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

v. ELI EDWARD REITER, Appellant. No. 70366-8-1 DIVISION ONE I en inUNPUBLISHED OPINION

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o r-*- FILED: August5, 2013 Appelwick, J. — Reiter argues that there is insufficient evidence to support his conviction for residential burglary. He also argues he received ineffective assistance, because defense counsel did not objectto testimony establishing that he was arrested for the crime, that a resident ofthe home confronted him and accused him ofbeing in the home, and that he was a transient. We affirm. FACTS 

### JohnLewis1 was at homewatchingtelevision at 8:30p.m. when he heard a noise outside. He opened his frontdoorto investigate. John could not identify the sound, but noted that the garage doors were shut. He went back inside and sat down. A few minutes later, he heard a sound coming from the garage. John went outside and saw thatone ofthe garage doors was partiallyopen. He looked down the driveway and saw a man, lateridentified as Eli Reiter, walking away. John's daughter, Katie Lewis, came 

### outside. She and several neighbors corralled Reiter whileJohn went inside and called the police.



### 1 Because multiple members of the Lewis family testified attrial, we refer to themby theirfirst names. No disrespect is intended.No. 70366-8-1/2
Several police officers, including Officer Dustin Nicholson, responded to the call. Reiter initially denied having entered the Lewis residence, but ultimately admitted he
was a transient and had gone into the garage to look for blankets, because he was cold and did nothave a place to sleep that night. The State charged Reiterwith residential burglary, and a jury found him guilty as charged. DISCUSSION Reiter argues that the State presented insufficient evidence to support his conviction for residential burglary and that he received ineffective assistance of counsel.2 In a sufficiency challenge, we review the evidence inthe lightmost favorable to the State to determine whether any rational trier of fact could have found the essential 

### elements of the crime beyond a reasonable doubt. State v. Joy. 121 Wn.2d 333, 338, 851 P.2d 654 (1993). We assume the truth of the State's evidence and draw all reasonable inferences from the evidence in the State's favor. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The State bore the burden to prove that Reiter unlawfullyentered or remained in
a residence, and had a concurrent intentto commita crime therein. RCW 9A.52.025(1). Reiter concedes that the State presented sufficient evidence to establish that he



### 2 Reitermakesfive additional arguments in a statementofadditional grounds. Each of those arguments relies on facts not in the record. Issues that involve facts orevidence not in the record are properly raised through a personal restraint petition, not a statementof additional grounds. State v. Alvarado. 164 Wn.2d 556, 569, 192 P.3d 345 (2008).No. 70366-8-1/3
entered the garage. Thus, the only issue iswhetherthere is sufficientevidenceto show

an intentto commit a crime therein. Reiterargues that he did not have any stolen items in his possession, that there
were no items missing from the garage, that no items had been moved in the garage other than the fertilizer spreader, and that he had no tools in his possession that he could have used to open the garage door. Each ofthose arguments goesto whetherhe 

### actually committed a crime in the garage. But, criminal intent may be inferred from circumstantial evidence or from conduct, where the intent is plainly indicated as a matter 

### of logical probability. State v. Billups. 62 Wn. App. 122, 126, 813 P.2d 149 (1991). Reitertold OfficerNicholson that he entered the garageto look forblankets, because he


### was cold and did not have a place to sleep that night. Thatevidence is sufficient for a rational trier of fact to conclude that Reiter entered the garage with the intent to steal blankets. 

### To prevail on a claim of ineffective assistance, a defendant must show that counsel's performance fell below an objective standard ofreasonableness based on consideration of allthe circumstances, and thatthe deficientperformance prejudiced the trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

### (1984). Prejudice exists where there is a reasonable probabilitythat the outcome of the trial would have differed absent counsel's deficient performance. State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260 (2011). Where the claim rests on defense counsel's 

### failure to object, a defendant must show that an objection would likely have been sustained. State v. Fortun-Cebada. 158 Wn. App. 158, 172, 241 P.3d 800 (2010). 

### Reiterargues that he receivedineffective assistance, because counsel did not object toNo. 70366-8-1/4
evidence thatthe police arrested him, to evidence that Katie accused Reiterofbeing on herproperty, orto evidencethat Reiterwas a transient. Reiterfirst argues that "thefact ofan arrest is not admissible evidence because it constitutes the opinion ofthe arresting officeron guilt which is the very fact thejury and only thejury mustdecide." The general rule is that no witness, lay or expert, maytestify to his opinion as to the guilt of a defendant, whether by direct statement or inference. City ofSeattlev. Heatlev. 70 Wn. App. 573, 577, 854 P.2d 658 (1993). The rationalefor that rule is that such statements invade the exclusive province of the finder of fact. State v. Black. 109 Wn.2d 336, 348, 745 P.2d 12 (1987). But, there is no authority to supportthe proposition thatthe mere fact that a defendant was arrested is an improper opinion on guilt. Indeed, it is reasonable to presume that thejury knows the defendant
was arrested. The cases Reiter analogizes to are easily distinguishable. In State v. Carlin, itwas arguably improper, but nevertheless harmless, for an officer to testify that
a tracking dog followed the defendant's "'fresh guiltscent.'" 40 Wn. App. 698, 700, 703, 700 P.2d 323 (1985), overruled on other grounds by City ofSeattle v. Heatlev. 70 Wn. App. 573, 854 P.2d 658 (1993). Stating that a dog followed a '"guilt scent"' is not comparable to stating the fact of arrest. In Warren v. Hart, the Supreme Court determined that it was improper to argue in closing that officers responding to an accident were a "'little baby court'" and that the fact that the officers did not issue a citation was strong evidencethatthe defendantwas not negligent. 71 Wn.2d 512, 517- 18, 429 P.2d 873 (1967) (emphasis omitted). But, that was a civil case. More significantly, counsel explicitlyargued that the jury should deferto the officers, because theywere experts that had already considered whethertherewere any violations. ]cL atNo. 70366-8-1/5
517. In contrast, only the fact ofarrest is at issue here, and the State did not use that fact to establish Reiter's guilt. Reiter has not established that an objection would have been sustained. Second, Reiter argues that counsel was deficient for failing to object to Katie Lewis's description ofher conversation with Reiter: Q. Okay. And so, you were talking to the man? A. Yes. Q. Okay. Whatwere you saying to him? A. Isaid

- atfirst Iwas like, "What are you doing?" And, he was like, "What are you talking about?" And, Isaid, "Whywere you in my house? Why were you inthe garage? Whatwere you doing on my property?" He was like, "I wasn't there. Idon't know what you are talking about." And then, he kept walking and I said, "Yes, you were. I saw you on my driveway." Because bythe time Iwas outside he was still on my

- on our driveway with my dad. Q. Uh-huh. A. And, Ikept asking him, "Whatdid you take? Why were you in my garage? Whywere you on my property?" This

- Q. And, whatwas he saying? A. He was denying that he was on my property -- on the property of 

### our house, ever in mygarage and he said he didn't take anything. And, I was - and, Isaid, "Well, how would you feel ifsomeone was intruding on 

### your property?" And, he was like, "I

-- Iwas never in your house. Ididn't go on your property. Idon't knowwhatyou are talking about." Reiter cursorily asserts that the testimony was an improper opinion of guilt and irrelevant. But, even assuming an objection would have been sustained, Reiterhas not 

### established prejudice. At most, Katie's testimony shows her opinion that Reiter was on her property. Thatwas not a point inserious debate. Katie and John both testified thatNo. 70366-8-1/6 they saw Reiter intheirdriveway. Reitertold Officer Nicholson that he had entered the garage. On appeal, Reiter concedes that there was substantial evidence to establish that he entered the garage. Katie's testimony revealed that she questioned Reiter on why he was on her property and whether he took anything from the garage. Itwas not offered to show that Reiter did, in fact, take something. In light of the unobjected to testimony that Reitertold Officer Nicholson he entered the garage to look forblankets, Katie's testimonywas notprejudicial. Third, Reiter argues that counsel was deficient for failing to object to testimony that he wastransient, that he looked scruffy, and that he smelled bad. He makes a bare 

### assertion that the evidence was irrelevant and prejudicial.3 But, whether Reiter was transient was relevant for purposes ofcorroborating OfficerNicholson's testimony that Reiter told him he was transient and looking for a blanket. Likewise, testimony about 

### his personal appearance was relevant to corroborate that he was, in fact, a transient. Reiter has not established that an objection would have been sustained or explained howthe evidence was prejudicial. We affirm.

WE CONCUR:



## 3 Reiter does not support his contention wph/citation to the record or legal authority, as required by RAP 10.3.
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