State v. Lorrigan

STATE OF WASHINGTON, Respondent, v. DERRICK D. LORRIGAN, Appellant.

No. 36379-1-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

April 7, 2020

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Derrick Lorrigan appeals his conviction for possession of a stolen motor vehicle. He argues the trial court's instruction defining "knowledge" violated his right to due process because it permitted the jury to find him guilty based only on constructive knowledge. He also argues prosecutorial misconduct and ineffective assistance of counsel. In affirming, we do not address the merits of his first and third arguments, and we disagree with his second argument.

FACTS

On June 22, 2018, John Sumner reported to police that his 2005 Chevrolet Impala had been stolen. On June 26, 2018, Spokane Police Officer Kelly Mongan saw Sumner's stolen car pass him. The officer conducted a high-risk traffic stop and detained the driver, Derrick Lorrigan. Lorrigan told a second police officer he had borrowed the car four days earlier from Creston Alagard, who had left the keys on the floorboard for him.

Police officers noted the car's ignition had been punched so a shaved key could start it. Officers also found a key ring in the center console that contained several keys, most of them tampered with or shaved. No other keys or devices were found in the car that could have been used by Lorrigan to start it. Lorrigan agreed with an officer that the situation seemed suspicious, and he should not have driven the car.

PROCEDURE

The State charged Lorrigan with possession of a stolen motor vehicle and making or possessing a motor vehicle theft tool. The former crime requires the State to prove the defendant knew the car was stolen. The State proposed the following instruction on "knowledge":

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. It is not necessary that the person know that the fact, circumstance, or result is defined by law as being unlawful or an element of a crime.

If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact.

When acting knowingly as to a particular fact is required to establish an element of a crime, the element is also established if a person acts intentionally as to that fact.

Clerk's Papers (CP) at 20. The court indicated it would give the instruction. Lorrigan did not object.

During closing argument, the deputy prosecutor spoke at length about what Lorrigan knew and also what Lorrigan knew or should have known. We underline the former, and italicize the latter:

[THE STATE:] So what we call the mental element in this particular circumstance, with respect to Count I, is knowledge, right. You've been provided a copy . . . of the Court's definition of what it means to . . . know or act knowingly. And it's a difficult concept at best. [W]e all know about intent and inferring intent and how do you infer intent when you're not the actual witness to it. Well, you look at the [surrounding] circumstances . . . . Same thing is true with knowledge. Okay.

You weren't there, we don't know. We do not know what Mr. Lorrigan knew. We can only look at the evidence and decide and infer what a reasonable person would know or should reasonably know under the circumstances.

And what did Mr. Lorrigan admit? He admitted that, yeah, this probably wasn't a good idea. He admitted knowing or should have known that, in fact, he admitted or indicated that he should have known better and that he made a stupid mistake. . . .

. . . .

Does it make common sense? It is reasonable under the circumstances, or should we reasonably infer or conclude that Mr. Lorrigan, on that date, knew or reasonably should have known the vehicle he picked up and possessed for four days was stolen?

. . . .How would a reasonable person, placed in that situation, view the fact that there's no key for the vehicle and you have to use a screwdriver to start it, or a shaved key for that matter? Shouldn't that raise some suspicion on the part of the driver that every time he had to turn it over to go somewhere he had to use a screwdriver or a shiv or a shaved key in order to do so? Common sense. What's reasonable? What's reasonable to infer from that evidence?

So at this point it is uncontroverted on the 26th of June 2018 that Mr. Lorrigan was found in possession of a stolen motor vehicle. There's no question about that. There's no question about the fact that it occurred in the State of Washington on that date. The only issue is whether Mr. Lorrigan knew that the vehicle was stolen. That's it. That's it.

. . . .

So Mr. Lorrigan told you that he's known Creston for a while. And what do we know about Mr. Alagard? Mr. Alagard happens to engage in the type of activity that Mr. Lorrigan is well aware of, and that is the cars that are associated with Mr. Alagard typically don't have intact ignitions, that they can be started with screwdrivers . . . . So he admits that the person that loaned him the vehicle is known by Mr. Lorrigan to engage in possession or theft of motor vehicles.

Is it reasonable to infer from that that Mr. Lorrigan should have known or did know that he was in possession of a stolen motor vehicle?

. . . .

The issue isn't whether Mr. Lorrigan stole that vehicle. He's not accused of stealing the vehicle. The issue is whether he knew or reasonably should have known that that was a stolen motor vehicle. If [so] . . . then he's guilty of possession of a stolen motor vehicle.

. . . .

What happened here? Mr. Lorrigan admitted that he'd known Mr. Alagard or Creston for a year but couldn't provide the contact information, not even the phone number, for the officers to call to confirm that he had lawfully borrowed the vehicle or was in possession of the vehicle. What does common sense tell you under those circumstances? Mr. Lorriganknew that the vehicle was stolen.

. . . .. . . [A]ll of that is before you, and the reasonable inference is that Mr. Lorrigan either knew or reasonably should have known that that motor vehicle was stolen that he was in possession of.

Report of Proceedings (RP) at 226-37. Lorrigan did not object to the above arguments.

The jury found Lorrigan guilty on both counts, and the trial court sentenced Lorrigan to 50 months' confinement. Lorrigan appealed. Lorrigan does not challenge his conviction for making or possessing a motor vehicle theft tool.

ANALYSIS

A. JURY INSTRUCTION DEFINING "KNOWLEDGE"

Lorrigan argues the trial court's instruction on knowledge violated his right to due process because it permitted the jury to find him guilty based on constructive rather than actual knowledge that the car was stolen. The State argues Lorrigan's claim of error should not be reviewed because he did not object to the instruction below and because it does not raise a manifest error affecting a constitutional right. We agree with the State.

Generally, a defendant cannot challenge a jury instruction on appeal if the defendant did not object to the instruction below. State v. Salas, 127 Wn.2d 173, 181, 897 P.2d 1246 (1995). An exception to this rule permits review of an unpreserved error if it involves a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. O'Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009). Lorrigan did not object to the"knowledge" instruction. Therefore, we must determine whether the purported error involves a manifest error affecting a constitutional right.

Instructional errors are of constitutional magnitude only when the jury is not instructed on every element of the charged crime. State v. Roggenkamp, 153 Wn.2d 614, 620, 106 P.3d 196 (2005). As long as the instructions properly inform the jury of the elements of the charged crime, any error in defining the terms used in the elements is not of constitutional magnitude. State v. Stearns, 119 Wn.2d 247, 250, 830 P.2d 355 (1992). Even an error defining technical terms does not rise to the level of constitutional error. State v. Gordon, 172 Wn.2d 671, 677, 260 P.3d 884 (2011).

Here, Lorrigan does not argue the trial court failed to properly instruct the jury on the elements of possession of a stolen motor vehicle. Rather, he argues the trial court erred in defining "knowledge," one of the elements of that offense. Because the claim of error does not involve a manifest error affecting a constitutional right, we decline to review it.

B. PROSECUTOR'S REMARKS DURING CLOSING

Lorrigan argues the prosecutor committed misconduct by repeatedly misstating the State's burden of proof,¹ actual knowledge.

The State was required to prove that Lorrigan knew the car was stolen. An instruction also permitted, but did not require, the jury to find actual knowledge if Lorrigan had information that would lead a reasonable person in the same situation to believe the car was stolen.

Here, the deputy prosecutor's argument was at best confusing and at worst improper. During closing, the deputy prosecutor repeatedly alluded to what Lorrigan knew or should have known, once emphasizing Lorrigan was guilty if he "knew or reasonably should have known [it] was a stolen motor vehicle." RP at 235. Yet, the deputy prosecutor twice focused on what Lorrigan actually knew, once emphasizing, "[t]he only issue is whether Mr. Lorrigan knew that the vehicle was stolen. That's it. That's it." RP at 232.

To establish prosecutorial misconduct, Lorrigan must demonstrate the prosecuting attorney's remarks were both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). "A prosecuting attorney commits misconduct by misstating the law." State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). But if a defendant does not object in the trial court, any error is waived, "unless the prosecutor'smisconduct was so flagrant and ill intentioned that an...