### FILED APRIL 11,2013 Intbe Officeoftbe ClerkofCourt W A State CourtofAppeals,Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 30338"1"111 ) Respondent, ) ) 

### v. ) ) JUAN ANGEL DIAZ, ) UNPUBLISHED OPINION ) Appellant. ) BROWN, J. - Juan Angel Diaz appeals his stolen motorvehicle possession conviction. He 'first contends the fingerprint evidence is insufficientevidence to support thejury's guiltyfinding. Secondly, he contends the trial court erred in notfirst determining if he hasthe current orfuture ability to pay his legal financial obligations (LFOs). In his pro sestatementofadditional grounds for review (SAG), Mr. Diaz adds the court miscalculated his offenderscore. We affirm. FACTS One morning in August2010, someone took Kory Welsch's Honda Civicfrom his driveway. Mr. Welsch last saw his car in his driveway around 12:30 a.m. Mr. Welsch spotted the vehiclethree houses down where it had apparently been pushed. Car parts
were missing. The driver's sidewindowwas 

### offtrack and looked like it had been flopped outwards. indicating a possible point ofentry. Thewindow had not been in thatNo. 30338-1-111 State v. Diaz condition previously. Officers found a fingerprint on the driver's side window. The State's fingerprint expert identified the fingerprint as belonging to Mr. Diaz. Mr. Welsch did not know Mr. Diaz. The State charged Mr. Diaz with possession ofa stolen motorvehicle and first degree trafficking in stolen property. Thejuryfound Mr. Diaz guilty ofthe possession charge. but not guilty ofthe trafficking charge. At sentencing, the court imposed a standard range sentence of27 months based

on an offender score ofseven. The court imposed costs, totaling $2,887.65. The court also ordered, "The defendant shall pay up to $50.00 per month to be taken from any incomethe defendant earns while in the custody ofthe Department ofCorrections. This money is to be applied towards legal financial obligations." Clerk's Papers at 39. Without objection, there was no finding regarding Mr. Diaz's abilityto pay. This appeal followed. ANALYSIS 

### A. Evidence Sufficiency The issue is whether, conSidering thefingerprint evidence, sufficient evidence supports Mr. Diaz's conviction for possession ofa stolen motorvehicle. In determining the sufficiency ofthe evidence, our standard of review is "whether, after viewing the evidence in a light most favorable to the State, any rational trier offact could have found the essential elements ofthe charged crime beyond a reasonable doubt." State v. Rempel, 114Wn.2d 77, 82, 785 P.2d 1134 (1990). "A claim of



### 2No. 30338-1-111 State v. Diaz insufficiency admits the truth ofthe State's evidence and all inferences that reasonably

can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is considered to be as reliable as directevidence. State v. Myers, 133Wn.2d 26,38,941 P.2d 1102 (1997). RCW 9A.56.068 provides: "(1) A person is guilty ofpossession ofa stolen vehicle if he orshe possess[es] a stolen motorvehicle." "Possession may be actual or constructive, and constructive possession can be established by showing the defendant had dominion and control overthe [property]." State v. Echeverria, 85 Wn. App. 777, 783,934 P.2d 1214 (1997). "Actual possession means that the goods are in the personal custody ofthe person charged with possession." State v. Callahan, 77 Wn.2d 27, 29,459 P.2d 400 (1969). When fingerprint evidence is the sole evidence linking the defendantto the crime, the State must showthe object upon which the fingerprint was found was generally inaccessibleto the defendant at an earliertime. State v. Bridge, 91 Wn. App. 98. 100­ 01.955 P.2d 418 (1998) (citing Mikes v. Borg, 947 F.2d 353,357 n.6 (9th Cir.1991». In

a "fingerprint-only" case where the fingerprint is found on a moveable object, the State must also showthe fingerprint could have been impressed only during the commission ofthe crime, not earlier. Bridge, 91 Wn. App. at 101 (citing Mikes, 947 F.2d at 356-57; State v. Lucca, 56 Wn. App. 597, 599-600, 784 P.2d 572 (1990». Courts distinguish between moveable objects generally accessibleto the public and fixed objects not



### 3No. 30338-1-111 State v. Diaz generally accessible to the public. Bridge, 91 Wn. App. at 101 (citing Mikes, 947 F.2d at 

### 357; Lucca, 56 Wn. App. at602-03». In Bridge, a burglar broke into the victim's barn and a tool was found atthe point ofentry. A tag bearing the defendant'sfingerprint was affixed to that recently purchased tool. The State did not rule outthe possibility thatthe defendant'sfingerprint might have been impressed while itwas recently in the stream ofcommerce. The tool had been purchased in an area open to the public and was accessible to the defendant before being moved by the victim to his barn. This court held, "[E]vidence ofa latent fingerprint absent proofbythe State thatthe print could 'only have been impressed at the time the crime was committed' is insufficient to support a conviction for burglary." Bridge, 91 Wn. App. at 101 (quoting Lucca, 56 Wn. App. at 599). But here, the State offered evidence showing Mr. Welsch did not know Mr. Diaz and had never seen him before. Additionally, Mr. Welsch testified his vehicle was in his driveway, not a public place, when hewent to bed at approximately 12:30 a.m. The windowwas not pulled back atthattime. Nothing here shows Mr. Diaz could have encountered the vehicle in the public stream ofcommerce. The State '''need not exclude all inferences or reasonable hypotheses consistentwith innocence.'" Bridge, 91 Wn. App. at 100 (quoting Mikes, 947 F.2d at 357). It is the role ofthefactfinder to determine the weight, credibility, and persuasiveness ofthe evidence. State v. Walton, 64 Wn. App. 410,415-16,824 P.2d 533 (1992).

4No. 30338-1-111 State v. Diaz Viewing the**evidenc~** in the State's favor, sufficient evidence was admitted from which a rational jury could find beyond a reasonable doubtthat Mr. Diaz had possessed

a stolen vehicle. Therefore, his evidence sufficiency challenge fails. B. LFO Order The next issue is**wh~ther**the court's order requiring Mr. Diaz to pay LFOs must be reversed. Mr. Diaz contendsthe court cannot order LFOs withoutfinding he has the abilityto pay. The State argues this issue is improperly raised forthefirst time on appeal. But, this issue turns on ripeness. In State v. Baldwin, 63Wn. App. 303, 310, 818 P.2d 1116 (1991), the court held, "[T]he meaningful time to examine the defendant's ability to pay is when the governmentseeks to collectthe obligation." See State v. Curry, 62 Wn. App. 676,680,814 P.2d 1252 (1991) (emphasis added). The Baldwin courtfurther noted, 'The defendant may petition the court at any time for remission or modification of the payments on [the basis ofmanifest hardship]. Through this procedurethe defendant is entitled tojudicialscrutinyof his obligation and hispresentabilitytopayat the relevanttime." Baldwin, 63Wn. App. at310-11 (emphasis added). Thus, because Mr. Diaz can apply for remission or modification of his LFOs when the State initiates collections, we do notfurther address his LFO challenge. C. SAG Pro se, Mr. Diaz challenges the sufficiency ofthe evidence and argues the sentencing court miscalculated his offenderscore. We do not address his evidence



### 5No. 30338-1-111 State v. Diaz sufficiency concerns because they were addressed by his appellate counsel and fully analyzed above. See RAP 10.1O(a) (providing the purpose ofa SAG is to "identify and discuss those matters which the defendanUappeliant believes have not been adequately addressed by the brieffiled by the defendanUappellant's counsel"). Regarding Mr. Diaz's offender score ofseven, he did not objectat sentencing. But, legal error may be challenged forthe first time on appeal. State v. Wilson, 170 Wn.2d 682, 689, 244 P.3d 950 (2010). Mr. Diaz has three priorfelonies (second degree theft (vehicle); second degree theft; and theftofa motor vehicle). Under RCW 9.94A.525(20). each priorfelony conviction for theft ofa motorvehicle counts as three points in the offender score. Likewise, second degreetheft is counted as one point. RCW 9.94A.525(7). Three plus three plus one equals seven; the court properly calculated Mr. Diaz's offender score. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuant to RCW 2.06.040.

WE CONCUR:

# Sid~,J=- Korsmo, C.J. Brown, J.



### 6