge of first degree burglary

 count II) and remand for a new trial.

          A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record


in accordance with RCW 2. 06. 040, it is so ordered.

                                         II. SEARCH WARRANT


          Espey argues that the search warrant for the Cadillac he was driving when arrested was

invalid because it lacked probable cause to believe that evidence of criminal activity would be

found in the    car.   We agree that the warrant was invalid and that the gun and methamphetamine


seized from the Cadillac should have been excluded at Espey' s trials for unlawful possession of a

firearm    and unlawful possession of a controlled        substance.        Accordingly, we reverse Espey' s

convictions for unlawful possession of a firearm (count III) and unlawful possession of a controlled


substance ( count V).


                                                A. FACTS


          Upon arresting Espey, the police impounded the Cadillac he was driving so they could

obtain a search warrant and search the vehicle. The affidavit supporting the search warrant stated

that Espey was " avoiding areas of which he is known to frequent" in order to evade police, but the

affidavit does not mention the Cadillac except to note that the police located Espey " driving the

listed vehicle."   CP at 22 -23. Upon reviewing the affidavit, a magistrate issued a warrant to search

the Cadillac for the stolen items, receipts, or documents relating to the stolen items, weapons and

ammunition, photographs,       recording devices,   or   latent   prints.    Upon executing the warrant, the




                                                    11
No. 43737 -6 -II



police found a handgun and ammunition, documents in Espey' s name, methamphetamine,

electronic scales, and a glass pipe.



        At a pretrial suppression hearing, Espey moved to suppress the evidence retrieved from the

Cadillac.    He argued that the warrant was stale since nearly two months had passed between the

alleged assault and robbery and the issuance of the search warrant, and that the warrant lacked

probable cause     because there          was no nexus     between the      criminal   activity    and   the Cadillac.   The


trial court denied the motion, reasoning that Espey would probably have kept the stolen items with

him and, as he was in flight, he would probably have kept any possessions in his car. Subsequently,

the State introduced the items found during the search of the Cadillac against Espey at trial.

                                               B.    STANDARD OF REVIEW


        We generally review a magistrate' s issuance of a search warrant under an abuse of

discretion   standard.      State    v.   Neth, 165 Wn.2d 177, 182, 196 P. 3d 658 ( 2008) (                  citing State v.

Maddox, 152 Wn.2d 499, 509, 98 P. 3d 1199 ( 2004)). We give great deference to the magistrate' s


decision. State     v.   Cole, 128 Wn.2d 262, 286, 906 P. 2d 925 ( 1995);                 State v. Young, 123 Wn.2d

173, 195, 867 P. 2d 593 ( 1994); State              v.    - Distribs., Inc., 111 Wn.2d 764, 774, 765 P. 2d 281
                                                         JR


 1988). Yet if the       affidavit offers no " substantial     basis for    determining    probable cause,"      we cannot




defer to the magistrate. State v. Lyons, 174 Wn.2d 354, 364, 275 P. 3d 314 ( 2012).

        At    a suppression      hearing,     the trial   court acts   in   an " appellate -like   capacity."    Neth, 165


Wn.2d   at   182 ( citing State     v.   Murray,    110 Wn.2d 706, 709 -10, 757 P. 2d 487 ( 1988)). Because the


trial court performs the same appellate function that we do, we do not give the trial court the same


deference we give to the issuing magistrate. Rather, the trial court' s assessment of probable cause




                                                               12
No. 43737 -6 -II



to support a warrant is a legal conclusion that we review de novo. Neth, 165 Wn.2d at 182 ( citing

State v. Chamberlin, 161 Wn.2d 30, 40 -41, 162 P. 3d 389 ( 2007)).


         A magistrate issues a search warrant only if there is probable cause to believe the defendant

is involved in criminal activity and that evidence of the criminal activity may be found in the place

to be searched. Neth, 165 Wn.2d at 182 ( citing State v. Thein, 138 Wn.2d 133, 140, 977 P. 2d 582

 1999)).     The magistrate is entitled to make reasonable inferences from the facts stated in the


affidavit.    Maddox, 152 Wn.2d                 at   505.   But the magistrate may not issue a search warrant where

the affidavit contains no facts to support the issuance of the warrant. Lyons, 174 Wn.2d at 363. A


magistrate     may      not   issue   a   search       warrant   based     on    bare "    suspicion or conjecture,"             State v.


Chenoweth, 160 Wn.2d 454, 476, 158 P. 3d 595 ( 2007),                                 or upon "      inference     alone."    Lyons, 174


Wn.2d at 364.


                                                               C. NEXUS


           Espey argues that the warrant affidavit fails to establish that Espey used the Cadillac in

connection with         the   criminal    activity. Without "'           a nexus between criminal activity and the item

to be   seized, and also a nexus           between the item to be           seized and          the   place   to   be   searched, "'   there


is   no probable cause        to   support a warrant.           Thein, 138 Wn.2d at 140 ( quoting State v. Goble, 88

Wn. App. 503, 509, 945 P. 2d 263 ( 1997)).

           While Espey was driving the Cadillac when he was arrested, he was not driving the

Cadillac     when   he   committed        the   alleged crimes —indeed,               the affidavit fails to show that a Cadillac


was present at      the   scene of     the      crime.      Rather, the affidavit states that on the day Espey and his

accomplices confronted             Campbell,          Espey   was   driving     a "   blue 80'   s   Chevy    truck."     CP at 20. The


affidavit    fails to   establish     that the Cadillac        was connected           to the   crimes.       Furthermore, there was




                                                                    13
No. 43737 -6 -II


                                                                                                           14
no   showing that        Espey   owned   or even controlled   the Cadillac          before his   arrest.        The State


suggests that Espey may have lived in the Cadillac while he was in flight from the police. But this

theory was not articulated in the affidavit and, even if it was, criminal activity alone does not create

probable cause to search a defendant' s residence. Thein, 138 Wn.2d at 148 ( citing State v. Dalton,

73 Wn. App. 132, 140, 868 P.2d 873 ( 1994)).

          Here, the facts that Espey drove the Cadillac six weeks after the criminal activity and that

he may have lived out of it may tie Espey himself to the car, but they do not create the requisite

nexus between the criminal activity and the car. Division Three of this court has observed,

              Here, the question is whether, assuming a not too long passage of time since the
             crime, it is proper to infer that the criminal would have the fruits of his crime in his
          residence, vehicle or place of business.


State   v.    McReynolds, 104 Wn.        App.   560, 569, 17 P. 3d 608 ( 2000) (           emphasis added) (      quoting


WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 3. 7( d),              at   381 -84 ( 3d      ed.   1996)), review denied, 144


Wn.2d 1003 ( 2001).          But here a long period of time did pass between the crimes and Espey' s

arrest.      Espey' s six weeks in flight gave him ample time to dispose of the stolen items, thus

weakening any nexus between the criminal activity and the Cadillac.

             The State argued that even if Espey sold or otherwise disposed of the stolen items, there

was probable cause to believe he would have receipts or other documentation of the disposal. Our


Supreme Court rejected a similar argument in Thein where the State also argued that receipts or


accounts of       drug   sales might   be found in the defendant'       s   home.    138 Wn.2d    at   139.     The Thein




14
     Espey had      permission    from the   registered owner      to   use   the   vehicle.   Yet this fact was not
included in the affidavit.




                                                         14
No. 43737 -6 -II



decision makes clear that the mere possibility of finding records of criminal activity does not create

the necessary nexus to support a search warrant.

          The nexus may also be weakened where there are other places that police could reasonably

find the evidence sought. Thein, 138 Wn.2d at 150. Detective Laliberte indicated in the affidavit

that he knew of " several      locations that [ Espey]   spends    the majority    of   his ` sleeping' hours."   CP


at 22. It was just as probable that the stolen items would be stashed in one of these locations as it


was that they would be kept in the car that Espey was driving.

          The State failed to show any direct connection between the criminal activity and the

Cadillac.    At most, the State showed a connection between Espey and the crimes, and between

Espey and the Cadillac. Especially given the lengthy passage of time, we hold that the magistrate

abused her discretion in issuing the search warrant because the required nexus between the vehicle

and the criminal activity was absent.' 5

                                                D. CONCLUSION


          Evidence that     Espey (   1) had allegedly   stolen   the items, (   2) had been a fugitive for some


time, and ( 3) had driven the Cadillac six weeks after the crimes were committed do not provide a

substantial basis to believe that evidence of the crimes could be found in the Cadillac.


Consequently,      the   search warrant   lacked   probable cause.     For this reason we hold that the search


warrant was invalid, and the firearm and methamphetamine retrieved from the Cadillac were


unlawfully     seized pursuant   to the invalid    warrant and were     inadmissible      evidence.   Accordingly,




15.
      Accordingly, we do not reach Espey' s staleness argument.

                                                         15
No. 43737 -6 -II



we reverse Espey' s convictions for unlawful possession of a firearm ( count III) and possession of

a controlled substance ( count V) and remand for dismissa1. 16

                                    III. SUFFICIENCY OF THE EVIDENCE


        In his statement of additional grounds, Espey argues that the evidence was insufficient to

sustain his conviction for burglary because the State did not adequately prove that he intended to
                                                                                                17
commit a crime     inside Campbell'   s   home nor that he   was   liable   as an accomplice.        Espey' s claims

are meritless and we reject them.


        Washington courts apply a deferential standard when analyzing sufficiency claims.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it


permits any rational trier of fact to find the essential elements beyond a reasonable doubt. State v.

Aten, 130 Wn.2d 640, 667, 927 P. 2d 210 ( 1996).         That is, the reviewing court must treat all of the

State' s factual allegations and inferences as true. State v. Lubers, 81 Wn. App. 614, 618 -19, 915

P. 2d 1157 ( quoting State   v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992)), review denied,


130 Wn.2d 1008 ( 1996).       Under this deferential standard, the evidence was sufficient to sustain


Espey' s burglary conviction.




16 Dismissal of the charges, rather than a new trial, is the proper remedy because the State cannot
prove the possession charges without the improperly admitted evidence. See, e.g., State v. Burnett,
154 Wn. App. 650, 652 -53, 228 P. 3d 39 ( 2010); State v. McCormick, 152 Wn. App. 536, 544 n. 2,
216 P. 3d 475 ( 2009),   review    denied, 172 Wn.2d 1007 ( 2011); State v. Chacon Arreola, 163 Wn.

App.   787, 798, 260 P. 3d 985 ( 2011), rev 'd on other grounds, 176 Wn.2d 284, 290 P. 3d 983 ( 2012).


 17 Although we reverse all of Espey' s convictions, we address sufficiency of the evidence because
if the evidence is insufficient to support the convictions, the double jeopardy clause prohibits a
retrial. State v. Hescock, 98 Wn. App. 600, 604 -05, 989 P. 2d 1251 ( 1999).



                                                       16
No. 43737 -6 -II



         Espey argues that the State failed to prove that he entered or remained in Campbell' s home

with intent to commit a crime as required by RCW 9A.52. 020( 1). 18 In Espey' s view, there was no
evidence of   his intent to     assault anyone or steal     anything.     Rather, the jury merely inferred from

his entry and remaining in Campbell' s home that he intended to commit a crime while there. See
                      19
RCW 9A.52. 040.             Espey argues that this statutory inference alone cannot sustain a conviction,

pointing to   State   v.   Brunson, 128 Wn.2d 98, 905 P. 2d 346 ( 1995). There, our Supreme Court held


that   when a permissive       inference is the "'   sole and sufficient' proof of an element,"         the presumed


fact (intent) must flow from the proven fact (unlawful entry) beyond a reasonable doubt. Brunson,

128 Wn.2d at 107 ( quoting Ulster County Court v. Allen, 442 U.S. 140, 167, 99 S. Ct. 2213, 60 L.

Ed. 2d 777 ( 1979)).         On the other hand, if circumstantial evidence also shows that the defendant

intended to    commit a crime,        then the   standard of proof   is   more   likely   than   not.   Brunson, 128


Wn.2d at 109.


         Here, as in Brunson, the statutory inference was not the sole proof of Espey' s intent to

commit a crime. 128 Wn.2d at 109. The State also presented Campbell' s and Bischof' s testimony

indicating that Espey actively participated in the assault on Campbell and that Espey' s accomplices

left with him, taking the stolen items. Because there was additional evidence of Espey' s intent to




18 " A person is guilty of burglary in the first degree if, with intent to commit a crime against a
person or property therein, he or she enters or remains unlawfully in a building and if, in entering
or while in the building or in immediate flight therefrom, the actor or another participant in the
crime ( a) is armed with a deadly weapon, or ( b) assaults any person." RCW 9A.52. 020( 1).




19 " In any prosecution for burglary, any person who enters or remains unlawfully in a building may
be inferred to have acted with intent to commit a crime against a person or property therein, unless
such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have
been    made without such criminal        intent." RCW 9A.52. 040.




                                                           17
No. 43737 -6 -II



assault and steal, the jury was entitled to infer Espey' s criminal intent so long as it found ( 1) that

Espey unlawfully entered or remained in Campbell' s residence and (2) Espey' s intent more likely

than not flowed from his unlawful entry or remaining.

           Viewing the evidence in the light most favorable to the prosecution, the more likely than

not standard is satisfied. Both Campbell and Bischof testified that Espey did not have permission

to   enter   their   home, i.e.,   that he    entered       unlawfully. At no point did either Campbell or Bischof


tell   Espey he      could   stay; thus, it     was unlawful      for him to    remain   in the home. Campbell testified


that Espey initiated the assault immediately upon entering the home and finding him. This suggests

that   Espey      entered    Campbell'    s   home     at   least for the   purpose of    committing       assault.   Sufficient


evidence exists that Espey intended to commit a crime when he entered and subsequently remained

in Campbell' s home.


             Espey   also argues     that the State failed to           prove   he   acted under accomplice      liability.   As


Espey points out, in order to convict a defendant as an accomplice, the prosecution must

demonstrate more than mere presence and assent to the charged crime. State v. Roberts, 80 Wn.


App.    342, 355, 908 P. 2d 892 ( 1996);               State v. Luna, 71 Wn. App. 755, 759, 862 P. 2d 620 ( 1993).

Viewing the evidence in the light most favorable to the prosecution, the prosecution met its burden.

The State presented Campbell' s testimony that Espey led the group into Campbell' s home and " the

other people were           just duck   and     dive   or   dodge."     RP ( Mar. 19, 2012)     at   27.   Similarly, Bischof

testified that Espey and Falsetta were leading the group while the other two men were " tagging

along      or   something....      It didn' t   seem    like   they knew what they were doing." RP ( Mar. 19, 2012)

at   64.     A rational jury could find from Campbell' s and Bischof' s testimony that Espey was the




                                                                   18
No. 43737 -6 -I1



leader of the group and played an active role in the charged crimes. Espey' s arguments regarding

the sufficiency of the evidence are without merit and we reject them.

         All three   of   Espey' s   trials   contain reversible error:     the first and third trials relied on


evidence    improperly     seized     from the Cadillac,        and during the second trial, the prosecutor
                                                                            20
improperly    commented on      Espey' s      consultations with counse1.        Accordingly, we reverse Espey' s

conviction    for first degree       burglary (   count   II), and remand for a new trial; we reverse his


convictions   for first degree   unlawful possession of a        firearm ( count III),   and unlawful possession




of a controlled substance ( count       V), and remand for dismissal.




                                                                OHANSON, C. J.
 We concur:




20
     Accordingly, we do not reach Espey' s arguments that the prosecutor improperly commented on
his right to remain silent or that his public trial rights were violated.



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