State v. Damitz

1

STATE OF WASHINGTON, Respondent, v. CHRISTOPHER R. DAMITZ, Appellant.

No. 57790-9-II

Court of Appeals of Washington, Division 2

June 11, 2024

UNPUBLISHED OPINION

Price J.

Christopher R. Damitz "came to Wahkiakum County for one reason: to steal."

This statement by the State was, according to Damitz, an improper thematic catchphrase that constituted prosecutorial misconduct in his trial for one count of second degree burglary, three counts of second degree identity theft, one count of third degree assault, and one count of making or having burglary tools. Not only does Damitz argue that the State committed prosecutorial misconduct by using this phrase in its opening statement and closing argument, but he also argues that he received ineffective assistance of counsel when his counsel failed to object to it.

We reject Damitz's arguments and affirm.

FACTS

I. Background

In September 2021, Cynthia Preece received an alert from her security system notifying her that something was on her deck. Video footage would show two men arriving at her property.

The two men began searching the property for security cameras, tampering with several of the cameras, and stealing property from a shed. Preece called 911.

Law enforcement discovered that Preece's driveway gate had been removed from its hinges and a storage shed was missing numerous items. Law enforcement obtained the security footage, and information was put out to the public about the incident.

Three days later, a Wahkiakum County Sheriff's Office deputy discovered Damitz passed out in the driver's seat of a car that was blocking the road near a wildlife refuge. Also in the car was Damitz's girlfriend, Karie Taylor. Tinfoil squares and a clear glass pipe were observed inside the car. When asked for identification, Damitz responded that he did not have any identification, but he provided the name and birthdate of his brother, Joseph Damitz, and an address in Puyallup. The deputy was unable to determine that Damitz was not his brother, so he merely referred Damitz for drug treatment.

Meanwhile later that same day, a ferry captain called law enforcement to report he had seen someone leave the ferry who resembled one of the suspects from the Preece burglary. Law enforcement searched the area and discovered Damitz and Taylor in a car. Damitz was asked for identification, and he again provided his brother's name and date of birth. At the time, Damitz had a full beard with sideburns and was wearing a baseball hat. Damitz and Taylor denied any involvement in suspicious activity in the area, so they were allowed to drive away.

After Damitz and Taylor drove away, the deputy accessed Joseph Damitz's driver's license information and immediately suspected that it was not the same person he had let drive away. The deputy then compared a still image from the video footage of the Preece burglary to Christopher Damitz's driver's license records and determined that it was Damitz, not his brother, that he had encountered.

Several days later, law enforcement recovered a stockpile of stolen property that had been left on an embankment in the wildlife refuge. Some of the recovered property was from the Preece burglary.

About five months later, in February 2022, a deputy saw a man with a backpack and woman walking along a road late at night. The pair were about half of a mile from the nearest building. The deputy stopped and requested their identification. Yet again Damitz gave his brother's name and date of birth. But the deputy was unpersuaded and, suspecting that Damitz was involved in an earlier burglary, the deputy called for backup to assist in arresting Damitz.

When the backup arrived, Damitz jumped the guard rail to the road and began running away down a steep embankment. Both deputies pursued, resulting in a struggle. During the struggle, Damitz dropped a few items (tools from his backpack) and kicked one of the deputies. Damitz was eventually arrested.

Law enforcement searched Damitz's backpack and discovered several items that are commonly referred to as a "burglary kit" when found together, including a pair of wire cutters, a screwdriver, drill bits, gloves, keys, valve stem covers, bolt cutters, a drill index, a cordless driver drill, and a crow bar.

Following its investigation, the State charged Damitz with two counts of second degree burglary, three counts of second degree identity theft, one count of third degree assault, one count of making or having burglary tools, one count of possession of another's identification, and one count of resisting arrest.

II. Opening Statements

The case proceeded to a jury trial. The State began its opening statement with,

May it please the Court, Counsel, members of the jury. Christopher R. Damitz came to Wahkiakum County for one reason: to steal.

Verbatim Rep. of Proc. (VRP) at 229 (emphasis added). Damitz did not object.

After making this statement, the State proceeded to lay out the evidence that it expected to introduce. It then ended its opening statement by returning to its opening theme, stating:

At the end of this trial, the State will ask you to find the Defendant guilty for the burglary of Cynthia Preece's shed . . . three counts of identity theft in the second degree for each time he gave his brother's name and date of birth to the officers to avoid arrest; assault in the third degree, when he kicked [the deputy]; and making or having burglary tools the night that he was arrested. Because Mr. Damitz came to Wahkiakum County for one reason, to steal.

VRP at 237 (emphasis added). Damitz did not object.

III. Trial Testimony

Following opening statements, the case proceeded to trial testimony. Preece and the investigating detectives testified consistently with the above facts. One of the deputies further testified that Damitz currently looked different than when he arrested him several months earlier; Damitz had changed his facial hair, his face was thinner, and his skin was clearer.

Also testifying for the State was Damitz's girlfriend, Taylor. The State showed her a Facebook photograph of Damitz, which she confirmed was a fair and accurate depiction of Damitz's appearance during their relationship.

Several items were admitted into evidence, including photographs and video footage (and a still image from the footage) of the Preece burglary, the Facebook photograph of Damitz, a photograph of his Washington driver's license with a Puyallup address, and photographs of the tools found in the backpack. Thereafter, the State rested.^[1]

Damitz did not call any witnesses and rested.

IV. Jury Instructions and Closing Arguments

The trial proceeded to jury instructions. The trial court instructed the jury to disregard any remark, statement, or argument that was not supported by the evidence. The jury was also instructed to decide the case impartially and without prejudice.

Following the instructions to the jury, the State began its closing argument with the same theme from its opening statement. The State argued,

Christopher Damitz came to Wahkiakum County for one reason: to steal. I told you that at the beginning of my opening statement. And you've heard the evidence throughout the past three -- two, now into our third day of trial. The State's going to ask you to find the Defendant guilty of all the charges that are going to be before you this morning.

VRP at 492 (emphasis added). Damitz did not object to the State's remarks.

The State then summarized the relevant trial evidence that proved each charge. With respect to the burglary count, the State argued that Damitz was one of the suspects captured in the Preece burglary video footage. The State reminded the jury of Taylor's testimony, when she stated that Damitz was the person depicted in a Facebook photograph, and urged the jury to see the strong resemblance between the person in the video still image and the Facebook photograph. The State noted that, in both, the person was wearing a baseball hat backwards, was smoking a cigarette at the same angle, and had the same facial features.

The State also argued that Damitz's connection to the recovered stolen property was evidence of his guilt. The State reminded the jury that several days after law enforcement found Damitz passed out in his car, some of Preece's stolen property was recovered from a nearby location-an embankment in the wildlife refuge.

After discussing the burglary count, the State moved on to the identity theft counts. The State argued that the evidence showed Damitz had knowingly provided law enforcement with his brother's name and date of birth on three occasions and, thus, intended to make a false or misleading statement to a public servant.

The State next discussed the third degree assault evidence, recounting the direct testimony from the deputies that established that Damitz had kicked one of the deputies while trying to escape down an embankment.

Thereafter, the State moved on to the last of the charges submitted to the jury, making or having burglary tools, and argued that the evidence demonstrated Damitz had committed the crime of having burglary tools because his backpack clearly contained numerous burglary tools. In addition, several other burglary tools had fallen out of the backpack during his struggle with deputies. The State contended that Damitz intended to use the tools in a burglary because he was found with them while he walked on the side of a road late at night in the vicinity of residences.

The State concluded its closing argument by again referencing its theme,

Ladies and gentlemen, the Defendant came to Wahkiakum County for one reason[:] to steal. And the State asks that you find him guilty of all counts.

VRP at 503. Damitz did not object.

Damitz then...