State Of Washington, Respondent V. Cory Thomas, Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
CORY LAMONT THOMAS,
Appellant.
No. 68220-2-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	July 1,2013
Leach, C.J. — Cory Thomas appeals his conviction for burglary in the
second degree. 	He challenges the sufficiency of the evidence. 	In a statement of
additional grounds, Thomas alleges that the State filed a deficient information;
that the court improperly denied his motion for a bill of particulars; prosecutorial
vindictiveness; denial of his right to counsel; ineffective assistance of counsel;
violations of the court's witness exclusion ruling and the confrontation causes
c__ 	=;-
that the trial court gave an improper jury instruction; and that the State improperly^
>-
argued an aggravating factor at sentencing. 	Because, viewing the evidence i#C
the light most favorable to the State, a rational trier of fact could have four$ theji^
essential elements of second degree burglary beyond a reasonable doubt and
Thomas's remaining claims are meritless, we affirm.
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No. 68220-2-1 / 2
Background
At approximately 2:06 a.m. on May 12, 2009, police officers responded to
an alarm at the Edmonds Smoke Shop. 	When they arrived, they found the front
door locked but the door's glass broken. 	Inside, an A-frame sign lay on the floor
behind the door. 	The officers found a rock on the carpet inside the store. 	They
found no sign of forced entry through the other entrance, the back door. 	The
officers also observed cut wires in front of the building and wires disconnected
from an electrical box serving the building.
One 	officer 	reported 	that when 	he 	arrived, 	he 	saw that "[n]othing 	is
overturned. 	Nothing 	is laying [sic] on the floor ransacked. 	Nothing 	appears
damaged. 	Things are in neat stacks still. 	In that sense, it appears orderly." This
officer noticed a crooked cigarette pack on a shelf and found "a big empty void"
behind it. 	Although the store's owner, Muhammad Anwar, initially reported no
stolen merchandise, he later estimated that he could not account for 82 cartons
of cigarettes and two or three boxes of cigars. 	He also told police officers that
the A-frame sign usually stood upright inside the door and that he straightened
up the merchandise before closing the store.
As they drove to work between 2:00 a.m. and 3:00 a.m. that day, Shane
Crum and Kevin Stone saw two men cross the street and enter the passenger
side of a silver car parked in a bowling alley parking lot. 	The silver car traveled
down the street, turned into a grocery store parking lot, pulled 	into the back
entrance, and traveled back to the bowling alley parking lot. When police arrived
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No. 68220-2-1/3
and asked if Crum saw anyone in the area of the smoke shop, Crum pointed out
this car.
Police officers followed the silver car and stopped it. 	They questioned the
driver, Thomas, as well as the two passengers. 	With a warrant, police officers
searched the car. 	They found three masks, a hat, gloves, and a bandana. 	They
also found a portable light in the driver's side door and two Tupperware tubs in
the back seat. 	Additionally, the officers found a screwdriver, a wrench, and five
sockets in the trunk. They found no evidence of cigarettes or cigarette packaging
in the car.
The State charged Thomas with second degree burglary. A jury convicted
him as charged. Thomas appeals.
Analysis
Sufficiency of the Evidence
Thomas first claims that insufficient evidence supported his conviction.
Sufficient evidence supports a conviction only if, when viewed in the light most
favorable to the State, any rational trier of fact could have found the elements of
the crime 	beyond 	a 	reasonable 	doubt.1 	For this 	analysis, 	"[circumstantial
evidence is just as reliable as direct evidence."
1State v.Maupin, 63 Wn. App. 887, 892, 822 P.2d 355 (1992) (citing State
v. Green. 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980)).
2 State v. Frawlev. 140 Wn. App. 713, 721-22, 167 P.3d 593 (2007) (citing
State v. Myers. 133 Wn.2d 26, 38, 941 P.2d 1102 (1997)), review granted. 176
Wn.2d 1030 (2013).
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No. 68220-2-1/4
Under former RCW 9A.52.030 (1989), "[a] person is guilty of burglary in
the second degree if, with intent to commit a crime against a person or property
therein, he or she enters or remains unlawfully in a building other than a vehicle
or a dwelling." 	Thomas argues that the State "did not prove beyond a reasonable
doubt that anyone entered the store."
Thomas challenges only Mr. Anwar's testimony that Mr. Anwar could not
account for 82 cartons of cigarettes and two or three boxes of cigars. 	Thomas
offers a variety of reasons for questioning Mr. Anwar's credibility, including the
fact that the trial court denied the State's request for restitution for the missing
merchandise. 	But even though police officers found no evidence of the missing
merchandise, "[credibility determinations are for the trier of fact 	and are not
subject to review."3
The evidence shows that someone broke and removed all of the glass
from the store's front door and knocked over the A-frame sign onto the floor.
Additionally, the 	alarm 	tripped 	at 	the 	back 	door, 	suggesting 	that 	someone
entered through the front door, without setting off an alarm, and exited through
the back. 	Further, although 	Mr. Anwar testified that he 	straightened 	up the
merchandise before closing the store the previous evening, police found a "big
empty void" on a store shelf behind a crooked package. 	Moreover, witnesses
3 State v. Mines. 163 Wn.2d 387, 391, 179 P.3d 835 (2008) (citing State v.
Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004)).
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No. 68220-2-1 / 5
saw two men run from the store's vicinity and get into a car that Thomas was
driving.
The fact that the court denied the State's request for restitution is not
relevant 	to 	whether 	sufficient evidence 	supported 	Thomas's 	conviction. 	At
sentencing, Thomas argued that he should 	not pay restitution for the missing
merchandise because he did not personally take it. 	The court treated the issue
as a legal argument that did not require a factual determination. 	The trial court
maintains considerable discretion in determining restitution,4 and nothing in the
record indicates a factual determination that no burglary occurred. 	Because the
jury, not the court, evaluates a witness's credibility and Thomas fails to establish
that insufficient evidence supported the jury's determination that he entered the
store, we reject his claim.
Deficient Information
In a statement of additional grounds, 	Thomas alleges that the original
information, 	in which 	the 	State charged 	him with attempted 	second 	degree
burglary under RCW 9A.28.020(1) and RCW 9A.52.030, "was deficient insofar as
it failed to state what 'specific' crime the defendants intended to commit while
within the building or dwelling at question." To give notice to an accused of the
4 State v. Kinneman. 155 Wn.2d 272, 282, 119 P.3d 350 (2005) (citing
RCW9.94A.753).
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No. 68220-2-1 / 6
nature and cause of the accusation against him, the charging document must
include all essential elements of the crime.5
The 	State's 	original 	information, 	filed 	November 	29, 	2010, 	charged
Thomas with attempted second degree burglary. The State tried him on the third
amended information, however, which charged him with second degree burglary.
Any purported defect in the original information is not germane. 	Under CrR
2.1(2)(d), the court may permit the prosecutor to amend the information at any
time before the verdict or finding if the amendment will not substantially prejudice
the 	defendant. 	Because 	Thomas 	does 	not 	challenge 	the 	third 	amended
information, he fails to establish that he did not have proper notice of the nature
and cause of the accusation against him.
Denial of Bill of Particulars
Thomas also claims that the trial court erroneously denied his motion for a
bill of particulars under CrR 2.1(2)(c). 	We review a trial court's ruling on a bill of
particulars for abuse of discretion.6
Thomas's motion related only to the attempted second degree burglary
charge 	in 	the 	original 	information. 	We need 	not address this issue. 	As
previously noted, the State tried Thomas on the third amended information, and
5 State v. Berqlund. 65 Wn. App. 648, 650, 829 P.2d 247 (1992) (citing
State v. Leach. 113 Wn.2d 679, 689. 782 P.2d 552 (1989): State v. Kiorsvik. 117
Wn.2d 93, 97, 812 P.2d 86 (1991)).
6State v.Allen. 116 Wn. App. 454, 460, 66 P.3d 653 (2003) (citing State v.
Noltie. 116 Wn.2d 831, 844, 809 P.2d 190 (1991)).
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No. 68220-2-1 / 7
Thomas does not challenge the third amended 	information. 	Thus, Thomas's
argument lacks merit.
Prosecutorial Vindictiveness
For his fourth claim, Thomas contends that amending the information to
charge him with second degree burglary instead of attempted second degree
burglary constituted prosecutorial vindictiveness. 	He asserts that "the facts of
this case are one of those clear and undisputable cases of actual vindictiveness
and 	of a 	defendant 	being 	effectively 	punished 	for 	his 	lawful exercise 	of a
constitutional right, that being a challenge to the charging 	information 	and a
request for a bill of particulars." We reject Thomas's arguments.
Prosecutorial vindictiveness occurs when the State charges the defendant
with a more serious crime "'in retaliation for a defendant's lawful exercise of a
procedural right.'"7 	The Sentencing Reform Act of 19818 gives prosecutors great
discretion in determining which charges to file against a defendant.9 	An initial
charging 	decision 	does 	not, 	however, 	end 	prosecutorial 	discretion.10 	"A
prosecutor may increase an initial charge when a fully informed and represented
defendant refuses to plead guilty to a lesser charge."11
7 State v. Fryer. 36 Wn. App. 312, 317, 673 P.2d 881 (1983) (quoting State
v. McKenzie. 31 Wn. App. 450, 452, 642 P.2d 760 (1981)).
8 Ch. 9.94A RCW.
9 State v. Lewis. 115 Wn.2d 294, 299, 797 P.2d 1141 (1990).
10 State v. Bonisisio, 92 Wn. App. 783, 790, 964 P.2d 1222 (1998) (citing
State v. Lee. 69 Wn. App. 31, 37, 847 P.2d 25 (1993)).
11 Bonisisio. 92 Wn. App. at 790 (citing Lee, 69 Wn. App. at 36; United
States v. Goodwin. 457 U.S. 	368, 378-80, 102 S. Ct. 2485, 73 L. Ed. 	2d 74
(1982)).
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No. 68220-2-1 / 8
Again, under CrR 2.1(2)(d), the court may permit the prosecutor to amend
the information. 	In a pretrial setting, a defendant bears the burden of proving
either "'(1) actual vindictiveness, 	or 	(2) a 	realistic likelihood of vindictiveness
which will give rise to a presumption of vindictiveness.'"12 	If the defendant makes
this 	showing, 	the 	State 	must 	provide 	legitimate, 	articulable, 	and 	objective
reasons for its actions.13 	"If the only showing of vindictiveness is the addition
before 	trial 	of 	new 	charges for 	which 	the 	State 	believes 	there 	is sufficient
evidence to support a conviction, constitutionally impermissible conduct has not
been shown."14
Here, 	in 	response 	to 	Thomas's 	objection 	to 	the 	amendment, 	the
prosecutor explained, "Regarding the attempted second degree burglary, that
was filed as the lesser offense in order to give him an opportunity to plead guilty
to a lesser offense. . . . [Wje're just amending it up to the full burglary for trial.
That was not in response to his Bill of Particulars." 	The prosecutor also noted,
"[W]e have provided discovery to counsel, we've provided all the materials that
would list out the particulars of a Bill of Particulars, and provided information as
to this offense."
Thomas offers no basis to conclude that the prosecutor amended the
information 	in 	retaliation 	for 	his 	challenge to 	the 	original 	information 	or 	his
12 	Bonisisio. 	92 	Wn. 	App. 	at 	791 	(internal 	quotation 	marks 	omitted)
(quoting United States v. Wall. 37 F.3d 1443, 1447 (10th Cir.1994)).
13 Bonisisio. 92 Wn. App. at 791 (quoting WaN, 37 F.3d at 1447).
14 Fryer. 36 Wn. App. at 317 (citing State v. Penn. 32 Wn. App. 911, 914,
650 P.2d 1111 (1982)).
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No. 68220-2-1/9
request for a bill of particulars. 	The record shows that the State properly offered
Thomas a chance to plead guilty to the lesser charge and also believed that
sufficient evidence supported the higher charge. 	Because Thomas fails to show
constitutionally impermissible conduct, we deny his claim.
Denial of Right to Counsel
Thomas also alleges that the trial court denied his right to counsel at the
trial readiness 	hearing. 	Under 	the 	Sixth Amendment to the 	United States
Constitution and article I, section 22 of the Washington State Constitution, an
indigent person has a right to representation by appointed counsel at all critical
stages ofa criminal proceeding.15 "'A stage is critical if it presents a possibility of
prejudice to the defendant.'"16
Because Thomas's appointed counsel was unavailable to attend the trial
readiness hearing, a substitute attorney represented Thomas at the 	hearing.
Thomas objected to this representation, asserting, "I don't know who he is. 	He
hasn't filed 	a 	notice 	of appearance or anything." 	In 	response to Thomas's
arguments, the court explained, "All we're doing is assigning it out for trial.
Nothing is going to happen today. 	I'm just getting you to a judge to start trial." A
defendant does 	not 	have 	an 	absolute 	right under the 	Sixth Amendment to
15 State v. Hawkins. 	164 Wn. App. 705, 	714-15, 265 P.3d 	185 (2011)
(citing State v. Valentine. 	132 Wn.2d 1, 16, 935 P.2d 	1294 (1997)), review
denied. 173Wn.2d 1025(2012).
16 Hawkins, 164 Wn. App. at 715 (quoting State v. Harell. 80 Wn. App.
802, 804, 911 P.2d 1034 (1996)).
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No. 68220-2-1/10
counsel of his or her choice.17 	The essential aim of the Sixth Amendment is "to
guarantee 	an 	effective 	advocate for each 	criminal 	defendant 	rather than 	to
ensure that a defendant will inexorably be represented by the lawyer whom he
prefers."18 	Thomas shows no prejudice from different counsel appearing at the
trial readiness hearing. 	Therefore, we hold that the court did not deny Thomas
the right to counsel.
Ineffective Assistance of Counsel
Thomas argues that defense counsel was ineffective because he "fail[ed]
to notify the defendant of his standard range and of his direct consequences of
proceeding to trial." 	He claims that this was "error of a constitutional magnitude
affecting the right to a fair trial and the right to be properly informed so as to
make intelligent and informed decisions regarding his choice to proceed to trial."
Thomas also claims that counsel was ineffective for failing to introduce evidence
to challenge an officer's report that the officer saw glass in the Tupperware tubs
in the back of Thomas's car. 	We hold that Thomas received effective assistance
of counsel.
Claims of ineffective assistance of counsel are mixed questions of law and
fact, which we review de novo.19 	To prevail, a defendant must show (1) that
counsel's performance fell below an objective standard of reasonableness based
17 State v. Stenson. 132 Wn.2d 668, 733, 940 P.2d 1239 (1997) (citing
State v. DeWeese. 117 Wn.2d 369, 375-76, 816 P.2d 1 (1991)).
16 Wheat v. United States. 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L Ed.
2d 140(1988).
19 In re 	Pers. 	Restraint of Fleming, 	142 Wn.2d 853, 865, 	16 P.3d 610
(2001).
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No. 68220-2-1/11
on a consideration of all the circumstances and (2) that the deficient performance
prejudiced 	the 	trial.20 	The 	reasonableness 	inquiry 	presumes 	effective
representation and 	requires the defendant to show the absence of legitimate
strategic or tactical reasons for the challenged conduct.21 	To show prejudice, the
defendant 	must 	prove 	that 	but 	for 	the 	deficient 	performance, 	there 	is 	a
reasonable probability that the outcome would have been different.22
To 	satisfy 	due 	process, 	a 	defendant's 	guilty 	plea 	must 	be 	knowing,
intelligent, 	and voluntary.23 	A plea 	is 	not voluntary if the defendant 	is 	not
informed 	of the 	direct 	consequences 	of the 	plea, 	including 	the 	sentencing
implications.24 	Thomas pleaded not guilty. 	Even if counsel had a duty to inform
Thomas of the consequences that he faced, the trial court concluded during a
pretrial hearing, "[Tjhere's been a detailed discussion between Mr. Thomas and
Mr. Pandher as to what the standard range and what he is facing is. . . . [T]here
is no inadequacy of counsel." 	Because the record does not support Thomas's
claim that he did not know the consequences of proceeding to trial, we reject it.
Thomas 	also 	contends 	that 	counsel 	was 	ineffective 	for 	refusing 	to
introduce evidence that one officer did not see any glass in the Tupperware tubs
20 State v.Nichols. 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).
21 State v. McFarland. 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
22 	In re 	Pers. 	Restraint of Pirtle, 136 Wn.2d 467, 487, 	965 	P.2d 593
(1998).
23 Bovkin v. Alabama. 395 U.S. 238, 243 n.5, 89 S. Ct. 1709, 23 L Ed. 2d
274 (1969); In re Pers. Restraint of Montova, 109 Wn.2d 270, 277, 744 P.2d 340
(1987).
24 In re 	Pers. Restraint of Bradley. 165 Wn.2d 934, 939, 205 P.3d 123
(2009).
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No. 68220-2-1/12
in the back of Thomas's car. 	Corporal Damian Smith, who stopped Thomas's
car, testified that while he stood outside of the car, he could see that "in the back
seat there [were] two Tupperware tubs, large Tupperware tubs, and I could see
in the top one there appeared to be glass fragments." 	He also testified that he
did not participate in retrieving the tubs from the car and did not see them at any
later time. 	Detective David 	Miller, who searched Thomas's car, testified on
cross-examination that he found no glass on the floor, in the carpeting, or on the
seats in the car. 	Because, despite Thomas's claim, defense counsel elicited
testimony from 	Detective Miller that he did not observe any glass in the car,
Thomas's claim is meritless.
Witness Exclusion
Next, Thomas claims that the 	trial court violated 	its witness exclusion
ruling under ER 615 by allowing two different officers to sit in the courtroom on
separate days. 	ER 615 states,
At the 	request of a 	party the court 	may order witnesses
excluded so that they cannot hear the testimony of other witnesses,
and it may make the order of its own motion. 	This rule does not
authorize exclusion of . . . (2) an 	officer or employee of a 	party
which is not a natural person designated as its representative by its
attorney.
"Questions concerning the exclusion of witnesses and the violation of that rule
are within the broad discretion of the trial court and will not be disturbed, absent
manifest abuse of discretion."25
25 State v. Schapiro. 28 Wn. App. 860, 867, 626 P.2d 546 (1981) (citing
State v. Walker. 19 Wn. App. 881, 578 P.2d 83 (1978); State v. Bergen. 13 Wn.
App. 974, 538 P.2d 533 (1975)).
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No. 68220-2-1/13
The trial court allowed an officer to sit at counsel table as the State's
representative. 	Thomas complains that the trial court allowed one officer to sit in
the 	courtroom 	during 	motions 	in limine 	and 	a 	different 	officer 	to 	sit 	in the
courtroom during the rest of the trial. 	The court stated, "Officer Speer is here
today because Detective Hawley could not be. 	Officer Speer may not be able to
be here the rest of the week acting as a managing, and Detective Hawley could
be." 	Thomas argues that the court erred by allowing two different officers to sit in
the courtroom.
Thomas did 	not raise this issue at trial. 	Under RAP 2.5(a)(3), we will
review a purported manifest error affecting a constitutional right even if Thomas
did not raise the issue in the trial court. 	Because he fails to show a 	manifest
error affecting a constitutional right, we decline to review this claim.
Confrontation Clause
Thomas 	also alleges that the trial court violated 	his 	rights 	under the
confrontation 	clause. 	First, 	he 	asserts 	that 	the 	trial 	court 	denied 	him 	an
opportunity to effectively cross-examine the State's witness. 	Second, Thomas
challenges 	the 	State's 	"object[ion] to 	admission 	of evidence 	of the 	alleged
victim[']s 'inconsistent statements to insurance investigators' . . . and the alleged
victim[']s prior inconsistent statements about the 'amount of loss suffered."' 	We
reject these claims.
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No. 68220-2-1/14
We review alleged confrontation clause violations de novo.26 	We review
limitations on cross-examination for abuse of discretion.27 A trial court abuses its
discretion 	if its 	decision 	is 	manifestly 	unreasonable 	or 	based 	on 	untenable
grounds.28
Under the federal confrontation clause, a criminal defendant has the right
to confront and to cross-examine adverse witnesses.29 	This guarantees an
adequate 	opportunity for 	effective 	cross-examination, 	including 	impeachment
with 	minimally 	relevant 	evidence 	of 	bias.30 	A trial 	court 	"retain[s] 	wide
latitude ... to 	impose reasonable limits on 	such cross-examination 	based on
concerns about, 	among other things, 	harassment, 	prejudice, confusion of the
issues, the witness' safety, or interrogation that is repetitive or only marginally
relevant."31 	Thus, a trial court may exercise its discretion to preclude cross-
26 State v. Jasper. 174 Wn.2d 96, 108, 271 P.3d 876 (2012).
27 State v. Fisher. 165 Wn.2d 727, 752, 202 P.3d 937 (2009).
28 State v. Emery. 161 Wn. App. 172, 190, 253 P.3d 413 (2011) (quoting
State v.Allen. 159 Wn.2d 1, 10, 147 P.3d 581 (2006)).
29 U.S. Const, amend. VI; Douglas v. Alabama. 380 U.S. 415, 418, 85 S.
Ct. 1074, 13 L Ed. 2d 934 (1965).
30 Davis v. Alaska, 415 U.S. 308, 316-18, 94 S. Ct. 1105, 39 L. Ed. 2d 347
(1974); State v. Hud low. 99 Wn.2d 1, 15-16, 659 P.2d 514 (1983). 	Relevant
evidence 	has 	"any 	tendency 	to 	make 	the 	existence 	of any 	fact 	that 	is 	of
consequence to the determination of the action more probable or less probable
than it would be without the evidence." 	ER 401. 	"Bias is . . . the relationship
between 	a 	party 	and 	a 	witness 	which 	might 	lead 	the 	witness 	to 	slant,
unconsciously or otherwise, his testimony in favor of or against a party. 	Bias
may be induced by a witness' like, dislike, or fear of a party, or by the witness'
self-interest." 	United States v. Abel. 469 U.S. 45, 52, 105 S. Ct. 465, 83 L. Ed.
2d 450 (1984).
31 Delaware v. Van Arsdall. 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L Ed.
2d 674 (1986).
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No. 68220-2-1/15
examination 	that merely argues, speculates on, 	or vaguely 	suggests 	bias.32
At trial, the State called Officer Ryan Speer, who responded to the smoke
shop's alarm, to testify. 	After defense counsel stated that he had no further
questions on recross and the court dismissed the witness, the prosecutor stated,
"Your Honor—," to which the court replied, "No, we're not going to go into re-
redirect. 	The witness can step down." 	Thomas claims that by preventing the
State from 	"clarify[ing] 	matters brought out on 	'Cross,'" the court erroneously
"limited the examination of the states [sic] witness." 	He argues, "[T]here was
effectively no effective cross examination even permitted."
The record shows that defense counsel completed his examination of the
witness. 	The trial court's decision to foreclose re-redirect examination does not
implicate Thomas's right to confrontation or cross-examination. 	Therefore, his
claim fails.
Thomas further argues that "the [Sjtate and court denied the defense the
opportunity to make any mention of the alleged victim having made two separate
and drastically different insurance claims, . . . and his bias insofar as he had a
monetary interest in the case." 	He also claims that Mr. Anwar tried to commit
insurance fraud.
The State moved in limine to limit evidence about Mr. Anwar's insurance
claim for the merchandise that he reported missing from the store. 	In response,
32 State v. Darden. 145 Wn.2d 612, 620-21, 41 	P.3d 1189 (2002) (citing
State v. Jones. 67 Wn.2d 506, 512, 408 P.2d 247 (1965)).
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No. 68220-2-1/16
Thomas argued that Mr. Anwar "came in and said there was nothing missing,
and then the victim said there were a number of boxes missing, and all of a
sudden there was $3,500 worth of cigarettes missing." 	Additionally, he asserted
that "the victim indicated there were two cigar boxes that were taken. 	Officer
Speer noted the cigar case and said the cigar case looked undisturbed." 	He
noted that officers found no cigarettes along the road or in Thomas's car.
In denying the State's motion to limit evidence about the insurance claim,
the court explained,
[Ojbviously he may have a motive and bias to say something was
missing 	because 	he 	got 	paid 	$6,000 	if he 	said something was
missing. ... He can come in and say, no, the insurance company
paid me. 	They sent out an investigator, they investigated, saw my
receipts, 	paid 	me. 	That 	may 	actually 	in fact 	go 	against 	the
defendants. 	I don't know. 	But that's up to them if they want to
pursue that.
The record shows that Thomas impeached Mr. Anwar with the fact that
Mr. Anwar reported a greater loss to the insurance company than he originally
reported to police. 	Because nothing in the record indicates that the trial court
precluded 	Thomas 	from 	impeaching 	Mr. 	Anwar 	with 	his 	prior 	inconsistent
statements, we deny his claim.
Jury Instructions
The court's jury instructions defined "enter": 	"The term enter includes the
entrance of the person, or the insertion of any part of the person's body, or any
instrument or weapon held in the person's hand and used or intended to threaten
or intimidate another person or to detach or remove property." 	In the State's
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No. 68220-2-1/17
closing argument, the prosecutor stated, "So let's talk about entry of the store.
We know they entered the store from a few different ways. 	First of all, the glass.
Well, we've heard there is a rock, and there is a rock found within the store."
Thomas 	contends 	that 	the 	jury 	instruction 	and 	the 	prosecutor's 	comments
"relieved the State of its burden to prove every element beyond a reasonable
doubt... in allowing 	the jury 	to 	convict the defendants 	on 	the 	rock 	having
entered the premises rather than a person or human."
We review a trial court's jury instructions for an abuse of discretion.33
"'Jury instructions are sufficient when they allow counsel to argue their theory of
the case, are not misleading, and when read as a whole properly inform the trier
of fact ofthe applicable law.'"34
Thomas fails to show that the court's instruction was misleading or that it
improperly informed the jury of the applicable law. 	The instruction tracks RCW
9A.52.010(4), which states that the word "enter," when it constitutes an element
or part of a crime, "shall include the entrance of the person, or the insertion of
any part of his or her body, or any instrument or weapon held in his or her hand
and used or intended to be used to threaten or intimidate a person or to detach
or remove property." 	Based on this definition, the State could establish "entry" if
33 State v. Butler. 165 Wn. App. 820, 835, 269 P.3d 315 (2012).
34 State v. Davis. 	Wn. App. 	, 300 P.3d 465, 470 (2013) (internal
quotation marks omitted) (quoting State v. Aguirre. 168 Wn.2d 350, 363-64, 229
P.3d 669 (2010)), petition for review filed. No. 88878-7 (Wash. May 30, 2013).
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No. 68220-2-1/18
it showed that Thomas held the rock in his hand and used or intended to use it to
break the glass.
Aggravating Factor
Thomas also alleges that the State violated his due process rights "when
at 	sentencing 	without 	prior 	pleading, 	the 	[S]tate 	in 	its 	State 	Sentencing
Memorandum. . . argued 	that 	because 	of 	the 	'degree 	of 	planning 	and
sophistication' defendants deserved the high end of their [sentencing] ranges."
Based on Thomas's offender score of three, the court imposed a standard range
sentence of nine months of confinement. 	Because RCW 9.94A.585(1) prohibits
a defendant from appealing a sentence within the standard range, we do not
review this claim.
Cumulative Error
Finally, in his statement of additional grounds, Thomas argues that the
cumulative error doctrine justifies reversing his conviction. 	"The cumulative error
doctrine applies where a combination of trial errors denies the accused a fair trial
even where any one of the errors, taken individually, may not justify reversal.'"35
Because Thomas fails to establish any errors in the trial court proceedings, we
deny his cumulative error claim.
35 In re Pers. Restraint of Yates. 177 Wn.2d 1, 65-66, 296 P.3d 872 (2013)
(quoting In re Pet, of Coe. 175 Wn.2d 482, 515, 286 P.3d 29 (2012)).
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No. 68220-2-1/19
Conclusion
Because Thomas fails to show that a rational trier of fact could not have
found the elements of second degree burglary beyond a reasonable doubt and
no 	evidence 	in the 	record 	supports 	the 	claims 	that Thomas 	asserts 	in his
statement of additional grounds, we affirm.
WE CONCUR:
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