IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. JESSE MEJIA, Appellant. 

### Spearman, J. — Afterdeputies from the Skagit County Sheriff's Office found automobiles in various states ofdismemberment on the property where 

### Jesse Mejia allegedly had been staying, Mejiawas charged and convicted of four counts ofpossession of stolen motor vehicles. On appeal, Mejia argues that the search of the property was unlawful, becausethe deputies had neithervalid 

### permission norauthority of avalid warrant toenterthe area surrounding a barn, look inside the barn through openings in the walls, search inside the barn or 

### inside a nearbytrailer. He also argues that the State failed to meet its burden of proving every elementof the crimes charged and that the trial courtabused its discretion by excluding two of hiswitnesses. Wefind no error and affirm the convictions but because the parties agree an error occurred incalculating Mejia's offender score, we remand for resentencing. No. 72727-3-1 DIVISION ONE

UNPUBLISHED OPINION FILED: October 17. 2016No. 72727-3-1/2
FACTS 

### William Everett rented a house on Douglas and Norma Rex's property, located at 17108 SR 20, Burlington, Washington. Along with the house, the property also included a barn with an attached shed, a plot offarmland, and a storage area for old silage. Everett kept a trailer and a couple ofnonfunctioning
cars on the property. His lease did not include use ofthe barn orthe attached shed. Everett had given Jesse Mejia permission to stay in his trailerfor a couple ofmonths. Soon Everett began to see more cars left on the property, including
some that were "torn apart," and either missing bodies or parts. Verbatim Report 

### ofProceedings (VRP) at71. On November 12, 2013, the Skagit County Sheriff's Department received information about a stolen vehicle and a chop shop on SR 20 near Avon Allen Road. The informant told the sheriffthere were two stolen Hondas and a stolen GMC van inside the barn and that Mejia had been chopping


### cars and grinding offthe vehicle identification numbers (VIN). DeputyWilhonen contacted Rex before going to the property. Rex informed DeputyWilhonen thatWilliam Everettwas renting the property and that he may have friends staying there as well. Rex also indicated that "the barn was not part ofthe lease, there should not be anyone there, and itshould also be empty ofany cars orother items." Clerk's Papers (CP) at40. It is undisputed that Everett also gave the deputies permission to come onto the property. Deputy Wilhonen and Deputy Moses walked around the outside ofthe barn and looked at the cars on the cement area nearthe barn. The deputiesNo. 72727-3-1/3 

### discovered a red Acura Integra that had been dismantled and taken apart. A check ofthe VIN indicated that ithad been reported as stolen. The deputies could see othervehicles inside the barn by looking through holes inthe walls. 

### One ofthe vehicles near an opening, a 1992 HondaAccord, had been cut in half. 

### The deputies were able to seethe VIN on the firewall and discovered thatthe vehicle had been reported stolen. There was also a GMC Safari van visible from the outside. After recording and running the plate number, the deputies learned that ithad also been reported stolen. 

### Deputy Wilhonen contacted Rex again and obtained his written permission to enterthe barn. The following day, November 13, 2013, the deputies obtained a search warrant for the house, the barn, the attached shed, and the trailer. Inside 

### the barn theyfound anothervehicle, a 1990 Honda Accord, also reported as stolen. Inside the trailerthey found identitydocuments for different persons, 

### includingEverett's driver's license, tax documents, and mail.jd. at 137-139. 

### Mejia was arrested and charged with fourcounts ofpossession of a stolen motorvehicle and one count of identity theft inthe second degree. Mejia moved 

### to suppress the evidence found in the trailer and inside and around the barn. By 

### agreementof the parties, the trial courtconsidered only the affidavit insupportof the search warrant request and the briefs insupport ofand inopposition to the motion. The courtfound that Everett had the authority to consent, and did 

### consent, to the deputies' initial entry onto the property. Thus, it found the 

### deputies' presence on the property was lawful, and any observations made while on the property, includingthose obtained by peering through openings in the
3No. 72727-3-1/4 shed, were also lawful. As a result, the court concluded that the inclusion of those observations in the affidavit in support ofthe search warrant did nottaint the warrant or the evidence obtained thereby. Accordingly, itdenied Mejia's motion.1 At trial, Mejia soughtto offer additional witnesses afterthe first day of testimony to impeach and rebut Everett's testimony that his van had been stolen. The trial court instructed Mejia's counsel to provide the State with access to those witnesses. When two ofthe witnesses refused to speakwith the State's 

### attorney or provide information abouttheirtestimony, the State moved to exclude them. The trial court excluded the two witnesses because the State had not been 

### given timely notice and declined to delay the trial further. 

### Mejiawas found guilty on all four counts ofpossessing a stolen motor 

### vehicle. The trial court granted Mejia's motion to dismiss the identity theft charge. Atsentencing, the State calculated Mejia's offender score and submitted a 

### statement of criminal history. Mejiawas sentenced to 50 months ofconfinement. DISCUSSION 

### When reviewing a trial court's denial of a suppression motion, we review findings of fact for substantial evidence. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Substantial evidence exists where there is a sufficientquantity ofevidence inthe record to persuade a fair-minded, rational person ofthe truth of

1The trialcourt also found that Mejia lacked standing to challenge the initial entry onto the property and the search of the barn. It is not necessary to resolve this question, however, because even assuming Mejiahas standing, his challenge to the legality of the searches fails.No. 72727-3-1/5 

### the finding. Id. Any unchallenged findings offact are verities on appeal. State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014) (reversed and remanded. 141 Wn. App. 759, 364 P.3d 839 (2015)). We review conclusions of law de novo. Id, Authority to Consent 

### Mejia argues thatthe deputies conducted an unlawful search when they entered the portions ofthe property near and around the barn and looked intothe barn through the holes inthe walls. He contends thatthe deputies were 

### trespassing because they did not have the owner's consent before entering the
area around the barn. Id. According to Mejia, the tenant had no authorityto consentto a search ofthe barn or the area surrounding it. Thus, he argues that the observations ofthe vehicles in and around the barn were unlawfully obtained. 

### He further argues that because the affidavit insupportofthe search warrant relied on this evidenceto establish probable cause, the warrantthat issued was tainted and any evidence seized pursuantto the warrant should have been suppressed. It is well established that ifinformation contained in an affidavit ofprobable


### cause was obtained by an unconstitutional search, that information may not be 

### used to supportthe warrant. State v. Ross, 141 Wn.2d 304, 311, 4 P.3d 130 

### (2000). Article I, section 7 of the Washington Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without 

### authority oflaw." State v. Hendrickson. 129 Wn.2d 61, 70, 917 P.2d 563 (1996). Under this provision, the warrant requirement is especially important, as it is theNo. 72727-3-1/6 

### warrantthat provides the requisite "'authority oflaw.'" State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999) (quoting City of Seattle v. Mesiani, 110 Wn.2d 454, 457, 755 P.2d 775 (1988)). Exceptions to the warrant requirement


### are to be "'jealously and carefully drawn.'" State v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004) (quoting Hendrickson. 129Wn.2d at72). The burden of 

### proof is on the State to show that a warrantless search or seizure falls withinone ofthe exceptions to the warrant requirement. State v. Acrev, 148 Wn.2d 738, 746, 64 P.3d 594 (2003) (citing State v. Kinzv. 141 Wn.2d 373, 382, 5 P.3d 668 

### (2000)). Article I, section 7 ofthe Washington Constitution also provides greater protection of individual privacy than the Fourth Amendment. State v. Jackson, 150Wn.2d 251, 259, 76 P.3d 217 (2003). 

### Consentto search is a recognized exception to the warrant requirement. State v. Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004) (citing State v. 

### Walker, 136Wn.2d 678, 682, 965 P.2d 1079 (1988)). It is the State's burden to 

### establish that consentwas lawfully given. Id.The State must show that (1) the 

### consentwas voluntary, (2)the person consenting had the authority to consent, 

### and (3) the search must notexceed the scope of the consent.2Id. Mejia does not dispute that Everett had authority to permit the deputies to enterthe property and search the residence, but he claims thatthe barn and its surrounding area were 

### beyond the scope ofthat authority. He provides no basis for this restriction other

2CrR 3.6 governs motions to suppress evidence in criminal trials; review of this issue is therefore confined to the evidence before the trial court at the suppression hearing. Mejia argues that the State improperly relies on testimony presented at trial to show consent. The State cites to trialtestimony in its brief but also cites the affidavit insupport ofthe warrant.No. 72727-3-1/7
than the fact that Everett did not have access to the barn or the shed. The trial
court found that the area around the barn was within Everett's consent because "there is no indication that he was limited in his access to the land outside the barn." CP at 9. Mejia cites nothing inthe record that disputes this finding. We agree with the trial court that Everett's consentto search the property included the areas around the barn. Mejia next argues thatthe deputies exceeded the scope ofthe consent when they looked inside the barn through holes inthe walls. He contends thatthe 

### officers were required to get Rex's consent prior to looking inside the barn, and they failed to do so. We disagree. United States v. Hufford, 539 F.2d 32 (1976) (cert, denied. 429 U.S. 1002, 97 S. Ct. 533, 50 L Ed. 2d 614 (1976), overruled in part on other grounds by U.S. v. Jones, 132 S.Ct. 945, 181 LEd.2d 911 (2012)) and State v. Bobic, 140 Wn.2d 250, 996 P.2d 610 (2000) are instructive. 

### In Hufford, government agents entered the rental unit adjacentto the defendant's, with that renter's permission, and observed the drug manufacturing 

### materials and equipmentfrom a crack inthe wall. Id. at 33. The Ninth Circuit affirmed thatthe view ofthe defendant's propertyfrom the adjacent stall was 

### "permissible" because "he observed whatwas in plain view and did nottrespass." jd at 35 (citing Harris v. United States, 390 U.S. 234, 85 S. Ct. 992, 19 L. Ed. 2d 1067 (1968)). In Bobic, contents ofthe defendant's storage unit were observed from an adjacent unit through a small hole inthe wall. Our state supreme court found that "the detective was lawfully inside the adjoining unit because the 

### manager had given him permission to enter," and thatthe observations "wereNo. 72727-3-1/8 made without extraordinary or invasive means and could be seen by anyone renting the unit." Bobic, 140 Wn.2d at 259. Here, the deputies similarly observed the vehicles and obtained at least
one VIN number and a license plate numberthrough openings inthe walls, 

### without trespassing or using extraordinary or invasive means. We agree withthe trial courtthat because the vehicles were in plain view, the observations were not 

### unlawfullyobtained. The inclusion ofthe evidence inthe affidavit to establish 

### probable causeforissuance ofthe warrantwas not improperand the denial of Mejia's suppression motion was not error. Probable Cause 

### Mejiaargues thatthe officers did not have probable cause to search the trailerfor evidence because its only connection to the stolen vehicles was 

### proximity. He also argues probable cause is lackingbecause the affidavit "did not claim that it would be common for people to store motorvehicle parts intheir home." Br. ofAppellant at 20. Again, we disagree. 

### Asearch warrant may only issue upon determination ofprobable cause. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Review of a 

### determination ofprobable cause is de novo. State v. Neth, 165 Wn.2d 177,182, 196 P.3d 658 (2008). The existence ofprobable cause is to be evaluated on a case-by-case basis. Thein, 138 Wn.2d at 149. Facts thatwould not support 

### probable cause when standing alone can support probable cause when viewed 

### togetherwithotherfacts. State v. Garcia. 63 Wn. App. 868, 875, 824 P.2d 1220 (1992). The application for a search warrant must bejudged in the light of
8No. 72727-3-1/9

common sense, resolving all doubts infavor ofthe warrant. State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977) (citing United States v. Ventresca. 380 U.S. 102, 88 S. Ct. 741, 13 L Ed. 2d 684 (1965)). Probable cause exists ifthe affidavit "sets forth facts and circumstances sufficientto establish a reasonable inference that the defendant is probably 

### involved in criminal activity and that evidence ofthe crime can befound at the place to be searched." Thein, 138 Wn.2d at 140 (citing State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995)). Accordingly, "'probable cause requires a nexus 

### between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched.'" jd. (quoting State, v Goble, 

### 88 Wn. App. 503, 509, 945 P.2d 263 (1997). A valid finding ofprobable cause requires more than mere suspicion or personal beliefthat evidence of a crime will be found in the area to be searched. State v. Neth, 165 Wn.2d at 182. 

### Mejiaargues thatthere is no nexus connecting the stolen vehicles and the trailer, because no vehicles would fit inthe trailer, and only its proximityto the 

### barn would suggestthat it might contain parts and accessories. Citing State v. Kellev, 52 Wn. App. 581, 586, 762 P.2d 20 (1988), he argues that "[fjinding stolen property on a parcel ofproperty does not license police to go on fishing expeditions inside residences on that corresponding parcel of property." Br. of Appellant at 20. In Kellev, the affidavit included only observations aboutthe two 

### garages and barn on the property, not the home. The court rejected the State's argumentthat because the affidavit established probable cause to search the 

### outbuildings, there was also probable cause to search the residence. ]d_, at 586-
9No. 72727-3-1/10 87. Mejia also cites State v. Gebaroff, 87 Wn. App. 11, 12, 939 P.2d 706 (1997), where probable cause to search a mobile home did not extend to the travel trailer, because the two were not underthe same person's control. But these
cases are inapposite. Here, there was sufficient connection among Mejia, the trailer, and the crimes under investigation to establish probable cause for the warrant. The affidavit indicated that no persons or vehicles were permitted inthe barn; however, vehicles identified as stolen were found in various states of 

### disassembly inand around the barn. An electrical cord was "running from the inside ofthe barn to a trailerwith a blue tarp overthe roofparked outside ofthe barn," indicating thatthe person using the barn was also using the trailer. CP at 59. The affidavit also stated that the trailer had a license plate number but no 

### DOLrecord for such a number. Mejia had been seen coming and going from the 

### property and had previously given the property's address as his residence. Taken together, these facts provide sufficient nexus between the trailer and evidence related to the stolen and dismantled vehicles. The trial court did not err 

### when itdenied Mejia's motion to suppress on this ground. Sufficiency ofthe Evidence 

### Mejiapoints out thatthe to-convict instruction given in this case, without objection bythe State, included as an element ofthe crime ofpossessing a stolen motor vehicle that "the defendant knowingly received, retained, 

### possessed, concealed and/ordisposed of a stolen motorvehicle...." CP at 24-27. (See also RCW 9A.56.140(1) defining "possessing stolen property.") Relying on
10No. 72727-3-1/11 

### State v. Haves, 164 Wn. App. 459, 477, 262 P.3d 538 (2011) and State v. Lillard, 122 Wn. App. 422, 93 P.3d 969 (2004), Mejiaargues that as a result, underthe law ofthe case doctrine, the State assumed the additional burden of proving each alternative definition ofthe crime. He also contends that the State's 

### evidence was insufficient to prove each alternative, specifically, that he 

### concealed and/ordisposed of all of the vehicles. In its briefing to this court, the 

### State agrees that under Haves and Lillard, it is required to prove each alternative, 

### but itdisputes that the evidence isinsufficient.3 Sufficiency of the evidence considers whetherthere was enough evidence proffered from which a jury couldfind beyond a reasonable doubt that the elements of the crime had been proved. State v. Berg, 181 Wn.2d 857, 872, 

### 337 P.3d 310 (2014). "'A claim ofinsufficiency admits the truth of the State's evidence and allinferences that reasonably can be drawn therefrom.'" State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (quoting State v. Salinas. 119 

### Wn.2d 192, 201, 829 P.2d 1068 (1992)). Credibility determinations arefor the 

### trier of fact and not subject to review. State v. Camarillo, 115Wn.2d 60, 71,794 P.2d 850 (1990). 

### Mejia's claimthat the evidence isinsufficientto establish that he concealed and/or disposed of vehicles at issue in this case is notwell taken.

3In a statementofadditional authority, the State cites State v. Makekau, 194Wn.App. 407, 378 P.3d 577 (2016), decided after oral argumentin this case. Makekau holds that even when included inthe to-convict instruction, each alternative definition to "possession ofstolen property" need not beproven so long as thealleged conduct"satisfied one ofthedisjunctive terms-received orpossessed or concealed or disposed of the stolenvehicle." Jd. at 420. Because neitherparty had an opportunityto address theapplicability ofMakekau to this case, we do not address it here. 11No. 72727-3-1/12 There is sufficientevidence inthe record thatthe vehicles had all been "disposed 

### of,"4including testimony that each had been dismantled, had parts missing, and/or had been trashed inside. (See VRP (10/28/14) at44-46, 53-55, 101, 110, 

### 111-113, 119, 124). For example, Everett observed thatthe cars appearing on the property were "torn apart," "[l]ikethey would take parts offthe car," and "[s]ome ofthe bodies were gone too." IdL at71. Deputy Moses testified thatthere
was "a Honda Acura, a GMC van,...and... one or two other Honda type vehicles," that "looked to be cut up and dismantled, and some ofthem had been

- just parts inside the barn." Id. at 110. Counts Iand II pertained to one 1992 Honda Accords, License No. AFM8003, the other 1990, License No. 287WFO. CP at 7-8; 24-25. Trooper Giddings testified that his report showed thatthe 1990 Honda Accord was "cut in half and the roofsection was removed." VRP (10/28/14) at 101. While looking into the barn from the opening, Deputy Wilhonen sawthat "there was a vehicle right nearthat opening that was cut in half, and basically itwas all that was left

was the firewall. . . ." Id. at 44. Detective Walker testified that inside the barn

"Both parties include portions ofthe following definition in their briefs: 1 a : to place, distribute, or arrange esp. in an orderly or systematic way (as according to a pattern)... b : to apportion or allot (as to particular purposes) freely or as one sees fit... 2 a : to transfer into new hands or to the control of someone else (as by selling or bargaining away): relinquish, bestow
... b (1): to get ridof: throw away : discard
... (2): to treat or handle (something) with the result of finishing or finishing with ... : complete, dispatch . . . c : destroy. Webster's Third New International Dictionary, 654 (1993). Br. ofAppellant at 26; Br. ofRespondent at 27. Mejia urges us to apply a very narrow definition of "disposed of

- specifically, to "transfer into new hands or to the control ofsomeone else," citing Haves as controlling authority. Br. ofAppellant at 26. But Hayes is inapposite because there, the parties agreed to use that particulardefinition. The record reveals no such agreement in this
case. 12No. 72727-3-1/13 there was "another Honda nearthe cornerthatwas completely dismantled." Id. at 113. 

### Regarding the vehicle involved incount III, the Blue GMC Safari, License No. 770XJU (CP 8; 26), Detective Walkertestified that it"was inpretty complete 

### order," but that "itwas obviously missing a battery." VRP (10/28/14) at 88. On the otherhand, the ownertestified that "it had been pretty much destroyed." She said 

### there was "a hole inthe gas line. Itwas totally trashed inside. There had been 

### dogs staying init, and there was dog droppings alloverthat van, and itwasjust not drivable." Id. at 119. She also testified that the dashboard was damaged and part of it"was missing." jd. at 124. 

### Finally, count IVwas the red Acura Integra, License No. AFM8261. 

### Deputy Wilhonen testified that outside the barn there was "a red Acura that had been dismantled and taken apart." VRP (10/28/14) at 44. Detective Sigman testified that there was "a red Acura outside that was stolen and stripped, no 

### license plate recovered." Id. at 167. We find the evidence inthe record more than sufficientto supporta finding that Mejia "disposed ofall four ofthe vehicles. 

### Alongthe same lines, Mejia argues that there was also insufficient evidence that he "concealed" theAcura Integra because itwas found out inthe 

### open.5 The word "conceal" is not defined in RCW9A.56.140. But its ordinary

5In hisinitial brief, Mejiaidentifies one oftheHondaAccords as having beenlocated outside of the barn. The State argues that this contention is notsupported by the record-both of the Honda Accords were identified as being located in the barn. Mejia later corrects his earlier misstatementto indicate that he is challenging the sufficiency ofevidence as to the count related to the Acura Integra. As a result, the State has not had an opportunity to respond to this argument. 13No. 72727-3-1/14 

### definition from Merriam-Webster is "to preventdisclosure or recognition of..., or to place out of sight." Webster's Third New International Dictionary 469 (2002). While the Acura was not inside the barn, ithad been stripped and its license plates were missing. VRP (10/28/14) 167. This evidence is sufficientto 

### support the jury's finding that Mejia "prevented the disclosure or recognitionof the Acura. Exclusion ofWitnesses The trial court excluded two ofMejia's witnesses because they were not timely disclosed. Mejia argues that in doing so the court abused its discretion and denied him a fair trial. But Mejia claims he was surprised by Everett's trial testimony and intended to call the witnesses for impeachment and rebuttal. He correctly observes that, as such, he was not required to give notice ofthe excluded witnesses priorto trial. State v. Finnegan, 6 Wn. App. 612, 625, 495 P.2d 674 (1972). But we may affirm on any ground supported by the record. State v. White, 137 Wn. App. 227, 230, 152 P.3d 364 (2007) (citing State v. Ellis, 21 Wn. App. 123, 124, 584 P.2d 428 (1978). And here, as the State points out, the exclusion ofthe witnesses was proper because the matter upon which Mejia soughtto impeach Everettwas collateral to any material issues attrial. 

### "The rule is firmlyestablished in this state that a witness cannotbe impeached by showing the falsity of his testimony concerning facts collateral to the issue." State v. Putzell. 40 Wn.2d 174, 183, 242 P.2d 180 (1952) (citing State
v. Carpenter, 32 Wash. 254, 73 Pac. 357 (1932)). The testfor whether a matter

14No. 72727-3-1/15 is material orcollateral is whetherthe cross-examining party is entitled to prove the matter in support of its case. ]d. Here, Mejia soughtto have the excluded witnesses testify that Pallida had not stolen Everett's van but that he had in fact loaned it to her. The proposed witness testimony would not have furthered Mejia's defense and would only have detracted from the issues to be decided in the case. The trial court did not err when it excluded the witnesses. Criminal History Mejia argues thatthe State improperly submitted a statementthat 

### purported to recount his criminal history, and the trial court used that information to calculate his offender score. While such a summary is prima facie evidence of the existence and validity ofthe convictions listed, the court must be satisfied by
a preponderance ofevidence that the proffered history exists and is accurate. 

### RCW 9.94A.500(1). The State agrees that although Mejia did not object, remand for resentencing for the State to prove criminal history is the appropriate remedy. Affirm but remand for resentencing.

WE CONCUR:

15 CD CD