    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                      No. 70366-8-1
                    Respondent,
                                                                                      I
                                                      DIVISION ONE                en

              v.                                                                          in-


                                                      UNPUBLISHED OPINION         -       :.:'
ELI EDWARD REITER,
                                                                                  o       r-*-


                    Appellant.                        FILED: August 5, 2013


       Appelwick, J. — Reiter argues that there is insufficient evidence to support his

conviction for residential burglary. He also argues he received ineffective assistance,

because defense counsel did not object to testimony establishing that he was arrested

for the crime, that a resident of the home confronted him and accused him of being in

the home, and that he was a transient. We affirm.

                                         FACTS

       John Lewis1 was at home watching television at 8:30 p.m. when he heard a noise

outside. He opened his front door to investigate. John could not identify the sound, but

noted that the garage doors were shut. He went back inside and sat down. A few

minutes later, he heard a sound coming from the garage. John went outside and saw

that one of the garage doors was partially open. He looked down the driveway and saw

a man, later identified as Eli Reiter, walking away. John's daughter, Katie Lewis, came

outside. She and several neighbors corralled Reiter while John went inside and called

the police.




1 Because multiple members of the Lewis family testified at trial, we refer to them by
their first names. No disrespect is intended.
No. 70366-8-1/2




      Several police officers, including Officer Dustin Nicholson, responded to the call.

Reiter initially denied having entered the Lewis residence, but ultimately admitted he

was a transient and had gone into the garage to look for blankets, because he was cold

and did not have a place to sleep that night.

      The State charged Reiter with residential burglary, and a jury found him guilty as

charged.

                                      DISCUSSION


       Reiter argues that the State presented insufficient evidence to support his

conviction for residential burglary and that he received ineffective assistance of

counsel.2

       In a sufficiency challenge, we review the evidence in the light most favorable to

the State to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. State v. Joy. 121 Wn.2d 333, 338,

851 P.2d 654 (1993).      We assume the truth of the State's evidence and draw all

reasonable inferences from the evidence in the State's favor.      State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992).

       The State bore the burden to prove that Reiter unlawfully entered or remained in

a residence, and had a concurrent intent to commit a crime therein. RCW 9A.52.025(1).

Reiter concedes that the State presented sufficient evidence to establish that he




2 Reiter makes five additional arguments in a statement of additional grounds. Each of
those arguments relies on facts not in the record. Issues that involve facts or evidence
not in the record are properly raised through a personal restraint petition, not a
statement of additional grounds. State v. Alvarado. 164 Wn.2d 556, 569, 192 P.3d 345
(2008).
No. 70366-8-1/3




entered the garage. Thus, the only issue is whether there is sufficient evidence to show

an intent to commit a crime therein.

       Reiter argues that he did not have any stolen items in his possession, that there

were no items missing from the garage, that no items had been moved in the garage

other than the fertilizer spreader, and that he had no tools in his possession that he

could have used to open the garage door. Each of those arguments goes to whether he

actually committed a crime in the garage.     But, criminal intent may be inferred from

circumstantial evidence or from conduct, where the intent is plainly indicated as a matter

of logical probability. State v. Billups. 62 Wn. App. 122, 126, 813 P.2d 149 (1991).

Reiter told Officer Nicholson that he entered the garage to look for blankets, because he

was cold and did not have a place to sleep that night. That evidence is sufficient for a

rational trier of fact to conclude that Reiter entered the garage with the intent to steal

blankets.

       To prevail on a claim of ineffective assistance, a defendant must show that

counsel's performance fell below an objective standard of reasonableness based on

consideration of all the circumstances, and that the deficient performance prejudiced the

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

(1984). Prejudice exists where there is a reasonable probability that the outcome of the

trial would have differed absent counsel's deficient performance. State v. Grier, 171

Wn.2d 17, 34, 246 P.3d 1260 (2011). Where the claim rests on defense counsel's

failure to object, a defendant must show that an objection would likely have been

sustained.   State v. Fortun-Cebada. 158 Wn. App. 158, 172, 241 P.3d 800 (2010).

Reiter argues that he received ineffective assistance, because counsel did not object to
No. 70366-8-1/4




evidence that the police arrested him, to evidence that Katie accused Reiter of being on

her property, or to evidence that Reiter was a transient.

       Reiter first argues that "the fact of an arrest is not admissible evidence because it

constitutes the opinion of the arresting officer on guilt which is the very fact the jury and

only the jury must decide." The general rule is that no witness, lay or expert, may testify

to his opinion as to the guilt of a defendant, whether by direct statement or inference.

City of Seattle v. Heatlev. 70 Wn. App. 573, 577, 854 P.2d 658 (1993). The rationale for

that rule is that such statements invade the exclusive province of the finder of fact.

State v. Black. 109 Wn.2d 336, 348, 745 P.2d 12 (1987). But, there is no authority to

support the proposition that the mere fact that a defendant was arrested is an improper

opinion on guilt. Indeed, it is reasonable to presume that the jury knows the defendant

was arrested. The cases Reiter analogizes to are easily distinguishable. In State v.

Carlin, it was arguably improper, but nevertheless harmless, for an officer to testify that

a tracking dog followed the defendant's "'fresh guilt scent.'" 40 Wn. App. 698, 700, 703,

700 P.2d 323 (1985), overruled on other grounds by City of Seattle v. Heatlev. 70 Wn.

App. 573, 854 P.2d 658 (1993).        Stating that a dog followed a '"guilt scent"' is not

comparable to stating the fact of arrest.        In Warren v. Hart, the Supreme Court

determined that it was improper to argue in closing that officers responding to an

accident were a "'little baby court'" and that the fact that the officers did not issue a

citation was strong evidence that the defendant was not negligent. 71 Wn.2d 512, 517-

18, 429 P.2d 873 (1967) (emphasis omitted).           But, that was a civil case.      More

significantly, counsel explicitly argued that the jury should defer to the officers, because

they were experts that had already considered whether there were any violations. ]cL at
No. 70366-8-1/5




517. In contrast, only the fact of arrest is at issue here, and the State did not use that

fact to establish Reiter's guilt. Reiter has not established that an objection would have

been sustained.

      Second, Reiter argues that counsel was deficient for failing to object to Katie

Lewis's description of her conversation with Reiter:

      Q.     Okay. And so, you were talking to the man?

      A.     Yes.


      Q.     Okay. What were you saying to him?

      A.     I said - at first I was like, "What are you doing?" And, he was like,
      "What are you talking about?" And, I said, "Why were you in my house?
      Why were you in the garage? What were you doing on my property?" He
      was like, "I wasn't there. I don't know what you are talking about." And
      then, he kept walking and I said, "Yes, you were. I saw you on my
      driveway." Because by the time I was outside he was still on my - on our
      driveway with my dad.

       Q.     Uh-huh.

       A.    And, I kept asking him, "What did you take? Why were you in my
       garage? Why were you on my property?" This -

       Q.    And, what was he saying?

       A.     He was denying that he was on my property -- on the property of
       our house, ever in my garage and he said he didn't take anything. And, I
       was - and, I said, "Well, how would you feel if someone was intruding on
       your property?" And, he was like, "I -- I was never in your house. I didn't
       go on your property. I don't know what you are talking about."

Reiter cursorily asserts that the testimony was an improper opinion of guilt and

irrelevant. But, even assuming an objection would have been sustained, Reiter has not

established prejudice. At most, Katie's testimony shows her opinion that Reiter was on

her property. That was not a point in serious debate. Katie and John both testified that
No. 70366-8-1/6




they saw Reiter in their driveway. Reiter told Officer Nicholson that he had entered the

garage. On appeal, Reiter concedes that there was substantial evidence to establish

that he entered the garage. Katie's testimony revealed that she questioned Reiter on

why he was on her property and whether he took anything from the garage. It was not

offered to show that Reiter did, in fact, take something.   In light of the unobjected to

testimony that Reiter told Officer Nicholson he entered the garage to look for blankets,

Katie's testimony was not prejudicial.

      Third, Reiter argues that counsel was deficient for failing to object to testimony

that he was transient, that he looked scruffy, and that he smelled bad. He makes a bare

assertion that the evidence was irrelevant and prejudicial.3 But, whether Reiter was
transient was relevant for purposes of corroborating Officer Nicholson's testimony that

Reiter told him he was transient and looking for a blanket. Likewise, testimony about

his personal appearance was relevant to corroborate that he was, in fact, a transient.

Reiter has not established that an objection would have been sustained or explained

how the evidence was prejudicial.

      We affirm.




WE CONCUR:




       3 Reiter does not support his contention wph/citation to the record or legal
authority, as required by RAP 10.3.

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