                                                                                                        FOLEO
                                                                                                COURT OF APPEALS
                                                                                                      DIVISION ?

                                                                                            2014 NAY - 6       fi   6: 31

    IN THE COURT OF APPEALS OF THE STATE OF V ,                                                   S'     OTONTO
                                                                                                BY_
                                                     DIVISION II

STATE OF WASHINGTON,                                                                 No. 44208 -6 -II


                                         Respondent,


          v.



MICHAEL DERRELL MILAM,                                                        UNPUBLISHED OPINION


                                         Appellant


          MELNICK, J. —         Michael Derrell Milam appeals his convictions and sentences for three

counts of second degree identity theft, three counts of first degree trafficking in stolen property,

nine counts of second degree possession of stolen property, and one count of possession of a

controlled substance ( marijuana).            Milam contends that the evidence was insufficient to support


his convictions for trafficking in stolen property and possession of stolen property and that the

                               committed     misconduct       during      closing   argument.    Milam raises several
prosecuting attorney


additional     claims    of error   in his         represented statement of additional
                                              self -                                              grounds (   SAG).    We


hold that there is sufficient evidence to prove the crimes beyond a reasonable doubt and that the

prosecutor' s    comments        did    not shift   the burden   of proof     to Milam.    The claims of error in the


SAG lack merit. Consequently, we affirm Milam' s convictions and sentences.

                                                          FACTS


          On the morning of May 31, 2012, Carol Bautista' s wallet was taken from her office at

Pacific Lutheran University. The wallet contained several debit and credit cards, Social Security

cards, and     driver'   s   licenses   belonging    to her   and   her   family.   Bautista reported the theft to the


police.
44208 -6 -II



          At around 11: 30 that evening, Lakewood Police Officers Andrew Hall, Shawn Noble, and

Jeremy    James     were       patrolling South Tacoma         Way. Hall, in plain clothes, drove an unmarked

car; the other officers were surveilling him.

          Milam was following a woman in an area known for prostitution. Hall observed the pair

and   thought the man might           be   either   her pimp   or a customer.        Hall pulled into a parking lot, and

Milam walked towards him, talking and making hand gestures. Hall exited the lot and contacted

the   other officers who established surveillance                 in   an adjacent       parking lot.    Hall noticed Milam


attempting to get the attention of passing cars and thought that he might be trying to sell or solicit

something.


          With the other officers watching him and awaiting his signal, Hall drove back to the lot

          Milam                                 him.    Milam                     Hey,    can you     help   me ?"   2 Report of
where               initially    approached                           yelled, "



Proceedings ( RP)         at   133.   Hall   responded, "   What' s up ?" 2 RP            at   133.   Milam came over to the


car and said, "     I    got what you need."         2 RP,   at   133.    Milam pulled credit cards, Social Security

cards, and a driver' s license from his pocket and fanned them out to show Hall.

          After Hall expressed interest, Milam sat in the front passenger seat of Hall' s car. Milam

again displayed the cards. Hall could see the numbers, names, and a woman' s photograph on the

driver'   s   license.    When Hall asked if Milam had credit cards that matched the identification

cards, Milam said that he did. Hall asked how much Milam wanted for the cards; Milam replied

  30 to 50."     2 RP at 136. Milam instructed Hall to drive to a more private area where no one else


would see the transaction. While pulling out of the parking lot, Hall gave a predetermined signal

to the other officers indicating that he had probable cause to arrest.




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44208 -6 -II



         Noble       and     James    activated      their lights and pulled Hall            over.   To protect Hall' s true


identity, James pretended to detain him at the front of the car while Noble detained Milam at the

back of the car. During a weapons pat down, Noble found a glass pipe in Milam' s pocket.

         After conferring with Hall, Noble arrested Milam and conducted a more thorough search.

II RP 141 - 42.       A stack of credit, debit, Social Security and identification cards belonging to the

Bautistas   were      found in Milam'         s pocket.      Noble handed the cards and the pipe to James who


 booked" them into the evidence room at the police station. 2 RP at 172.


         During a subsequent videotaped interview at the police station, Milam admitted that he

was   trying   to    sell   the   cards and   that   he knew it     was   wrong.     He explained that he got the cards


from a   couple at a         nearby   gas station     in   exchange     for   marijuana.     When asked if he thought the


couple   who        traded the cards      had     stolen    them, Milam         replied, "   I know   they did."   Redacted


Interview, State        v.   Milam, No. 12 -1- 02048 -7, ( Apr. 1, 2012),              digital video recording by Pierce

County   Police Department ( on file              with     Wash. Court    of   Appeals, No. 44208 -6 -II) (Ex. 18), at 17


min.,   12 sec. Milam confirmed several times that the cards in his possession were stolen.


         Following his            interview, Milam         was   transported to    jail.   During booking, officers found

marijuana rolled into one of his socks.


         The State charged Milam by amended information with nine counts of second degree

possession of stolen property, three counts of second degree identity theft, three counts of first

degree trafficking in stolen property, one count of unlawful possession of a controlled substance,

and one count of unlawful use of                drug     paraphernalia.        The State alleged aggravating factors for

sentencing purposes on each crime based on Milam' s high offender score and multiple current

offenses.




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44208 -6 -II




          Prior to trial, the court found that Milam knowingly, voluntarily, and intelligently waived

his   right   to   counsel.     The State called Hall, James, and Carol Bautista who testified consistent


with the            referenced
              above -                   facts.   Bautista identified the cards the police recovered as belonging

to her and her family. The officer who found the marijuana and the forensic scientist who tested

it   also testified.        Noble,   who resigned     from the    police     force   prior   to trial, did   not appear.   Milam


did not call any witnesses and did not testify.

          The jury acquitted Milam of the drug paraphernalia count but otherwise found him guilty

as    charged.        The trial court granted Milam' s request to be represented by counsel during

sentencing.           During the sentencing hearing, the court agreed with the parties that Milam' s

possession of stolen property convictions counted as one offense under the same criminal

conduct rule and calculated               his    offender score   as   24.    Because of Milam' s high offender score


and     multiple       current       offenses,    the trial court imposed concurrent                 aggravated exceptional


sentences on each count, for a total of 120 months of confinement.


           Milam now appeals his convictions and his exceptional sentences.

                                                          ANALYSIS


I.         SUFFICIENCY OF THE EVIDENCE


           Milam argues that the evidence was insufficient to prove his convictions for trafficking in

stolen property and possession of stolen property because the State failed to prove that he knew

the property he possessed and attempted to sell was stolen.

           Due process requires the State to prove all elements of a crime beyond a reasonable

doubt.        State    v.   Aver, 109 Wn.2d 303, 310, 745 P. 2d 479 ( 1987).                        Evidence is sufficient to


 support a conviction if, viewed in the light most favorable to the prosecution, it permits any



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44208 -6 -II



rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State

v.   Green, 94 Wn.2d 216, 221, 616 P. 2d 628 ( 1980) (                  quoting Jackson v. Virginia, 443 U.S. 307,

318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 ( 1979)). "                   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).                     Circumstantial and direct evidence are equally

reliable.     State     v.   Delmarter, 94 Wn.2d 634, 638, 618 P. 2d .99 ( 1980).               We defer to the trier of


fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence. State v. Walton, 64 Wn. App. 410, 415 -16, 824 P. 2d 533 ( 1992).

           To convict Milam of the trafficking and possession charges, the State had to prove that he

acted     with     the knowledge       that the   property had been             stolen.    RCW 9A. 82. 050( 1);    RCW


9A. 56. 140( 1).        The trial court relied on the statutory definition of knowledge in instructing the

jury     that "[   a] person knows or acts knowingly or with knowledge with respect to a fact,

circumstance, or result when             he   or she   is   aware of   that   fact,   circumstance, or result."   Clerk' s


Papers ( CP)       at   163; RCW 9A.08. 010( 1)( b).         1 Although bare possession of stolen property will

not support the assumption that a person knew the property was stolen, that fact plus slight

corroborative evidence of other inculpatory circumstances tending to show guilt will support a

conviction. State v. Ford, 33 Wn. App. 788, 790, 658 P. 2d 36 ( 1983).




1
  The State points out that the law defining possession of stolen property presumes that a person
who possesses stolen access devices in the names of two or more people knows that they are
stolen. RCW 9A.56. 140( 3).    This presumption did not apply in this case because the possession
of stolen property charges were based only on the access devices in Carol Bautista' s name.
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44208 -6 -II



         Hall testified that Milam wanted to finalize the sale of the cards in a private area, thus


providing      circumstantial     evidence     that    he   knew    the     cards    he    possessed   were   stolen.


Additionally, direct evidence of such knowledge is found in Milam' s videotaped interview,

which was played       for the   jury. Milam stated during that interview that he knew the cards he

displayed to Hall      were     stolen.    At other points in the interview, Milam confirmed that he


possessed and     tried to   sell stolen   identification   and credit cards.       Milam' s statements were more


than sufficient to prove that he knew the cards he possessed and attempted to sell were stolen,


and the challenge to the sufficiency of the evidence supporting his trafficking and possession of

stolen property convictions fails.

II.      PROSECUTORIAL MISCONDUCT


         Milam argues next that the prosecuting attorney committed prejudicial misconduct by

twice shifting the burden of proof to him during closing argument.

         A defendant who            alleges   prosecutorial      misconduct first must           establish that the .


prosecutor' s conduct was improper. State v. Emery, 174 Wn.2d 741, 759, 278 P. 3d 653 ( 2012).

Once a defendant establishes that a prosecutor' s statements were improper, we must determine

whether     the defendant     was   prejudiced.       Emery,    174 Wn.2d     at    760.   If the defendant did not


object at trial, he 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.

Emery,    174 Wn. 2d    at   760 -61.     When reviewing a claim that prosecutorial misconduct requires

reversal,   we review   the    statements     in the   context of   the   entire case.     State v. Thorgerson, 172


Wn.2d 438, 443, 258 P. 3d 43 ( 2011).




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44208 -6 -II



         Milam argues that the prosecutor twice attempted to shift the burden of proof to him

                                                                  his failure to             the State'              A prosecutor
during   closing     argument       by    commenting       on                      rebut                  s case.




may not comment " on the lack of defense evidence because the defendant has no duty to present
evidence."      State      v.    Dixon, 150 Wn.           App.     46, 54, 207 P. 3d 459 ( 2009) (                quoting State v.

Cleveland, 58 Wn.           App.    634, 647, 794 P. 2d 546 ( 1990)).              The State bears the entire burden of


proving each element of its case beyond a reasonable doubt and may not shift the burden of

proof to the defense. State v. Fleming, 83 Wn. App. 209, 215, 921 P. 2d 1076 ( 1996).

         The    prosecutor made            the   first   alleged misstatement          during his      initial   argument.    After



describing Milam' s admissions during his videotaped interview, the prosecutor turned to a

discussion     of   the   reasonable      doubt   standard   that    would guide       the   jury: "   You should all not have


any doubt whatsoever that he had all of these cards in his possession. There' s been no testimony
to the contrary."         4 RP     at   264.   The second set of statements at issue followed Milam' s lengthy

closing argument, which emphasized the absence of the arresting officer and the discrepancies
over the exact location of his arrest. The prosecutor addressed these points as follows:

         The State        of    Washington is accusing him               of a crime.    Not Officer Shawn Noble.
         And nowhere in any of the jury instructions does it say I have to prove where he
         was arrested, who arrested                him,   even     that he   was placed under arrest.              Because

         it' s all irrelevant. The only thing that you need to decide is whether the State has
         proven all of the elements of all of the crimes that have been alleged against Mr.
         Milam.           And I would just lastly point out that even in all of his argument,
         nowhere          has he denied        having    all of   those things     in his    possession.         He says he

         was set up, that the officer' s not here, all of this other stuff. But not once has he
         said   those       were    not   in his    pocket      and "    I did not try to sell them to a police
         officer."




4RPat279 -
         80.




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44208 -6 -II




           Milam did not object to any of these statements but argues now that they are comparable

to the misconduct in Dixon, where the prosecutor asked during closing argument why the

defendant had not called the passenger who allegedly planted drugs in the defendant' s purse to

testify:

           I want to pose this question to you: Why didn' t [Dixon] bring that passenger in to
           testify for her? She knew                 who   he  He was her friend, that' s what Deputy
                                                                was.

           Stewart    said....         And if that passenger had anything at all to say, don' t you think
            Dixon]    would       have      contacted     him? She knew            who    he    was.   He was in her car.
           She didn' t call him.


                     That    passenger —        what they' re suggesting is that passenger put the drugs in
           her    purse,   but there'       s no evidence of     that   whatsoever, whatsoever.                 As a matter of

           fact, Deputy Stewart said he didn' t see that passenger put anything in her purse.
           Did the defendant            make             statement   that "   he   put   that   in my   purse "?       No.   We
                                                   any
           didn' t hear any            of   that    testimony.       There' s nothing, absolutely nothing that
           indicates that that passenger had anything to do with this.

Dixon, 150 Wn.             App.   at   52.    These comments shifted the burden of proof to the defendant by

implying that she should have presented evidence to support her defense and warranted reversal.

Dixon, 150 Wn. App. at 55, 58 -59.

           As additional support for his claim, Milam cites' the misconduct in State v. Toth, 152 Wn.

App.   610, 217 P. 3d 377 ( 2009).                  The prosecutor there repeatedly emphasized that although the

defendant had testified, he had                    presented no   additional evidence             to   corroborate       his story: " He


                                                                                    Not                       iota                   Toth,
didn' t    provide you with            anything to back his story up.                      one single                of evidence."




 152 Wn. App. at 614. The prosecutor then elaborated on this point:

                         s his brother? Where are any of the other people that were at that
                      Where'

           party? Why   hasn' t any of them come here to testify on his behalf? We don' t
           even know that he was even at his brother' s house. That' s just his story. Maybe

           he was there. We don' t know for sure whether or not [ he] was there. But, what
           we     don' t have is any definitive evidence that he was there at                          all.    And, he claims
            all   he drank there was two beers and a swig of whiskey. We                               don' t have anybody
           here to support that statement. Not one person.


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44208 -6 -II




Toth, 152 Wn.        App.      at   614.    With this argument, the State implied that the defendant had a duty

to   present evidence, and           in    doing   so committed prejudicial misconduct.                   Toth, 152 Wn. App. at

615.


         We reject Milam' s assertion that the statements at issue here are comparable to those in

Dixon    and   Toth.      Initially, the prosecutor simply observed, after describing the State' s evidence,

that there     was     no   testimony           that Milam        did   not   have the      cards    in his   possession.   This


observation did not imply that Milam was responsible for introducing such evidence; it only

noted that none existed. The other comments were made after Milam emphasized the absence of

the arresting officer' s testimony and the discrepancies in the evidence regarding the specific

block in which he was arrested. The prosecutor responded that this argument was irrelevant and

added that in all of his argument, Milam did not deny possessing the cards.

          These   comments            did   not   imply    that   Milam had     a   duty   to   present evidence.   They simply

noted    that Milam had              at    no   time denied possessing the            stolen     cards.    This was arguably a

legitimate inference from the evidence as well as a reasonable response to Milam' s closing

argument.      See Thorgerson, 172 Wn.2d at 448 ( prosecuting attorney has wide latitude to argue

reasonable     inferences from the                evidence);      State v. Dykstra, 127 Wn. App. 1, 8, 110 P. 3d 758

 2005) (   remarks in direct response to defense arguments are not improper as long as they do not

 go beyond what is necessary to respond to the argument).

           But, even if the latter comments were improper, we do not see them as so flagrant or ill

 intentioned that         an    instruction        could    not   have      cured   any resulting      prejudice.   Had Milam


 objected, the trial court could have reiterated that the State bears the burden of proof and that the

 defendant has       no   responsibility to         present evidence.          Such an instruction would have eliminated


 any possible confusion, and any remaining discussion of this claim of error is waived.
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44208 -6 -II



III.         SAG ISSUES


             Milam raises several claims of error in his pro se SAG. He first argues that his arrest and

prosecution       was    unlawful       because he        never    committed     any    crime.   Milam raised the same


objection before trial, and the court rejected it after noting that the State had provided probable

cause   to    support    his   arrest and    the   subsequent charges.        Probable cause to arrest exists when an


officer is aware of facts and circumstances that would lead a reasonable person to believe that a

crime    has been       committed.       State   v.   Graham, 130 Wn.2d 711, 724, 927 P. 2d 227 ( 1996) ( quoting


State   v.   Terrovona, 105 Wn.2d 632, 643, 716 P. 2d 295 ( 1986)).                      Once Milam displayed and tried


to sell credit and debit cards, identification cards, and Social Security cards that belonged to

other people, the officer had probable cause to arrest, and the State had probable cause to charge

                                                                                                                         We
him     with    identity     theft,   trafficking in     stolen   property,   and possession     of stolen   property.


reject this claim of error.


             In a related argument, Milam argues that his Fourth Amendment rights were violated

when     he    was   arrested     and    searched without probable            cause.     As explained above, Noble had


probable cause to arrest Milam after he offered Hall an array of credit and debit cards,

identification       cards,     and    Social    Security   cards    belonging     to   other people.   Because there was


probable       cause    to   arrest,   the   search    incident to    arrest was   lawful.    State v. Moore, 161 Wn.2d


 880, 885, 169 P. 3d 469 ( 2007).


             Milam argues next that the trial court erred by denying his motion to suppress the

 evidence resulting from his arrest and search because Noble did not testify during the
 suppression       hearing.       Milam made the same objection before trial, and the court rejected it

 because Noble          was not a      necessary      witness.    Hall and James observed Milam' s arrest and search


 and were        able   to describe      what    happened.        We see no abuse of discretion in the trial court' s

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44208 -6 -II




ruling    where    Noble'   s   testimony   would   have been       cumulative.        See State v. Guloy, 104 Wn.2d

412, 421, 705 P. 2d 1182 ( 1985) (           reviewing trial court' s decision to deny motion to suppress for

abuse of discretion).


          Milam next contends that his exceptional sentences were unlawful because they were not

based on a jury finding that aggravating factors existed and therefore violated the holding in

Blakely    v.   Washington, 542 U. S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 ( 2004).                               The Blakely

court held that a jury must determine any aggravating factor used to impose a sentence beyond

the   standard range, other        than   a prior conviction.       542 U. S.   at   301.    In response, the Washington


Legislature amended the exceptional sentence provisions to explicitly authorize a trial court to

impose     an   aggravated        exceptional   sentence   without      a   finding     of   fact   by   a   jury    when "[   t] he


defendant has committed multiple current offenses and the defendant' s high offender score

           in               the   current   offenses            unpunished."          RCW 9. 94A.535( 2)(            c);   State v.
results         some   of                              going


Chambers, 176 Wn.2d 573, 585, 293 P. 3d 1185 ( 2013).                            No factual finding is necessary to

satisfy this aggravator because it relies only on criminal history and a calculation of the offender

score. Chambers, 176 Wn.2d at 586. Consequently, Milam' s sentencing challenge fails.

                                                                                instructions to the          jury.   He contends
           Milam     raises several claims      concerning the       court' s




that the trial court did not provide the parties with an opportunity to review the proposed

instructions and to make objections, but the record shows otherwise. After Milam objected to all

 of the   State'   s proposed     instructions because   they   were " not      in [ his] favor," the court submitted its


 instructions to the parties for review, and neither party offered exceptions. 3 RP at 229.

           Milam also asserts that the court' s instructions did not properly inform the jury of the

 elements of the offenses charged. A challenge to a jury instruction may not be raised for the first

 time on appeal unless the instructional error             is   of constitutional magnitude.                  State v. Johnston,

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44208 -6 -II



100 Wn.       App.     126, 134, 996 P. 2d 629 ( 2000).                    Although failure to instruct on an essential


element is an error of constitutional magnitude, Milam' s argument is directed not at the court' s

instructions but       at   the   prosecutor' s alleged "         instruction" that possession of the stolen property

and contraband was            sufficient    to    convict   Milam         on all   counts.     During closing argument, the

prosecutor reviewed the elements of each offense for the jury and acknowledged its burden of

proving    each element.           Although the prosecutor argued in conclusion that Milam' s possession


proved his guilt, the trial court instructed the jury to disregard any argument that was not

supported       by    the   law in its instructions.               We presume that the jury followed the court' s

instructions      and reject      this   claim    of error.       State v. Russell, 125 Wn.2d 24, 84, 882 P. 2d 747


 1994).


          Milam also claims that the instructions did not adequately inform the jury that it had to

find   separate       and   distinct     conduct   for   each      offense.    The trial court informed the jury that a

separate crime was charged in each count, that it had to decide each count separately, and that its

verdict on       one   count      should not control        its   verdict on       any   other count.   The multiple charges


resulted from the number of identities and cards at issue. See State v. Ose, 156 Wn.2d 140, 148,

 124 P. 3d 635 ( 2005) (          legislature has defined the unit of prosecution for possessing stolen access

device in RCW 9A. 56. 160( 1)(               c)    as   each      access   device in      a   defendant'   s   possession);   RCW


 9. 35. 001 (   unit of prosecution for identity theft is each individual unlawful use of any one

person' s means of          identification). This claim of error also fails.



          Finally, Milam asserts that the State refused his discovery requests and never provided

 him   with     any   discovery. Milam made the same objection before trial, but the State had provided

 him with the discovery in its possession. When the court questioned Milam, he admitted that he
 had received the police reports and the incident reports. We need not consider this claim further.
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44208 -6 -II



        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.




We concur:




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