State Of Washington v. Cory Thomas

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 68220-2-1
Respondent,
v. DIVISION ONE

CORY LAMONT THOMAS, UNPUBLISHED OPINION

Appellant. 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;
V> c:
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.
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)).
2State 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

7State 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 ofvindictiveness.'"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

offact 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.

/***/> /\^^

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