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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                        FILED
                                                                   APRIL 12, 2012
                                                              In the Office of the Clerk of Court
                                                           WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                No.  29629-6-III
                                                )
                      Respondent,               )
                                                )   Division Three
              v.                                )
                                                )
LUIS CISNEROS VALENCIA,                         )   UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Kulik, J.  --  Luis Cisneros Valencia's nephew, Juan Garcia, helped Flora Goodale 

move her belongings to her new residence.  Later that evening, Ms. Goodale's neighbor 

saw two men trying to pry open the door to the old residence.  Benton County sheriff's 

deputies caught Mr. Valencia and Mr. Garcia fleeing the scene.  Both men were arrested.  

Mr. Valencia contended that he was unaware that Mr. Garcia intended to burglarize the 

residence, and that he was simply driving Mr. Garcia to pick up some items that Ms. 

Goodale left for Mr. Garcia.  A jury found Mr. Valencia guilty of attempted residential 

burglary.  Mr. Valencia appealed.  Mr. Valencia contends that the State failed to present 

sufficient evidence to prove that he acted as an accomplice to Mr. Garcia in burglarizing  

No. 29629-6-III
State v. Valencia

the residence.  

       We conclude that ample evidence, more than sufficient, establishes Mr. Valencia's 

guilt.  Therefore, we affirm.

                                            FACTS

       On January 13, 2010, Juan Garcia helped move some of Flora Goodale's

belongings to her new home.  Later that night, at about 11:00 p.m., Diana Holt, who was 

Ms. Goodale's neighbor and close friend, and Evan Kosterman, Ms. Holt's son, saw a 

vehicle pull into the driveway of Ms. Goodale's old home.  The vehicle, a Jeep Grand 

Cherokee, had its headlights off.  Ms. Holt determined that no one was supposed to be at 

the old house.  She called 911 and reported the vehicle's information. 

       Mr. Kosterman went outside.  By Ms. Goodale's back door, he saw a skinnier man

wearing a head lamp and a chunkier man.  One of the men seemed to be pushing on the 

door and the other had a broom stick positioned as if to hit the door off its track.  Mr. 

Kosterman said something and the unidentified men ran toward their vehicle.  

       Benton County Sheriff Deputies Brian Tungesvik and Roger Trevino arrived as the 

Jeep spun out of the driveway with its lights off.  The deputies followed the vehicle. 

Within a block, the Jeep hit a patch of ice and became stuck in a ditch.  The driver of the 

Jeep, Mr. Valencia, and the passenger, Mr. Garcia, were detained. 

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No. 29629-6-III
State v. Valencia

       After being read his Miranda1 rights, Mr. Valencia spoke with Deputy 

Tungesvik. He said that Mr. Garcia asked him for a ride to pick up some items.  Mr. 

Valencia also said that the owner gave Mr. Garcia permission to take the items. 

       Near the back slider door, police found a head lamp that was still illuminated and a 

long-handled tool that looked like a screwdriver or paint scraper.  The door had markings 

on it as if someone attempted to pry open the door.  The broom handle was lying in front 

of the patio door and was not in its normal place.  In the Jeep, police discovered pry bars, 

pliers, channel locks, a second head lamp, and a pair of gloves.  A blanket was lying in 

the back of the Jeep. 

       Ms. Goodale had not given any of the items remaining in the old residence to the 

people who helped her move. 

       Benton County charged Mr. Valencia with attempted residential burglary.  At trial, 

Mr. Garcia testified that he decided to go back to Ms. Goodale's house to steal some 

property.  Mr. Garcia did not have a license or a vehicle so he asked Mr. Valencia for a 

ride.  Mr. Garcia testified that he did not tell Mr. Valencia of his plan to steal Ms. 

Goodale's property.  Mr. Garcia also said that Mr. Valencia stayed in the vehicle while 

Mr. Garcia went to the back door and tried to remove it from its hinges.  Mr. Valencia 

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

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No. 29629-6-III
State v. Valencia

left the vehicle only to see what Mr. Garcia was doing. 

       The jury found Mr. Valencia guilty of attempted residential burglary.  He appeals, 

contending that the State did not present sufficient evidence to convict him of attempted 

residential burglary based on accomplice liability.  In a statement of additional grounds, 

Mr. Valencia also contends that his right to be present at all stages of a trial was violated 

when the jury returned its verdict outside of his presence and without his waiver of 

appearance. 

                                         ANALYSIS

       Sufficiency of the Evidence.  In reviewing the sufficiency of the evidence, the 

standard is "whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt."  State v. Gentry, 125 Wn.2d 570, 596-97, 888 P.2d 1105 

(1995).  "[A]ll reasonable inferences from the evidence must be drawn in favor of the 

State and interpreted most strongly against the defendant."  Id. at 597.  Direct and 

circumstantial evidence are equally reliable.  State v. Delmarter, 94 Wn.2d 634, 638, 618 

P.2d 99 (1980).  Credibility issues are for the trier of fact and are not subject to review.  

State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

       The jury was instructed that in order to convict Mr. Valencia with the crime of 

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No. 29629-6-III
State v. Valencia

attempted residential burglary, each of the following elements needed to be proved 

beyond a reasonable doubt:

              (1)  That . . . the defendant did an act that was a substantial step 
       toward the commission of Residential Burglary; or acted as an accomplice 
       to another who did an act that was a substantial step toward the commission 
       of Residential Burglary;
              (2)  That the act was done with the intent to commit Residential 
       Burglary; and
              (3)  That the act occurred in the State of Washington.

Clerk's Papers at 30.

       A conviction for attempted residential burglary requires that the State prove that a 

person had taken a substantial step toward entering or remaining unlawfully in a dwelling 

and that the person intended to commit a crime against a person or property therein.  

RCW 9A.52.025(1).

       A person is an accomplice of another person in the commission of a crime if that 

person, with knowledge that it will promote or facilitate the commission of a crime, 

solicits, commands, encourages, or requests such other person to commit the crime, or 

that person aids or agrees to aid such other person in planning or committing the crime. 

RCW 9A.08.020(3)(a). 

       An accomplice does not need to participate in the crime, does not need to have 

specific knowledge of every element of the crime, and does not need to share the same 

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No. 29629-6-III
State v. Valencia

mental state as the principal.  State v. Berube, 150 Wn.2d 498, 511, 79 P.3d 1144 (2003). 

       Here, Mr. Valencia contends that the State failed to prove the element that he 

acted as accomplice to Mr. Garcia.  Mr. Valencia maintains that the State did not present 

sufficient evidence to prove beyond a reasonable doubt that Mr. Valencia knew that Mr. 

Garcia intended to commit a crime.

       At trial, Mr. Garcia admitted that he unlawfully attempted to enter the home of 

Ms. Goodale in order to steal her property.  Mr. Garcia also testified that he did not tell 

Mr. Valencia that he needed a ride to Ms. Goodale's to commit burglary but, instead, told 

Mr. Valencia that the items were given to him by Ms. Goodale. 

       The State presented testimony that Mr. Valencia drove the Jeep and entered the 

driveway with the lights off.  He attempted to enter the backdoor of the home by prying it 

off the hinges.  When confronted, he became aggressive and sped away from the scene.  

He did not stop when signaled by police.  Deputy Tungesvik testified that Mr. Valencia 

admitted that he and Mr. Garcia were going to the home to retrieve the property.  Based 

on Mr. Valencia's actions, a reasonable juror could conclude that Mr. Valencia knew of 

Mr. Garcia's plan to break into Ms. Goodale's home and steal her property and, in fact, 

participated in the plan.

       The tools found in the truck could also lead to an inference that Mr. Valencia 

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No. 29629-6-III
State v. Valencia

knew Mr. Garcia's plan was for the men to burglarize the home.  The two head lamps, 

two pliers, and two pry tools inferred a two-person job.  Moreover, the jury could infer 

from the types of tools and draped blanket found in the Jeep that Mr. Valencia knew that 

Mr. Garcia needed the tools to unlawfully enter Ms. Goodale's home and remove her 

property.

       The State presented sufficient evidence for the jury to find that Mr. Valencia knew 

of Mr. Garcia's plans.  The jury was entitled to weigh the evidence and credibility of the 

witnesses, including the testimony of Mr. Garcia.  After viewing the evidence in the light 

most favorable to the State, the evidence was sufficient to convince a rational juror 

beyond a reasonable doubt that Mr. Valencia acted as an accomplice to Mr. Garcia. 

       Due Process Right to be Present at Verdict.  In his pro se statement of additional 

grounds, Mr. Valencia contends his right to be present at trial was violated because he 

was not present at the reading of the jury's verdict.  However, Mr. Valencia fails to

provide any citations to the record to inform this court of the nature and occurrence of the 

alleged error -- that he was not present during the reading of his verdict.  The record does 

not contain a transcript of the reading of the jury verdict, which would confirm whether 

or not Mr. Valencia was present.  No other part of the record indicates that Mr. Valencia 

was not present or waived his presence at the reading of the verdict.  Also, Mr. Valencia 

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No. 29629-6-III
State v. Valencia

does not provide any additional evidence to show his absence, such as a statement from 

his trial attorney saying that he was absent from the proceeding. 

       "Reference to the record and citation to authorities are not necessary or required, 

but the appellate court will not consider a defendant/appellant's statement of additional 

grounds for review if it does not inform the court of the nature and occurrence of alleged 

errors." RAP 10.10(c). 

       There is nothing in the record to substantiate Mr. Valencia's contention that he 

was not present at the reading of his verdict. Therefore, we cannot address whether Mr. 

Valencia's right to be present at trial was violated or, under the totality of the 

circumstances, whether he voluntarily waived that right.

       In addition to his right to be present, Mr. Valencia also contends that the trial court 
should have conducted a Bone-Club2 analysis before closing the courtroom during the 

return of his verdict.  Bone-Club pertains to a defendant's right to a public trial.  Again, 

there is nothing in the record to indicate that Mr. Valencia's trial or the reading of his 

verdict was closed to the public.  Therefore, this court is unable to address his contention. 

       We affirm the conviction for attempted residential burglary.

       A majority of the panel has determined this opinion will not be printed in the 

       2 State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

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No. 29629-6-III
State v. Valencia

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

                                            _________________________________
                                            Kulik, J.

WE CONCUR:

______________________________              _________________________________
Korsmo, C.J.                                Siddoway, J.

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