### FILED DECEMBER5, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
V. KEVINBRYCE SNOW, Appellant, STEPHENL. MURPHY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 34731-1-111

UNPUBLISHED OPINION

KORSMO, 

### J.

- Kevin Snow appeals his convictions for second degree burglary and four counts ofpossession ofa stolen motorvehicle, arguing thatthe evidence was insufficientto supportthe convictions and that his counsel rendered ineffective assistance. We affirm. FACTS This incident arose after Stephen Murphy stole four snowmobiles and a cargo trailer from a Spokane Valley business around September2, 2015. He contactedhis friend, Kevin Snow, and asked for assistance in storing the property.No. 34731-1-III State v. Snow
In July 2013, Snow's former residence on Wellesley Avenue in northwest Spokane had been foreclosed by the bank and remained unoccupied through the dates of this incident. 1 Snow, who apparently had retained a key to the detached garage onthe property, metMurphy there inthe middle ofthe night on September2. He helped Murphy unload the four snowmobiles and locked them in the garage. Police served a search warrant for the garage on September 8, 2015. They found the four missing snowmobiles in varying stages ofdisassembly. Mr. Snow later was arrested and he subsequently spoke with the investigating detective on September 10. Mr. Snow did not testify at the ensuing trial, but some ofhis statements to the detective
were offered into evidence. He told the detective that he was "reasonably sure" the snowmobiles were stolen and heprovided the storage area because Murphy assured him "hewould be taken care of." Report ofProceedings (RP) at 57. The defense rested withoutpresenting evidence andtheparties agreed to all ofthe jury instructions given by the court; no additional instructions were sought by anyparty. The defense argued the case to thejury on the theory thatMr. Snow did not knowthatthe snowmobiles were stolen andthat he thoughthe could still use the garage.

1A neighbortestified thathe had not seen Mr. Snow onthe property since 2011 and had not seen anyone on the property since 2012. 2No. 34731-1-111 

### State v. Snow

, Thejury, however, convicted Mr. Snow as charged. Afterthe court imposed concurrent standard range terms, Mr. Snow timely appealed to this court. A panel consideredthe case without argument.ANALYSIS Mr. Snow first argues thatthe evidence was insufficient to supportthejury's verdict on each countbecause there was no evidence showing his privilege to use the property had been revoked orthat he knew the snowmobiles were stolen. He also contends thathis counsel performed ineffectively by not seeking an instruction onthe lesser included offense ofcriminal trespass. We first address his sufficiency ofthe evidence instruction before turning to the ineffective assistance claim. 

### Sufficiency of the Evidence The sufficiency ofthe evidence arguments eachrevolve around the defendant's knowledge ofcertain facts relevant to the convictions. Properly understood, the evidence supportedthe elements ofthe crimes. Very well settled standards govern review ofthis issue. We review such challenges to see ifthere was evidence from whichthe trier offact could find each element ofthe offense proved beyond a reasonable doubt. 

### Jackson v. Virginia, 443 U.S. 307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); 

### State v. Green, 94 Wn.2d 216, 221- 222, 616 P.2d 628 (1980). The reviewing court will considerthe evidence in a light most

3No. 34731-1-III 

### State v. Snow
favorable to the prosecution. Id. Reviewing courts also must defer to the trier offact "on issues ofconflictingtestimony, credibility ofwitnesses, and the persuasiveness ofthe evidence." 

### State v. Thomas, 150 Wn.2d 821, 874-875, 83 P.3d 970 (2004). "Credibility determinations are for the trier offact and are not subject to review." Id. at 874. The charged offenses each contain several elements, but only a few ofthem are at issue in this appeal. With respect to the second degree burglary count, Mr. Snow challenges the unlawful entry element.2 Onthe possession ofstolenvehicle counts, he argues the evidence did not establishthat he knew the vehicles were stolen.3 We briefly tum to each ofthese contentions. "Aperson 'enters or remains unlawfully' in orupon premises whenhe or she is not then licensed, invited, or otherwiseprivileged to so enter orremain." RCW 9A.52.010(2). The Statepresented evidence from a bank employee thatthe bankhad foreclosed Mr. Snow's interest in the property and now owned it; no one was authorized to be on the property oruse it. Despite that evidence, and despite the fact that he

2 "Aperson is guilty ofburglary in the second degree if, with intentto commit a crime against a person orproperty therein, he or she enters orremains unlawfully in a building otherthan a vehicle or a dwelling." RCW 9A.52.030(1). 3 "Aperson is guilty ofpossession ofa stolen vehicle ifhe or shepossess [possesses] a stolen motorvehicle." RCW 9A.56.068(1). In tum, "possessing stolen property" means "knowingly to receive, retain, possess, conceal, or dispose ofstolen property knowing that it has been stolen." RCW 9A.56.140(1). 

### See State v. Porter, 186 Wn.2d 85, 90-93, 375 P.3d 664 (2016) (applying definition to possession ofa stolen motor vehicle). 4No. 34731-1-III 

### State v. Snow presented no evidence whatsoeverthat would suggesthe thought he still could use the property, Mr. Snow argues that it was not shown that he had been evicted from the property. He does not explain how there was any duty to prove thatpoint. Dueprocess merely requires the State to prove the elements ofits case. 

### Jackson, 443 U.S. at 319. Mr. Snow cites to no authority requiring that the defense case neededto be disproved. Properly understood, the evidence supportedthejury's determination that the unlawful entry element was established. Mr. Snow also argues thathe did not know thatthe snowmobiles were stolen property. However, his own statementto the police that he was "reasonably sure" they
were stolen is plenty ofevidence thathe knew that fact. In addition, the middle ofthe night concealment and subsequent dismantling ofthe snowmobiles in an unoccupied garage thatMr. Snowhad not used for four years was circumstantial evidence thatthis operation was not above board. Ajury could infer from this circumspectbehaviorthat Mr. Snow knewthe snowmobiles had been stolen. Accordingly, the evidence supported thejury's determinationthat each ofthe contested elements was established beyond a reasonable doubt. The evidencewas sufficient.

5No. 34731-1-111 

### State v. Snow IneffectiveAssistance of Counsel Mr. Snow next argues that his counsel provided ineffective assistance because he did not seek an instruction for the lesser included offense ofcriminal trespass. While the State contends that there was no factual basis for giving the instruction, we rejectthe challenge due to the inadequacy ofthe record to review the claim. This claim, too, is governed by very well settledprinciples. An attorney must performto the standards ofthe profession; failure to live up to those standards will require a new trial when the client has been prejudiced by counsel's failure. 

### State v. 

### McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. 

### Stricklandv. 

### Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under 

### Strickland, courts evaluate counsel'sperformance using a two-prong test that requires courts to determine whether ornot (1) counsel'sperformance failed to meet a standard of reasonableness and (2) actual prejudice resulted from counsel's failures. 

### Id. at 690-692. When a claim can be disposed ofon one ground, a reviewing court need not consider both 

### Stricklandprongs. 

### State v. 

### Foster, 140 Wn. App. 266, 273, 166 P.3d 726, 

### review denied, 162 Wn.2d 1007 (2007).

6No. 34731-1-III State v. Snow
RPC 1.2(a) provides in partthat "alawyer shall abide by a client's decisions concerning the objectives ofrepresentation." This provision is crucial to addressing Mr. Snow's claim that his attorney should have sought an instruction on criminal trespass as a lesser included offense ofthe burglary charge. As in many instances when dealing with a claim that a lesser offense instruction should have been pursued, we have no way of knowing what the defense goal ofthe litigation was. 

### It is improper for a courtto intrude
on the defendant's autonomy in the presentation ofhis defense. See, e.g., State v. Coristine, 177 Wn.2d 370, 375, 300 P.3d 400 (2013) (cannot instruct on affirmative defense over defense objection). RPC 1.2 holds defense counsel to the same standard. Once the defendant selects the goals ofrepresentation, counsel has a broad authority to conduct the case in a manner consistent with those goals. The record ofthis case does not indicate what goals Mr. Snow may have been hoping to achieve in the defense ofthis case. We, thus, cannot know whetherpursuing a lesser included offense was consistent with those objectives ornot. Accordingly, the claim is not manifest and we have no basis for reviewing it.4 The record does not permitus to consider whether counsel rendered ineffective assistance ornot. Mr. Snow mustpursue a personal restraintpetition ifhe believes he has

4 Therefore, we do not decide whether there was a factual basis for giving the included offense instruction orwhether counsel had a tactical reason for notpursuing that avenue. 7No. 34731-1-111 

### State v. Snow

an evidentiary basis for advancing this contention. 

### State v. 

### Norman, 61 Wn. App. 16, 27- 28, 808 P.2d 1159 (1991). Thejudgment is affirmed.5 A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

I CONCUR:
Lawrence-Berrey, J. 

### j

5 Mr. Snow requests that we waive appellate costs. We deferthat issue to our commissioner in accordance with amended RAP 14.2 in the eventthatthe State requests costs and Mr. Snow objects to the request. 8 

## I l

### No. 

### 34731-1-111 FEARING, 

### C.J. (concurring)-The majority eschews review ofKevin Snow's contention that his trial counsel performed inadequately when counsel did not seek a lesser included offensejury instruction for criminal trespass to the second degree burglary charge. Snow's contention raises the familiar question ofwhether counsel performs effectively when adopting an all ornothing strategy. In declining examination ofSnow's contention, the majority correctly observes that this court lacks knowledge of Snow's goals. Based on this observation, the majority speculates that withholding a request for a lesser included offense instruction might have advanced Snow's goals. The majority opinion impliedly suggests that, ifwithholding ajuryinstruction advances the accused's goals, the attorney necessarily performs within the standard of
care by withholding a request for the instruction. No law supports such a conclusion. Nor does the majority identify when an all or nothing strategy advances the client's goals
or does not advance the goals. Presumably the accused wishes to be acquitted on as many charges as possible. The majority does little to enlighten the reader as to the role ofdefense counsel in selecting an all or nothing strategy to meet this goal. Instead, the majority's ruling fails to recognize the integral role that an attorney plays when determining whetherto ask forNo. 34731-1-111 State v. Snow

- (concurring)

a lesser included offense instruction. Most clients will notknow whetherto ask for the lesser includedjury instruction. Most, ifnot all, accused will rely onthe attorney's advice as to whatjury instructions topropose to the court. The majority does not expressly assign the prerogative ofchoosingjury instructions to eitherthe attorney orthe accused. Instead, the majority declares that, after the client selects the goals, the attorney possesses broad authority to conductthe case in a
manner consistent with the goals. The majority does not expressly state thatthe attorney has unlimited discretion when deciding whether seeking a lesser included instruction advances the client's goals. Even ifthe attorney has wide discretion when selectingjury instructions, one may exercise discretion unreasonably. The logical extension ofthe majority's ruling is that an appeals court should never entertain a direct appeal that asserts ineffective assistance ofcounsel ifthe assertion contends that counsel unreasonably failed to demand a lesser offensejury instruction. Because after all, the trial record does not chronicle the accused's goals. The defendant and his trial counsel do not discuss, onthe record, the goals ofthe client and howto effectuate those goals. Contrary to the majority's ruling, Washington reviewing courts, as well as all other Americanjurisdictions, routinely address, on direct appeal, challenges based on ineffective assistance ofcounsel when failing to seek a lesser included offense instruction. State v. Witherspoon, 180 Wn.2d 875, 329 P.3d 888 (2014); State v. 2

### No. 34731-1-III State v. Snow

- (concurring) Breitung, 173 Wn.2d 393,267 P.3d 1012 (2011); State v. Grier, 171 Wn.2d 17,246P.3d 1260 (2011), disagreedwith on othergrounds, Crace v. Herzog, 798 F.3d 840 (9th Cir. 2015); State v. Embry, 171 Wn. App. 714,287 P.3d 648 (2012); State v. Edwards, 171 Wn. App. 379, 294 P.3d 708 (2012); State v. Chouap, 170 Wn. App. 114,285 P.3d 138 (2012); State v. McKague, 159 Wn. App. 489, 246 P.3d 558 (2011); State v. Mullins, 158 Wn. App. 360,241 P.3d 456 (2010); State v. Hassan, 151 Wn. App. 209,211 P.3d 441 (2009). None ofthe decisions suggest that the appellate court should decline review because the court lacks knowledge as to the client's goals and howtrial counsel's performance fit those goals. The courts do not fret about missing knowledge ofthe defendant's goals. Instead the courts examine whether defense counsel conceivably had
a reasonable basis for withholding a request for thejury instruction. The majority opinion principally relies on RPC 1.2. This rule ofprofessional responsibility declares: (a) Subjectto paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives ofrepresentation and, as required by RPC 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalfofthe client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to apleato be entered, whether to waivejurytrial and whether the clientwill testify. I note thatthe rule requires defense counsel to abide by the client's decisions whether to plead guilty, whether to waive ajurytrial, and whether to testify. RPC 1.2(a) does not 3

### No. 34731-1-111 State v. Snow - (concurring) require defense counsel to abide by a client's decision as to whetherto ask for a lesser includedjury instruction. Washington precedent shuns use ofRPC 1.2 in the setting ofineffective assistance ofcounsel. Washington precedent also directs a reviewing court to examine, on direct appeal, a claim ofineffective assistance ofcounsel regardless ofwhetherthe client or counsel renders the decision to forego a lesser includedjury instruction. In State v. Grier, 171 Wn.2d 17 (2011), defense counsel originally proposed lesser included offensejury instructions for manslaughter to the charge ofsecond degree murder. Later counsel withdrew the lesser included instructions without explanation. He stated, however, that he discussed the decision with his client and the client agreed with the decision. On appeal, in State v. Grier, Kristina Grier asserted that hertrial counsel performed deficiently when withdrawing thejury instructions. In response, the State argued that, because Grier agreed to forgo the instructions and because the decision to withhold lesser included instructions resides withthe defendant, nother attorney, Grier cannot fault her attorney. The Supreme Courtreviewedrules ofprofessional conduct, including RPC 1.2, and disagreed that the decision as to whetherto seek a lesser included jury instruction rested solely with the defendant. Instead, the choice oftrial tactics and the methodology followed when employing those tactics rests in the attorney'sjudgment. I already mentioned that the majority's ruling would bar, on direct review, any claims ofineffective assistance ofcounsel for failing to seek a lesser included offense 4No. 34731-1-III State v. Snow - (concurring)
instruction. A further logical augmentation ofthe majority's ruling wouldbe to insulate review, in all direct appeals, ofcontentions based on any form ofineffective assistance of counsel. Ifthe defendant claims that his trial attorney failed to object to evidence attrial, this court's response would be: "We do not knowwhatthe defendant's goals were. Therefore, we do not know whether a failure to object to the evidence fulfilled those goals." Ifa defendant claims on appeal that his trial counsel unreasonably failed to seek to severherprosecution from a codefendant's prosecution, this court's response would be: "We do not know whatthe defendant's goals were. Therefore, we will not review the appeal because we do not know ifthe failure to seek severance fulfilled those goals." If the defendant argues his counsel unreasonably failed to call a witness, this court response would be: "Wewill not review the assignment oferrorbecause we do not know ifthe refusal to call the witness fulfilled the defendant's goals." The unlimited examples of attorney deficiencies unreviewable on appeal would include failures to interview a witness, to objectto a prosecutor's argument, to challenge ajuror, orto sequester witnesses. In declining review, the majority also pegs its decision on a basis not argued by the State ofWashington. I concur in the result only ofthe majority opinion.
Fearing, C.J. 5