       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,      )                                                                            rri
                          )                         DIVISION ONE                                      C-J C.)
                                                                                                      —71
              Respondent, )
                          )                         No. 75337-1-1                                      r.20
         v.               )                                                                       3 r—
                          )                         UNPUBLISHED OPINION                           c-J cf)
                                                                                         CA)
SAMUEL KENNETH MCDONOUGH, )                                                              Co
                          )
              Appellant.  )                         FILED: April 2, 2018
                          )

       DWYER, J. — Samuel McDonough appeals from the judgment entered on a

jury's verdict finding him guilty of residential burglary. McDonough contends that

the trial court erred by instructing the jury that it could infer his intent to commit

theft from his unlawful entry into a house. McDonough also contends that the

sentencing court erred by ruling that two prior convictions were not crimes

involving the "same criminal conduct" when calculating his offender score.

Finally, McDonough raises 10 additional claims of error in his statement of

additional grounds. Finding no error, we affirm.
No. 75337-1-1/2


                                        1

      At approximately 10:00 a.m. on October 19, 2015, Samuel McDonough

broke into a house in north Seattle by climbing through a basement window.

Tessa Roberts and Matthew Swain were sleeping in separate rooms in the

basement when McDonough broke into the house.

      Swain was the first person to see McDonough. Swain was returning to his

room after using the bathroom. Swain noticed that McDonough was standing

beside the basement bookshelf and that McDonough appeared to be surprised

when Swain saw him. Swain thought that McDonough must have been a friend

of another resident of the house, so he did not take any action regarding

McDonough's presence before returning to his room.

       Minutes later, Roberts exited her room and saw McDonough climbing out

of the basement window. After watching McDonough run away, Roberts

immediately called the police. Both Swain and Roberts observed that

McDonough was wearing dark clothing with a dark sweatshirt and a backpack.

      The police soon found McDonough hiding in a shed behind a neighboring

house. Upon being discovered, McDonough told the officers that his given name

was Shawn instead of Samuel. When asked if he was supposed to be in the

shed, McDonough replied that he was not. McDonough was not wearing a

sweatshirt or a backpack when the police found him, and the two items were

never found. The police officers then asked Swain if he could identify

McDonough. Swain positively identified McDonough as the man who he saw in

the basement of the house.


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       At the house, Roberts found wet footprints leading from the basement

window into the house, wet footprints on the back deck of the house, and wet

footprints leading to the front door of the house. Additionally, Roberts noticed

that board games and other "knickknacks" on the basement bookshelf had been

shuffled around. Finally, Roberts discovered that someone had rifled through her

car, which was parked outside the house, and that some items were missing.

       McDonough was charged and convicted of residential burglary. He now

appeals.

                                          II

       McDonough first contends that the trial court erred by instructing the jury

that it could infer his intent to commit a crime inside Roberts' house. This is so,

McDonough asserts, because the instruction violated his due process rights by

relieving the prosecution of the burden of proving the intent element of residential

burglary beyond a reasonable doubt.

       At trial, the State proposed a pattern jury instruction:

               A 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. This inference is not binding upon you
       and it is for you to determine what weight, if any, such inference is
       to be given.

Instruction 11; 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 60.05 (4th ed. 2016)(WPIC). McDonough objected to

the proposed instruction, arguing that there was no evidence of his intent to

commit theft when he entered the house because nothing from the house was




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found in his possession upon his arrest. Nevertheless, the trial court so

instructed the jury.

       We review the constitutionality of permissive inference instructions under

the "more likely than not" standard. State v. Hanna, 123 Wn.2d 704, 712, 871

P.2d 135(1994). "Whether an inference meets this standard must be

determined on a case-by-case basis in light of the particular evidence presented

to the jury in each case." Hanna, 123 Wn.2d at 712.

       The due process clauses of the federal and state constitutions require the

government to prove every element of a crime beyond a reasonable doubt. In re

Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); U.S.

CONST. amend. XIV,§ 1; WASH. CONST. art. I, § 3. To prove residential burglary,

the State must establish that the defendant(1) entered or remained in the

dwelling,(2) with the intent to commit a crime against a person or property

therein. RCW 9A.52.025. The State may use evidentiary devices, such as

inferences, to assist in meeting its burden of proof. Hanna, 123 Wn.2d at 710.

       Washington law permits the intent to commit a crime to be inferred when a

person enters or remains unlawfully in a building and satisfactory evidence has

been presented to the trier of fact. RCW 9A.52.040. Moreover, our Supreme

Court has held that WPIC 60.05 is constitutional because the language is clearly

discretionary, allowing the trier of fact to decide whether to accept or reject the

inference. State v. Brunson, 128 Wn.2d 98, 105-06, 905 P.2d 346 (1995).

m[W]hen an inference is only part of the prosecution's proof supporting an

element of the crime, due process requires the presumed fact to flow more likely


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than not from proof of the basic fact." Brunson, 128 Wn.2d at 107 (internal

quotation marks omitted)(quoting Hanna, 123 Wn.2d at 710).

       Here, McDonough's actions indicate that he was more likely than not

intending to commit theft by stealing items when he entered Roberts' house.

McDonough entered and exited the house through a basement window, he was

wearing dark clothing, he ran away when he was discovered by people in the

house, he was found by police hiding in a shed behind a neighbor's house, he

gave police a false name when he was discovered, and his backpack and jacket

were never found. Moreover, Roberts found multiple wet footprints leading up to

the house, she noticed that the objects on the basement bookshelf had been

shuffled around, and she discovered that someone had stolen some items from

her car parked outside the house.

       The evidence presented at trial suggests that McDonough was more likely

than not intending to commit theft by stealing items from Roberts' house when he

entered through the basement window. Accordingly, the permissive inference

jury instruction was appropriately given.

       There was no error.

                                            Ill

       McDonough next contends that the sentencing court abused its discretion

by ruling that his two prior convictions for burglary in the second degree and theft

of a motor vehicle did not involve the "same criminal conduct" for the purposes of

calculating his offender score. This is so, McDonough asserts, because he had




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the same intent when he committed the prior burglary and the prior theft of a

motor vehicle. We disagree.

       Our Supreme Court has "repeatedly observed that a court's determination

of same criminal conduct will not be disturbed unless the sentencing court

abuses its discretion or misapplies the law." State v. Aldana Graciano, 176

Wn.2d 531, 536, 295 P.3d 219(2013). When calculating an offender score, the

sentencing court abuses its discretion by arriving at a contrary result "when the

record supports only one conclusion on whether crimes constitute the 'same

criminal conduct." Aldana Graciano, 176 Wn.2d at 537-38. "But where the

record adequately supports either conclusion, the matter lies in the court's

discretion." Aldana Graciano, 176 Wn.2d at 538.

       "Two crimes manifest the 'same criminal conduct' only if they 'require the

same criminal intent, are committed at the same time and place, and involve the

same victim." Aldana Graciano, 176 Wn.2d at 540 (quoting RCW

9.94A.589(1)(a)). "If the defendant fails to prove any element under the statute,

the crimes are not the 'same criminal conduct." Aldana Graciano, 176 Wn.2d at

540 (citing State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123(1994)). "[I]n

deciding if crimes encompassed the same criminal conduct, trial courts should

focus on the extent to which the criminal intent, as objectively viewed, changed

from one crime to the next. .. . ['D'art of this analysis will often include the related

issues of whether one crime furthered the other." State v. Dunaway, 109 Wn.2d

207, 215, 743 P.2d 1237, 749 P.2d 160(1987).




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       Here, McDonough entered onto Pier 69 at the Seattle waterfront in the

early morning of December 1,2013 by scaling a fence. McDonough

subsequently boarded the Victoria Clipper IV, a 480 ton, 40 meter long cruise

vessel. Onboard, McDonough gathered various items, including several bottles

of perfume, multiple bottles of alcohol, and a duffel bag. He also discovered that

the keys had been left in the vessel's ignition. McDonough then decided to sail

the Victoria Clipper IV into Puget Sound.

       The vessel lost power in the middle of Puget Sound, at which point Seattle

police were able to board the vessel and apprehend McDonough. After he was

apprehended, McDonough told authorities that he wanted to go to West Seattle

or the Duwamish River to "ditch the boat." McDonough later told police that he

wanted to go to Victoria, Canada. After pleading guilty to burglary and theft of a

motor vehicle, McDonough served both sentences concurrently.

       At sentencing in the present case, McDonough argued that the prior

burglary and the prior theft of a motor vehicle involving the Victoria Clipper IV

should be considered the "same criminal conduct" for the purposes of calculating

his offender score. The sentencing court rejected McDonough's argument,

finding that it was most likely that McDonough's intent changed from when he

unlawfully entered Pier 69 to steal items, to when he decided to steal the Victoria

Clipper IV itself.

       The record suggests two possible interpretations. The first is that

McDonough entered onto Pier 69 with the intent of stealing items from the

Victoria Clipper IV and the vessel itself. The second is that he entered onto Pier


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69 in order to steal items from the vessel, but decided to steal the vessel itself

upon finding that such a theft was possible. The record adequately supports

either conclusion. McDonough did not convince the court that his theory was

more likely true.

        The sentencing court did not abuse its discretion by finding that

McDonough's two prior convictions for burglary in the second degree and theft of

a motor vehicle did not involve the "same criminal conduct."

                                               IV

        McDonough makes a number of contentions in his statement of additional

grounds. None are availing.

        McDonough first asks us to review hand-written motions that he submitted

to the trial court. We do not review motions filed in the trial court but merely

"incorporate[d] by reference" in briefing to this court. US West Commc'ns, Inc. v.

Util. & Transp. Comm'n, 134 Wn.2d 74, 112, 949 P.2d 1337(1997).

        McDonough next contends that the information charging him was deficient

because it did not include Roberts' house address. Our Supreme Court has held



         1 In two recent decisions involving defendants convicted of child rape and incest against
the same victim, our Supreme Court has held that the test for determining intent for a "same
criminal conduct" analysis is whether the two crimes have the same statutory intent. See State v.
Chenoweth, 185 Wn.2d 218, 370 P.3d 6(2016); State v. Bobenhouse, 166 Wn.2d 881, 214 P.3d
907(2009). We do not apply that test here for two reasons. First, the test for whether two crimes
involved the same intent for a "same criminal conduct" analysis, as articulated in Dunaway, has
not been expressly overruled. 109 Wn.2d at 215; see also State v. Haddock, 141 Wn.2d 103, 3
P.3d 733(2000); State v. Tili, 139 Wn.2d 107, 985 P.2d 365(1999); State v. Garza-Villarreal, 123
Wn.2d 42, 864 P.2d 1378(1993); State v. Lesslev, 118 Wn.2d 773, 827 P.2d 996 (1992); State v.
Lewis, 115 Wn.2d 294, 797 P.2d 1141 (1990); State v. Burns, 114 Wn.2d 314, 788 P.2d 531
(1990). Second, the test that the court used in Chenoweth, 185 Wn.2d 218, and Bobenhouse,
166 Wn.2d 881, has so far been limited to crimes involving child rape and incest. Chenoweth,
185 Wn.2d at 224 (holding that "the Legislature intended to punish incest and rape as separate
offenses, even though committed by a single act"(quoting State v. Calle, 125 Wn.2d 769, 780,
888 P.2d 155 (1995))).
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that, pursuant to CrR 2.1(d), an information may be amended at any time before

a verdict or finding when the substantial rights of the defendant are not

prejudiced. State v. Eaton, 164 Wn.2d 461, 466, 191 P.3d 1270(2008)(citing

State v. Barnes, 146 Wn.2d 74, 81-82, 43 P.3d 490(2002)). Here, the record

shows that the information was amended to include Roberts' house address

before trial and that McDonough had been aware of the house address since his

arraignment.

       McDonough next raises four evidentiary contentions. First, McDonough

asserts that the witness identification of him at trial as the intruder was not

sufficient to support a conviction. But witness credibility determinations are for

the trier of fact and are not subject to review. State v. Cantu, 156 Wn.2d 819,

831, 132 P.3d 725 (2006). Second, McDonough asserts that his case was

maliciously prosecuted because there was not enough evidence to convict him.

However, sufficient evidence of his guilt was presented. See State v. Salinas,

119 Wn.2d 192, 829 P.2d 1068 (1992). Third, McDonough asserts that there

was not probable cause to prove that he intended to commit theft when he

unlawfully entered Roberts' house. As stated, sufficient evidence was admitted

at trial to support the jury's finding. Finally, McDonough asserts that trial court

error resulted in In]ot allowing the jury the police radio-call-out print-out in order

to synchronize the tapes." The decision to admit evidence lies within the trial

court's discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615(1995).

McDonough fails to provide an argument showing that the trial court abused its




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discretion when it refused to admit the "police radio-call-out print-out." No

entitlement to appellate relief is shown.

        McDonough next raises three contentions regarding his arrest.

McDonough asserts that charges against him were not properly filed, that he was

not read his Miranda2 rights, and that there was not probable cause to arrest him.

The record shows that McDonough was properly charged by information, that

McDonough was read his Miranda rights, and that a warrant was issued for

McDonough's arrest before he was arrested.3 The warrant was based upon a

finding of probable cause.

        McDonough next raises two procedural contentions. First, McDonough

asserts that the prosecutor interposed excessive objections during McDonough's

questioning of witnesses at trial. Second, McDonough asserts that he was

denied the opportunity to be the last party to speak to the jury because the

prosecution offered a rebuttal closing argument. Neither claim has merit. Both

objections and rebuttal closing argument are a proper part of a trial.

Furthermore, McDonough fails to offer any evidence that the rulings on the

State's objections were improper or that the content of the State's rebuttal closing

argument was improper. These claims warrant no relief.

        McDonough raises two final contentions in his statement of additional

grounds. First, McDonough asserts that the trial court erred by "not allowing me



        2Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
        3 McDonough    was initially arrested after he unlawfully entered Roberts' house on October
19, 2015. A probable cause hearing was held shortly after his first arrest. McDonough was then
released after being held for 48 hours. The State later filed formal charges against McDonough
on January 4,2016. The arrest warrant was issued when formal charges were filed.

                                              -10-
No. 75337-1-1/11


to use my own laptop." The record shows that the laptop computer belonged to

the jail. The record further shows that the jail does not permit inmates to bring

laptop computers to court for security reasons. McDonough makes no attempt to

demonstrate that the trial court erred by conducting trial in accordance with this

security measure. Finally, McDonough asserts that the prosecution "screw[ed]"

him "every which way." McDonough's assertion is nothing more than an

acrimonious statement directed at the prosecution and does not set forth an

argument for appellate review. Accordingly, McDonough fails to establish a basis

for appellate relief in his statement of additional grounds.

       Affirmed.



We concur:




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