### IN THE COURT OF APPEALS OF THE STATE OF WASH] DIVISION II STATE OF WASHINGTON, 

## I No. 43915 -8 -II Respondent, V. VICTOR WHALEN, 

### r6LED CGILh' T 01' ! 

## PM`

iLS Ell , 1I; 

### Ci11I 2oJ i 

### FEB 20 

## r4P,1 9: 28 ON 

### 0TOld 0

UNPUBLISHED OPINION UTY

PENOYAR, J. — Victor Whalen appeals his conviction for attempted motor vehicle theft. He argues that the evidence is insufficient to support his conviction and that the trial judge 

### violatedthe appearance offairness doctrine by not disclosingthatthejudge had once represented Whalen. He also includes a statement ofadditional grounds (SAG) alleging that his counsel was ineffective and that his statements to police should have been suppressed. The evidence is 

### sufficientto support Whalen's conviction, he waived his appearance offairness argument by not 

### objecting below,and neitherofthe issues in his SAG requires reversal. We affirm. FACTS 

### Richard Leventon had parked his Isuzu Rodeo in a gravel lot at the corner ofHighway 6 and Scheuber Road. 

### People often parked theirvehicles in the lot when they were trying to sell them. 

### At about 1: 30 A.M. on June 12, 2012, Deputy Brady Taylor drove pastthe gravel lot and noticed that the Isuzu' s hazard lights were 

### flashing. Taylor had noticed the Isuzu parked in the lot earlier in the 

### day, and its hazard lights were not 

### flashing at that time. Taylor entered the 

### parking lot to investigate and noticed someone crouched down and moving along the passenger side ofthe Isuzu. The person stood up when he reached the front ofthe car and ran south across Highway 6 into a field. He was wearing a dark shirt or coat with red or orange stripes on the43915 -8 -II

sleeves. 

### He fled into a swampy area nearthe river, and Taylor called forbackup, including a K9 unit. While waiting for the K - 9 unit, Taylor heard something moving in the water. 

### The dog 

### initially tracked a scent to the water' s edge, near some recently disturbed bushes. 

### The dog handler was not able to safely follow the track into the water. 

### The dog then tracked a scentto a white Dodge Neon parked in a 

### driveway on Scheuber Road. 

### The police had recently received a suspicious vehicle" call regarding the Neon. Report of Proceedings (RP) (

### Aug. 15, 2012) at 89. The police inspected the Isuzu and found that the passenger door' s keyhole and the steering column were damaged, and there were two screwdrivers,) 

### a Global Positioning System GPS), 

### and pieces ofthe steering column lying onthe seats and floorboard. The police contacted Leventon and he stated that the vehicle was clean, locked, and undamaged when he last saw it and that the screwdrivers and GPS were not his

Several hours later, at about 7 A.M., 

### Officer Michael Lowrey was driving on Highway 6 

### near Scheuber Road when he noticed Whalen walking across a field,coming from the direction ofthe river. Whalen's clothing fitthe description ofthe suspect fromthe attempted vehicletheft, 

### so Lowrey stoppedto talkto him. Lowrey noticed that Whalen was soaking wet and covered in grass. When Lowrey askedWhalen what hewas doing inthe area,Whalen said hewas "taking a walk" and " 

### looking for a 

### fishing hole." RP (

### Aug. 15, 2012) at 117. 

### When asked why he was wet, Whalen first said it was from the rain. 

### Lowrey pointed out that it had just now started sprinkling. Whalen then said he had fallen into the river while 

### looking for a place to fish. He


## 1 Screwdrivers arecommonlyusedto stealvehicles;theycanbejammed intothe ignitionto forcethevehicleto start withoutakey. 243915 - 8 -II later said he was wet from 

### falling onto wet grass. 

### Lowrey called for a deputy who arrested Whalen.

The 

### deputy searched Whalen incident to his. arrest and found a car 

### key. The car key started the white Neon. 

### Whalen admitted that he had been driving the white Neon and that he had walked by the Isuzu the morning ofthe attempted theft. Taylor confirmedthatthe sweatshirt Whalen was arrested in matched the shirt ofthe person he had seen atthe Isuzu.

The State charged Whalen with attempted motor vehicle theft. 

### The jury found Whalen guilty as charged. 

### At sentencing, Whalen spoke on his own behalf and, when asking the trial 

### court for leniency, mentioned that the sentencing judge had represented Whalen when Whalen was ateenager. The trial court sentenced him to 42.75 months ofconfinement. Whalen appeals. ANALYSIS I. INSUFFICIENT EVIDENCE First, Whalen argues thatthe State failed to present sufficient evidence that he committed attempted motor vehicle theft. The evidence placed Whalen in the area at the time ofthe crime and Whalen matched the description of the person Taylor saw at the Isuzu. There is sufficient 

### evidence forthejuryto conclude thatWhalen was guilty ofattempted motorvehicle theft. 

### Evidence is legally sufficient to support a guilty verdict if any rational trier of fact, 

### viewing the evidence in the light most favorable to the State, could find the elements ofthe charged crime beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420 - 21, 5 P.3d 1256 ( 2000). We interpret all reasonable inferences in the State' s favor. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 ( 2006). Direct and circumstantial evidence carry the same weight. State v. Varga, 151 Wn.2d 179, 201, 86 P. 3d 139 ( 2004). 

### Credibility determinations are forthe
3

### 43915 -8 -II
trier of fact and are not subject to review. State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 2006).

### A person is guilty of attempted motor vehicle theft if,with intent to commit motor vehicle theft, he takes a substantial step toward committing motor vehicle theft. RCW 9A.28. 020( 1). 

### A person commits motor vehicle theft if he wrongfully obtains or exerts unauthorized control over another' s vehicle with intent to deprive him of the vehicle. RCW 9A.56.020( l)(a); RCW 9A.56.065( 1). 

### Here, there is sufficient evidence that Whalen took a substantial step toward committing
motor vehicle theft. 

### The Isuzu's door and steering column had been damaged, the hazard lights

were on, and there were screwdrivers — tools often used in motor vehicle thefts —on the seats and floorboard. 

### The only person in the area when the attempted theft was discovered matched Whalen' s description. 

### Taylor saw someone wearing the same shirt as Whalen skulking around the Isuzu; the person then took off toward the river; Taylor heard noises in the water; the K - 9 

### unit dog tracked a scent to the water and to the white Neon Whalen was driving; and Lowrey later saw Whalen walking from the direction of the river, drenched and covered in grass. When 

### Lowrey questioned Whalen about his appearance, Whalen gave conflicting answers. Whalen also admitted that he had walked pastthe Isuzu before the attempted theft, and the vehicle he had 

### been driving was discovered nearby. Looking atthe facts inthe lightmostfavorable tothe State, the jury could have reasonably concluded that Whalen was the person Taylor discovered attemptingto steal the Isuzu andthathe ran into the riverto hide until the police left. II. APPEARANCE OF FAIRNESS DOCTRINE Whalen next argues that the trial judge violated the appearance of fairness doctrine because the judge failed to disclose that he had previously represented Whalen. Whalen waived M43915 -8 -II
this challenge 

### by not objecting at trial. RAP 2.5( a). In fact, the record indicates that Whalen was 

### attemptingto use his priorrelationship with thejudgeto obtain leniency. In any case, the mere fact that Judge Lawler may have represented Whalen many years ago raises no reasonable question about his 

### impartiality in the present case. Judges in smaller 

### jurisdictions often have some acquaintance with those appearing before them and should only 

### disqualify themselves when there is something abouttheir relationship with or knowledge about

a party that raises a reasonable question about 

### impartiality. CJC 2. 11( A). 

### Judges have a dutyto 

### hearcases and notdisqualifythemselves unnecessarily. See CJC 2.7. III. SAG 

### Finally, in his SAG, Whalen argues that his counsel was ineffective and that his 

### statements to Lowrey should have been suppressed. Neither ofthese issues requires reversal.

A. Ineffective Assistance Whalen asserts that his counsel.was ineffective because counsel did not present a defense
and did not object to the 

### jury seeing Whalen in restraints. He fails to demonstrate ineffective assistance on either issue.

Under the Strickland2 test, the defendant must show that counsel' s performance was deficient and that this deficient performance prejudiced him. State v. Grier, 171 Wn.2d 17, 32- 33, 246 P.3d 1260 ( 2011) ( 

## quoting State v. Thomas, 109 Wn.2d 222, 225 - 26, 743 P.2d 816 1987)). Performance is deficient only if it "[ falls] below an objective standard of
reasonableness." Strickland, 466 U.S. at 688. 

### Deficient performance is prejudicial only ifthe defendant shows that "` 

### there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. "' Grier, 171 Wn.2d at 

### 2 Stricklandv. Washington, 466 U.S. 668, 104 S. Ct.2052, 80 L. Ed.2d 674 (1984). 5r

43915 -8 -II 34 ( quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009)). "` A reasonable probability is a probability sufficient to undermine confidence in the outcome. "' Grier, 171 Wn.2d at 34 ( quoting Strickland, 466 U.S. at 694). 

### Failure to satisfy either prong of the test defeats an ineffective assistance claim. Strickland,466 U.S. at 697.

Whalen cannot satisfy the prejudice prong for either issue. He does not argue, nor does 

### the record indicate, that there were any witnesses or evidence that would have changed the
outcome of the case if only counsel had called the witnesses or offered the evidence. Thus, he

was not prejudiced 

### by counsel' s decision to rest at the close of the State' s case. Furthermore, there is no evidence in the record that the 

### jury saw Whalen in restraints. There is also no 

### evidence that counsel was even aware or made aware that jurors may have seen Whalen in restraints. See State v. Hutchinson,. 135 Wn.2d 863, 888, 959 P.2d 1061 ( 1998) ( a defendant
must show that the restraints " 

### had a substantial or injurious effect or influence on the jury's verdict "). Counsel was not ineffective.

B. Suppression Whalen next contends that his statements to 

### Lowrey violated his Miranda3 rights and 

### they should have been suppressed. Afterthe CrR3.5 hearing,the trial court concludedthat all of 

### Whalen's statementsto Lowreywere made priorto his arrest andthatWhalen was not in custody
at the time he made the statements. Therefore, Miranda protections did not apply. We affirm the trial court. 

### In deciding whether Miranda warnings were necessary, courts must determine whether the defendant was (1) in custody and (2) subjectto interrogation. State v. Grogan, 147 Wn.App. 511, 517, 195 P. 3d 1017 ( 2008). " 

### A defendant is in custody forthe purposes ofMiranda when 3 Miranda v.Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). 643915 -8 -II

his or her freedom of action is curtailed to a ` degree associated with formal arrest. "' Grogan, 

### 147 Wn.App. at 517 (quoting State v. Solomon, 114 Wn.App.781, 787, 60 P.3d 1215 (2002)). Here, the trial court correctly concluded that Whalen's freedom was not curtailed to a degree associated with formal arrest. Lowreywas the only officerpresent. He and Whalen were conversing outside near the field where 

### Lowrey saw Whalen. 

### Lowrey did not block Whalen's path, handcuff him, arrest him, or tell him he was not free to leave. Because Whalen was not in 

## custody,when he spoke with Lowrey, the trial court correctly denied Whalen's suppression
motion.

We affirm. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:
1

Maxa, J.

Lee, J.

7