HOUGHTON, P.J.
Steven Chang appeals his conviction of second degree identity theft and three counts of second degree possession of stolen property, arguing trial court evidentiary error, prosecutorial misconduct and insufficient evidence to convict. He raises additional arguments pro se. We affirm.
FACTS
We derive the facts from the trial testimony and evidence.
Early on May 23, 2005, Heather Cromwell rented a room at King's Motor Inn in Fife. When the front desk manager, Joseph Campbell, later arrived at work at 4:30 p.m., a front desk clerk on duty during the day, Maria Aguilar, told him about Chang and of her suspicion of his activities. Campbell testified that, according to Aguilar's account, Chang had earlier arrived at the motel and asked her to let him into Cromwell's room. He claimed that he needed to retrieve a key that Cromwell had left there. According to Campbell, because Chang was not the registered guest, Aguilar refused. Apparently, after Chang left, Aguilar went to Cromwell's room, saw items that raised her suspicions, and called Campbell as he was on his way to work, telling him "she thought something was going on." II Report of Proceedings (RP) at 87.
On appeal, the parties appear to address Aguilar by her first name only. But the record indicates Maria is Maria Aguilar. Although there are two different spellings of Aguilar in the record, for purposes of this opinion we use Aguilar.
When Campbell arrived at the motel, he and Aguilar entered Cromwell's room and Campbell observed "cameras, printers, some IDs and a handful of — looked like IRS or Social Security checks." II RP at 77. After securing the room with a safety lock, they returned to the front desk and Campbell called the police.
Just minutes later, Chang arrived at the motel and told Campbell that he had Cromwell on his cellular telephone. Campbell spoke with Cromwell, who verified her identity and gave permission for Chang to enter the room. Campbell photocopied Chang's identification, escorted him to the room, removed the safety lock, and allowed him to enter Cromwell's room. Campbell then returned to the front desk and again called the police, telling them that the registered guest had authorized Chang's entry and that he was currently in the room.
Two women accompanied Chang while he was at the motel. Just before the police arrived, Campbell looked out toward Cromwell's room and saw "one of the two ladies I think [Chang] came with" at the top of a nearby stairwell. II RP at 82. Campbell saw the woman carrying what appeared to be a large printer or copy machine.
Police officers soon arrived. Aguilar had left the motel, so she did not speak with the officers. When the officers approached the room, the drapes were drawn. Officer Donald Hobbs saw someone pull back the drapes to look out. Hobbs then knocked on the door and announced police presence. After the second or third knock, a male voice responded, "Who is it?" II RP at 96. Hobbs replied, "Police department" and testified, "It took a minute — I don't remember how many minutes, but there was quite a shuffling going on." II RP at 96.
Chang eventually emerged from the room. Hobbs testified that Chang exited the room "in kind of a sliding manner. Not opening the door too much. He just barely cracked it open to slide out." II RP at 97. But Chang opened the door enough so that Hobbs could see a woman and some type of computer or printer on a table in the room.
Shortly thereafter, the officers knocked on the door again and ordered anyone else out. Two women left the room; neither was Cromwell, and the police never located her. Another responding officer, Kevin Farris, testified that Chang told the women to close the door behind them as they exited the room.
Two officers guarded the room as Detective Roy "Shane" Farnworth sought a search warrant. Later in the evening, after obtaining the warrant, Farnworth and other officers searched the room. They found a scanner/printer device with paper, a laptop computer, a digital camera, and a printer. In addition, the officers found a briefcase on the bed that contained checks and identification materials that were not in the name of Cromwell, Chang, or any other person associated with the motel room.
The briefcase contained various documents, including two Internal Revenue Service refund checks. One $5,264 refund check was payable to Dale Burlingame. Burlingame testified that he never received that check. Another $434.40 refund check was payable to John Blair. He also testified that he never received the check. The briefcase also contained two checks, one for the account of Eberle Vivian, Inc., for $2,495 and the second for $5,000 payable to Brewer Chrysler.
The briefcase also contained fraudulent Washington State driver's licenses. One license bore the name John Blair and another bore the name Douglas Koyle. Both licenses showed a photo of an unknown blond male. Investigation revealed that the man pictured resembled neither John Blair nor Douglas Koyle.
A white plastic bag next to the briefcase contained torn replications of a Washington driver's license depicting Chang. The replications were not the same as the identification Chang earlier gave to Campbell. Chang's photo, middle name, date of birth, and address differed from the motel's copy.
During Farnworth's testimony at trial, the following exchange took place:
Q. [State]: What did [Sergeant Farris] tell you that the clerks had seen [when you arrived at the motel]?
A. He said that initially a clerk who wasn't present at the time, had gone home after their shift, had been working in the office and an individual came into the office and —
[Defense Counsel]: I would object to this. Hearsay.
. . . .
THE COURT: I'm going to allow it not for the truth of the matter asserted but in terms of background.
. . . .
[Farnworth]: . . . I was told that an individual had come to the motel looking to get into Room 220 to obtain a key that was left there by the person who had registered the room. However, the person that was there at the time was not registered to the room and was simply there to request to get into the room because the person that had registered to the room had left the key in the room. He was there to get it. . . .
So, you know, I was further informed that the individual had — after being denied access to the room had gone out and waited around for several minutes and eventually left, and the employee who was working at the time, she went up to the room to check for that key to see if that key was available like he had requested.
Q: What did she find when she entered the room?
A. She explained that in her statements to her co-worker and so forth — and as explained to me — that there was equipment in the room, such as printers and computer, digital camera and what appeared to be falsified identifications and checks and, you know, things of that nature not belonging to — you know, various checks and so forth, and equipment in there to process — printing and computer and camera and that kind of thing.
II RP at 110-12.
A jury found Chang guilty of one count of second degree identity theft and three other counts of first, second, and third degree possession of stolen property. He appeals.
ANALYSIS Right to Confrontation
Chang first contends that the trial court erred in allowing Farnworth to repeat Aguilar's statements, in violation of his Sixth Amendment right of confrontation. He claims that the statements were testimonial under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and were therefore inadmissible because Aguilar did not testify at trial, was not shown to be unavailable, and had not been subject to prior cross-examination.
Aguilar did not testify at trial.
The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford, the Court held that the Confrontation Clause required that a trial court could only admit "testimonial" hearsay if the declarant was unavailable and the defendant had a prior opportunity to cross-examine the declarant. 541 U.S. at 68.
Violation of the Confrontation Clause is subject to a harmless error analysis where the error is harmless beyond a reasonable doubt. State v. Davis, 154 Wn.2d 291, 304, 111 P.3d 844 (2005). Where untainted evidence is overwhelming, a constitutional error is harmless. Davis, 154 Wn.2d at 305.
Chang argues that the trial court should not have allowed Aguilar's hearsay statement to support the inference that he had dominion and control over the items in the motel room. He focuses on the following exchange during the State's closing argument:
Steven Chang contacted the clerk at King's Motor Inn . . . sometime slightly before 4:00. . . . He talked with the clerk and told her that he wanted to get into Room 220. His girlfriend [
sic], Ms. Cromwell —
Q. I would object. This is not evidence. This was not admitted for the truth of the matter asserted but to explain why the police did what they were doing.
THE COURT: I'm going to overrule the objection.
III RP at 219. We first note that, earlier in the trial, defense counsel elicited similar testimony from Campbell regarding Aguilar's hearsay about Chang's first appearance at the motel. According to the record,
Q. And when [Chang] had been there earlier in the day when he talked to your co-worker, he was not able [to confirm Cromwell's permission]; is that correct?
A. Yes.
Q. So she did not allow him into the room.
A. Yes.
. . . .
Q. And she told you that? "I did not allow him into the room"?
A. Yes.
II RP at 89-90.
Here, even assuming a Confrontation Clause violation, Chang's argument fails because, as we will discuss further below, untainted evidence sufficiently established his constructive possession of the items in the motel room. Hearsay testimony regarding what Aguilar had seen was duplicative, in that Campbell testified to personally viewing the same materials in Cromwell's room as Aguilar reportedly had. Additionally, Farnworth's testimony that Aguilar had interacted with Chang earlier in the day in question was not necessary for the State to establish Chang's constructive possession. Any error here is harmless beyond a reasonable doubt.
Prosecutorial Misconduct
Chang next contends the State committed prosecutorial misconduct when it referred to Aguilar's statements during closing argument. A defendant alleging prosecutorial misconduct must show both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. In the Pers. Restraint of Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 (1998). Where the misconduct asserted violates a constitutional right, the State must show the error is harmless beyond a reasonable doubt. State v. Powell, 126 Wn.2d 244, 267, 893 P.2d 615 (1995).
Chang also claims that during the State's closing argument, the trial court erred when it "[i]nexplicably" overruled his hearsay objection. Appellant's Br. at 22. As Chang provides no argument on this claim, we decline to address it. RAP 10.3(a)(6); see State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
Chang's argument fails for several reasons. First, as noted, defense counsel had already elicited Aguilar's statement through Campbell's testimony. Second, Chang fails to cite authority that the State may not use statements where, as here, the trial court overrules defense counsel's objection to those statements. Finally, as noted above, any error is harmless beyond a reasonable doubt.
Evidence of Dominion and Control
Chang next contends that insufficient evidence established an element of the crimes charged, identity theft, and possession of stolen property. He asserts that the State failed to prove that Chang was in possession of items supporting these charges.
The State had to prove that Chang actually or constructively possessed the items in Cromwell's motel room. Under the totality of the circumstances, constructive and not actual possession may be established by showing dominion and control. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994); State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977). Where a person has dominion and control over the premises, there is a rebuttable inference that he has dominion and control over items in the premises. State v. Tadeo-Mares, 86 Wn. App. 813, 816, 939 P.2d 220 (1997).
Various indicia determine dominion and control, and the accumulation of a number of factors strongly indicates constructive possession. Partin, 88 Wn.2d at 906. If sufficient evidence tends to establish circumstances from which the jury can reasonably infer the defendant had dominion and control of contraband, then the State establishes constructive possession. Partin, 88 Wn.2d at 906-07.
In reviewing a sufficiency of the evidence claim, we take the evidence and reasonable inferences in the light most favorable to the State to determine whether any rational fact finder could have found the elements of the charged crime beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). We view direct and circumstantial evidence as equally reliable and we leave issues of witness credibility, conflicting testimony, and persuasiveness of the evidence to the fact finder. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Even without the assertedly tainted evidence from Aguilar's hearsay statements, the State presented sufficient evidence of dominion and control. Campbell testified from personal knowledge as to the items he viewed in Cromwell's room. He observed checks and identifications strewn on the bed. Campbell testified regarding Aguilar's statement that Chang returned to get the key that Cromwell left in the room; thus, Farnworth's similar statement added little to the State's case. In addition, based on his personal knowledge, Campbell also testified about (1) Chang's gaining access to the room, (2) viewing the woman carrying the copier or printer machine, and (3) copying Chang's identification.
Moreover, Farnworth's testimony that he and the officers found the checks and identifications in the briefcase and plastic bag, coupled with Campbell's statement that he viewed those same items on the bed provide evidence from which the jury could reasonably infer that Chang placed those items in the briefcase and bag after entering the room. Farnworth's testimony also established that it was Chang's photo on the fraudulent Washington driver license replications.
In addition, Hobbs's and Farris's testimony provided evidence that Chang engaged in furtive and evasive behaviors from which the jury could reasonably infer that he was in control of the premises rather than either of the two women in the room. Finally, victim testimony established that the checks at issue were taken without the permission of the owners and the identifications under the names of Douglas Koyle and John Blair were fraudulent.
Thus, overwhelming untainted evidence supports a finding that Chang constructively possessed the items in Cromwell's room.
State's Comment on Chang's Constitutional Rights
Chang next argues that the State impermissibly commented on his exercise of his right against unreasonable search and seizure and invited the jury to infer guilt based on that exercise. Chang complains about Hobbs's testimony, namely, "What I thought was odd — I do remember this specifically — was when he came out . . . in kind of a sliding manner. Not opening the door too much. He just barely cracked it open to slide out." Appellant's Br. at 30. Chang argues that Hobbs's testimony effectively told the jury that it could infer guilt based on Chang's exercise of his constitutional right to be free from unreasonable search and seizure.
Generally, the State may not act to chill the assertion of a constitutional right nor may it draw adverse inferences from an individual's assertion of his rights. State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984). But not all arguments that touch on a defendant's constitutional rights are an impermissible comment on the exercise of those rights. State v. Miller, 110 Wn. App. 283, 284, 40 P.3d 692 (2002). Evidence of constitutionally protected behavior is admissible in criminal prosecution if evidence has probative value. State v. Kendrick, 47 Wn. App. 620, 626-27, 736 P.2d 1079 (1987). The question revolves around whether the State intended to comment on the constitutionally protected right. State v. Gregory, 158 Wn.2d 759, 806-07, 147 P.3d 1201 (2006). Where the State does not focus its question or argument on the right, no infringement on the right occurs. Gregory, 158 Wn.2d at 807.
Here, the testimony of the responding police officers regarding Chang's behaviors was circumstantial evidence from which the jury reasonably could infer guilt, and the State had a legitimate reason for eliciting this testimony. The State did not focus its questioning of Hobbs on the exercise of either the right to remain silent or the right to be free from unreasonable search and seizures. Chang does not show, and the circumstances do not indicate, that the State intended the remarks to be a comment on either right. Thus, he does not show infringement of a constitutional right and his argument fails.
Statement of Additional Grounds
RAP 10.10.
In his statement of additional grounds (SAG), Chang raises two additional issues. First, he argues that the search warrant was invalid and, second, he argues that the prosecutor committed misconduct during closing argument by articulating a theory to the jury that Chang ran an identification theft ring.
Regarding his first argument, a search warrant may issue only on a determination of probable cause. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). "Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched." Thein, 138 Wn.2d at 140. We review an issuing magistrate's determination of probable cause for abuse of discretion but we accord great deference to the reviewing court, resolving all doubts in favor of validity. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). An affidavit establishes probable cause when it sets forth sufficient facts to lead a reasonable person to conclude that authorities can find evidence of criminal activity at the place to be searched using a commonsense analysis. Maddox, 152 Wn.2d at 509.
In Farnworth's affidavit, he explained that Campbell had stated there were Washington identifications that were on torn printer paper and that there were checks, some appearing to be governmental, in the room. Campbell also informed the police that Chang had told Aguilar that he was there to get a key that Cromwell left in Room 220. And Campbell reported seeing Chang and one of the women with him moving items to or from the car in which Chang arrived at the motel. Farnworth's affidavit also reported Campbell's encounter with Chang and conversation with the woman on the cell phone.
Here, the affidavit supports a finding of probable cause because it provided sufficient facts to lead a reasonable person to conclude the occupants of the motel room were involved in criminal activity. The affidavit informed the magistrate that two motel employees reported seeing multiple fraudulent identifications and checks in Cromwell's room, along with equipment to make such items. The affidavit also explained that Chang refused to provide the police with Cromwell's contact information and that he did not explain the motel employees' observations. Because probable cause supported the issuance of the search warrant, Chang's argument fails.
Chang next contends the prosecutor stated during closing argument, "We believe Mr. Chang is running an Id. [sic] theft ring," and thereby misled the jury by presenting facts not in evidence that improperly affected its verdict. SAG at 1. Based on the record, we presume Chang refers to the following statement, which the prosecutor made at the beginning of closing argument:
Ladies and Gentlemen, I hope that by now you have the State's theory of the case. The State's theory of the case is Mr. Chang was operating an ID theft operation in Room 220. It's that simple.
He's not charged with that. He's charged with specific counts, and that's because the law is very precise and we have certain things we have to prove.
III RP at 215. Chang did not object.
A defendant alleging prosecutorial misconduct must show both improper conduct and prejudicial effect. Brown, 132 Wn.2d at 561. To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. Pirtle, 136 Wn.2d at 481-82. In closing argument, counsel has wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281 (1983).
Failure to object to a statement made in closing argument constitutes waiver of the error unless the comments are flagrant, ill-intentioned, and the resulting prejudice so enduring that jury admonitions could not neutralize its effect. State v. Brown, 29 Wn. App. 770, 774, 630 P.2d 1378 (1981). Here, the State did not rely on facts not in evidence, as the prosecutor noted that it was the State's "theory" that Chang was operating an identity theft operation. III RP at 215. The prosecutor clearly qualified the statement as a theory. And if asked, the trial court could have remedied any prejudicial error with a curative instruction. Finally, immediately after making these statements, the State discussed the four counts with which the State charged Chang and apparently presented to the jury a chart that outlined the evidence it produced to support each count.
The defendant bears the burden of demonstrating an improper argument and prejudice. State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986). Chang does not do so; it is not self-evident that the prosecutor's statement was improper, let alone flagrant and ill-intentioned misconduct. Chang's pro se arguments fail.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
We concur:
Armstrong, J.
Quinn-Brintnall, J.