State v. Mayer

STATE OF WASHINGTON, Respondent, v. NICHOLAS KEITH MAYER, Appellant.

No. 44232-9-II

Court of Appeals of Washington, Division 2

September 3, 2014

UNPUBLISHED OPINION

Melnick, J.

Nicholas Mayer appeals his convictions for first degree robbery with two firearm enhancements, first degree burglary with two firearm enhancements, residential burglary, three counts of theft of a firearm, three counts of second degree unlawful possession of a firearm, and third degree theft. Nicholas^[1] argues (1) insufficient evidence supported his first degree burglary conviction, (2) the jury instructions for first degree burglary violated his right to a unanimous jury verdict, (3) the trial court erred by denying his motions to suppress statements he made to the officers, (4) the State improperly vouched for one of its key witnesses' credibility, and (5) the trial court's denial of his motion to continue the trial-denied him effective assistance of counsel. We affirm Nicholas's convictions.

FACTS

I. BACKGROUND

On February 9, 2012, just after 9:00 P.M., officers responded to a 911 call regarding a robbery at the KC Teriyaki restaurant in Salmon Creek, Washington. When the officers arrived, they interviewed the restaurant's owner, Hui Choe, a restaurant employee, Aljuarsmi Ortiz, and two other witnesses. The officers believed that it was likely an "inside job, " because the suspects obviously knew about the side entrance and the restaurant's closing procedures. 1 Report of Proceedings (RP) at 21.

Choe told the officers about his former employee, Emily Mayer whom he had fired a few months prior because he suspected her of stealing money. Choe also told the officers that Emily had told him she had an older brother who did drugs. After reviewing their databases, the officers determined that Nicholas was Emily's older brother. At that point, the officers listed Nicholas and Emily as potential suspects.

KC Teriyaki's closes at 9:00 P.M. Choe's usual closing procedure is to turn off the open sign and put the money from the day's sales into a bank bag. At closing on February 9, Choe removed the money from the register, approximately $800, and put it in a bank bag with his wallet. He set the bag on a stool behind the counter. Choe then went into the kitchen to prepare an order for a customer who had come in late; Choe told Ortiz he could leave for the night. Ortiz stated that when Ortiz opened the side door to leave, two young men, approximately six feet tall, wearing hoodies and bandanas over their faces and holding guns, pushed open the door, entered, the restaurant, and demanded money. The two men noticed the bank bag on the chair, grabbed it, left through the side door, and ran across the street. Ortiz stated that it seemed as though the two men were waiting for someone to open the side door so they could get into the restaurant.

A customer in the restaurant witnessed two men and Ortiz scuffle. She stated that one of the two men had a handgun pointed at Ortiz, while the other grabbed something from under the counter. The customer's husband, who was waiting in his car outside the restaurant, saw two men with covered faces running from the side of the restaurant. He stated that one of them carried a gun. According to Choe, the restaurant's side door is an iron door that is kept closed during business hours and, except in cases of emergencies, is used only by employees. The side door is hidden by bushes and cannot be seen from the road. Ortiz further explained that customers use the main, front entrance to enter the restaurant, and that the side door is used only by employees, usually to take out the trash and exit at the end of a shift.

The following night the officers received a call from a person who identified himself as "Matt." Clerk's Papers (CP) at 484. He provided the police his phone number. Matt stated (1) that a person named Nicholas Mayer was bragging about having recently robbed a Vancouver restaurant (2) that Nicholas had a revolver that he recently gave away to someone; and (3) that Nicholas had a lot of cash, which was unusual for him. Matt also gave specific information that Nicholas was with his girlfriend Sarah Baker, riding in a grey pickup. Based on Mart's information and their investigation, the officers went to the particular location Matt provided and stopped a grey pickup. Inside the pickup were Nicholas, Baker, and another passenger, all of whom went to the police precinct for interviews.

Subsequently, Deputy Tom Dennison called Matt, who agreed to and did provide a statement. Dennison then interviewed Baker, who. stated that Nicholas admitted to her that he had robbed a teriyaki restaurant.

Dennison later interviewed Nicholas. Before talking to him, Dennison read Nicholas his Miranda^[2] rights from a card that he carried with him. Nicholas understood his rights, waived them, and agreed to have his interview recorded. After starting the recording, Dennison re-read Nicholas his Miranda rights. When asked if he understood his rights, Nicholas asked what he would do if he wanted an attorney and could not afford one. Dennison responded that if Nicholas was arrested and charged with a crime, when he went before a judge he would be appointed an attorney if he could not afford one. Nicholas stated that he understood his rights and would talk to Dennison. Nicholas admitted his involvement in the KC Teriyaki restaurant robbery.

II. PROCEDURAL HISTORY

On February 24, 2012, the State charged Nicholas by amended information with first degree robbery with two firearm enhancements, first degree burglary with two firearm enhancements, residential burglary, three counts of theft of a firearm, three counts of second degree unlawful possession of a firearm, third degree theft, and first degree attempted trafficking in stolen property. Nicholas moved, under CrR 3.6, to suppress his statements, arguing that the officers unlawfully stopped and detained him. Nicholas also moved, under CrR 3.5, to suppress his alleged confession to the crimes, arguing that the officers gave him improper Miranda warnings. The trial court denied both motions and entered findings of fact and conclusions of law.

At the close of the State's case, the trial court dismissed the trafficking charge. The jury found Nicholas guilty on all other counts and the four firearm enhancements. Nicholas received a 306-month sentence, which included 240 months for the firearm enhancements. Nicholas appeals.

ANALYSIS

I. SUFFICIENT EVIDENCE SUPPORTS NICHOLAS' S FIRST DEGREE BURGLARY CONVICTION

Nicholas argues there is insufficient evidence to support his burglary conviction because he remained only in places open to the public in the KC Teriyaki restaurant. We disagree and hold that there is sufficient evidence beyond a reasonable doubt that Nicholas unlawfully entered and unlawfully remained in the restaurant.

Evidence is sufficient if, when viewed in a light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom, " which should be interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are deemed equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). "Credibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

A person is guilty of first degree burglary

if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.

RCW 9A.52.020(1). "A person 'enters or remains unlawfully' in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain." RCW 9A.52.010(5). A license or privilege to enter or remain in a building that is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. RCW9A.52.010(5).

Whether a defendant enters or remains unlawfully in a building is decided on a case by case basis. State v. Collins, 110 Wn.2d 253, 258, 751 P.2d 837 (1988). An individual's presence "may be unlawful because of an implied limitation on, or revocation of, his privilege to be on the premises." Collins, 110 Wn.2d at 258. If an individual exceeds the scope of his invitation into a building, he has remained unlawfully therein. Collins, 110 Wn.2d at 255. Where a defendant's initial entry was clearly unlawful, the sufficiency of evidence that he or she remained unlawfully follows automatically. State v. Cordero, 170 Wn.App. 351, 366, 284 P.3d 773 (2012).

Here, Nicholas hid outside a side door to the KC Teriyaki restaurant. This iron door, not usually used by customers except in emergencies, is kept closed during business hours. It is used by employees to take the trash out and exit the restaurant at the end of a work shift. When Ortiz exited the side door after the restaurant's business hours, Nicholas pushed him back into the restaurant, entered the door with a gun drawn, and demanded money.

When drawing all reasonable inferences in the State's favor we hold there is sufficient evidence that Nicholas entered and remained unlawfully in the KC Teriyaki restaurant. He exceeded the scope of his invitation. The time of Nicholas's entry occurred after the restaurant's...