FILED 

### COURT OF APPEALS DIVISION 11 2015 

### MAR 31 API 8 : 3n STATE 0 SNI ON BY DEP 

### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

v. GARY R. COLE, DIVISION II
Respondent,

Appellant. No. 45668 -1 - II

UNPUBLISHED OPINION

MAXA, J. — 

### Gary Cole appeals his conviction ofsecond degree burglary fortaking a wood stove and other items from vacant buildings. He argues that ( 1) the evidence was insufficient to support his conviction because the only evidence that he unlawfully entered the buildings was his own statement, (

### 2) the trial court erred in denying his motion for a mistrial after the arresting officertestified that Cole had misdemeanor warrants, and (3) the prosecutor 

### engaged in misconduct by stating that thejury could convict Cole even ifthe owner ofthe buildings had given him permission to enter. Cole also asserted additional arguments in a statement ofadditional grounds ( SAG).

We hold that ( 1) the State produced sufficient circumstantial evidence that Cole unlawfully entered the buildings apart from his statement, (2) the trial court did not abuse its 

### discretion in denying Cole's motion fora mistrial even thoughthe officer' s reference to Cole's warrants was inappropriate, and (3) the prosecutor did not commit misconduct. We also find no
merit in Cole' s SAG assertions. Accordingly, we affirm Cole' s conviction.45668 -1 - II
FACTS



### In December 2012, Jeffrey Berg inspected property in Moclips that he was interested in 

### buying. The property consisted ofan oldtavern, a residence, and awell house. In January2013, he entered into a purchase and sale agreement with the ownerwho lived in Minnesota. A few days before the transaction was scheduled to close and after he had deposited his purchase price 

### in escrow, Berg drove to the property. He noticed that the doorto the well house appeared damaged. He then got a keyfrom the caretaker and went into the tavern. He noticed that someone had removed wiring and stainless steel panels from behind the stoves, damaged the stoves, and taken the fire suppression equipment. Berg called the sheriff. 

### Deputy Robert Wilson responded and the two inspected the residence and well house. They noted that someone had broken a large window out ofthe residence and removed a wood stove. And someone had taken the well pump, pressure tank, electrical box, and wiring from the 

### well house. They found another wood stove and other parts along atrail leading awayfrom the 

### property. After some investigation, DeputyWilson learned that Teresa Bushman had purchased the wood stove from Cole, and Deputy Wilson located it atthe residence ofTeresa's husband Steve Bushman in Hoquiam. 

### Deputy Wilson then contacted Cole. After first denying any involvement in the burglary, Cole admitted that he had taken the wood stove. However, he said that Steve and Teresa Bushman owned it and had paid him $

### 100 to bring itto them. He also said that he awoke one 

### morning to find the well pump on his property and that he took itto his friend Donald Waugh's home.

245668 -1 - II



### The State charged Cole with second degree burglary. At trial,Teresa Bushman testified that she had purchased the wood stove from Cole for $150. She stated that Cole had the wood stove in the place where he lived and that she did not know that it was stolen. After she 

### purchased it,her husband picked it up and took itto Hoquiam. Steve Bushman testified that his wife told him that she had purchased the wood stove and that it was not stolen. 

### Deputy Wilson testified regarding his investigation, his observations atthe building,and his communications with Cole. The State also introduced awritten statement Cole made out for DeputyWilson. It stated: About three weeks ago, Steve and Teresa told me to go to the house next to the Moclips Tavern and take the wood stove. They said they would give me $ 100.00 

### to get itforthem. They told me the lady that lived there before but had moved out about two weeks prior left their stove at the house. 

### They told me this lady had borrowed the stove and didn' t give it back. The house was vacant as the new owners were not 

### living there. I went down there just before dark. I entered the 

### house through the back sliding glass door. I found itto be unlocked. I went inside and dismantledthewood stove. I put iton adolly andwheeled itacross the highway and down a trail towards the 208 Mill. I took it down the trail about halfway and put [ it] in the brush on the trail. Then I walked down to the 208 Mill to Teresa Bushman' s trailer and told her where I left it. She gave me $ 50 in cash and $ 50 worth of methamphetamines. 

### The reason I know where the well pump was at is 

### that I found the pump on the ground next to mytruck when I woke up about three weeks ago. I didn' t want it at my place so I took it to Donald Waugh, Jr[.]' s house on the reservation. Exhibit 1. During trial, the State asked Deputy Wilson about contacting Cole. He responded, " Well,
at that time I was aware that he had misdemeanor warrants. Report of Proceedings ( RP) at 68. 

### Cole immediately objected and asked for a mistrial. Thetrial court denied the motion. The trial courttold thejurythat it had sustained the objection and thatthejury should disregard Deputy Wilson' s response.
345668 -1 - II



### During rebuttal closing argument,the prosecutortold thejury: I have the burden of proof so I get the last word. Is it reasonable to make an inference that this entry was lawful? The defense would suggest that there is. Oh, 

### sure, maybe some guy back in Minnesota said it was okay to go in and trash the 

### place. Even ifthatwere true, whether that's lawful is still a questionforyou once a guy has alreadyput money in escrow. RP at 127 -

28 ( emphasis added). Cole did not object to this statement. 

### Thejury returned a guilty verdict. Cole appeals. ANALYSIS A. SUFFICIENCY OF THE EVIDENCE Cole argues thatthe Statefailed to produce sufficient evidence that he unlawfully entered 

### or remained in a building,one ofthe elements ofsecond degree burglary under RCW 9A.52.030( 1). 

### He argues thatthe State could not rely on his statementto establish the 

### unlawfulness ofhis entry because ofthe corpus delicti rule, and thatthere was no other evidence that he did not have permission to enter. We disagree.

1. Elements of Burglary 

### The elements ofsecond degree burglary are ( 1) entering or remaining unlawfully in a 

### building otherthan avehicle or dwelling, and (2) so doing with intentto commit a crime against

a person or property therein. RCW 9A.52. 030( 1); see State v. Brunson, 128 Wn.2d 98, 104 - 05, 905 P.2d 346 ( 1995). RCW 9A.52. 010(5) defines the phrase "[ e] nters or remains unlawfully" as 

### a] person `enters or remains unlawfully' in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain."

445668 -1 - II
2. Corpus Delicti The corpus delicti principle requires that the State prove that some crime actually
occurred. State v. Brockob, 159 Wn.2d 311, 327, 150 P.3d 59 ( 2006). Under the corpus delicti rule, the defendant' s incriminating statement alone is not sufficient to establish that a crime took place. Id. at 328. "[ T]he State must present evidence independent ofthe incriminating statement that the crime a defendant described in the statement actually occurred." Id. ( emphasis omitted). 

### Corpus delicti usually consists ofan injury or loss caused by someone' s criminal act. City ofBremerton v. Corbett, 106 Wn.2d 569, 573 -74, 723 P.2d 1135 ( 1986). The corpus delicti 

### ofsecond degree burglary is an unlawful entering ofabuilding and with the intentto commit a crime therein. Proofofthe identity ofthe person who committed the crime is not part ofthe corpus delicti, which only requires corroborating evidence thatsomeone committed a crime. Id. .
at574. 

### In applying the corpus delicti rule,we focus on the sufficiency ofthe independent evidence otherthan the defendant's incriminating statement. State v. Dow, 168 Wn.2d 243, 249, 254, 227 P. 3d 1278 ( 2010). Our review is de novo. State v. Green, 182 Wn.App. 133, 143, 328 P. 3d 988, review denied, 337 P.3d 325 ( 2014). In determining the sufficiency of independent evidence under the corpus delicti rule, we assume the truth ofthe State' s evidence and view all reasonable inferences therefrom in the light most favorable to the State. State v.Aten, 130 Wn.2d 640, 658, 927 P. 2d 210 ( 1996). The independent evidence need not be sufficient to establish the existence ofa crime beyond a reasonable doubt or even by a preponderance ofthe
evidence. Id. at 656. The evidence only must provide "[ p] rima facie corroboration" that a crime occurred. Brockob, 159 Wn.2d at 328.
545668 -1 - II Here, ample corroborating evidence existed that someone unlawfully entered the buildings and removed items. The residence showed signs offorced entry in that awindow was broken out enough for a person to enter, and someone removed a wood stove from the residence. 

### In addition, someone stripped wiring and stainless steel from the tavern, and dismantled the well house. And Berg testified thathe found other stove parts and pieces from the house and tavern on the trail leading awayfrom the property. We hold that the corroborating evidence independent ofCole's written statementwas 

### sufficientto show thatthe crime ofsecond degree burglary occurred. Accordingly, underthe 

### corpus delicti rule we can consider Cole' s written statement in assessing the sufficiency ofthe
evidence.

3. 

### Sufficiency ofthe Evidence 

### Cole argues that because the State did not present testimony fromthe property owner or the caretaker and because Berg did not yet own the property, there was insufficient evidence that Cole did not have permission to enter the buildings. We disagree. The test for determining sufficiency ofthe evidence is whether, afterviewing the 

### evidence in the light mostfavorable to the State, any rational trier offact could have found guilt beyond a reasonable doubt. State v. Rose, 175 Wn.2d 10, 14, 282 P.3d 1087 ( 2012). In a 

### sufficiency ofthe evidence claim,the defendant admits the truth ofthe State' s evidence and all reasonable inferences drawn from that evidence. Id. Credibility determinations are made bythe trier offact and not subject to review. State v. Miller, 179 Wn.App. 91, 105, 316 P.3d 1143 2014). 

### Circumstantial and direct evidence are equally reliable. Id.

645668 -1 - II Cole admitted that he entered the residence and removed the wood stove. However, he argues that there is no evidence that the owner in Minnesota did not grant him permission to 

### enterthe buildings. We hold thatthere was sufficient evidence for ajury to inferthat Cole had

no permission. First, Cole' s explanation that the Bushmans solicited him to retrieve the wood stove, even 

### though contradicted by the Bushmans' testimony, allows an inference that he did not have permission from the owner to enter. Second, Cole stated that he knew the house was vacant and 

### that he went to remove the wood stovejust before dark, suggesting surreptitious behavior. Third, the residence showed evidence offorced entry — a window was broken out enough for a person 

### to enter. Taking this evidence in the light most favorable to the State, we hold that a reasonable 

### jury could find beyond a reasonable doubtthat Cole did not have permission to enterthe
residence. 

### We hold thatthere was sufficient evidence to support afindingthat he entered the 

### residence unlawfullywith an intentto commitacrimetherein. Therefore,we reject Cole's sufficiency ofthe evidence argument. B. MOTION FOR MISTRIAL Cole claims that the trial court abused its discretion when it denied his motion for a 

### mistrial following Deputy Wilson's testimony that Cole had outstanding misdemeanor arrest 

### warrants. He argues thatthetrial court did notproperly assessthe prejudicial impactthis evidence had on thejury. We disagree. We review atrial court's denial ofa mistrial for abuse ofdiscretion. State v. Emery, 174 Wn.2d 741, 765, 278 P. 3d 653 ( 2012). Our Supreme Court has stated that abuse of discretion
745668 -1 - II



### will be found for denial ofa mistrial onlywhen no reasonablejudge would have reached the

same conclusion. Id. at 765. Further, we will overturn a trial court' s denial of a mistrial motion 

### onlywhenthere is a substantial likelihoodthatthe error affected thejury's verdict. State v. Rodriguez, 146 Wn.2d 260, 269 - 70, 45 P.3d 541 ( 2002). A mistrial should be ordered " only when the defendant has been so prejudiced that nothing short ofa new trial can ensure that the defendant will be 

### fairly tried." 

### Emery, 174 Wn.2d at 765.

We examine three factors — the Hopson factors —

when determining whether an irregularity warrants a mistrial: " `( 1) its seriousness; ( 2) whether it involved cumulative
evidence; and (3) whether the trial court properly instructed thejury to disregard it.' " Emery, 174 Wn.2d at 765 (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P. 2d 1014 ( 1989)). We consider these factors with deference to the trial court because the trial court is in a better 

### position to evaluate the effect ofan irregularity on the trial proceedings. See State v. Perez - Valdez, 172 Wn.2d 808, 818 -19, 265 P. 3d 853 ( 2011). 

### Regarding the first factor, Cole argues that Deputy Wilson' s commentwas a serious 

### irregularity because it introduced highly prejudicial evidence that likely swayed thejury in assessing his credibility and it was inadmissible evidence under ER 404(b). The improper 

### admission ofa defendant' s prior misconduct can be a serious irregularity. See State v. Babcock, 145 Wn.App. 157, 163 -64, 185. P.3d 1213 ( 2008). But here, the evidence of Cole' s guilt was 

### overwhelming,thus minimizing the seriousness ofthe statement. Cole admitted to the Deputy that he had entered the residence and taken the wood stove. As a result, there is no substantial 

### likelihood that Deputy Wilson's statement affected thejury'sverdict or that Cole was prejudiced.

845668 -1 - II



### With regard to the second factor, Deputy Wilson's comment was not cumulative. There was no other evidence admitted attrial about Cole' s criminal history. 

### Third,the trial court instructed thejurythat it was sustaining Cole' s objection and that it 

### should disregard the testimony. Cole's prompt objection to Deputy Wilson' s statement and the 

### trial court's verbal instruction to thejury cured any irregularity. And we presume thatthejury followed thetrial court's instruction and considered onlythe evidence that was properly before it. Perez-Valdez, 172 Wn.2d at 818 -19. Our analysis ofthe Hopson factors indicates that the trial court did not abuse its 

### discretion in concluding that Deputy Wilson's comment did notwarrant a mistrial. Therefore, we hold that the trial court did not err when it denied Cole' s mistrial motion. C. PROSECUTORIAL MISCONDUCT 

### Cole claims that the prosecutor' s closing rebuttal argument improperlytold thejury that it could disregard the elements ofthe offense and still return a guiltyverdict. We disagree. To prevail on a claim ofprosecutorial misconduct, a defendant must show that the prosecutor's conductwas both improper and prejudicial. In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 704, 286 P. 3d 673 ( 2012). We review the prosecutor' s conduct and whether 

### prejudice resulted therefrom "by examining that conduct in the full trial context, including the evidence presented, `the context ofthe total argument, the issues in the case, the evidence
addressed in the argument, and the instructions given to the

### jury.' " State v. Monday, 171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) ( internal quotation marks omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 ( 2006)).

945668 -1 - II Here, the prosecutor' s argument was not improper. The prosecutor' s argument was made 

### in response to Cole's claim thatthe onlywaythe State could prove an unlawful entry was to 

### have the ownertestifythat he had not given Cole permission to enter. On rebuttal, a prosecutor is entitled to make a fair response to the arguments of defense counsel." State v. Russell, 125 Wn.2d 24, 87, 882 P. 2d 747 ( 1994). Although the language used mayhave been unartful, the 

### prosecutor simply was arguing thatthejury could infer a lack ofpermission from the evidence presented even ifthe owner did not testify. This was not improper argument and was not prosecutorial misconduct. Cole' s claim fails. D. SAG ARGUMENTS 

### In his SAG Cole asserts that DeputyWilson did not read him his Miranda1 rights, his offender score is incorrect, his attorney did not call any ofhis witnesses, the sheriffplanted pills on him so the State could coerce him into a guilty plea, and every one ofhis constitutional rights was violated. We find no merit to these claims. 

### First,the record shows that Deputy Wilson advised Cole ofhis Miranda rights. Second, Cole fails to show what error exists in the offender score calculation. And the record shows that 

### the State presented extensive evidence ofCole' s criminal history. Third,we cannot address 

### whether his attorney failed to call witnesses orwhether the sherifffalsified evidence because these claims rely on matters outside the record and are not reviewable in a direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). And fourth, Cole fails to explain how his constitutional rights were violated or how the record demonstrates these violations.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
1045668 -1 - II

Therefore, we need not address them. RAP 10. 10( c). Accordingly, we reject Cole' s SAG
claims. We affirm. 

### A majority ofthe panel having determined thatthis 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:

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