                                                                             FILED 


                                                                         April 9, 2013 


                                                                [n the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF lliE STATE OF WASHINGTON 

                              DIVISION lliREE 


STATE OF WASHINGTON,                         )
                                             )         No. 30400-1-III
                     Respondent,             )
                                             )
      v.                                     )
                                             )
JAMISON WAYNE LANG,                          )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

       SIDDOWAY, J. -   Jamison Lang challenges the sufficiency of the evidence to

support his conviction of possession of a stolen vehicle. The evidence was sufficient. He

raises over a dozen issues in a statement of additional grounds but only one has merit: the

trial court lacked authority to impose 36 months' community custody. We affirm the

conviction but remand to the trial court to correct the community custody provision.

                    FACTS AND PROCEDURAL BACKGROUND

       Late in the morning on September 5, 2010-the Sunday of Labor Day weekend-

residents of an apartment complex noticed Jamison Lang sleeping in a car that had been

parked in one of the resident's spots. The engine was running and the windows were

rolled down. One resident approached Mr. Lang to ask him ifhe lived at the complex
No.30400-1-1I1
State v. Lang


and noticed that he smelled of alcohol and had a black knife lying across his lap. When

he only mumbled in response, she told him that ifhe was not a resident his car was going

to be towed. The manager was notified of Mr. Lang's presence and called police.

       Officer Zachary Dahle of the Spokane Police Department responded to the call

and arrived at the complex just as Mr. Lang was stepping out ofthe driver's side door.

Mr. Lang initially did not respond to the officer's question about who owned the car but

denied having a knife. Officer Dahle still frisked Mr. Lang for officer safety purposes.

Suspicious about Mr. Lang's presence in the car the officer handcuffed him, deciding to

detain him while checking to see if the car had been reported stolen.

      A license plate check on the car revealed that the car was registered to Catherine

Brady and had not been reported stolen. The address to which the car was registered was

only 55 blocks away; though, so Officer Jeffrey McCollough, who had arrived at the

complex after Officer Dahle, drove to the address in hopes of determining whether Mr.

Lang had Ms. Brady's permission to be in the car. No one was at the home. Officer

McCollough saw clear signs of a burglary, however, and reported that to Officer Dahle,

who then placed Mr. Lang under arrest. Department employees later reached Ms. Brady,

who confirmed that she had left town with her car parked and locked in front of the home

and had not given anyone permission to use it.




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No. 30400-1-111
State v. Lang


       Upon arresting Mr. Lang, Officer Dahle advised him of his Miranda l rights and

Mr. Lang agreed to speak with the officer. In response to questioning, he first said that

he was in the car because he had been wandering through the parking lot and got in it to

sleep. A bit later, he told the officer a friend gave him permission to sleep in the car. He

would not identify the friend.

       Officer Dahle collected several items from the car, including a key ring in the

ignition that included a shaved key, cigarettes, a pair of needle nose pliers, zigzag rolling

papers, and a black knife. Ms. Brady later identified the knife, pliers, and car keys

(although not the shaved key) as items stolen from her home sometime over the Labor

Day weekend. After the car was returned to Ms. Brady, she found two receipts in the car

with Mr. Lang's name on them, both dated September 2, the Thursday before his arrest.

She turned them over to police.

       Mr. Lang was charged with one count of residential burglary and one count of

possession of a stolen vehicle.

       At trial, Ms. Brady testified that she left home at about 3 p.m. on Friday,

September 3, to go camping. She left her locked car in the driveway and its keys in her

locked home. She testified that she had been able to inventory 75 items missing from the

home on her return, including valuable electronics and jewelry. She also testified that her



       1 Miranda   v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 161. Ed. 2d 694 (1966).

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No.30400-1-III
State v. Lang


car had been damaged so badly between the time it was taken from her home and the

time it was recovered at the apartment complex that her insurance company treated it as

totaled for insurance purposes.

       Mr. Lang did not testifY. His lawyer argued to the jury that while his client had

been found sleeping in a stolen car, no one had seen who drove it to the complex and

parked it there, and the arrest of Mr. Lang for residential burglary and knowingly

possessing stolen property "require[s] a huge leap in logic." Report of Proceedings (RP)

(Aug. 18, 2011) at 181. She stressed the facts that almost none of the property stolen

from Ms. Brady's home was found in the car or on Mr. Lang, there was no forensic

evidence he had ever been in the Brady home, and "[a]s far as the car goes, it's logical

Mr. Lang could have been drunk and crawled in to go to sleep." Id. at 183.

       The jury acquitted Mr. Lang of the residential burglary charge but found him

guilty of possession of a stolen vehicle. He appeals.

                                       ANALYSIS

       Mr. Lang challenges the sufficiency of the evidence to support his conviction of

possession of a stolen vehicle. To prove that Mr. Lang possessed a stolen vehicle, the

State had to prove, among other things, that he possessed the vehicle knowing it was

stolen. RCW 9A.56.140( 1). A person is deemed to have acted knowingly with respect to

a fact when he is aware of the fact or when he has information that would lead a

reasonable person in the same situation to believe the fact exists. RCW 9A.08.01O(l)(b).

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No. 30400-1-111
State v. Lang


       In reviewing a claim of insufficient evidence, we view evidence in the light most

favorable to the State in order to determine whether 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 PJd 59 (2006). An insufficient evidence claim admits the truth

of the evidence as well as all reasonable inferences that can be drawn from the evidence.

State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). Circumstantial evidence

and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618

P.2d 99 (1980). A conviction will be reversed only when no rational trier of fact could

have found that the State proved all of the elements of the crime beyond a reasonable

doubt. State v. Smith, 155 Wn.2d 496, 501, 120 PJd 559 (2005).

       The 44mere possession of stolen property does not create a presumption that the

possession is   larcenous"~   nonetheless, possession is '4a relevant circumstance to be

considered with other evidence tending to prove the elements of the crime." State v.

Hatch, 4 Wn. App. 691,694,483 P.2d 864 (1971). Once one is in possession of stolen

property, only 4'4slight corroborative evidence of other inculpatory circumstances tending

to show ... guilt [is needed to] support a conviction. '" Id. (quoting 4 CLARK A.

NICHOLS, ApPLIED EVIDENCE Possession o/Stolen Property § 29, at 3664 (1928)); see

State v. Clark, 143 Wn.2d 731, 765, 24 P.3d 100 (2001) C'False information given to the

police is considered admissible as evidence relevant to defendant's consciousness of

guilt."); State v. Mace, 97 Wn.2d 840, 844-45, 650 P.2d 217 (1982) (while mere

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No.30400-1-III
State v. Lang


possession of recently stolen property will not support a burglary conviction, inference of

guilt is strong where defendant gave improbable or inconsistent explanation for

possession). Possession of recently stolen property coupled with a dubious account of its

acquisition are sufficient facts to support conviction. Hatch, 4 Wn. App. at 694.

       Here, the prosecution offered the shaved key and Mr. Lang's conflicting accounts

of how he came to be sleeping in the vehicle. He was found in the car within 48 hours of

when it had to have been stolen. The two receipts belonging to Mr. Lang that were found

in the car rather than on his person suggested he was in the car longer, and moving

around more, than someone who just crawled in to go to sleep--as did the fact that he

had found the stolen knife and placed it in his lap. Coupled with his presence in the

stolen vehicle, the State's evidence was sufficient corroborative evidence of other

inculpatory circumstances to support the conviction.

                     STATEMENT OF ADDITIONAL GROUNDS

       In his pro se statement of additional grounds (SAG), Mr. Lang raises over a dozen

issues that he places in four categories, denominated by him as (1) ineffective assistance

of counsel, (2) illegal seizure, (3) prosecutorial misconduct, and (4) judicial abuse of

discretion.

                             Ineffective Assistance of Counsel

       Mr. Lang claims ineffective assistance of counsel for his lawyer's failure to object

on several occasions and his failure to file motions requested by Mr. Lang. To prevail on

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No.30400-1-III
State v. Lang


a claim of ineffective assistance of counsel, Mr. Lang must show both that (1) counsel's

performance was deficient and (2) the deficient performance prejudiced him. See

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

There is a presumption that counsel was effective. State v. McFarland, 127 Wn.2d 322,

335,899 P.2d 1251 (1995). Trial strategy and tactics cannot form the basis of a finding

for deficient performance. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563

(1996). Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. ld. at 78.

       Mr. Lang complains for the first time on appeal that his lawyer failed to object to

the officers' removal of keys from the car, citing Arizona v. Gant, 556 U.S. 332, 129 S.

Ct. 1710, 173 L. Ed. 2d 485 (2009). But Mr. Lang had no substantial proprietary or

possessory interest in the car or in the keys and has no standing to object to the officers'

removing them. State v. Foulkes, 63 Wn. App. 643, 821 P.2d 77 (1991). He had stepped

out of the car and cannot claim automatic standing at the time of the search; he therefore

had no legitimate expectation of privacy to assert. State v. Zakel, 119 Wn.2d 563, 834

P.2d 1046 (1992).

       He complains that his lawyer failed to object when the prosecutor showed

photographs to jurors before they were admitted into evidence. He has not demonstrated

deficient performance. Even though the State had not established the entire chain of

custody required to admit the photographs, Mr. Lang's lawyer knew that another officer

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No.30400-1-III
State v. Lang


would be called. The decision not to object to evidence that the lawyer reasonably knew

would eventually be admitted was tactical. Mr. Lang fails to demonstrate prejudice for

that reason and for a second reason: the trial court cautioned jurors immediately after they

were shown the photographs that they should not be considered unless and until they

were admitted, which they later were.

          He contends that his lawyer failed to object to testimony by Officer Dahle that was

"deemed to be false in the 3.5 hearing." SAG at 4. The only determination made in the

erR 3.5 hearing was that one question by Officer Dahle and response by Mr. Lang would

be excluded because Mr. Lang's statement was made while in custody and before he was

read his Miranda rights. The excluded question was the officer's asking who the car

belonged to, to which Mr. Lang responded, '''I don't know.'" RP (Aug. 16,2011) at 25.

The State did not elicit testimony about this exchange at trial.

          Mr. Lang provides no evidence or argument in support of his contention that his

lawyer "ignored his multiple requests on the filing of mUltiple motions." SAG at 5. In

addition to that assignment being insufficiently articulated, we have no factual foundation

in the record from which we could even begin to address it. It must be more specifically

set forth and considered, if at all, in a personal restraint petition. McFarland, 127 Wn.2d

at 338.




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No. 30400-1-111
State v. Lang


                                       Illegal Seizure

       Mr. Lang argues that he was detained for "close to an hour" by Officer Dahle

before Officer McCollough determined that a burglary had occurred at the Brady

residence on the basis of which Officer Dahle placed him under arrest. SAG at 6. The

evidence he cites-the testimony of Officer McCollough-suggests that it might have

taken that long but it also might have taken as little as half an hour. In any event, Mr.

Lang argues that the detention was excessive and therefore unlawful.

       An investigative detention must be temporary and last no longer than is necessary

to effectuate the purpose of the stop. State v. Wheeler, 43 Wn. App. 191, 195-96,716

P.2d 902 (1986) (quoting Florida v. Royer, 460 U.S. 491,500,103 S. Ct. 1319,75 L. Ed.

2d 229 (1983)), aff'd, 108 Wn.2d 230, 737 P.2d 1005 (1987); State v. Williams, 102

Wn.2d 733, 741, 689 P.2d 1065 (1984) (recognizing that a 35-minute detention ofthe

defendant to investigate a burglary "approach [ed] excessiveness"); cf State v.

Cunningham, 116 Wn. App. 219, 229, 65 P.3d 325 (2003) (upholding a 45-minute Terri

stop where the defendant was uncooperative and officers had reasonable suspicion he had

committed vehicle theft).

       Even if Mr. Lang had demonstrated a near-one-hour detention that we were

willing to consider for the first time on appeal, Mr. Lang does not explain how the



       2   Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).

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No.30400-1-III
State v. Lang


detention contributed to any error during the trial. The trial court suppressed the only

statement that Mr. Lang made during the period of detention, accepting his lawyer's

argument that he was in custody and had not been read his Miranda rights. There was no

other evidence that was the result of the detention. "An illegal arrest, without more, has

never been viewed as a bar to subsequent prosecution, or as a defense to a valid

conviction." United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244,63 L. Ed. 2d

537 (1980). An excessive detention is likewise not a bar to prosecution nor a defense to

conviction.

                                 Prosecutorial Misconduct

       Mr. Lang asserts that the prosecutor engaged in prosecutorial misconduct during

trial and in the sentencing hearing. A defendant claiming prosecutorial misconduct bears

the burden of proving that the prosecutor's conduct was both improper and prejudicial in

the context of the entire record and the circumstances at trial. State v. Magers, 164

Wn.2d 174, 191, 189 P.3d 126 (2008). Prosecutorial misconduct is grounds for

reversible error only ifthere is a substantial likelihood that the misconduct affected the

verdict. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). If there is no proper

objection at trial, then the error is not reversible unless the misconduct was so flagrant

and ill intentioned that no curative instruction could have prevented the resulting

prejudice. State v. Corbett, 158 Wn. App. 576,594,242 P.3d 52 (2010) (citing Russell,

125 Wn.2d at 86).

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No.30400-I-III
State v. Lang


       Mr. Lang first argues that the prosecutor disobeyed the trial court's order

excluding the one question and answer that occurred during the period he was detained.

The parties and the court were clear in the erR 3.5 hearing to distinguish six statements

made by Mr. Lang. Only one-identified by the prosecutor as statement number three-

was excluded. That was when Officer Dahle asked during the period of detention whose

vehicle it was, in response to which Mr. Lang said, '''I don't know.'" RP (Aug. 16,

2011) at 25. Referring to that exchange, the trial court ruled "you cannot testify about

asking whose vehicle it was and him saying 'I don't know.'" Id. at 29.

       If there is confusion, the source is because the very first exchange between Officer

Dahle and Mr. Lang was only partially addressed in the erR 3.5 hearing but was fleshed

out at trial. The officer's testimony at the erR 3.5 hearing was that upon arrival at the

apartment complex, "I contacted him and he said this [is] harassment." Id. at 13. Neither

the State nor Mr. Lang's lawyer asked the officer what exactly he said in his "contact"

that prompted Mr. Lang to respond, "this [is] harassment." Evidently the prosecutor

knew, because in arguing the suppression motion, he stated, "Officer Dahle asked Lang if

that was his vehicle. Lang replied 'this is harassment. '" Id. at 24. The court, not

recalling this in Officer Dahle's testimony, cautioned the lawyers to keep the statements

straight. Id.

       At trial, the prosecutor asked for more detail about the first contact, eliciting the

following testimony from Officer Dahle:

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No. 30400-1-111
State v. Lang


       Q.     . .. [D]id you contact Mr. Lang?
       A.     1 did.
       Q.     Did you ask Mr. Lang a question?
       A.     1 did.
       Q.     What was the first question you asked him?
       A.     1 asked if it was his vehicle.
       Q.     And what was Mr. Lang's response?
       A.     "This is harassment."

RP (Aug. 17,2011) at 99.

       The trial court's suppression ruling was clear: she excluded only the question

posed and answer given during the period of detention. The testimony that Mr. Lang

now challenges related to the first contact, which the trial court explicitly ruled was

admissible. While the CrR 3.5 hearing did not reveal what Officer Dahle's first question

had been, it was not improper for the prosecutor to present evidence of that question and

response at trial or to discuss that testimony in closing argument.

       Mr. Lang next argues that the prosecutor attempted to prejudice Mr. Lang by

falsely presenting that he was serving community custody at the time of his possession of

Ms. Brady's stolen car. He attaches a judgment and sentence in a case involving a

different crime committed on August 5, 2010, in which the criminal history is marked

"not applicable" as to whether Mr. Lang was on community custody when he committed

that crime. SAG at 15. The judgment and sentence is not itself evidence that Mr. Lang

was not serving community custody when he possessed Ms. Brady's car. Other materials

in the record state that Mr. Lang was on felony probation at the time. See Clerk's Papers



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No.30400-I-III
State v. Lang


at 24. In addition, Mr. Lang's offender score applied in sentencing for this crime was 9+;

his lawyer conceded that at the time of sentencing, his offender score was 11. He has not

demonstrated misconduct or prejudice.

       Mr. Lang also argues that the prosecutor lied to the court at the sentencing hearing

in representing that Renee Cooper was his probation officer. Ms. Cooper was present in

court, though; told the court herself that she was Mr. Lang's probation officer; and

answered questions from the court. There was no misconduct.

       Finally, Mr. Lang asserts that the prosecutor acted improperly when he focused on

the shaved key, creating "a false impression of a material fact." SAG at 9. Nothing in

the record indicates that the prosecutor used the evidence of the shaved key improperly.

                                    Abuse of Discretion

       Mr. Lang raises six claims of "abuse of discretion," which amount to complaints

about judicial rulings, statements, or asserted inaction. In most cases, he does not cite to

the record and in no case does he identify the legal basis for assigning error. "Abuse of

discretion" is not the standard of review for most of the matters complained of in this

section of Mr. Lang's SAG. While reference to the record and citation to authorities are

not necessary or required, we will not consider a statement of additional grounds for

review if it does not inform us of the nature and occurrence of alleged errors. RAP

10.1 O( c). We refuse to consider most of the assignments for this reason.




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No. 30400-1-111
State v. Lang


       We choose to address two: Mr. Lang's complaint that the trial court imposed a

timeline for trial during jury selection and its imposition of a 36-month term of

community custody.

       First, Mr. Lang asserts that "[d]uring the jury selection process in front of the

whole panel of proposed jurors, [the trial judge] gave the whole panel and the prosecution

and Mr. Lang's trial counsel an order that this trial was absolutely not to exceed [sic] into

Friday because that would cause an inconvenience to [the judge's] upcoming vacation."

SAG at 10. He makes a related complaint that his appellate lawyer failed to obtain a

transcript of the voir dire so that he could support this allegation.

       The trial commenced on Tuesday, August 16,2011. Given the number of

witnesses that had been identified, there was every reason for the trial court to conclude

that trial could easily be concluded on Thursday, and it was. In fact, the report of

proceedings reveals that the jurors were excused early on both Tuesday and on

Wednesday (when the presentation of evidence was completed) and were not required to

return until 10 a.m. on Thursday, when the jury instructions were completed and the

lawyers were ready to deliver closing arguments. The case was submitted to the jurors by

the lunch hour. There is absolutely no indication that the time for trial identified by the

court was unfair or that Mr. Lang was prejudiced in any way.

       A trial judge enjoys "the broad discretionary right ... to control the trial of the

case." State v. Stiltner, 61 Wn.2d 102, 105,377 P.2d 252 (1962). The rules of evidence

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No.30400-I-III
State v. Lang


contemplate that a principal responsibility of the trial judge is to conduct an efficient trial,

eliminating unjustifiable expense and delay by, among other things, limiting the parties to

relevant, noncumulative evidence. ER 102,402,403. For the trial court to announce

what it believes to be realistic parameters on the time required for trial is not only

legitimate for the court's control over its own schedule, but is helpful to the lawyers and

jurors. Due process would be a concern if the time projection was unrealistic or proved

to be truly inflexible and prejudicial. But none of those concerns are raised here. The

statement, even if accurately recounted by Mr. Lang, was not an abuse of discretion. A

transcript of the voir dire proceeding is therefore unnecessary.

       The second assignment we consider is Mr. Lang's contention that the trial court

"knowingly sentenced [him] to a sentence outside the standard range, by ordering 36

months of community custody" at the same time knowing "that no community custody

was to be allowed." SAG at 11. The court's authority to impose community custody has

been modified periodically by the legislature. The current versions ofRCW 9.94A.701

and .702, which applied to Mr. Lang's sentencing, do not contemplate community

custody sentencing for possession of a stolen vehicle. The State has not provided any

other authority or argument to support the community custody sentence. Indeed, the

prosecutor stated, when asked at sentencing about the amount of community custody

associated with Mr. Lang's conviction, that "[t]here is none." RP (Oct. 18,2011) at 208.

While the trial court cogently explained its interest in Mr. Lang's being supervised by the

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No. 30400-1-111
State v. Lang


Department of Corrections following his release from incarceration, the legislature has

not authorized postrelease supervision for this crime.

       We affirm Mr. Lang's conviction and remand for correction of the community

custody portion of his sentence.

       A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 



                  ccr: 

Korsmo, C.J.




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