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

v. KEITH RICHARD CRAIG, Appellant. DIVISION ONE No. 67936-8-1 UNPUBLISHED OPINION
FILED: April 29, 2013 

### Dwyer, J. —Keith Craig was convicted of residentialburglary, theftin the second degree, and malicious mischiefin the second degree based upon an 

### incident in which he forced his wayinto a residence and stole several items of 

### property. Craig appeals from his conviction ofmalicious mischiefin thesecond degree, contending, first, that theevidence adduced athis trial was insufficientto supportthejury's verdict and, second, that thecharging documentfailed to 

### apprise him oftheessential elements ofthis crime. In addition, Craig contends that the rapid recidivism aggravator—which permits an exceptional sentence 

### where ajury determines beyond a reasonable doubtthat an offendercommitted his or hercrimes shortly after release from incarceration—is unconstitutionally 

### vague as applied to thefacts ofhis case. Theseclaims arewithout merit.No. 67936-8-1/2 Accordingly, we affirm.
I On April 7, 2011, at approximately 2:00 p.m., Nancy Cifuentes returned home to discover that her Seattle residence had been burglarized. Both her bedroom and the bedroom of her roommate had been ransacked, and several items of jewelry were missing from the home. In addition, both doors ofthe rear 

### entrance were badly damaged. The mesh of the external screen door had been torn, and a large hole had been cut through the paneling ofthe wooden door behind it. Cifuentes noticed an old gardening knife—typically stored in her 

### garage—lying near the rear entrance of the house. She immediately called the police. 

### Officers arrived at the scene shortlythereafter. The officers determined that the burglar had likely entered the home through the rear entrance. 

### Suspecting that the gardening knife had been used by the burglarto cutthrough the two doors, one of the officers searched the knife for fingerprints. Two latent 

### prints of comparison value were lifted from the knife. 

### A latentprint examinerwith the Seattle Police Departmentthereafter examined the prints. The examiner determined that the prints matched the 

### fingerprints ofKeith Craig, a convicted felon. Craig, whose criminal record included several prior convictions ofresidential burglary, had recently been 

### imprisoned for violating theterms ofhis community custody stemming from those convictions. He had been released on March 24, 2011, just 14 days before the burglary ofCifuentes' home.
-2-No. 67936-8-1/3 Craig was thereafter charged with residential burglary, theft inthe second 

### degree, andmalicious mischiefin the second degree.1 In addition, the State alleged that Craig committed his crimes "shortly after being released from incarceration, as defined by RCW 9.94A.535(3)(t)." Following a jury trial, Craig was convicted as charged. In a bifurcated trial, 

### the jurydetermined by special verdict that Craig committed his crimes shortly after his release from incarceration. At sentencing, the State sought an exceptional sentence based on two 

### statutory aggravating factors. First, the State argued, the "rapidrecidivism" aggravator setforth by RCW 9.94A.535(3)(t) justified an exceptional sentence. Second, because Craig's high offender score would result inseveral of his 

### current offenses going unpunished, the State contended that the free crimes doctrine set forth by RCW9.94A.535(2)(c) alsojustified a sentence above the standard range. The trial court thereafter imposed an exceptional sentence on the 

### residential burglary charge and imposed high-end consecutivesentences on the other two counts. The court explained that the exceptional sentence wasjustified 

### both bythejury's finding ofrapid recidivism and by the free crimesdoctrine. Craig appeals.
II 

### Craig first contends that, given the evidence adduced at histrial, no 1The State also chargedCraig with an additional countofresidential burglary based on an unrelated incident. This count was severed bythe trial court. Ajury trial on that charge ended in a mistrial.No. 67936-8-1/4
rational jury could have determined beyond a reasonable doubt that the damage to the rear entrance of Cifuentes' home exceeded $750. Because such proof
was required for thejury to convict him ofmalicious mischief inthe second degree, Craig contends that the evidence is insufficient to support thejury's verdict. We disagree. A challenge to the sufficiency ofthe evidence requires that we determine whether, after viewing the evidence inthe lightmost favorable to the prosecution, 

### any rational trier of fact could have found the essential elements of the crime 

### beyond a reasonable doubt. State v. Brockob. 159 Wn.2d 311, 336, 150 P.3d 59 

### (2006). All reasonable inferences must be drawn in the prosecution's favor and interpreted most strongly against the defendant. State v. Hosier. 157 Wn.2d 1, 8, 133 P.3d 936 (2006). "A claim ofinsufficiency admits the truth of the 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). Moreover, we must defer 

### to the trial of fact with regard to issues ofconflicting testimony, credibility of 

### witnesses, and the persuasiveness of the evidence. State v. Fiser. 99 Wn. App. 714, 719, 995P.2d 107(2000). 

### A person commitsmalicious mischiefin the second degree where he or she knowingly and maliciously causes physical damage to the property of another in an amount exceeding $750. RCW9A.48.080(1)(a). Damage includes the reasonable cost of repairs to restore the damaged property to its former condition. State v. Gilbert, 79 Wn. App. 383, 385, 902 P.2d 182 (1995). Even 

### where there isconflicting testimony regarding the amount of damage, wewill find
-4-No. 67936-8-1/5 the evidence sufficient to support a conviction so long as there is evidence from which a rational jury could determine that this element was proved. State v. Coria. 146 Wn.2d 631, 641, 48 P.3d 980 (2002). Here, there was ample evidence adduced to support thejury's verdict. Cifuentes testified that itcost $1,100 to repair the damage to the rear entryway of her home. She told thejury that she replaced the screen door due to a large rip in the screen and because the door would no longer properly close and latch 

### following the robbery. The wooden rear door, the integrity of which was 

### compromised by a large hole in its paneling, was also replaced by Cifuentes. A photograph of the wooden door, detailing the damage, was introduced into evidence. Cifuentes testified that none of this damage existed prior to Craig's unlawful entry of her residence. Given this evidence, and drawing all reasonable inferences inthe 

### prosecution's favor, we have nodifficulty in concluding that a rationaljury could havefound beyond a reasonable doubt that the damage to Cifuentes' residence exceeded $750. Although Craig contends that the testimony of another witness 

### contradicts portions ofCifuentes' testimony, we do not make credibility 

### determinations on appeal. Instead, in such circumstances, we must defer to the trier of fact. See Coria, 146 Wn.2d at 641. The evidence is sufficient to support 

### Craig's conviction ofmalicious mischiefin the second degree.No. 67936-8-1/6

Craig next contends that the information charging him with malicious mischief inthe second degree was deficient because it failed to allege that Craig damaged multiple items ofproperty as a result of a common scheme or plan. We disagree. An accused person has a constitutional right to be informed ofthe charge he or she is to meet at trial. State v. Pelkev. 109 Wn.2d 484, 487, 745 P.2d 854 (1987). Accordingly, the charging document must include all essential elements of a crime in order to apprise the accused ofthe charges and allow the 

### preparation of a defense. State v. Pineda-Pineda, 154Wn.App. 653, 670, 226 P.3d 164 (2010). When the sufficiency of a charging document isfirst raised on 

### appeal, however, it must be liberally construed in favor ofvalidity. State v. Kiorsvik. 117 Wn.2d 93,104-05, 812 P.2d 86 (1991). 

### As discussed above, inorder to convict a person of malicious mischief in 

### the second degree, the State mustprove that the person "cause[d] physical 

### damage to the property of anotherin an amount exceeding [$750]." RCW 9A.48.080(1)(a). The State is permitted to aggregate the amount ofdamage to 

### multiple items ofproperty only in narrow, statutorily defined circumstances. Only where the multiple items of property are damaged "as a result of a common 

### scheme orplan," isaggregation permitted to reach the $750threshold. RCW 9A.48.100(2). 

### Werecently considered the implications ofthis statutory language in State
v. Rivas, 168Wn. App. 882, 278 P.3d 686 (2012), review denied, 176Wn.2d
-6-No. 67936-8-1/7
1007 (2013). In Rivas, the defendant was charged with malicious mischief in the second degree for causing damage to two different vehicles. 168 Wn. App. at 885. In order to reach the $750 threshold necessary to prove this crime, the State aggregated the value ofthe damages to both vehicles—each of which constituted a separate item of property. 168 Wn. App. at 890. However, given the plain language ofthe statute, we concluded that "a common scheme or plan is an essential element of second degree malicious mischiefwhere the State 

### aggregates the value ofdamages to more than one itemof property." 168 Wn. App. at 889. Because the charging document failed to allege such a scheme or plan, we reversed the defendant's conviction. 168 Wn. App. at 890-91. 

### Craigcontends that here, as in Rivas. the State aggregated the value of 

### damage to multiple items of propertyin order to reach the $750 threshold. He asserts that the two doors damaged by Craig during the forced entry of Cifuentes' residence constitute two separate items of property. Accordingly, he 

### contends, the State was required to allege in the information the existence of a
common scheme or plan as an essential element of the charge of malicious mischief in the second degree. 

### Craig's reliance on Rivas, however, in plainly misplaced. In contrastto 

### that case, here, Craig was charged with causing damage to a singleitem of property: "a residence, the propertyof NancyCifuentes." The State did not charge Craig, as he nowasserts, with damaging "two doors." The components 

### of a single piece ofreal property—the doors, the windows, the walls, or the roof—do notconstitute separate items of property within the meaning of the
-7-No. 67936-8-1/8
malicious mischiefstatute. The State need not allege a common scheme or plan in every instance in which a single item of property is composed of items that could be further separated. The Legislature clearly did not intend such an absurd
result. Here, Craig was charged with malicious mischiefinthe second degree based upon physical damage to a single item ofproperty. In such circumstances, a common scheme or plan is not an essential element ofthe crime. Accordingly, the charging document was constitutionally sufficient.
IV 

### Craig next asserts that RCW 9.94A.535(3)(t), the rapid recidivism 

### aggravator, is unconstitutionally vague. He contends that the statute—which requires the State to prove beyond a reasonable doubt that a defendant has committed his or her crimes "shortly after being released from incarceration"— 

### lacks a limiting definition that permits an objective application by thejury. We disagree. 

### Our Supreme Court has made clear that, because sentencing guidelines neither define conduct nor "allow for arbitrary arrest and criminal prosecution by 

### the State," "the due process considerations that underlie the void-for-vagueness doctrine have no applicationin the context ofsentencing guidelines." State v. Baldwin. 150 Wn.2d 448, 459, 78 P.3d 1005 (2003). Because "nothing inthese 

### [sentencing] guideline statutes requires a certainoutcome, the statutes create no 

### constitutionally protectable liberty interest." Baldwin. 150Wn.2d at461. Relying
on Baldwin, we have likewise so held. State v. Duncalf. 164 Wn. App. 900, 911-
-8-No. 67936-8-1/9 12 n.2, 267 P.3d 414 (2011), review granted. 173 Wn.2d 1026, 273 P.3d 982 (2012).Nevertheless, Craig asserts that the holding of Baldwin has been eroded 

### bythe United States Supreme Court's decisions in Apprendi v. NewJersey. 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakelv v. Washington. 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Neither case, 

### however, directlyaddresses the issue at hand. As the Seventh Circuit has noted in a similar context, 

### [i]fa court ofappeals could disregard a decision of the Supreme 

### Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court's decisions could be circumvented with ease. They would bind onlyjudges too dimwitted to come up with a novel argument. Nat'l Rifle Ass'n of Am.. Inc. v. City of Chicago. IL. 567 F.3d 856, 858 (7th Cir. 2009). rev'd on other grounds by McDonald v. Citv of Chicago. IL. 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010). 

### Wewill not so lightly departfrom our Supreme Court'sprecedent. Craig's 

## challengetothe sentencing guidelines on vagueness grounds is unavailing.2
V 

### Finally, in a statement ofadditional grounds, Craig asserts that his 

### exceptional sentence is "clearly excessive" and that thetrial courterredby

2Craig additionally contendsthatthetrial court erredby instructingjurors thatthey must be unanimous in order to answer "no"to the special verdict question regarding the statutory 

### aggravator. However, subsequenttothe filing ofbriefing in this case,our Supreme Court unanimously rejected this argument and expressly approved the instruction given by the trial court. State v. Guzman Nuftez, 174 Wn.2d 707, 285 P.3d 21 (2012). Accordingly, there was no
error.No. 67936-8-1/10 including several priorjuvenile convictions when calculating Craig's offender 

### score.3 Wedisagree. With regard to Craig's first contention, we do not perceive Craig's sentence to be unduly harsh. Reversal of a sentence that is outside the standard sentence range is warranted where a reviewing court determines that "the sentence imposed was clearly excessive or clearly too lenient." RCW 9.94A.585(4). However, we will reverse on this basis only where we determine that the trial court abused its discretion in imposing the sentence. State v. Hale. 146 Wn. App. 299, 308-09, 189 P.3d 829 (2008). Here, at the time of 

### sentencing, Craig's criminal record included eight priorconvictions of residential 

### burglary, twoconvictions ofburglary in the second degree, as well as convictions 

### offorgery and trafficking in stolen property. His three currentconvictions only added to that total. As the trial court noted, an exceptional sentence wasjustified 

### both bythejury's finding ofrapid recidivism and bythe free crimesdoctrine. The courtclearly articulated its reasons forimposing an exceptional sentence, and 

### sentenced Craig to a term ofimprisonmentwithin the statutorylimit set forth by our legislature. The sentence was not excessive. 

### Craig's second contention is also without merit. Craig asserts that, because several of his juvenile convictionspreviously "washed out," the trial

3In his statement ofadditional grounds, Craig also appears to suggestthat his current convictions encompassed the same course ofcriminal conduct. However, where a defendant fails to raise the issue of same criminal conduct at sentencing, the right to argue that issue on appeal iswaived. Statev. Jackson. 150Wn. App. 877, 892, 209 P.3d 553 (2009). Here, Craig did not argue at sentencing thathis offenses constituted the same criminal conduct and, accordingly, he cannot raise this issue for the first time on appeal.
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court erred by including these prior convictions when calculating his offender
score. However, in State v. Varga. 151 Wn.2d 179, 191, 86 P.3d 139 (2004), our Supreme Court clarified that the 2002 amendments to the Sentencing Reform Act of 1981, chapter 9.94A RCW, permit the consideration of previously washed outjuvenile adjudications so long as the crime being sentenced was committed after the effective date of the amendments on June 13, 2002. Here, Craig committed his current offenses on April 7, 2011, well after the amendments' effective date. Accordingly, the trial court did not err by including these prior offenses when calculating Craig's offender score. Affirmed. 

# \__y^y^ t (/•
We concur:



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