LED 

### COURT OF APPEALS 

### DIVISION 21M 

### DEC 30 

### AM 9: t15 IN THE COURT OF APPEALS OF THE STATE WANNARTggisT DIVISION II BY DEP TY No. 44561 -1 - II STATE OF WASHINGTON.

v. Respondent,
JACOB BENJAMIN MATTILA, aka JACOB BENJAMIN MATILLA, Appellant. STATE OF WASHINGTON,

v. MYKELL ALEX BRU, Respondent,

Appellant. Consolidated with:

No. 44621 -9 -II

UNPUBLISHED OPINION

LEE, J. — 

### Ajuryfound Jacob Benjamin Mattila and Mykell Alex Bru guilty ofresidential burglary. 

### The jury also found Mattila guilty of first degree burglary, an additional count of 

### residential burglary,two counts oftheft ofafirearm,first degreetheft, and unlawful possession of afirearm. Mattila appeals, arguing thathe received ineffective assistance ofcounsel andthatthere was insufficient evidence to support thejury' s verdict finding him guilty of unlawful possession 

### ofa firearm. Bru also appeals, arguing that the trial court erred by denying his motion to continue trial. Mattila and Bru both argue that prosecutorial misconduct denied them a fair trial and that the trial court improperly imposed legal financial obligations. The State concedes that there was insufficient evidence to support the

### jury' s verdict 

### finding Mattila guilty of unlawful possession ofNo. 44561 -1 - II/

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### a firearm, and we accept the State' s concession. Mattila' s and Bru' s remaining claims lack merit. 

### Accordingly,we vacate Mattila' s .conviction for unlawful possession ofafirearm and remand for resentencing, and we affirm Mattila's remaining convictions and Bru's residential burglary
conviction. FACTS 

### On October 16, 2012, P.M.1 was home alone. The doorbell rang, but P.M.did not answer the door because she did not recognize the man standing outside. P.M.called her mother and told her there was a stranger at the door. P.M.' s mother, Jennifer Mock, told P. M. not to answer the 

### door. A fewminutes later, P.M.saw someone inthe house. P.M. hid in the pantry and called 911. 

### From the window in the pantry, P.M.saw atan car with a dark stripe and described the car to the dispatcher. P.M. also saw a man in the house who was not the man who rang the doorbell. When 

### P.M.thought the men were away from the pantry, she ran out ofthe house and hid behind atree in the front yard.

Clark 

### County Sheriff' s 

### Deputy Rick Buckner responded to P. M.' s 911 call. When he 

### arrived at the house, he saw Mattila sitting in a tan Honda with a dark stripe down the side. 

### Buckner asked Mattila what he was doing there, and Mattila responded that he was trying to find his girlfriend' s house. Buckner placed Mattila in his police car while he figured out what was 

### going on. About the same time, Mock returned home and ran into the house. When Mock came back outside, she told Buckner that her home had been burgled. Buckner called for additional



### 1 Because P.M. is a minor,we use her initials to protecther privacy. 2No. 44561 -1 - II/

No. 44621 -9 -II units to respond, left Mattila in the car, and entered the house to ensure thatthere were no additional suspects inside. While at the scene, Buckner determined that the tan Honda was stolen. They obtained the

car owner' s permission to search the car. 

### In the car, officers found stolen property, including firearms in the trunk.

Mattila gave a statement 

### implicating himself in several other burglaries. One of the burglaries to which Mattila admitted involvement occurred in Washougaljust priorto the burglary at the Mock house.

Several days after the 

### burglary, Mock found a cigarette in her bathroom. She turned the cigarette over to the sheriffs, office. The forensics lab determined that the cigarette contained Bru' s deoxyribonucleic acid (DNA).

The State charged Mattila with first degree burglary ( count one), two counts of residential 

### burglary ( count two and three), possession of a stolen vehicle ( count four), two counts of theft of

a firearm (count five and seven), first degree theft (count six), and unlawful possession ofa firearm
count eight). The State charged Bru with residential burglary ( count three), 

### first degree burglary
count nine), and theft of a firearm (count ten). Mattila and Bru were tried together. 

### On Monday, February 11, 2013, thefirst day oftrial, Bru movedforacontinuance because he had just received the DNA report the previous Thursday afternoon. The State explained that 

### the parties had initially agreedto acontinuance. However,atthe readiness hearing onthe previous 

### Thursday, Bru called the case readyfortrial knowing thatthe State was still waiting forthe DNA report. 

### The State received the DNA report that afternoon and immediately forwarded it to Bru.

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### Furthermore, there was supposed to be a hearing on a motion to continue the next day (Friday), but Bru did not appear. 

### Bru argued that the continuance was necessary because he wanted to
obtain an expert to respond to the State' s expert. The trial court denied the continuance because Bru was aware that the DNA report was pending and called the case ready. 

### After a CrR 3.5 hearing, the trial court concluded that Mattila's statements to the police were admissible. Attrial, ClarkCounty Sheriff's Office Deputy Robin Yakhourtestified regarding a redacted version of Mattila's statements.2 Mattila stated that he was the lookout and driver for 

### the burglaries. He also statedthatthe men who actually performedthe burglaries generally looked for guns and gold to steal from the homes they burglarized. 

### Deputy Yakhour testified that the 

### following exchange tookplace in regard to the Washougal burglary:

I asked, "

### You sat outthere and basically you' re the lookout again ?" Mr. Mattila replied, "Yes." I asked, "

### They load stuffinto the trunk ?" Mr. Mattila says, " Yes." Did they tell you what they acquired in the house ?" I asked. He says, " No." I said, " Not a word ?" He said, " Theythey don' t—they said something about not enough 

### jewelry."

I said, " Okay." I asked, " 

### So, did theytell youthere were guns inthe house ?" Mr. Mattila replied, " Um—because yes, um, one of them was like — he' s like, `

### Hey, there' s —' I said, ` Did you guys get what you — did you guys get— what did you guys get ?' And they were like, `

### Oh, there' s somejewelry and like that. "' 2B Report of Proceedings (RP) at 508 -09. At closing argument, the prosecutor argued:
2 Because Mattila and Bru were tried together, Mattila's statements were required to be redacted 

### to comply with Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 ( 1968). There is no issue regarding the admission of the statements.No. 44561 -1 - II/

No. 44621 -9 -II 

### These two Defendants had zero regard for other people' s property, their sense of security, or their right to be safe in their own homes. 

### They didn't care that ten - year -

old [ P. M.] was home all alone that 

### day, terrified, 

### hiding in the pantry. They 

### didn't consider how her mother would feel about leaving her daughter home alone that day, even for afew minutes. These two didn't care that the victims oftheir crimes worked hard to obtain 

### the property that they had. They didn't care that those things meant something to 

### them, and they didn't care howthese people would feel aftertheir homes had been invaded by complete strangers to them. It meant nothing to them, nothing. 3 RP at 658, 659 - 60. The prosecutor went on to argue that Mattila was guilty of unlawful possession ofa firearm on the date ofthe Washougal and Mock burglaries because the guns were 

### in the trunk ofthe car he was driving and because he knew that the goal ofthe burglaries was to steal gold and guns. Neither Mattila nor Bru objected during the prosecutor' s closing argument. 

### Thejury found Mattila guilty offirst degree burglary, two counts ofresidential burglary, two counts oftheft ofa firearm, first degree theft, and unlawful possession ofa firearm. Thejury
also found Bru guilty of residential burglary. The trial court imposed standard range sentences and legal financial obligations. Mattila and Bru appeal. ANALYSIS A. MATTILA' S ISSUES

1. Ineffective Assistance of Counsel 

### A defendant claiming ineffective assistance ofcounsel has the burden of establishing that 1) counsel' s performance was deficient and ( 2) counsel' s deficient performance prejudiced the defendant' s case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 1984). ( 

### Failure to establish either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700. Counsel' s performance is deficient if it falls below an objective

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standard of reasonableness. State v. McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 ( 1995). Our 

### scrutiny ofcounsel' s performance is highly deferential and we strongly presume reasonableness. McFarland, 127 Wn.2d at 335. To establish prejudice, a defendant must show a reasonable 

### probability that the outcome of the trial would have differed absent counsel' s deficient performance. McFarland, 127 Wn.2d at 337. Mattila contends that he received ineffective assistance ofcounsel because defense counsel did not move to suppress the evidence found in the car or Mattila' s statements. Mattila asserts that 

### he was unlawfully arrested because, at the time Buckner arrested him, Buckner did not have probable cause to believe that a crime had been committed. When an ineffective assistance of counsel claim is based on a failure to move to suppress evidence, the defendant must show that the motion to suppress would have been granted. McFarland, 127 Wn.2d at 333 -34. However, "[ t]hat standard often cannot be met when the record lacks a factual basis for 

### determining the merits of the claim." 

### State v. Walters, 162 Wn.App. 74, 81, 255 P. 3d 835 ( 2011) ( citing McFarland, 127 Wn.2d at 337 - 38). Here, the record before us 

### lacks the factual basis for determining whether a claim that Mattila's arrest was unlawful would have been successful. Because Mattila never challenged the lawfulness ofhis arrest, the parties never developed 

### the record necessary to determine when Mattilawas actually arrested. Mattila argues that he was arrested when Buckner detained him by placing Mattila in his vehicle. The record is clearthat, at thatpoint,Mattilawas notfree to leave. But,an officer may detain aperson,without formal arrest, for further investigation ifthe officer has a reasonable suspicion that the person has been involved

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in criminal activity. State v. 

### Day, 161 Wn.2d 889, 895, 168 P. 3d 1265 ( 2007). Here, Mattila was outside ofthe Mock house in the same car P.M. described when she called 911. A trial court could 

### have determined that Buckner reasonably detained Mattila to further investigate whether a 

### burglaryhad occurred. However,the issue beforethetrial courtatthe CrR3. 5 hearingwaswhether Mattilawas properly read his Miranda rights priorto giving his statements to the police; the trial courtwas not asked to determine whether Mattila's arrest was lawful. Therefore, the record is not 

### fully developed as to the circumstances regarding Mattila's detention and arrest, or the officers' search ofthe vehicle. The facts here have not been settled, the parties have not had an opportunity 

### to develop their arguments, and the trial court has not made factual findings for our review. 

### Accordingly, Mattila has failed to meet his burden to show counsel' s performance was deficient because the record is insufficient for us to determine whether the motion to suppress would have been granted.3

2. Sufficiency of the Evidence — Unlawful Possession of a firearm 

### The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier offact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 ( 1992). " A 

### claim ofinsufficiency admits the truth ofthe State' s evidence and all inferences that reasonably

can be drawn therefrom." Salinas, 119 Wn.2d at 201. All " reasonable inferences from the 

### evidence must be drawn in favor ofthe State and interpreted most strongly againstthe defendant."

3 When a claim rests on matters outside the record, " a personal restraint petition is the appropriate vehicle for bringing those matters before the court." McFarland, 127 Wn.2d at 338.
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No. 44621 -9 -1I Salinas, 119 Wn.2d at 201. 

### Circumstantial and direct evidence are deemed equally reliable. State

v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). " 

### Credibility determinations are forthe trier
of fact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 1990).To convict Mattila ofunlawful possession ofa firearm,the State was required to prove that 

### Mattilaknowingly owned, possessed, or controlled afirearm, andthat Mattila had been convicted
of a serious offense. RCW 9.41. 040( 1). 

### Knowing possession is an essential element ofunlawful possession of a firearm. State v. Anderson, 141 Wn.2d 357, 366 - 67, 5 P. 3d 1247 (2000). Mattila was charged with unlawful possession ofa firearm on October 16, the date ofthe Washougal and Mock robberies. Therefore, the State had to present sufficient evidence to prove that the guns 

### were in the trunk ofthe car Mattila was driving and that Mattila knew the guns were in the trunk. The State concedes that there was not sufficient evidence to prove that Mattila knew that the guns 

### were in the trunk, and therefore, there was not sufficient evidence to support the jury's verdict 

### finding Mattila guilty ofunlawful possession ofa firearm. We agree. Here, the evidence presented at trial established that the men committing the Washougal 

### burglary stated that there was not enoughjewelry in the house; there was no evidence that Mattila was told they stole guns from the house. The inference that, because the goal was usually to steal gold and guns, Mattila must have known there were guns in the car, is not sufficient evidence for a rational trier offact to find beyond a reasonable doubt that Mattila knew the guns were in the 

### trunk. Accordingly,we acceptthe State' s concession andvacate Mattila's conviction forunlawful possession of a firearm.

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B. BRU' S MOTION TO CONTINUE4 

### The decision to grant or deny a continuance rests within the sound discretion ofthe trial court, and we will not disturb the trial court' s decision unless the defendant can show that the trial
court' s decision was "' manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons. "' State v. Downing, 151 Wn.2d 265, 272 - 73, 87 P. 3d 1169 ( 2004) ( quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 ( 1971)). " 

### In exercising discretion 

### to grant or deny a continuance, trial courts may consider many factors, including surprise, diligence, redundancy, due process, materiality, and maintenance oforderly procedure." Downing, 151 Wn.2d at 273 ( citing State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242 ( 1974); RCW 10.46.080; CrR 3. 3 (f)).The mere existence ofsurprise and diligence does not require reversing atrial court's 

### decision denying a motion to continue in order for the defense to secure expert testimony. Downing, 151 Wn.2d at 274. Bru argues that the trial court abused its discretion when it denied his motion to continue because the prosecutor did not provide him with the DNA lab report until just before trial and he did not have time to have an expert review the results. But Bru knew that the DNA results would 

### be available the afternoon after the readiness hearing, and he decided to call the case ready for trial. And, Bru did not make any effort to contact an expert or present an offer ofproofas to what 

### 4 In addition to arguing that the trial court erred by denying his motion to continue trial and by imposing legal financial obligations, Bru asserts the trial court erred by refusing to grant him a new trial. 

### Presumably, Bru is referencing the trial court' s orders denying Bru' s CrR 7.5 motion. However, Bru offers no argument or authority addressing his assignment of error; Bru does not even reference his post-conviction motions in his analysis. Accordingly,we do not consider Bru's 

### assignment oferror referencing the trial court's decision on his CrR 7.5 motion. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 ( 1992). 9No. 44561 -1 - II/

No. 44621 -9 -II he would present expert testimony for. The trial court considered the fact that Bru was not 

### surprised by the evidence because he knewthat itwas going to be disclosed shortly atthetime he
called the case ready. 

### The trial court did not act unreasonably when it determined that Bru was 

### not surprised by the evidence and that Bru did not act diligentlyby calling the case readywhen he was aware the reportwas aboutto be disclosed. We affirm the trial court's decision to deny Bru' s motion to continue on the morning oftrial. C. JOINT ISSUES

1. Prosecutorial Misconduct To prevail on a claim of prosecutorial misconduct, Mattila and Bru must show that the 

### prosecutor's conductwas both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 ( 2012) ( citing State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 ( 2011)). First, we 

### must determine whetherthe prosecutor' s conduct was improper. Emery, 174 Wn.2d at 759. Ifwe determine thatthe prosecutor' s conduct was improper, we then determine whether the prosecutor' s 

### improper conduct resulted in prejudice. Emery, 174 Wn.2d at 760 - 61. Prejudice is established by 

### showing a substantial likelihood thatthe prosecutor's misconduct affected the verdict. Emery, 174 Wn.2d at 760. 

### If the defendants did not object at trial, the defendants are deemed to have waived any error, unless the prosecutor' s misconduct was so flagrant and ill-intentioned that an instruction 

### could not have cured any resulting prejudice. Emery, 174 Wn.2d at760 - 61 ( citing State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 ( 1997)). Under this heightened standard of review, the defendant must show that "( 1) ` no curative instruction would have obviated any prejudicial effect

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### on the jury' and (2) the misconduct resulted in prejudice that ` had a substantial likelihood of affecting the

### jury verdict. ' 

### Emery, 174 Wn.2d at 761 ( quoting Thorgerson, 172 Wn.2d at 455). 

### In closing argument,prosecutors are afforded wide latitude to drawand express reasonable inferences from the evidence. State v. Reed, 168 Wn.App. 553, 577, 278 P.3d 203, review denied, 176 Wn.2d 1009 (2012). 

### Prosecutors may not rely on facts outside the evidence or use arguments
calculated to inflame the passions or prejudices of the jury. In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 704, 286 P.3d 673 ( 2012); 

### State v. Jones, 71 Wn. App. 798, 808, 863 P.2d 85 1993), review denied, 124 Wn.2d 1018 ( 1994). We do not look at the comment in isolation, but in the context ofthe total argument, the issues in the case, the evidence, and the instructions given to the

### jury. State v. Yates, 161 Wn.2d 714, 774, 168 P. 3d 359 (2007), cert. denied, 554 U. S. 922 2008). We presume the 

### jury follows the trial court' s instructions. State v. Anderson, 153 Wn. App. 417, 428, 220 P. 3d 1273 ( 2009), review denied, 170 Wn.2d 1002 ( 2010). 

### Mattila and Bru challenge the following portion ofthe prosecutor' s closing argument: These two Defendants had zero regard for other people' s property, their sense of security, or their right to be safe in their own homes. 

### They didn't care that ten - year -

old [ P. M.] was home all alone that 

### day, terrified, 

### hiding in the pantry. They 

### didn't consider how her mother would feel about leaving her daughter home alone that day, even for a few minutes.

These two didn' t care that the victims oftheir crimes worked hard to obtain 

### the property thatthey had., They didn't care that those things meant something to them, and they didn't care howthese people would feel after their homes had been invaded by complete strangers to them. It meant nothing to them, nothing. 3 RP at 658, 659 -

60. 

### First, Mattila and Bru argue that the prosecutor committed misconduct by relying on facts 

### outside the evidence; specifically, that Mattila and Bru did not care about P.M. being alone or
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terrified. The prosecutor did not 

### improperly rely on facts outside the record. P. M. testified that
she believed the man who rang the doorbell saw her 

### looking out the window. 1B RP 273. The 

### prosecutor did not commit misconduct by inferring that the burglars then knew she was there and broke into the house anyway. It was also reasonable to infer that, if Mattila and Bru knew P. M. 

### was in the house, theywould know she would be scared orterrified by strange men breaking into her house. 

### Second, Mattila and Bru argue that the prosecutor improperly appealed to the jury's passions and prejudice. The prosecutor' s argument was not improper. In State v. Brown, 132 Wn.2d 529, 562 -

63, 940 P.2d 546 ( 1997), cent. denied, 523 U.S. 1007 ( 1998), our Supreme Court held that statements asking the 

### jury to personalize crimes were not improper. In Brown, the prosecutor stated: 

### I' ve sort oflived with Holly [Washa] overthe lasttwo years or so preparing forthis case, and perhaps I've personalized her a little bit. Maybe by the time this trial is over, you will know enough about her that maybe you' ll personalize her a little bit. 

### The one thing I do hope though is thatjustice can be done by the end ofthis trial and we can put Holly [Washa] to rest. I want to assure you at the end ofthis case you're not going to look at me and say, Did he do it ?"I suggest you' re going to look at me and you' re going to say, " How could he have done it ?"And, you know,that' s one question that I won' t be able to 

### answer foryou. I don't have to answer it foryou. I can't imagine how any person could have done this to Holly Washa or to any other 

### living human 

### being. How could he have done it? 132 Wn.2d at 562. The court held that the prosecutor' s statements were not improper. Brown, 

### 132 Wn.2d at 563. Here,the prosecutor reminded thejurythat property crimes have victims. The prosecutor did not improperly urge thejury to find guilt based on passions or prejudice. And,the remainder ofthe prosecutor' s closing argument focused on applying the facts to the law as stated

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### inthejury instructions. Likethe prosecutor in Brown,the prosecutor' s comments in this case were not improper.

2. Legal Financial Obligations Mattila and Bru make two arguments regarding their allegation that the trial court 

### improperly imposed legal financial obligations. First,they argue thatthetrial court impermissibly imposed the cost of a jury trial 

### by including a " trial per diem" fee in their legal financial 

### obligations. Second,they arguethatthe trial courtviolated theirrightto counsel by imposing costs for assigned counsel without sufficient evidence supporting the trial court' s finding that they had 

### the present or likely future abilityto pay legal financial obligations. Their first claim lacks merit; their second claim is not properly before this court. Therefore, we affirm the trial court' s imposition of legal financial obligations.
a. " 

### CourtAppointedAttorney and Trial Per Diem" Fee 

### Mattila and Bru contend that the trial court exceeded its statutory authority because the 

### trial court may not impose costs for exercising their constitutionally guaranteed rightto ajurytrial in excess of the $ 250 

### jury trial fee expressly authorized 

### by statute. However, the $ 1, 500 legal financial obligation is assigned to " court appointed attorney and trial per diem." CP (Manila) atl 1; CP (Bru) at 18. RCW 9.94A.030(30) authorizes the trial courtto impose legal financial obligations for " court-appointed attorneys' fees, and costs of defense." Therefore, because the costs of a court 

### appointed attorney are statutorily authorized legal financial obligations, the trial court did not 

### exceed its statutory authority to impose legal financial obligations.

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No. 44621 -9 -IIb. Ability to Pay 

### Mattila and Bru argue that the trial court may not impose court-appointed attorney costs unless it finds thatthe defendant has the present orfuture abilityto pay. They are correct. Fuller

v. Oregon, 417 U.S. 40, 45, 94 S. Ct. 2116, 40 L. Ed. 2d 642 ( 1974); RCW 10. 01. 160( 3). But the 

### record shows that the trial court did find that Mattila and Bru had the present or future ability to pay. 

### It appears that Mattila and Bru are actually arguing that the trial court's finding is not 

### supported by substantial evidence.5 However,this issue is not properly before us. Under State v. Blazina, 174 Wn.App. 906, 911, 301 P.3d 492, review granted, 178 Wn,2d 1010 (2013), 

### Mattila and Bru may not raise a challenge to the trial court' s finding that they have the present orfuture abilityto payforthe firsttime on appeal. And,underState v. Lundy, 176 Wn. App. 96, 108 -09, 308 P.3d 755 ( 2013), their claim is not ripe for review until the State attempts to
collect the ordered legal financial obligations. 

### Accordingly, Mattila's and Bru'. s claim that the 

### trial court erred by imposing court-appointed attorney costs is not properly before this court.

5 For example, Mattila argues: 

### In this case, the sentencing court entered such afinding without any support in the record. Indeed, the record suggests that Mr. Mattila lacks the ability to pay the amount ordered. The court found Mr. Mattila indigent at the end of the 

### proceedings. His lengthy incarceration and felony conviction will also negatively impact his prospects for employment. 

### Accordingly, Finding No. 2.5 of the Judgment and Sentence must be vacated. Br. ofAppellant (Mattila) at 20 (citations omitted).

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No. 44621 -9 -II We vacate Mattila' s conviction for unlawful possession of a firearm and remand for 

### resentencing. We affirm Mattila's other convictions and Bru's residential burglary conviction. 

### 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: Lee, J.

15