State v. Falsetta

Penoyar

UNPUBLISHED OPINION

Penoyar, J. — Mario Elliott Falsetta appeals his convictions for two counts of second degree possession of stolen property and two counts of second degree identity theft, asserting that (1) the trial court erred by failing to suppress evidence Falsetta argues was obtained during an illegal search of his home; and (2) sufficient evidence did not support his convictions. In his statement of additional grounds for review (SAG), Falsetta repeats his appellate attorney's assertion that sufficient evidence did not support his convictions and argues that his defense counsel was ineffective for failing to raise a sufficiency challenge at trial. We affirm.

Facts

On February 5, 2008, Community Corrections Officer Ryan Kowalchuk went to Falsetta's home in Graham, Washington to conduct a home visit. The purpose of Kowalchuk's home visit was to monitor Falsetta's compliance with the terms of his court-ordered Drug Offender Sentencing Alternative (DOSA). Falsetta's DOSA conditions included a restriction against owning firearms and ammunition, as well as a requirement that he obey all laws.

When Kowalchuk arrived at Falsetta's residence, Falsetta's girl friend, Michelle Hoskins, answered the door. After Kowalchuk introduced himself and told Hoskins that he was there to conduct a home visit with Falsetta, Hoskins let Kowalchuk in the home and took him to Falsetta, who was in his bedroom. Kowalchuk introduced himself to Falsetta and asked Falsetta to give him a walk-through of the home. Once in the family room, Kowalchuk saw an empty box of ammunition on a table; Falsetta told Kowalchuk that he found the box of ammunition outside the home. Kowalchuk became concerned that there were firearms in the home and told Falsetta that he was going to conduct a more thorough search of the home.

When Kowalchuk returned to Falsetta's bedroom to conduct his search, he saw a glass pipe on a nightstand next to Falsetta's bed. Kowalchuk also found a driver's license and multiple credit cards belonging to Michelle Dequis, as well as a check made out to Cash n' Carry in the name of William Dequis, in a drawer at the foot of Falsetta's bed. As Kowalchuk removed the items from Falsetta's drawer, Falsetta stated that the "items were not his but he knew they were there, and felt wrong throwing them away [and that's] why he kept them." Report of Proceedings (RP) (Mar. 22, 2011) at 35. On the other side of Falsetta's bedroom, Kowalchuk found a tin box containing several financial documents, a driver's license, and gifts cards all belonging to Beverly Smith. The tin box also contained a Circuit City rewards card in the name of Jason Paulson, as well as multiple gift cards without a name listed on them, including an H&R Block MasterCard gift card and a Visa debit gift card. Kowalchuk contacted the Pierce County Sheriff's Office and asked them to send an officer to Falsetta's home.

Pierce County Sheriff's Deputy William Ruder arrived at Falsetta's residence and met Kowalchuk in the driveway; Ruder saw that Falsetta had been detained in Kowalchuk's vehicle. Kowalchuk led Ruder to Falsetta's bedroom and Ruder collected the items that Kowalchuk had found in the bedroom. After reading Falsetta his Miranda rights, Ruder asked him about the items found in his bedroom. Falsetta first denied that the items were found in his bedroom and denied any knowledge about the tin box. Falsetta later admitted that he knew the items were in his bedroom and admitted that he knew about the contents of the tin box but continued to deny any intention to use the items. The State charged Falsetta with two counts of second degree possession of stolen property and two counts of second degree identity theft.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Before trial, Falsetta moved to exclude statements he made while in police custody and to suppress evidence found during the search of his home under CrR 3.5 and CrR 3.6. The trial court orally denied Falsetta's motion and, while this appeal was pending, entered written findings of fact and conclusions of law on February 2, 2012. The trial court's findings and conclusions state in part:

THE UNDISPUTED FACTS
1. On February 5, 2008, Community Corrections Officer (CCO) Ryan Kowalchuk went to the defendant's residence in Pierce County to conduct a compliance check. The defendant was on supervision by the Department of Corrections for a DOSA sentence (Drug Offender Sentencing Alternative).
2. CCO Kowalchuk was let into the residence by the defendant's girlfriend. Kowalchuk was led back to the defendant's bedroom where he contacted the defendant.
3. In a common area of the house Officer Kowalchuk found an empty box of ammunition. The defendant volunteered an explanation for the box that Kowalchuk did not believe.
4. The defendant is prohibited from possessing ammunition by the terms of his probation. Kowalchuk decided to search the defendant's bedroom to see if ammunition or firearms were present.
5. During the search of the defendant's bedroom, Kowalchuk immediately discovered a drug pipe in plain view on top of a nightstand/dresser. The search also revealed several 'airsoft' pistols and a 12 inch knife. The drug pipe and the knife were violations of the defendant's conditions of probation.
6. In a further search of the defendant's bedroom, Kowalchuk found credit cards belonging to other people and bank statements in other people's names.
. . . .
REASONS FOR ADMISSIBILITY OR INADMISSIBILITY OF THE EVIDENCE
1. The defendant is a convicted felon under the supervision of the Department of Corrections. As such, he has diminished privacy rights and must abide by the conditions of his supervision.
2. CCO Kowalchuk was legitimately at the defendant's residence conducting a compliance check when he discovered an empty box of ammunition. When the defendant volunteered an implausible explanation for the presence of the ammunition box - Kowalchuk had reasonable suspicion to believe that the defendant was in violation of his conditions of supervision.
3. As Kowalchuk entered the defendant's bedroom to search for ammunition and firearms - he observed a drug pipe in plain view which was a violation of the law as well as a violation of his probation.
4. Other items of contraband were found in the defendant's bedroom during a lawful search.
5. All evidence found in the defendant's bedroom was seized legally.
6. The defendant's motion to suppress the evidence is denied.

Supplemental Clerk's Papers at 118-120.

At trial, Michelle Dequis testified that she had worked at a Spanaway, Washington Wal-Mart in 2007. Dequis stated that she would often leave her purse in her car during her shifts because there was no locker space available in the store. One night after completing her shift, Dequis noticed that her purse had been taken along with other items that were in her car. Dequis's purse contained the driver's license, credit cards, and the check to Cash n' Carry later found in Falsetta's bedroom. When Dequis called to cancel her credit cards a short time later, she was informed that there had already been multiple charges on the cards at a gas station near the Wal-Mart and for airtime on a Verizon cellular phone.

Beverly Smith testified that her Yelm, Washington home was burglarized in December, 2007. She stated that the financial documents, expired driver's license, and some of the cards found in the tin box in Falsetta's bedroom were among the items taken from her home.

Courtney Page Brown, a friend of Falsetta's younger sister, Brianna Davis, testified for the defense. Brown stated that she and Davis were at Wal-Mart when she found a driver's license and some "cards" in a bathroom trashcan. RP (Mar. 24, 2011) at 158. Brown said that she grabbed the cards and put them in her pocket because she intended to turn them in to the store. Brown purchased some items and left the store without turning in the cards. Brown stated that she did not turn in the cards because she forgot about them until she was leaving the store to catch a bus to Davis's home, and that she left the cards on a table in Davis's home. Brown admitted that she had a prior conviction for third degree theft from a different Wal-Mart store.

Davis also testified for the defense. Davis stated that her brother, Falsetta, likely obtained the cards Brown found at the Wal-Mart because the cards were placed in a pile of his mail. She stated that when Falsetta was released from jail, the mail was handed to him and he threw it in a drawer.

The jury returned verdicts finding Falsetta guilty of two counts of second degree possession of stolen property and guilty of two counts of second degree identity theft. Falsetta timely appeals his convictions.

anaylsis

I. Written Findings and Conclusions Following CrR 3.5 and CrR 3.6 hearings

As an initial matter, Falsetta assigns error to the trial court's failure to enter written findings of fact and conclusions of law as required by CrR 3.5 and CrR 3.6. Although the trial court did not initially enter its written findings and conclusions following its oral ruling denying Falsetta's motions to suppress, it entered the required written findings and conclusions on February 2, 2012, while this appeal was pending. Because Falsetta cannot demonstrate that he was prejudiced by the trial court's belated entry of written findings and conclusions, we hold that there was no error.

A trial court is required to enter written findings of fact and conclusions of law followings it ruling in a CrR 3.5 or CrR 3.6 hearing. CrR 3.5(c); CrR 3.6(b). The purpose of the requirement that trial courts enter written findings and conclusions is to enable us to review the issues raised on appeal. State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984). The remedy for a trial court's failure to enter the required written findings of fact and conclusions of law is to remand for entry of those findings and conclusions. State v. Head, 136 Wn.2d 619, 622, 964 P.2d 1187 (1998). However, "[i]t is the general rule in this state that findings and conclusions may be submitted and entered even while an appeal is pending." McGary, 37 Wn. App. at 861(citing State v. Wood, 68 Wn.2d 303, 412 P.2d 779 (1966)). Although entry of findings of fact and conclusions of law after the appellant has filed its opening brief "'has the appearance of unfairness and burdens the court with motions to supplement the record,'" no error lies unless the defendant can demonstrate that the belated entry of findings and conclusions prejudiced him or her. State v. Hillman, 66 Wn. App. 770, 774, 832 P.2d 1369 (1992) (quoting McGary, 37 Wn. App. at 861).

Here, Falsetta argues that the trial court erred in its oral ruling denying his motion to suppress evidence seized from his residence because the evidence presented at the CrR 3.6 hearing did not support the conclusion that Kowalchuk's warrantless search of Falsetta's residence was lawful. As the trial court's belated entry of written findings and conclusions merely memorialized its oral ruling and were not "tailored . . . to the issues raised on appeal," Falsetta's argument has not been undermined by the belated findings and conclusions. State v. Chamberlin, 161 Wn.2d 30, 43 n.8, 162 P.3d 389 (2007). Thus, Falsetta cannot demonstrate prejudice, and we find no error with the trial court's belated entry of written findings of fact and conclusions of law. II. CrR 3.6 Motion to Suppress Evidence

Next, Falsetta contends that the trial court erred by failing to suppress evidence seized from his home because Kowalchuk did not have a valid exception to the warrant requirement when he entered Falsetta's home and conducted his search. Specifically, Falsetta argues that (1) the State could not demonstrate that Hoskins had authority to consent to Kowalchuk's initial entry into the home, and (2) even if Hoskins had authority to consent to Kowalchuk's entry of the home, Kowalchuk failed to obtain Falsetta's knowing and voluntary consent to search because he failed to give Ferrier warnings prior to obtaining Falsetta's consent. We disagree.

State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
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Warrantless searches and seizures are per se unreasonable under article I, section 7 of our State Constitution and the Fourth Amendment to the United States Constitution. State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). To have evidence seized absent a warrant admitted at trial, the State has the burden to prove that one of the narrow exceptions to the warrant requirement existed at the time of the search. State v. Ladson, 138 Wn.2d 343, 349-50, 979 P.2d 833 (1999).

Consent is one exception to the warrant requirement. State v. Leach, 113 Wn.2d 735, 738, 782 P.2d 1035 (1989). "The State must meet three requirements in order to show that a warrantless but consensual search was valid: (1) the consent must be voluntary; (2) the person granting consent must have authority to consent; and (3) the search must not exceed the scope of the consent." State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998). In search and seizure cases involving cohabitants, our Supreme Court has adopted the common authority rule. State v. Morse, 156 Wn.2d 1, 7-8, 123 P.3d 832 (2005). A cohabitant with common authority over the premises has authority to consent to a search and that consent is valid against an absent, nonconsenting person with whom that authority is shared. United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). But if cohabitants with equal authority over common areas are present, the police must obtain consent from each cohabitant. Morse, 156 Wn.2d at 13.

A search of a person under state supervision, such as a DOSA sentence, has a reduced expectation of privacy because of the state's interest in supervising the person in the community. State v. Reichert, 158 Wn. App. 374, 386, 242 P.3d 44 (2010), review denied, 171 Wn.2d 1006 (2011). Former RCW 9.94A.631(1) (2009) provides, "If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender's person, residence, automobile, or other personal property." "The rationale for excepting probationers from the general requirement that a search requires a warrant based on probable cause is that a person judicially sentenced to confinement but released on probation remains in the custody of the law." Reichert, 158 Wn. App. at 386. Because a person in community custody is still under the state's supervision, a search by a community corrections officer is distinguishable from that of a police officer "'ferreting out crime."" State v. Simms, 10 Wn. App. 75, 85, 516 P.2d 1088 (1973) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948)).

Falsetta first argues that the trial court erred by failing to suppress evidence seized from his home because the State failed to show that Hoskins had authority to consent to Kowalchuk's initial entry into the home. But the uncontested evidence at the CrR 3.6 hearing showed that Hoskins was one of residents of the home searched, and therefore had common authority over the premises. Additionally, Hoskins's conduct in answering the door and allowing Kowalchuk to enter also demonstrated that she had authority to give consent because "[a]ccess and permission to enter are the hallmarks of common authority." State v. Holmes, 108 Wn. App. 511, 520, 31 P.3d 716 (2001). Accordingly, the State met its burden to show that Hoskins had authority to consent to Kowalchuk's entry into the home.

Next, Falsetta argues that, even if Hoskins validly consented to Kowalchuk's entry, the subsequent search was unlawful because Falsetta, as a cohabitant of the home, was also required to give his consent before Kowalchuk could conduct his warrantless search. In advancing this argument, Falsetta does not claim that he did not give consent to search his home, but rather, that his consent was not given knowingly and voluntarily in light of Kowalchuk's failure to give him Ferrier warnings prior to obtaining consent. We agree that Kowalchuk, in the absence of any reasonable cause to believe that Falsetta was violating a condition of his sentence, was required to obtain Falsetta's knowing and voluntary consent before conducting a warrantless search of his home. But we disagree that Kowalchuk was also required to give Ferrier warnings prior to obtaining Falsetta's consent to search under these circumstances.

In State v. Ferrier, 136 Wn.2d 103, 118-19, 960 P.2d 927 (1998), our Supreme Court held:

[W]hen police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that [the person] may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.

Our Supreme has clarified that the Ferrier requirement is limited to situations where police request entry for the purpose of obtaining consent to conduct a warrantless search for contraband or evidence of a crime. State v. Khounvichai, 149 Wn.2d 557, 563, 566, 69 P.3d 862 (2003). In limiting Ferrier's application to the "inherently coercive" knock and talk procedure deemed offensive in Ferrier, the Khounvichai court recognized:

[T]here is a fundamental difference between requesting consent to search a home and requesting consent to enter a home for other legitimate investigatory purposes. When police obtain consent to search a home pursuant to a "knock and talk" they go through private belongings and affairs without restriction. Such an intrusion into privacy is not present, however, when the police seek consensual entry to question a resident.

149 Wn.2d at 564.

Here, Kowalchuk knocked on the door of Falsetta's residence and was met by Hoskins. While it is unclear from the trial court's findings and conclusions, or from the evidence presented at Falsetta's CrR 3.6 hearing, whether Kowalchuk requested entry to speak with Falsetta or whether Hoskins simply invited the officer in, it is clear that Kowalchuk was at the residence for the legitimate purpose of conducting a routine home visit to assure that Falsetta was residing at the address he had listed with the Department of Corrections. Accordingly, the Ferrier warning requirement did not apply at the time Kowalchuk made contact with Hoskins. And, because Kowalchuk was already lawfully in the home pursuant to Hoskins's consent when he made contact with Falsetta, the Ferrier warning requirement also did not apply to the officer's request that Falsetta consent to a walk-through of his residence. Ferrier addresses the situation where an officer requests entry into a home for the purpose of conducting a warrantless search for evidence of a crime, not where, as here, an officer is lawfully in a home and then requests the person under community supervision to take him on a walk-through of the residence. And, because Kowalchuk saw an empty box of ammunition in plain view while conducting his walk-through of Falsetta's residence, he had a reasonable cause to believe Falsetta was in violation of his DOSA sentence, thus justifying his subsequent search of Falsetta's bedroom. Accordingly, the trial court did not err when it denied Falsetta's motion to suppress evidence seized from his bedroom. III. Sufficiency of the Evidence

Next, Falsetta contends that sufficient evidence did not support his second degree possession of stolen property convictions because the evidence did not support a finding that he knew the items he possessed were stolen. Falsetta also contends that sufficient evidence did not support his identity theft convictions because the evidence did not support a finding that he intended to commit a crime with the items seized from his bedroom. We disagree.

Sufficient evidence exists to support a conviction if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). A defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn from the evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).

To convict Falsetta for second degree possession of stolen property as charged under RCW 9A.56.160, the State had to prove beyond a reasonable doubt that he knowingly possessed a stolen access device. RCW 9A.56.140(1); RCW 9A.56.160(1)(c). RCW 9A.56.010(1) defines an "access device" as:

any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.

And, to convict Falsetta for second degree identity theft as charged under RCW 9.35.020(1), (3), the State had to prove beyond a reasonable doubt that he knowingly possessed "a means of identification or financial information of another person, living or dead, with intent to commit, or to aid or abet, any crime." A jury may infer the defendant's specific criminal intent from conduct plainly indicating such intent as a matter of logical probability. Delmarter, 94 Wn.2d at 638.

The State presented sufficient evidence for a jury to infer that Falsetta knew the items he possessed were stolen. Although evidence that a defendant merely possessed stolen property is insufficient to support a possession of stolen property conviction, possession of the stolen property is "a relevant circumstance to be considered with other evidence tending to prove the elements of the crime." State v. Hatch, 4 Wn. App. 691, 694, 483 P.2d 864 (1971). And, when evidence demonstrates that a defendant was in possession of stolen property, "'slight corroborative evidence of other inculpatory circumstances tending to show his guilt will support a conviction.'" Hatch, 4 Wn. App. at 694 (quoting 4 C. Nichols, applied evidence, possession of stolen property § 29 at 3664 (1928). "Possession of recently stolen property and a dubious account concerning its acquisition are sufficient facts to meet the 'beyond a reasonable doubt test' of criminal evidence." Hatch, 4 Wn. App. at 694.

Here, the State presented evidence that Falsetta possessed items that had been stolen from multiple victims and that some of the items stolen from Dequis had been used to make unauthorized purchases. Though perhaps only 'slight', these circumstances alone are sufficient to support a juries' conclusion that Falsetta knew the items were stolen. The State also presented evidence from which the jury could infer that Falsetta knew the items he possessed had been stolen. Specifically, Kowalchuk testified that when he asked Falsetta about the stolen items found in his bedroom, Falsetta admitted that he knew the items were there, that he knew the items were not his, and that he kept the items because he did not feel right throwing them away. Additionally, Ruder testified that Falsetta provided inconsistent answers when questioned about the stolen items found in his possession; Falsetta initially denied any knowledge about the stolen items then admitted possessing the items but denied any intention to use them. Falsetta's inconsistent explanations regarding the stolen items are sufficient evidence from which a jury could infer Falsetta's guilty knowledge. State v. Ladely, 82 Wn.2d 172, 175, 509 P.2d 658 (1973). Accordingly, sufficient evidence supports Falsetta's second degree possession of stolen property convictions.

The State also presented sufficient evidence to support Falsetta's second degree identity theft convictions. Here, the State presented evidence that (1) Falsetta possessed and stored identification information belonging to multiple people that did not give Falsetta permission to possess their information, (2) the identification information had previously been used to make unauthorized purchases. These two circumstances together sufficiently support the convictions. In addition, (3) Falsetta provided inconsistent answers about knowing that he possessed the identification information, and (4) Falsetta provided implausible explanations about why he possessed those items. This is more than sufficient evidence from which a jury could infer that Falsetta intended to use the identifying information to commit, or aid in the commission, of a crime. Accordingly, sufficient evidence supports Falsetta's second degree identity theft convictions. IV. SAG

In his SAG, Falsetta first repeats his appellate attorney's argument that sufficient evidence did not support his convictions. Because we have resolved that issue as argued by his appellate counsel, we do not address it again here. Falsetta also argues that his defense counsel was ineffective for failing to raise a sufficiency challenge at trial. But the record shows that Falsetta's defense counsel moved to dismiss his charges for lack of sufficient evidence at the close of the State's case, which the trial court denied. Accordingly, Falsetta's argument that his defense counsel rendered ineffective assistance is without merit.

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.

Penoyar, J. We concur:

Johanson, A.C.J.

Bridgewater, J.P.T.