FILED 


APRIL 9, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 31616-5-111 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

JESUS TORRES, ) 

) 

Appellant. ) 

LAWRENCE-BERREY, J. - Jesus Torres appeals his conviction for possession ofa 

stolen vehicle and first degree driving with a suspended license. He contends that the 

State failed to prove an essential element ofpossession ofa stolen vehicle, specifically, 

that he knew the mini-motorcycle was stolen. He also contends that the written procedure 

for peremptory challenges violated his right to a public trial and that there was no 

evidence to support the restitution award. He finally contends that there was no evidence 

to support the restitution award. We reject Mr. Torres's first two contentions, hold that he 

waived the third, and affirm. 
No. 31616-5-III 

State v. Torres 

FACTS 

On October 2,2012, Michael Horton and his coworker, Ricardo Campos, Jr., were 

working in a commercial building in Kennewick when Mr. Campos saw a man driving a 

mini-motorcycle that resembled one taken from Mr. Horton's home on September 12, 

2012. The driver saw Mr. Horton and Mr. Campos watching him and drove away from 

their location. Mr. Horton followed the driver and called police. 

Benton County Police Officer Christopher Littrell investigated and stopped Mr. 

Torres on the mini-motorcycle. Mr. Torres told police that it belonged to a friend who 

had built it from the ground up. 

Mr. Torres's friend, Jeremy Hendricks, testified that acquaintances named Dustin 

and Brittany left the bike with him for repairs about two weeks before Mr. Torres's arrest. 

Mr. Hendricks did not know the last names of the couple. Mr. Hendricks testified that he 

was an uncertified mechanic and that he was asked to fix the throttle cable. He said that 

he sometimes builds devices from spare parts, but had never built a motorcycle ofthis 

type. When he received the mini-motorcycle, it was assembled. 

Mr. Hendricks testified that neither he nor Mr. Torres knew the bike was stolen. 

Mr. Hendricks said he was keeping the bike until the couple could pay for the repairs. 

Both men took the bike for a test drive. 

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No.3l6l6-5-III 

State v. Torres 

Although Mr. Hendricks knew that Mr. Torres was arrested in October, Mr. 

Hendricks did not speak with police about the mini-motorcycle until approached by 

Officer Littrell in January. Officer Littrell testified that Mr. Hendricks told him the bike 

was dropped offby someone named Nick. Mr. Hendricks said he could not provide a 

telephone number or street address for the person who gave him the mini-motorcycle. 

Mr. Horton, the owner ofthe mini-motorcycle, testified that he recognized the bike 

from the tear in the seat, oil smudges, vice grips where the shifter was broken, and residue 

from the electrical tape on the gas tank. Mr. Horton said he paid $200 for the bike, which 

was below market value. The court admitted Mr. Horton's photographs of the minimotorcycle he lost and police photographs of the mini-motorcycle Mr. Torres was found 

riding. The defense agreed that the bike was stolen and Mr. Torres was riding it, but 

argued that there was no evidence that he knew it was stolen. 

During jury selection, the exercise of peremptory challenges occurred on paper. 

The trial court instructed counsel on the process for writing down the challenges. After 

each side questioned the potential jurors, the court instructed the attorneys to exercise 

their peremptory challenges. The court then concluded, "All right. That concludes 

peremptory challenges. I'll check with the clerk to verity my notes are correct." Report 

of Proceedings (RP) (Feb. 4, 20l3-Jury Voir Dire) at 68. 

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No. 31616-5-111 

State v. Torres 

A brief discussion was held off the record. Then, the trial court individually 

excused the challenged jurors, identitying each challenged juror by name and number. A 

jury roster filed with the court the following day listed the peremptory challenges 

exercised by each side. Additionally, a different list described the outcome for each juror, 

including a "CD" designation for those excused on challenges by the defense and "CP" 

for those excused by the State. Clerk's Papers at 45-46. The trial minutes listed the 

peremptory challenges, but did not reveal which side challenged which juror. 

The jury found Mr. Torres guilty of both possession of a stolen vehicle and first 

degree driving with a suspended license. The court sentenced Mr. Torres to 29 months 

for possession of the stolen vehicle conviction and 8 months on the driving with a 

suspended license conviction, to be served concurrently. The court also ordered Mr. 

Torres to pay legal financial obligations, including $503.35 in restitution. Mr. Torres did 

not object to restitution. 

Mr. Torres timely appealed. 

ANALYSIS 

A. Whether the State presented sufficient evidence that Mr. Torres knew that the minimotorcycle was stolen 

When sufficiency of the evidence is challenged, appellate courts review the record 

to determine whether the evidence is sufficient for a reasonable person to find every 

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No. 31616-5-II1 

State v. Torres 

element of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 


P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319,99 S. Ct. 2781, 61 L. 


Ed. 2d 560 (1979)). "A claim of insufficiency 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). 


Sufficient means more than a mere scintilla of evidence; there must be that 

quantum of evidence necessary to establish circumstances from which the jury could 

reasonably infer the fact to be proved. State v. Fateley, 18 Wn. App. 99, 102,566 P.2d 

959 (1977). Circumstantial evidence is considered as reliable as direct evidence. State v. 

Myers, 133 Wn.2d 26,38,941 P.2d 1102 (1997). 

A person is guilty of possession of a stolen vehicle if he or she possesses a stolen 

motor vehicle. RCW 9A.56.068(1). Knowledge that the property is stolen is an essential 

element of possession of stolen property. RCW 9A.56.140. Merely being in possession 

of the stolen property is insufficient to support a conviction for the offense, but 

possession coupled with slight corroborative evidence is sufficient to prove guilty 

knowledge. State v. Couet, 71 Wn.2d 773, 775, 430 P.2d 974 (1967). Corroborative 

evidence may include flight or the absence of a plausible explanation for legitimate 

5 

No. 31616-5-111 

State v. Torres 

posseSSIOn. State v. Womble, 93 Wn. App. 599, 604, 969 P.2d 1097 (1999). Here, 

sufficient evidence supports Mr. Torres's conviction for possession of a stolen vehicle. 

First, Mr. Hendricks gave inconsistent statements about who gave him the minimotorcycle, and he could not give the owner's identifying information to the police. 

While this does not establish that Mr. Torres knew about the mini-motorcycle's origins, 

the jury was entitled to draw an inference that Mr. Hendricks's possession was unlawful 

and that Mr. Hendricks's friend, Mr. Torres, also knew that the possession was unlawful. 

Second, the State produced evidence of flight through Mr. Horton. Mr. Horton 

testified about seeing Mr. Torres on the mini-motorcycle: "That's when he seen that we 

were watching him and he tried to ride away." RP (Feb. 5,2013) at 70. Mr. Torres 

argues that driving away is what one does while riding. However, it is for the jury, not 

the reviewing court, to decide what inferences to draw from the witness's testimony. We 

conclude that sufficient evidence exists for a reasonable trier of fact to find beyond a 

reasonable doubt that Mr. Torres knew the mini-motorcycle was stolen. 

B. Whether the trial court violated Mr. Torres's right to a public trial by conducting 

written peremptory challenges 

Mr. Torres contends that his convictions should be reversed because the trial court 

violated his right to a public trial by conducting peremptory challenges in writing. 

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No. 31616-5-III 

State v. Torres 

Whether the right to a public trial has been violated is a question of law that we review de 

novo. State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012). 

The Sixth Amendment to the United States Constitution and article I, section 22 of 

the Washington Constitution guarantee a criminal defendant the right to a public trial. In 

addition, the Washington Constitution promise~ that "[j]ustice in all cases shall be 

administered openly, and without unnecessary delay." CONST. art I, § 10. 

The right to a public trial extends to voir dire of prospective jurors. State v. Wise, 

176 Wn.2d 1,11,288 P.3d 1113 (2012). However, not every interaction between the 

court, counsel, and defendant will implicate the public trial right or constitute a closure. 

Sublett, 176 Wn.2d at 71. To determine whether public trial rights attach, courts apply 

the "experience and logic" test adopted in Sublett. Sublett, 176 Wn.2d at 72-73. The 

experience prong asks if historically, the place and process were open to the public. Id. at 

73 (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. 

Ed. 2d 1 (1986)). The logic prong asks ifpublic access plays a significant positive role in 

the functioning of the particular process in question. Id. (quoting Press, 478 U.S. at 8). 

Both questions must be answered in the affirmative for public trial rights to attach. 

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No. 31616-5-III 

State v. Torres 

Id. And, once public trial rights attach, the trial court must openly consider the five BoneClub 1 factors before closing the proceeding to the public. Sublett, 176 Wn.2d at 73. 

Directly contrary to Mr. Torres's argument, this court held in State v. Love, 176 

Wn. App. 911, 920, 309 P.3d 1209 (2013), review granted, 181 Wn.2d 1029,340 P.3d 

228 (2015) that the exercise ofperemptory challenges in a side bar conference does not 

violate the public trial right. Applying the experience and logic test from Sublett, this 

court found no evidence that peremptory challenges were historically made in public. Id. 

at 918. The court also found that the public interests were satisfied by recording the 

challenges in the written public record. Id.918-19. 

The holding in Love has been adopted by separate divisions of this court. Division 

Two of this court, addressing facts identical to the ones presented here, determined that a 

defendant's public right to trial was not violated when counsel conducted written 

peremptory challenges. State v. Webb, 183 Wn. App. 242,247,333 P.3d 470 (2014), 

review denied, 182 Wn.2d 1005,342 P.3d 327 (2015). 

We adhere to the rulings in Love and Webb. The trial court's exercise of written 

peremptory challenges in an open courtroom did not violate Mr. Torres's right to a public 

I State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995). 

8 

No. 31616-5-III 

State v. Torres 

trial. The public's open access to voir dire proceedings and the timely record made of the 

peremptory challenges protected the public's right and the open administration ofjustice. 

C. Whether Mr. Torres's restitution order must be reversed 

The restitution order requires Mr. Torres to pay Mr. Horton $503.35. Mr. Torres 

argues that the restitution order should be vacated because the State failed to present any 

evidence of the amount of loss. At trial, the owner testified that the mini-motorcycle was 

returned to him damaged. However, there was no evidence of the cost of repair. The 

only testimony touching on value was the owner's testimony that he had purchased the 

used mini-motorcycle for $200. The State argues that Mr. Torres is precluded from 

raising this issue on appeal because he failed to preserve it by objecting below. 

Where a defendant fails to object to the amount of restitution at the trial court, this 

is deemed a waiver of the issue and prevents its review on appeal. State v. Branch, 129 

Wn.2d 635,651,919 P.2d 1228 (1996) (citing State v. Harrington, 56 Wn. App. 176, 

181, 782 P.2d 1101 (1989) (failure to object to amount of restitution order at trial 

precluded review on appeal). 

Defendant attempts to circumvent the above rule by citing RAP 2.5(a)(2), which 

provides, "a party may raise the following claimed error[ ] for the first time in the 

appellate court: ... (2) failure to establish facts upon which relief can be granted." 

9 

No.3l6l6-5-III 

State v. Torres 

InState v. Moen, 129 Wn.2d 535,537-38,919 P.2d 69 (1996), the defendant failed 

to object to a restitution order that the sentencing court entered after the statutory time for 

entering such orders expired. The Moen court discussed whether to permit the defendant 

to raise the issue on appeal, despite not having objected below. The Moen court noted 

that the purpose ofrequiring an objection at the trial level was to give the sentencing 

court the opportunity to correct its error. Because an objection would not have given the 

sentencing court the opportunity to correct its error, i.e., the order still would have been 

entered late, the Moen court held that it was proper to review the restitution order despite 

the lack of objection below. Id. at 547. Here, unlike Moen, had Mr. Torres raised a 

timely objection, the trial court could have corrected its error either by inquiring into the 

factual basis for the restitution amount or by scheduling a restitution hearing. We 

distinguish State v. Moen, follow State v. Branch, and hold that Mr. Torres's failure to 

object below precludes our review of the restitution order. 

MR. TORRES'S REQUEST TO EXPAND HIS ASSIGNMENTS OF ERROR 

This appeal was submitted for decision without oral argument on October 24, 

2014. On March 11,2015, Mr. Torres filed a motion to file supplemental brief with 

supplemental assignment of error, and he also filed a supplemental brief. Mr. Torres's 

motion is motivated by Division Two's recent decision in State v. Satterthwaite, 

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No. 31616-5-II1 

State v. Torres 

No. 45732-6-II (Wash. Ct. App. March 10,2015). There, Division Two held that the 

information charging possession of a stolen motor vehicle was constitutionally deficient 

because it failed to include an element ofthe offense found in RCW 9A.56.140(l), i.e., 

"withhold or appropriate." 

Mr. Torres did not raise this issue at the trial court level nor did he raise this issue 

at the appellate court level through an original assignment of error. He suggests that this 

court must provide one oftwo means of effective relief. Either we must permit him to 

file a supplemental brief so he can raise this issue, or else we must allow him to argue 

ineffective assistance of counsel for his counsel's failure to timely raise it. 

We decline to provide either means of relief. First, there is no rule of appellate 

procedure that allows an appellant to broaden his assignments of error months after 

briefing is complete. Rather, the rule requires assignments of error to be made in the 

opening brief. RAP 10.3(a)(4). Second, Mr. Torres does not cite any authority for his 

argument that his counsel's failure to anticipate a new rule of law constitutes ineffective 

assistance of counsel. The new rule is not obvious. Although we decline to agree or 

disagree with the new rule, we recognize the tension with, and the effort Division Two 

made to distinguish, State v. Johnson, 180 Wn.2d 295, 325 P.3d 135 (2014). 

11 

No. 31616-5-111 

State v. Torres 

We decline to request additional briefing on this issue because Mr. Torres has 

failed to make a colorable argument that he received ineffective assistance of counsel in 

this instance. His motion to file a supplemental brief for the purpose of making a new 

assignment of error is denied. 

STATEMENT OF ADDITIONAL GROUNDS 

In his statement of additional grounds for review, Mr. Torres contends that his 

counsel was ineffective. He maintains that his attorney failed to introduce jailhouse 

telephone calls from the person who let Mr. Torres borrow the mini-motorcycle, telling 

Mr. Torres that he did not know that the mini-motorcycle was stolen. 

To establish ineffective assistance of counsel, a defendant must prove both, 

"(1) defense counsel's representation was deficient, i.e., it fell below an objective 

standard ofreasonableness based on consideration of all the circumstances; and 

(2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a 

reasonable probability that, except for counsel's unprofessional errors, the result ofthe 

proceeding would have been different." State v. McFarland, 127 Wn.2d 322,334-35, 

899 P.2d 1251 (1995). 

While the prosecutor referenced jailhouse telephone calls between Mr. Torres and 

Mr. Hendricks, the record does indicate that Mr. Hendricks said that he did not know the 

12 

No.31616-5-III 

State v. Torres 

motorcycle was stolen. Even ifMr. Torres could show that the telephone calls contained 

the alleged information, Mr. Torres's attorney would not be deficient for failing to 

introduce the calls. Mr. Hendricks's admission during the telephone conversation was 

duplicative of his testimony presented at trial. According to Mr. Torres, the telephone 

calls established that Mr. Hendricks did not know the mini-motorcycle was stolen. 

However, Mr. Hendricks personally testified to this same fact at trial. Counsel's 

performance was not deficient. Mr. Torres fails to establish ineffective assistance of 

counsel. 

We affirm. 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Lawrence-Berrey, J. 

WE CONCUR: 


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