                                                                     s..
                                                                                      FILED
                                                                           t;   E



                                                                                i1I
                                                                                      OF APPEALS
                                                                                      s' vst   f,   i




                                                                           APR 29 AN 8 :; 2
                                                              S; /    kT                                9.




                                                                                                f




  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                DIVISION II

STATE OF WASHINGTON                                No. 43549 -7 -II
                                          Consolidated with Nos. 43562 -4 -II,
                       Respondent,             44390 -2 -II, 43654 -0 -II)

    v.



MICHAEL LYN HORNER,                           UNPUBLISHED OPINION


                       Appellant.


STATE OF WASHINGTON,


                       Respondent,




JOHNNY EUGENE DUNHAM,


                       Appellant.


STATE OF WASHINGTON,


                       Respondent,


     v.



LYNITA WYNNE GARCIA,


                       Appellant.
Consol. Nos. 43549 -7 -II / 43562 - -II / 44390 -2 -II / 43654 -0 -II
                                  4




STATE OF WASHINGTON,


                                         Respondent,


         v.



KIMBERLY OLGA COLE,


                                         Appellant.


         JOHANSON, J. —              A jury found Kimberly O. Cole, Johnny E. Dunham, Lynita W. Garcia,

and Michael L. Horner guilty of second degree burglary, first degree trafficking in stolen
                                                                                               1
property,     and   third degree theft.       They    now appeal   from their   convictions.       Horner, Dunham,


and Cole each challenge the constitutionality of our accomplice liability statute and the adequacy

of   their charging information regarding their            trafficking   charges.   Further, each appellant alleges


that the State committed prosecutorial misconduct relating to their second degree burglary

convictions     or,    in the        alternative,   that insufficient evidence      supported those convictions.


Additionally, Garcia claims that the State failed to offer sufficient evidence to support her

convictions and Cole claims ineffective assistance of counsel.


         We accept the State' s concession that insufficient evidence supports one of the alternative

means of committing second degree burglary. Accordingly, we reverse the burglary convictions,
                                 2
and remand      for   retrial.       We affirm the remaining convictions because our accomplice liability




1 On our own motion, we consolidate Cole' s appeal with the consolidated appeals of Dunham,
Garcia, and Horner.


2 We granted Homer' s and Garcia' s motions to adopt Dunham' s argument that the State
produced insufficient evidence on one of the alternative means of proving second degree
burglary. Order Granting Motions to Adopt Argument of Co- Appellant, No. 43549 -7 -II Spindle,
 March 6, 2014).


                                                             2
Consol. Nos. 43549 -7 -II / 43562 -4 -II / 44390 - -II / 43654 - -1I
                                                 2              0



statute is constitutional, the charging documents were not deficient, sufficient evidence supports

Garcia' s remaining convictions, and Cole' s counsel provided effective assistance of counsel.

                                                             FACTS


         In October 2011, Thurston County Sheriff' s Deputy Jason Casebolt responded to a 911

burglary       call.    The property owner had died and the now - acant property, including a home,
                                                                v

detached barn,          open carport, and storage container,               had been   subject   to   recent   burglaries.    The


deceased had collected scrap metal and equipment that attracted looters and metal scrappers to

the property.          The main access driveway was gated, locked, and featured a no trespassing sign.

The property had a back road, which was also posted with a no trespassing sign, although it had

been knocked to the             side.   Upon arriving,       Deputy       Casebolt   saw a man—        later identified as the


911   caller,     William White— sitting           in his vehicle which was parked behind Horner' s vehicle,

preventing it from moving. White, the property' s caretaker, called 911 when he saw an unknown

vehicle with       four individuals —later identified          as   Cole, Dunham, Garcia,            and   Horner -   walking in

and around the carport and the opened storage container.

         The night before this incident, White had staged certain items so he could see whether

items had been           moved or       taken.    The next day, White noticed the no trespassing sign was no

longer   where         he had   posted   it the   night   before.       White saw Horner walk out of the carport, turn


back toward the          carport and     throw something inside it.            Horner immediately got in his truck and

started to back it up. At this time, White saw Dunham exit the storage container, and hurry to the

passenger side of Horner' s truck. To prevent Horner from leaving, White positioned his truck to

block Horner' s truck. White then saw Cole and Garcia walk out of the storage container towards


Horner'    s   truck; according to White,            both   women         looked   nervous,   scared, and      hurried.     White


recognized several items from the property in Horner' s truck. Deputy Casebolt obtained a search

                                                                    3
Consol. Nos. 43549 -7 -II / 43562 -4 -II / 44390 -2 -II / 43654 -0 -II



warrant for Horner' s truck and found scrap metal receipts with the appellants' names on them.

The State charged the defendants with second degree burglary, first degree trafficking in stolen

property, and third degree theft.

           At trial, White testified that only he and realtors were authorized to be on the property.

Employees from two scrap metal recyclers testified that they recognized the appellants as metal

scrappers     who had        sold      scrap    metal     for   cash.     Kimberly Knecht, the manager at Valley

Recycling, testified that after the incident, Garcia phoned Valley Recycling asking if the police

had   called      about   her.        Garcia wanted to know what the recycling center told the police.

Commercial Metal Recycle' s Michael Holman testified that Cole usually visited the recycle

center with       Dunham.        Additionally, Deputy Casebolt found Dunham' s, Garcia' s, and Horner' s

names on scrap metal recycling receipts in Horner' s truck.

           Deputy Casebolt testified that a very nervous Cole explained to him that she was at the

deceased' s property because her friend had called her to go clean it up because it was in
foreclosure.       Deputy Casebolt said that Dunham and Horner told him they were just there to ride

along or help Cole Though Cole initially told Deputy Casebolt that they were at the property to

clean it for a foreclosure sale, Deputy Casebolt testified that foreclosure cleanup businesses

typically have business licenses, equipment, uniforms, keys, or other indicia of a legitimate

operation, which this group lacked.

           Dunham, Garcia, and Horner all testified that they were at the property due to Cole' s

foreclosure       clean -
                        up   bid. Dunham also admitted that he had seen the no trespassing sign posted


at   the   main    entrance      at   the   front   of   the property.     Garcia testified that she never entered the


storage container and never picked                  anything up.        Horner testified that the tools in his truck were


his own and not taken from the property. Cole did not testify.

                                                                   4
Consol. Nos. 43549 -7 -II / 43562 -4 -II / 44390 -2 -I1 / 43654 -0 -II



          The trial court instructed the jury that it could find the defendants guilty as principals or

accomplices.




          During rebuttal closing, the prosecutor argued,

          I' m going to ask you to convict all four of these defendants with burglary in the
          second     degree.
                          There is no question that they entered a building, any of them.
          The carport constitutes a building, the storage container constitutes a building,
          and the fenced area, that yard, it does constitute a building by definition. There' s
          nothing in your instructions that says the fencing must touch all the way around, it
          says fenced area and that' s it, and I submit to you that' s exactly what occurred
          here.


5 Report     of   Proceedings    at   808 -09.    The jury found the defendants guilty as charged. They now

appeal.



                                                          ANALYSIS


                              I. ACCOMPLICE LIABILITY STATUTE, RCW 9A.08. 020


          Cole, Horner, and Dunham argue that Washington' s accomplice liability statute, RCW

9A.08. 020, is unconstitutionally           overbroad.          The appellants argue that Washington' s accomplice


liability statute does not meet the standard set forth in Brandenburg v. Ohio, 395 U.S. 444, 447,

89 S. Ct. 1827, 23 L. Ed. 2d 430 ( 1969).-                       Because "       aid"    is not defined -in the statute, the


appellants    argue       that the    statute   criminalizes         speech   other     than   that "`   directed to inciting or

producing imminent lawless              action.       Br. of Appellant ( Horner) at 8 ( quoting Brandenburg, 395

U. S.   at   447).        Because we have consistently held that our accomplice statute is not

unconstitutionally overbroad in this respect, we disagree with the appellants' argument.

          Constitutional       questions        are   issues    of   law   and    we     review    them     de   novo.    State v.


Gresham, 173 Wn.2d 405, 419, 269 P. 3d 207 ( 2012).


          In State   v.   Ferguson,     we rejected      this   same challenge          to RCW 9A.08. 020( 3)(      a).   164 Wn.


App.    370, 375 -76, 264 P. 3d 575 ( 2011) (           citing State v. Coleman, 155 Wn. App. 951, 960 -61, 231
                                                                     5
Consol. Nos. 43549 -7 -II / 43562 - -II / 44390 -2 -II / 43654 -0 -II
                                  4



P. 3d 212 ( 2010),          review       denied, 170 Wn.2d 1016 ( 2011)),                       review denied, 173 Wn.2d 1035


2012). In Coleman, Division One of this court held that


            t] he   accomplice       liability     statute ...     requires the criminal mens rea to aid or agree
           to aid the commission of a specific crime with knowledge that the aid will further
           the    crime.     Therefore, by the statute' s text, its sweep avoids protected speech
           activities that are not performed in aid of a crime and that only consequentially
           further the crime.


155 Wn.       App.    at    960 -61.      In Ferguson, we adopted the Coleman reasoning and addressed the

Brandenburg          standard,      holding       that "[   b] ecause the statute' s language forbids advocacy directed

at and likely to incite or produce imminent lawless action, it does not forbid the mere advocacy

of   law   violation   that   is   protected under           the   holding    of   Brandenburg." 164 Wn. App. at 376. The

appellants here do not demonstrate why we should not adhere to our Ferguson decision and

analysis. Accordingly, the constitutional challenge to the accomplice liability statute fails.

                                                  II. ADEQUACY OF INFORMATION


           Next,      Cole, Horner,           and Dunham argue that their charging information provided

inadequate notice for the trafficking charge, violating their Sixth and Fourteenth Amendment

rights as well as their article I, section 22 rights under the Washington Constitution. They assert

that the information           failed to      allege      that   they " knowingly"         trafficked    stolen   property.   Because


the charging information included all of the offense' s essential elements, this argument fails.

                                         A. STANDARD OF REVIEW AND RULES OF LAW


           We       review    challenges          to the sufficiency          of a   charging document de            novo.    State v.


Williams, 162 Wn.2d 177, 182, 170 P. 3d 30 ( 2007).                                The Sixth Amendment to the United States


Constitution        provides       in   part, "   In   all ...   prosecutions,       the   accused shall ...      be informed of the


nature      and     cause    of    the    accusation."           Article I,    section     22    of   the Washington Constitution
Consol. Nos. 43549 -7 -II / 43562 -4 -II / 44390 -2 -II / 43654 -0 -II


provides      in   part, "   In   criminal prosecutions                 the   accused shall       have the           right ...   to demand the


nature and cause of the accusation against him."


          An appellant may challenge the constitutional sufficiency of a charging document for the

first time    on appeal.          State   v.   Kjorsvik, 117 Wn.2d 93, 102, 812 P. 2d 86 ( 1991).                                 But where the


appellant challenges the information' s sufficiency for the first time on appeal, we construe the

document       liberally        in favor       of   validity.        State v. Brown, 169 Wn.2d 195, 197, 234 P. 3d 212


 2010).       Under this liberal construction rule, we will uphold the charging document if an

                                element    may be "            fairly   implied" from the document'                     s   language.   Kjorsvik,
apparently missing


117 Wn.2d          at    104.      We     ask, "(     1) [    D] o the necessary facts appear in any form, or by fair

construction can           they be found, in           the charging document;                  and,    if   so, (   2) can the defendant show


that he or she was nonetheless actually prejudiced by the inartful language which caused a lack
            3
of notice ? "           Kjorsvik, 117 Wn.2d                   at   105 -06.        We read the charging document as a whole,

according to        common sense and                 including implied facts. State v. Nonog, 169 Wn.2d 220, 227,

237 P. 3d 250 ( 2010).


                                                                    B. ANALYSIS .


          To establish first degree trafficking in stolen property, the State must prove that a person

    knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of

property for        sale   to     others, or who             knowingly        traffics in     stolen   property."           RCW 9A. 82. 050( 1).


    Traffic" means to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to

another person, or to buy, receive, possess, or obtain control of stolen property with intent to sell,

3
    Appellants do          not address whether,                    if "knowingly"          can be fairly implied from the charging
document, there            was nonetheless actual prejudice.                             We decide cases only on the basis of issues
set   forth   by   the   parties     in their briefs. RAP 12. 1(                   a);   State v. Johnson, 119 Wn.2d 167, 171, 829
P. 2d 1082 ( 1992).             Accordingly, we do not discuss the second prong of Kjorsvik.

                                                                               7
Consol. Nos. 43549 -7 -II / 43562 -4 -II / 44390 -2 -II / 43654 -0 -II


transfer, distribute,        dispense,     or   otherwise    dispose    of   the property to    another     person.   RCW


9A.82. 010( 19).


             Here, the appellants' charging information stated that each defendant

             did knowingly initiate, organize, plan, finance, direct, manage, or supervise the
             theft of property for sale to others, and /or did knowingly sell, transfer, distribute,
             dispense, or otherwise dispose of stolen property to another person or to buy,
             receive, possess, or obtain control of stolen property, with intent to sell, transfer,
             distribute, dispense, or otherwise dispose of the property to another person.

Clerk'   s    Papers ( CP) ( Dunham) at 6; CP ( Cole) at 3; CP ( Horner) at 4; CP ( Garcia) at 6.


             The   appellants     contend,      however, that the information failed to include "               knowingly"

before the last       alternative     listed ( " or to            buy, receive, possess, or obtain control of stolen

property "),       whereas    each    of   the other     listed   alternatives   included "   knowingly."      Because the


appellants did not challenge the charging documents at trial, they must show that the charging

documents failed to include a necessary fact, and that the absence of the necessary fact actually

prejudiced them at trial. See Kjorsvik, 117 Wn.2d at 105 -06.


              We review the charging documents to see whether the missing element could be fairly

implied from the document' s language.                       Kjorsvik, 117 Wn.2d         at - 104.     Here, the charging

document twice stated that in order to be found guilty of trafficking in stolen property,

 knowingly"          must    be   proved.        The appellants, however, want to disconnect the phrasing

following " or       otherwise       dispose    of stolen    property to     another person"     and   before "   or to buy,

receive, possess."           But this requires a strained reading of the information' s language because

         is                                      that these two                   intended to be                          One
there         no punctuation      indicating                        phrases are                      read   separately.




                                                                   8
Consol. Nos. 43549 -7 -II / 43562 -4 -II / 44390 -2 -II / 43654 -0 -II



can fairly infer that the second " knowingly" in the charging document modified each of the verbs

that followed it such that " knowingly" is fairly implied when read in context.4
          Absent a showing of an inadequate charging document, the appellants do not demonstrate

any reversible error.

                     III. INSUFFICIENT EVIDENCE OF ALTERNATIVE MEANS OF BURGLARY


          Appellants next argue that the prosecutor committed misconduct by misrepresenting the

law when she argued that the defendants could be convicted of second degree burglary by

entering a partially fenced area. Although the appellants originally characterized the argument as

one of prosecutorial misconduct, the appellants agreed with the State that the issue was equally

capable    of redress        on    sufficiency     grounds.        Wash. Court of Appeals oral argument, State v.


Horner     et. al,   No. 43549 -7 -II       (Feb. 19,    2014),       at. 7 min.,   15   sec. —   7   min.,   55   sec. (   on file with


court).




          A defendant commits second degree burglary when she or he enters or remains

unlawfully in a building other than a vehicle or dwelling, with the intent to commit a crime

therein. RCW 9A:52. 030( 1).-               A "building" includes any dwelling, fenced area, vehicle; railway

car, cargo container, or any other structure used for lodging of persons or for carrying on

business therein,       or   for the     use, sale, or   deposit    of goods.       RCW 9A.04. 110( 5).            When alternative




4 Furthermore, in Kjorsvik, the court concluded that the accused suffered no actual prejudice
because the " to convict" instruction contained the element that was missing from the charging
information. Kjorsvik, 117 Wn. 2d at 111.      Similarly here, the " to convict" jury instruction
regarding the trafficking charge expressly provided that in order to convict the appellants for
trafficking    stolen    property, the          jury   needed      to find that ( 1) "     the defendant or an accomplice
knowingly      trafficked         in   stolen   property ";   and (   2) "[   t]hat the defendant knew the property was
stolen."    CP ( Dunham)           at   64; CP ( Horner)      at   25 -28.     Thus, the trial court instructed the jury that
any conviction for trafficking in stolen property required proof beyond a reasonable doubt that
the appellants " knowingly" trafficked in stolen property.

                                                                      9
Consol. Nos. 43549 -7 -II / 43562 -4 -1I / 44390 - -II / 43654 -0 -II
                                                 2



means of committing a single offense are presented to a jury, each alternative means must be

supported by substantial evidence in order to safeguard a defendant' s right to a unanimous jury

determination. State    v.    Garcia, _       Wn.2d _,     318 P. 3d 266, 271 ( 2014).


          Here, the trial    court   instructed the     jury, " Building, in addition to its ordinary meaning,

includes any fenced      area or cargo container."           CP ( Horner)    at    14.   Accordingly, the jury was

instructed that it could convict the defendants if it determined that they entered or remained

unlawfully in either a building on the property, a fenced area, or in the cargo container, with the
intent to commit a crime.


          The State concedes . that no evidence demonstrates that a combination of fencing and

structures enclosed the entire property as is required under State v. Engel, 166 Wn.2d 572, 210

P. 3d 1007 ( 2009).     The Engel           court   held that " fenced   area"    included curtilage that is either


completely enclosed by fencing or is enclosed by a combination of fencing and other structures.

166 Wn.2d at 580. The partially fenced area without structures filling gaps in the fencing did not

create an enclosure and        thus   did   not constitute a "   building." Therefore, sufficient evidence did

not support the fenced area means by which the jury could have found the defendants guilty in its

general    verdict.   Accordingly, we accept the State' s concession and reverse and remand the
                                               5
second    degree   burglary   convictioris.




  Because we reverse on this ground we do not reach the appellants' prosecutorial misconduct
argument.




                                                            10
Consol. Nos. 43549 -7 -II / 43562 -4 -II / 44390 -2 -II / 43654 -0 -II


                                    IV. GARCIA' S INSUFFICIENT EVIDENCE CLAIMS


         Garcia argues that the State offered insufficient evidence for the jury to find her guilty as
                                                                                   6
a   principal    or    an   accomplice       of   second     degree    burglary,       first degree trafficking in stolen

property, and third degree theft. We disagree.

                                     A. STANDARD OF REVIEW AND RULES OF LAW


         We review claims of insufficient evidence to determine whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond    a reasonable         doubt.     State   v.   Salinas, 119 Wn. 2d 192, 201, 829 P. 2d 1068 ( 1992).             We


draw all reasonable inferences from the evidence in favor of the State and against the defendant.

Salinas, 119 Wn.2d            at   201.   A sufficiency challenge admits the truth of the State' s evidence and

all reasonable        inferences from it.         State v. Therf, 25 Wn. App. 590, 593, 608 P. 2d 1254, aff'd,

95 Wn. 2d 385, 622 P. 2d 1240 ( 1980).                  We leave credibility determinations to the fact finder and

do not review them on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).

                                              B. SECOND DEGREE BURGLARY


         A-defendant commits second degree burglary when she enters or remains unlawfully in a

                                                  dwelling            the intent to     commit   a   crime   therein.   RCW
building     other     than   a vehicle      or               with




9A.52. 030( 1).        A "    building" includes any dwelling, fenced area, vehicle, railway car, cargo

container, or any other structure used for lodging of persons or for carrying on business therein,

or   for the   use, sale, or       deposit   of goods.     RCW 9A.04. 110( 5).          Therefore, the State was required


to   prove     that Garcia ( 1)       entered or remained unlawfully in a building other than a vehicle or



6 Although we reverse and remand Garcia' s burglary conviction for retrial, we address Garcia' s
argument contesting the sufficiency of the evidence against her because Garcia would be entitled
to dismissal with prejudice if she were to prevail on those grounds.


                                                                 11
Consol. Nos. 43549 -7 -II / 43562 -4 -11 / 44390 -2 -11 / 43654 -0 -I1



dwelling, and ( 2) that she did so with the intent to commit a crime against a person or property

therein.      Alternatively, the State could also prove that Garcia was criminally liable for the

burglary as an accomplice by showing that Garcia, with knowledge that it would promote or

facilitate the commission of the crime, either ( 1) solicited, commanded, encouraged, or requested


the other person to commit the crime; or ( 2) aided or agreed to aid such other person in planning

or committing it. RCW 9A.08. 020; State v. Roberts, 142 Wn.2d 471, 502, 14 P. 3d 713 ( 2000).

           Here, the State presented evidence from which any rational jury could have found that

Garcia engaged in second degree burglary as a principal or an accomplice beyond a reasonable

doubt.     Garcia was seen exiting the storage container on property that featured a no trespassing

sign    and   on   which   no   one   other    than White    and   realtors   were   allowed.   Because she was


trespassing and was not licensed or otherwise privileged to be inside the container, Garcia' s

entry   was unlawful.       RCW 9A.52. 010( 5).          White noticed that Garcia appeared nervous as she


exited the container and also that she hurried towards Horner' s truck, which contained items


previously     removed     from the property      without authorization.          Knecht testified that Garcia was


known as a regular metal recycler at Valley Recycling, and following the October 15 incident at

the property involved here, Garcia called Valley Recycling to ask someone whether the police

had    called and   if   they had   told the   police   anything   about   her.   Viewing this evidence in a light

most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that

Garcia and her associates entered the container unlawfully with the intent to take property.




7 However, as discussed- above, we accept the State' s concession that insufficient evidence
supports one of the alternative means of conviction, and we reverse and remand Garcia' s second
degree burglary conviction on this ground.
                                                            12
Consol. Nos. 43549 -7 -II / 43562 -4 -II / 44390 -2 -II / 43654 -0 -II


                          C. FIRST DEGREE TRAFFICKING IN STOLEN PROPERTY


         To prove first degree trafficking in stolen property, the State must offer evidence that

Garcia, either as a principal or an accomplice, knowingly initiated, organized, planned, financed,

directed, managed, or supervised the theft of property for sale to others, or knowingly trafficked

in   stolen   property. RCW 9A. 82. 050. "   Trafficking" means to sell, transfer, distribute, dispense,

or otherwise dispose of stolen property to another person, or to buy, receive, possess, or obtain

control of stolen property with intent to sell, transfer, distribute, dispense, or otherwise dispose of

property to another person. RCW 9A.82. 010( 19).

          Here, the State presented ample evidence from which the jury could reasonably infer that

Garcia    engaged as a principal or accomplice     in trafficking     stolen   property. For example, White


testified that no one besides himself and realtors had permission to be on the gated property with

posted no trespassing signs, but he saw Garcia walking out from inside the property' s storage

container.      In addition to seeing Garcia exit the container, White saw Garcia' s associates in the

carport and storage container, and he saw Horner toss something back into the carport when

Horner first saw White.       White characterized Garcia as looking nervous and scared when she

exited the     storage container and saw   him,   and   then she .hurried toward Homer'          s   truck.   Deputy

Casebolt and White both explained that since the prior night, someone had removed items from


the property, and some of those metal items, including tools, were now in the truck.

          Though Cole initially told Deputy Casebolt that they were at the property to clean it for a

foreclosure sale, Deputy Casebolt testified that foreclosure clean -up businesses typically have

business licenses,     equipment, uniforms,    keys,    or other   indicia   of a   legitimate   operation.    Here,


Garcia and her associates lacked any indicia of a legitimate business; moreover, the home was

not in foreclosure.

                                                        13
Consol. Nos. 43549 -7 -II / 43562 -4 -I1 / 44390 -2 -1I / 43654 -0 -1I



          Also, Deputy Casebolt found receipts in Horner' s truck showing that Garcia, as well as

Horner    and    Dunham, had recently          sold   scrap   metal   to   metal    recyclers.    Knecht testified that


Garcia was known as a regular metal recycler at Valley Recycling; and following the October 15

incident at the property involved here, Garcia called Valley Recycling to ask someone whether

the police had called and if they had told the police anything about her.

          Viewing this evidence in a light most favorable to the State, any rational trier of fact
could find beyond a reasonable doubt that Garcia and her associates knowingly sold stolen

property for scrap, thus committing first degree               trafficking in      stolen   property.   Accordingly, we

affirm Garcia' s first degree trafficking conviction. See Salinas, 119 Wn.2d at 201.

                                              D. THIRD DEGREE THEFT


          To prove third degree theft, the State was required to offer evidence that Garcia

committed       theft   of   property   or services which     did   not exceed $    750 in    value.    RCW 9A. 56. 050.


In this    context, "    theft"   means to wrongfully obtain or exert unauthorized control over the

property of another or the value thereof with intent to deprive the owner of such property. RCW

9A.56: 020( 1)( a).


          Here, the State presented ample evidence from which the jury could find that Garcia

engaged as a principal or accomplice in theft. Again, White testified that no one besides himself

and realtors had permission to be on the gated property with posted no trespassing signs, but he

spotted    Garcia walking         out   from inside the property'      s   storage container.      White characterized


Garcia as looking nervous and scared when she exited the storage container and saw White, and




                                                              14
Consol. Nos. 43549 -7 -II / 43562 -4 -II / 44390 -2 -II / 43654 -0 -II


then   she   hurried toward Horner'        s   truck —a   truck which had license plates that did not match its

vehicle   identification    number.        Deputy Casebolt and White both explained that since the prior

night, someone had removed items from the property, and some of those missing metal items,

including tools, were now in Garcia' s associate' s truck.

          Viewing this evidence in a light most favorable to the State, any rational trier of fact

could find beyond a reasonable doubt that Garcia and her associates trespassed onto the property

and were      taking   metal     items,   including   tools.    Therefore, Garcia wrongfully obtained control

over the property of another and she did so with the intent to deprive the owner of that property.

RCW 9A.56. 020( 1)(        a).    Accordingly,      we    affirm     Garcia'   s   third   degree theft   conviction.   See


Salinas, 119 Wn.2d at 201.


                                               V. INEFFECTIVE ASSISTANCE


          Cole   argues    that her       counsel   provided        ineffective     assistance   when     he failed to ( 1)


adequately investigate this case and ( 2) call a witness that would have rebutted one of the State' s
witnesses.     Because Coles' s argument rests on matters outside the record, we do not consider it.

Cole contends that her counsel offered ineffective assistance because he failed to adequately -

investigate.     She asserts that she has never been to Commercial Metal Recycle and that had her


attorney adequately investigated, he would have been able to prove that she had never been there

because no receipts ever linked her to that recycle center.


          Cole' s argument that there is evidence that ( 1) Cole has never been to Commercial Metal

Recycle, (    2) her attorney failed to investigate, and ( 3) there are no receipts linking her to that




                                                               15
Consol. Nos. 43549 -7 -I1 / 43562 -4 -I1 / 44390 -2 -I1 / 43654 -0 -II



recycle center rests on evidence outside           the   record.        But we may consider only arguments that

are supported by the record before us and we cannot address matters outside the record on direct

appeal.    State   v.   McFarland, 127 Wn.2d 322, 338             n. 5,   899 P. 2d 1251 ( 1995).   Accordingly, we

do not consider this argument further.


          Next, Cole argues that defense counsel failed to call another officer besides Deputy

Casebolt     who    was    at   the property   when    Deputy      Casebolt      arrived.   Cole contends that this


unidentified officer would have testified that Cole and Garcia did not emerge from the storage

container,   but instead        came   from behind it     after    relieving themselves.       She asserts that the


defendants asked their attorneys to call this unidentified officer, but " they said we didn' t need

them."    Statement      of   Additional Grounds ( Cole)     at    3.     Because neither the unidentified officer' s


knowledge nor the defense counsel' s discussion with the appellants about calling this

unidentified officer appear in the record, Cole presents no argument based on facts in the record.


Because Cole' s argument is not supported by the record, we decline to consider it.

          Cole also contends that defense counsel failed to adequately investigate because he failed

to inquire about Horner' s deceased uncle' s wrecking yard and had he investigated, he would

have learned that the now -
                          closed wrecking yard had plenty of scrap metal that the appellants

were   legitimately      recycling.    Contrary to Cole' s assertion, however, his defense counsel called a

witness who testified that Horner' s uncle' s defunct wrecking yard had plenty of scrap metal.

Cole does not demonstrate that defense counsel failed to adequately investigate or uncover

Homer'    s uncle' s     defunct wrecking      yard.   Accordingly, Cole' s ineffective assistance of counsel

claim fails.




                                                           16
Consol. Nos. 43549 -7 -II / 43562 -4 -II / 44390 -2 -II / 43654 -0 -II



        In conclusion, we reverse each appellant' s second degree burglary conviction and remand

for a retrial. All other convictions are affirmed.


          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.




LEE, J.




                                                      17
