      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             DIVISION ONE


              Respondent,                        No. 67936-8-1


         v.                                      UNPUBLISHED OPINION

KEITH RICHARD CRAIG,

              Appellant.                         FILED: April 29, 2013


       Dwyer, J. — Keith Craig was convicted of residential burglary, theft in the

second degree, and malicious mischief in the second degree based upon an

incident in which he forced his way into a residence and stole several items of

property. Craig appeals from his conviction of malicious mischief in the second
degree, contending, first, that the evidence adduced at his trial was insufficient to
support the jury's verdict and, second, that the charging document failed to
apprise him of the essential elements ofthis crime. In addition, Craig contends
that the rapid recidivism aggravator—which permits an exceptional sentence

where a jury determines beyond a reasonable doubt that an offender committed
his or her crimes shortly after release from incarceration—is unconstitutionally

vague as applied to the facts of his case. These claims are without merit.
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Accordingly, we affirm.

                                            I


          On April 7, 2011, at approximately 2:00 p.m., Nancy Cifuentes returned

home to discover that her Seattle residence had been burglarized. Both her

bedroom and the bedroom of her roommate had been ransacked, and several

items of jewelry were missing from the home. In addition, both doors of the rear

entrance were badly damaged. The mesh of the external screen door had been

torn, and a large hole had been cut through the paneling of the wooden door

behind it. Cifuentes noticed an old gardening knife—typically stored in her

garage—lying near the rear entrance of the house. She immediately called the

police.

          Officers arrived at the scene shortly thereafter. The officers determined

that the burglar had likely entered the home through the rear entrance.

Suspecting that the gardening knife had been used by the burglar to cut through
the two doors, one of the officers searched the knife for fingerprints. Two latent

prints of comparison value were lifted from the knife.

          A latent print examinerwith the Seattle Police Department thereafter

examined the prints. The examiner determined that the prints matched the

fingerprints of Keith Craig, a convicted felon. Craig, whose criminal record
included several prior convictions of residential burglary, had recently been

imprisoned for violating the terms of his community custody stemming from those
convictions. He had been released on March 24, 2011, just 14 days before the

burglary of Cifuentes' home.

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        Craig was thereafter charged with residential burglary, theft in the second

degree, and malicious mischief in the second degree.1 In addition, the State
alleged that Craig committed his crimes "shortly after being released from

incarceration, as defined by RCW 9.94A.535(3)(t)."

         Following a jury trial, Craig was convicted as charged. In a bifurcated trial,

the jury determined by special verdict that Craig committed his crimes shortly

after his release from incarceration.

        At sentencing, the State sought an exceptional sentence based on two

statutory aggravating factors. First, the State argued, the "rapid recidivism"

aggravator set forth by RCW 9.94A.535(3)(t) justified an exceptional sentence.

Second, because Craig's high offender score would result in several of his

current offenses going unpunished, the State contended that the free crimes

doctrine set forth by RCW 9.94A.535(2)(c) also justified a sentence above the

standard range.

         The trial court thereafter imposed an exceptional sentence on the

residential burglary charge and imposed high-end consecutive sentences on the

other two counts. The court explained that the exceptional sentence was justified

both by the jury's finding of rapid recidivism and by the free crimes doctrine.

         Craig appeals.

                                                II


         Craig first contends that, given the evidence adduced at his trial, no

        1The State also charged Craig with an additional count of residential burglary based on
an unrelated incident. This count was severed by the trial court. Ajury trial on that charge ended
in a mistrial.
No. 67936-8-1/4



rational jury could have determined beyond a reasonable doubt that the damage

to the rear entrance of Cifuentes' home exceeded $750. Because such proof

was required for the jury to convict him of malicious mischief in the second

degree, Craig contends that the evidence is insufficient to support the jury's

verdict. We disagree.

       A challenge to the sufficiency of the evidence requires that we determine

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. State v. Brockob. 159 Wn.2d 311, 336, 150 P.3d 59

(2006). All reasonable inferences must be drawn in the prosecution's favor and

interpreted most strongly against the defendant. State v. Hosier. 157 Wn.2d 1, 8,

133 P.3d 936 (2006). "A claim of insufficiency admits the truth of the State's

evidence and all inferences that reasonably can be drawn therefrom." State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Moreover, we must defer

to the trial of fact with regard to issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence. State v. Fiser. 99 Wn. App.

714, 719, 995P.2d 107(2000).

       A person commits malicious mischief in the second degree where he or

she knowingly and maliciously causes physical damage to the property of

another in an amount exceeding $750. RCW 9A.48.080(1)(a). Damage includes

the reasonable cost of repairs to restore the damaged property to its former

condition. State v. Gilbert, 79 Wn. App. 383, 385, 902 P.2d 182 (1995). Even

where there is conflicting testimony regarding the amount of damage, we will find

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No. 67936-8-1/5



the evidence sufficient to support a conviction so long as there is evidence from

which a rational jury could determine that this element was proved. State v.

Coria. 146 Wn.2d 631, 641, 48 P.3d 980 (2002).

       Here, there was ample evidence adduced to support the jury's verdict.

Cifuentes testified that it cost $1,100 to repair the damage to the rear entryway of

her home. She told the jury that she replaced the screen door due to a large rip

in the screen and because the door would no longer properly close and latch

following the robbery. The wooden rear door, the integrity of which was

compromised by a large hole in its paneling, was also replaced by Cifuentes. A

photograph of the wooden door, detailing the damage, was introduced into

evidence. Cifuentes testified that none of this damage existed prior to Craig's

unlawful entry of her residence.

       Given this evidence, and drawing all reasonable inferences in the

prosecution's favor, we have no difficulty in concluding that a rational jury could
have found beyond a reasonable doubt that the damage to Cifuentes' residence

exceeded $750. Although Craig contends that the testimony of another witness

contradicts portions of Cifuentes' testimony, we do not make credibility

determinations on appeal. Instead, in such circumstances, we must defer to the
trier of fact. See Coria, 146 Wn.2d at 641. The evidence is sufficient to support

Craig's conviction of malicious mischief in the second degree.
No. 67936-8-1/6




      Craig next contends that the information charging him with malicious

mischief in the second degree was deficient because it failed to allege that Craig

damaged multiple items of property as a result of a common scheme or plan.

We disagree.

      An accused person has a constitutional right to be informed of the charge

he or she is to meet at trial. State v. Pelkev. 109 Wn.2d 484, 487, 745 P.2d 854

(1987). Accordingly, the charging document must include all essential elements

of a crime in order to apprise the accused of the charges and allow the

preparation of a defense. State v. Pineda-Pineda, 154 Wn. App. 653, 670, 226

P.3d 164 (2010). When the sufficiency of a charging document is first raised on

appeal, however, it must be liberally construed in favor of validity. State v.

Kiorsvik. 117 Wn.2d 93,104-05, 812 P.2d 86 (1991).

       As discussed above, in order to convict a person of malicious mischief in

the second degree, the State must prove that the person "cause[d] physical

damage to the property of another in an amount exceeding [$750]." RCW
9A.48.080(1)(a). The State is permitted to aggregate the amount of damage to

multiple items of property only in narrow, statutorily defined circumstances. Only
where the multiple items of property are damaged "as a result of a common

scheme or plan," is aggregation permitted to reach the $750 threshold. RCW

9A.48.100(2).

       We recently considered the implications of this statutory language in State
v. Rivas, 168 Wn. App. 882, 278 P.3d 686 (2012), review denied, 176 Wn.2d

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No. 67936-8-1/7



1007 (2013). In Rivas, the defendant was charged with malicious mischief in the

second degree for causing damage to two different vehicles. 168 Wn. App. at

885. In order to reach the $750 threshold necessary to prove this crime, the

State aggregated the value of the damages to both vehicles—each of which

constituted a separate item of property. 168 Wn. App. at 890. However, given

the plain language of the statute, we concluded that "a common scheme or plan

is an essential element of second degree malicious mischief where the State

aggregates the value of damages to more than one item of property." 168 Wn.

App. at 889. Because the charging document failed to allege such a scheme or

plan, we reversed the defendant's conviction. 168 Wn. App. at 890-91.

      Craig contends that here, as in Rivas. the State aggregated the value of

damage to multiple items of property in order to reach the $750 threshold. He

asserts that the two doors damaged by Craig during the forced entry of

Cifuentes' residence constitute two separate items of property. Accordingly, he

contends, the State was required to allege in the information the existence of a

common scheme or plan as an essential element of the charge of malicious

mischief in the second degree.

       Craig's reliance on Rivas, however, in plainly misplaced. In contrast to

that case, here, Craig was charged with causing damage to a single item of

property: "a residence, the property of Nancy Cifuentes." The State did not

charge Craig, as he now asserts, with damaging "two doors." The components

of a single piece of real property—the doors, the windows, the walls, or the

roof—do not constitute separate items of property within the meaning of the

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No. 67936-8-1/8



malicious mischief statute. The State need not allege a common scheme or plan

in every instance in which a single item of property is composed of items that

could be further separated. The Legislature clearly did not intend such an absurd

result.

          Here, Craig was charged with malicious mischief in the second degree

based upon physical damage to a single item of property. In such

circumstances, a common scheme or plan is not an essential element of the

crime. Accordingly, the charging document was constitutionally sufficient.

                                          IV


          Craig next asserts that RCW 9.94A.535(3)(t), the rapid recidivism

aggravator, is unconstitutionally vague. He contends that the statute—which

requires the State to prove beyond a reasonable doubt that a defendant has

committed his or her crimes "shortly after being released from incarceration"—

lacks a limiting definition that permits an objective application by the jury. We

disagree.

          Our Supreme Court has made clear that, because sentencing guidelines

neither define conduct nor "allow for arbitrary arrest and criminal prosecution by

the State," "the due process considerations that underlie the void-for-vagueness

doctrine have no application in the context of sentencing guidelines." State v.

Baldwin. 150 Wn.2d 448, 459, 78 P.3d 1005 (2003). Because "nothing in these

[sentencing] guideline statutes requires a certain outcome, the statutes create no
constitutionally protectable liberty interest." Baldwin. 150Wn.2d at 461. Relying
on Baldwin, we have likewise so held. State v. Duncalf. 164 Wn. App. 900, 911-

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No. 67936-8-1/9



12 n.2, 267 P.3d 414 (2011), review granted. 173 Wn.2d 1026, 273 P.3d 982

(2012).

         Nevertheless, Craig asserts that the holding of Baldwin has been eroded

by the United States Supreme Court's decisions in Apprendi v. New Jersey. 530

U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakelv v. Washington.

542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Neither case,

however, directly addresses the issue at hand. As the Seventh Circuit has noted

in a similar context,

         [i]f a court of appeals could disregard a decision of the Supreme
         Court by identifying, and accepting, one or another contention not
         expressly addressed by the Justices, the Court's decisions could be
         circumvented with ease. They would bind only judges too dim-
         witted to come up with a novel argument.

Nat'l Rifle Ass'n of Am.. Inc. v. City of Chicago. IL. 567 F.3d 856, 858 (7th Cir.

2009). rev'd on other grounds by McDonald v. Citv of Chicago. IL. 130 S. Ct.

3020, 177 L. Ed. 2d 894 (2010).

          We will not so lightly depart from our Supreme Court's precedent. Craig's

challenge to the sentencing guidelines on vagueness grounds is unavailing.2
                                                   V


          Finally, in a statement of additional grounds, Craig asserts that his

exceptional sentence is "clearly excessive" and that the trial court erred by


          2Craig additionally contends that the trial court erred by instructing jurors that they must
be unanimous in order to answer "no" to the special verdict question regarding the statutory
aggravator. However, subsequent to the filing of briefing in this case, our Supreme Court
unanimously rejected this argument and expressly approved the instruction given by the trial
court. State v. Guzman Nuftez, 174 Wn.2d 707, 285 P.3d 21 (2012). Accordingly, there was no
error.
No. 67936-8-1/10



including several prior juvenile convictions when calculating Craig's offender

score.3 We disagree.
       With regard to Craig's first contention, we do not perceive Craig's

sentence to be unduly harsh. Reversal of a sentence that is outside the standard

sentence range is warranted where a reviewing court determines that "the

sentence imposed was clearly excessive or clearly too lenient." RCW

9.94A.585(4). However, we will reverse on this basis only where we determine

that the trial court abused its discretion in imposing the sentence. State v. Hale.

146 Wn. App. 299, 308-09, 189 P.3d 829 (2008). Here, at the time of

sentencing, Craig's criminal record included eight prior convictions of residential

burglary, two convictions of burglary in the second degree, as well as convictions

of forgery and trafficking in stolen property. His three current convictions only

added to that total. As the trial court noted, an exceptional sentence was justified

both by the jury's finding of rapid recidivism and by the free crimes doctrine. The

court clearly articulated its reasons for imposing an exceptional sentence, and

sentenced Craig to a term of imprisonment within the statutory limit set forth by

our legislature. The sentence was not excessive.

        Craig's second contention is also without merit. Craig asserts that,

because several of his juvenile convictions previously "washed out," the trial



        3 In his statement of additional grounds, Craig also appears to suggest that his current
convictions encompassed the same course of criminal conduct. However, where a defendant
fails to raise the issue of same criminal conduct at sentencing, the right to argue that issue on
appeal is waived. State v. Jackson. 150 Wn. App. 877, 892, 209 P.3d 553 (2009). Here, Craig
did not argue at sentencing that his offenses constituted the same criminal conduct and,
accordingly, he cannot raise this issue for the first time on appeal.

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No. 67936-8-1/11



court erred by including these prior convictions when calculating his offender

score. However, in State v. Varga. 151 Wn.2d 179, 191, 86 P.3d 139 (2004), our

Supreme Court clarified that the 2002 amendments to the Sentencing Reform

Act of 1981, chapter 9.94A RCW, permit the consideration of previously washed

out juvenile adjudications so long as the crime being sentenced was committed

after the effective date of the amendments on June 13, 2002. Here, Craig

committed his current offenses on April 7, 2011, well after the amendments'

effective date. Accordingly, the trial court did not err by including these prior

offenses when calculating Craig's offender score.

       Affirmed.


                                                \__y^y^ t (/•
We concur:




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