                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                             November 8, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                 No. 48079-4-II

                                Respondent,

         v.

 ADAM CHRISTOPHER DIAZ,                                        UNPUBLISHED OPINION

                                Appellant.

       WORSWICK, P.J. — Adam Christopher Diaz appeals his first degree criminal trespass

convictions, asserting that the State failed to present sufficient evidence to support the

convictions. Diaz also raises an issue in his statement of additional grounds for review (SAG)

that would require examination of matters outside of the record on appeal, and thus, we do not

address it. Finally, Diaz requests that we waive appellate costs in the event that the State

prevails. Because sufficient evidence supports Diaz’s first degree criminal trespass convictions,

we affirm. We exercise our discretion to waive appellate costs in this matter.

                                              FACTS

       Weatherly Inn is a senior residential retirement facility in Tacoma that provides assisted

living and memory care services. On March 31, 2015, Diaz went to the Weatherly Inn to visit

his grandmother, Jenny Renee Black, who lived at the facility in apartment 314. Diaz had visited

Black at her Weatherly Inn apartment five or six times prior to March 31.
No. 48079-4-II


       That same day, Annie Kimani was providing caregiving services to Thelma Gilmur, a

Weatherly Inn resident who lived by herself in apartment 353. Kimani was in the process of

assisting Gilmur from the bathroom to a recliner when she heard someone open and shut

Gilmur’s entrance door. Kimani said, “Hello,” but nobody responded. Report of Proceedings

(RP) at 88. Two to three minutes later, Kimani went to see who had entered Gilmur’s apartment.

As Kimani walked toward Gilmur’s entrance door, she saw a person exit the bathroom and

quickly walk out of the apartment. Kimani did not see the person’s face, but saw that the person

was approximately five feet eight inches tall and wearing a red jacket.

       Also that same day, Dennis Gunnarson was at the Weatherly Inn visiting his parents-in-

law, who lived in apartment 309. Gunnarson was alone at the apartment when he heard the

entrance door open and saw a young man with dark hair enter the apartment. The young man

looked toward a bedroom in the apartment and did not seem to notice Gunnarson. Gunnarson

asked the man, “May I help you?” RP at 100. The man told Gunnarson that he was looking for

his grandmother’s apartment. After Gunnarson told the man that this was not his grandmother’s

apartment, the man turned around and left the apartment. Police later showed Diaz’s driver’s

license to Gunnarson, and Gunnarson identified Diaz as the man who had entered apartment 309.

       Weatherly Inn general manager Sunya Grantham was notified that a dark-haired man

wearing a red sweatshirt was entering residents’ apartments, and she instructed a staff member to

call the police. Grantham saw someone matching the description of the man standing near the

elevators; Grantham later identified the man as Diaz.

       Grantham told Diaz that she had reports about someone entering residents’ apartments

and about items missing from residents’ apartments. Diaz told Grantham that he did not know



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No. 48079-4-II


anything about the missing items and that he was there visiting his grandmother. Diaz did not

mention entering residents’ apartments. Grantham checked the visitor log book for March 31,

and saw that Diaz did not sign in as required. Grantham told Diaz that he was trespassing and

that he was no longer allowed on the property. Diaz stormed out of the building and yelled

profanities as he walked through the parking lot.

         Tacoma Police Officer Albert Schultz stopped Diaz as he was attempting to drive from

the Weatherly Inn parking lot. After being advised of his Miranda1 rights, Diaz initially

explained to Officer Schultz that he had been wandering into other apartments because he was

looking for his grandmother. Diaz later told Officer Schultz that his grandmother resided in

apartment 314 and that he did not enter other residents’ apartments. During a search of Diaz

incident to his arrest, officers found a woman’s Rolex wristwatch wrapped in black latex gloves

in Diaz’s front pants packet. An identical Rolex watch had been reported stolen from Weatherly

Inn apartment 376 on March 28. Diaz told officers that he had purchased the watch for his

daughter on March 29 at a pawnshop located at South Tacoma Way and 96th Street. Detectives

later went to South Tacoma Way and 96th Street but did not locate any pawnshops there.

         On July 23, 2015, the State charged Diaz by amended information with first degree

possession of stolen property, three counts of first degree criminal trespass, and two driving

offenses. With regard to the first degree criminal trespass charges, the State alleged that Diaz

had unlawfully entered or remained in Weatherly Inn apartments 376, 353, and 309.




1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).




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No. 48079-4-II


          The matter proceeded to a jury trial, at which witnesses testified consistently with the

facts as stated above.2 During closing argument, the State conceded that it did not prove beyond

a reasonable doubt that Diaz had unlawfully entered or remained in apartment 376.3 The jury

could not reach a verdict on Diaz’s first degree possession of stolen property charge. The jury

found Diaz not guilty of the first degree criminal trespass charge related to apartment 376 and

guilty of the remaining charges. Diaz appeals from his first degree criminal trespass

convictions.4

                                               ANALYSIS

                                   I. SUFFICIENCY OF THE EVIDENCE

          Diaz contends that the State failed to present sufficient evidence to support his first

degree criminal trespass convictions. Specifically, Diaz contends that the State failed to present

evidence to support the knowledge element of the first degree criminal trespass charges. We

disagree.

          Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the

evidence in a light most favorable to the State, could find the elements of the charged crime

beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000).

We interpret all reasonable inferences from the evidence in the State’s favor. State v. Hosier,



2
  Although Diaz did not testify at trial, the statements attributed to him in the above facts came in
through the testimony of Officer Schultz and Grantham.
3
 The State did not move to dismiss this charge but instead requested that the jury return a not
guilty verdict, which the jury did.
4
    The other convictions are not part of this appeal.



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No. 48079-4-II


157 Wn.2d 1, 8, 133 P.3d 936 (2006). And we consider direct and circumstantial evidence to be

equally reliable. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).

       To convict Diaz of first degree criminal trespass, the State had to prove beyond a

reasonable doubt that he knowingly entered or remained unlawfully in a building. RCW

9A.52.070.5 “A person ‘enters or remains unlawfully’ in or upon a premises when he or she is

not then licensed, invited, or otherwise privileged to so enter or remain.” Former RCW

9A.52.010(5) (2011). Under RCW 9A.08.010(1)(b):

       A person knows or acts knowingly or with knowledge when:
               (i) he or she is aware of a fact, facts, or circumstances or result described by
       a statute defining an offense; or
               (ii) he or she has information which would lead a reasonable person in the
       same situation to believe that facts exist which facts are described by a statute
       defining an offense.

       Here, viewing the evidence in a light most favorable to the State, the jury had ample

evidence upon which to infer that Diaz’s unlawful entries into apartments 353 and 309 were

made knowingly. When confronted by police, Diaz initially explained that he had entered other

residents’ apartments looking for his grandmother. But Diaz later denied entering other

residents’ apartments and stated that his grandmother lived in apartment 314. Black testified that

Diaz had visited her at her apartment five or six times in the three-month period prior to the date

of this incident. A person matching Diaz’s description entered apartment 353, ignored Kimani

when she called out “hello,” and remained in the apartment for two to three minutes before

quickly walking out. A person matching Diaz’s description, and later confirmed to be Diaz, also



5
 Under RCW 9A.04.110(5), “each unit of a building consisting of two or more units separately
secured or occupied is a separate building.” The jury was so instructed.



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No. 48079-4-II


entered apartment 309. From this evidence, the jury could reasonably infer that Diaz knew that

his grandmother lived in apartment 314 and, thus, his unlawful entries into apartments 353 and

309 were made knowingly. Accordingly, we hold that the State presented sufficient evidence to

support Diaz’s first degree criminal trespass convictions.

                                               II. SAG

       In his SAG, Diaz contends that his defense counsel was ineffective for failing to timely

subpoena a key witness. But we cannot address this claim in Diaz’s direct appeal because the

record does not contain any information regarding the identity of this alleged witness, the

testimony this witness likely would have provided at trial, or defense counsel being made aware

of this witness. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (“If a defendant

wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the

appropriate means of doing so is through a personal restraint petition.”). Accordingly, we do not

further address this issue.

                                       III. APPELLATE COSTS

       Finally, citing to State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612, review denied, 185

Wn.2d 1034 (2016), Diaz requests that we waive appellate costs due to his inability to pay such

costs. In light of Diaz’s indigent status, and our presumption under RAP 15.2(f) that he remains

indigent “throughout the review” unless the trial court finds that his financial condition has

improved, we exercise our discretion to waive appellate costs in this matter. RCW 10.73.160(1).

       We affirm Diaz’s convictions on two counts of first degree criminal trespass and exercise

our discretion to waive costs on appeal.




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No. 48079-4-II


        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.



                                                                      Worswick, P.J.
 We concur:



 Lee, J.




 Sutton, J.




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