State v. Bowen

STATE OF WASHINGTON, Respondent, v. KEVIN ROBERT BOWEN, Appellant.

No. 47286-4-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

August 16, 2016

UNPUBLISHED OPINION

MELNICK, J. — Kevin Robert Bowen appeals his guilty plea, conviction, and sentence. Bowen pleaded guilty to possession of a controlled substance, and after a jury trial, was found guilty of possession of a stolen vehicle and possession of stolen property in the second degree. We conclude that the charging document was not deficient, that the trial court did not abuse its discretion by admitting the burglary evidence, and that the erroneous admission of theft of vehicles evidence was harmless. Further, we conclude that Bowen cannot establish prejudice for his ineffective assistance of counsel claim and that sufficient evidence supported Bowen's guilty plea. Finally, we conclude that the trial court erred by imposing legal financial obligations (LFOs) without conducting an individualized inquiry into Bowen's ability to pay discretionary LFO's. We affirm Bowen's convictions for possession of a stolen vehicle, unlawful possession of stolen property in the second degree, and unlawful possession of a controlled substance. However, we remand to the trial court to conduct an individualized inquiry into Bowen's ability to pay LFOs.

We affirm in part and remand.

FACTS

I. FACTUAL BACKGROUND

In the very early hours of March 8, 2014, Deputy Daniel Twomey stopped a speeding Ford Explorer, driven by Bowen. Twomey requested Bowen's license and registration. Bowen handed him the documents but the name on the license did not match the name on the registration. The driver's license was Bowen's but the vehicle was registered to "Kevin Kinslow." 2 Report of Proceedings (RP) at 158. Twomey asked Bowen who the vehicle belonged to. Bowen answered that it belonged to his friend Kevin Kinslow, and that Kevin loaned him the vehicle so that he could move some items. Twomey noticed the back of the vehicle was loaded with property.

Twomey radioed dispatch the location of the traffic stop and the license plate number on the vehicle. Dispatch informed him that the vehicle was stolen. Twomey then asked Bowen to exit the vehicle, verified that the vehicle's vehicle identification number matched the stolen vehicle record, and placed Bowen under arrest. Twomey searched Bowen's person and found a "small, clear zipper baggie of a crystalline substance in [Bowen's] right front pants pocket. [The] substance field tested positive for the presence of methamphetamine." Clerk's Papers (CP) at 345.

Twomey contacted Everett Kinslow,¹ who had reported the vehicle stolen, and learned that Kevin Kinslow, Everett's son, lived in Pennsylvania. He confronted Bowen with this information and asked Bowen about his prior statement. Bowen stated again that Kevin was a friend and he planned to meet Kevin at Kevin's home in the morning to return the vehicle. Shortly thereafter, Twomey searched the vehicle and found 31 various keys to vehicles, padlocks, and houses; bolt cutters; a gray and red lawn mower; and a police radio scanner. Two sets of keys for the FordExplorer were also located, as well as a box containing drug paraphernalia including a "hype kit."² 2 RP at 233. A deputy also found among the items: empty milk crates, watches, jewelry, a camera, and two welding machines. The Kitsap County Sheriff's office later ascertained that many of these items had been reported stolen.

Three days before Bowen's arrest, Everett went to his son's house and found it "ransacked." 2 RP at 119. Items were missing. Everett checked on the house twice a week and had been watching it for the six years that Kevin was away in the Navy. Two of the three vehicles were missing from the garage. Only the Ford Explorer remained. Kevin did not give anyone permission to use the vehicles from his house.

On March 7, Everett returned to his son's house to further reinforce it and found it had been broken into again. He noted that the Ford Explorer and its keys were missing, along with a lawn mower. The next day, the sheriff's Office contacted Everett to let him know officers had recovered the Ford Explorer.

When he got the vehicle back, Everett noticed that where the vehicle had been relatively empty before, it was now full of items. Everett went through the contents of the Ford Explorer. He found his son's lawn mower and many other items he did not recognize. Everett called the sheriff's office and a deputy retrieved the items that Everett could not identify as his son's. That deputy went through the items to try to return them to their rightful owners. Among the items, she found paperwork with Bowen's name, including a service contract cancelation form from Truck Town, another Truck Town form that referenced a Jeep Cherokee, an automobile insurance form from Dairyland Auto for a Jeep Sport, and several other pages with "KB" written on them.

II. PROCEDURAL HISTORY

The State charged Bowen with possession of a controlled substance (methamphetamine), three counts of possession of a stolen vehicle, and possession of stolen property in the second degree. The court granted the State's motion to dismiss two of the three possession of a stolen vehicle counts. The language in the charging document for the remaining possession of a stolen vehicle count stated, "On or about March 8, 2014, in the County of Kitsap, State of Washington, the above-named Defendant did knowingly possess a stolen motor vehicle; contrary to Revised Code of Washington 9A.56.068." CP at 2. The possession of stolen property in the second degree count read,

On or about March 8, 2014, in the County of Kitsap, State of Washington, the above-named Defendant did, knowingly receive, retain, possess, conceal, or dispose of stolen property, knowing that it had been stolen, and did withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto, said property being in excess of seven hundred fifty dollars ($750.00) in value; contrary to the Revised Code of Washington 9A.56.140(1) and RCW 9A.56.160(1)( a).

CP at 2. Bowen did not object to the charging document.

Bowen pleaded guilty to possession of a controlled substance. There was no plea agreement. The court engaged in a colloquy with Bowen on the record. The court asked if he understood the count, if he had gone over the paperwork with his attorney, if he understood it, if he had signed it, if he understood all the rights he was giving up, and if he knew the maximum sentence. Bowen answered affirmatively to all the court's queries and entered a guilty plea. Thecourt asked if it was an Alford plea³ and defense counsel responded, "I guess he's not making a statement, so he would rather have you read the police reports."⁴ 1 RP at 22.

The plea form stated, "The elements are: Set out in the Information." CP at 346. Bowen checked the box stating, "Instead of making a statement, I agree that the court may review the police reports and/or a statement of probable cause supplied by the prosecution to establish a factual basis for the plea." CP at 354. The court stated that it had read the report and that it was contained in the court file. The report said that the deputy found a "small, clear zipper baggie of a crystalline substance in [Bowen's] right front pants pocket. [The] substance field tested positive for the presence of methamphetamine." CP at 345. The trial court found the plea knowing and voluntary, and that Bowen had a full understanding of the proceeding. Further, "based upon the Probable Cause statement," the trial court found a factual basis to support the charge. 1 RP at 23.

Prior to the start of trial, defense counsel moved to exclude all ER 404(b) evidence. The State responded, "I don't anticipate providing 404(b) evidence. The only question when he was arrested is whether he had a warrant. That would be the only thing that I could see coming up." 1 RP at 32. The court then granted the motion.

Following the ruling, the State argued for the admission of evidence relating to the drugs found on Bowen's person when he was arrested. The court asked defense counsel whether there was a difference between the drugs on Bowen's person and the paraphernalia found in the vehicle. Defense counsel responded, "I think there is a difference. I think the contents of the vehicle arefair game, the condition of the vehicle as found by law enforcement. I think all of that can be relevant to his knowledge." 1 RP at 52. He further stated, "I don't think there's an argument that the jurors shouldn't hear what was found in the vehicle." 1 RP at 53.

The court ultimately ruled against admitting the evidence because the prejudicial effect outweighed its probative value. But it ruled, "[W]hatever is in the vehicle, whether it's the drug paraphernalia or anything else, is something that can be testified to. The condition of the vehicle when the officers found it is relevant to the case." 1 RP at 53-54.

Before the State called its first witness, Bowen moved to exclude evidence of the burglary and the theft of the other two vehicles that occurred prior to March 7. He argued that the evidence was not relevant to proving any element of the State's case. When asked to clarify his objection, he stated that he was objecting on relevance grounds.

The State argued, "[T]he Ford Explorer was present during the original burglary, and it was ransacked and gone through during this original burglary between February 26 and March 5. And the State does have to prove that in fact these vehicles were stolen, and this is part of the res gestae of the case." 2 RP at 94. The State argued again later, "I think it's very important that the vehicle was ransacked. The two other vehicles being stolen is just a part of what was happening on that day."⁵ 2 RP at 97. The court admitted the testimony about the prior burglary "based upon the res gestae presentation of the State's case." 2 RP at 97. It reasoned that the...