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State v. Duman

April 14, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
WILBERT G. DUMAN, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-07221-2. Date filed: 01/02/96. Judge signing: Hon. Patricia H. Aitken.

PER CURIAM. Wilbert Duman challenges his conviction for taking a motor vehicle without permission, contending the State failed to prove he knew a truck in which he was riding as a passenger was stolen. We reject Duman's contention and affirm his conviction.

When the victim reported his pickup truck stolen, the truck was in very good condition with no visible damage. About three weeks later, at about 2 a.m., Officer Krenz saw the truck, which was occupied by three people, and pulled it over. He ordered the driver to turn the engine off. The driver acted confused, leaned around the person in the middle of the truck, and appeared to converse with the person in the passenger's seat. Krenz repeated his command to turn off the engine, which appeared to generate more conversation between the driver and the same person. According to Krenz, the driver let the clutch out, the vehicle lurched and the engine died.

Krenz and fellow officers approached the truck and Krenz saw that the ignition was punched from the steering column and there was no key. The driver's door key hole was damaged. The stereo was removed from the dashboard, apparently forcibly, and wires were hanging down. The compact truck's cab contained one bench seat with enough room to snugly seat three people. A screwdriver was between the passenger's side door and seat. Duman testified he had been twice convicted for stealing cars. He was at his wife Paula's house trying to get a ride when a friend, Danyette Olson, and a man he did not know, Dana Roane, showed up. They agreed to give Duman a ride. He got into a pickup truck he had not seen before and sat on the passenger's side. It was dark, the truck's engine was already running and he was "under the influence of alcohol." Duman noticed the stereo missing and asked where it was. Roane said it was broken. Duman could not see the ignition because Olson, seated in the middle, had her knees raised because her feet were on a hump on the floor. He never saw Roane operate the truck with a screwdriver.

During the course of the night, the group went to a store, motel, and bar before being pulled over. When they got pulled over, Roane leaned over, trying to find the screwdriver. Only then did Duman realize the truck was stolen.

Paula Duman testified Olson and Roane came to her house around 7 p.m. Mr. Duman had been drinking. Paula saw the three enter the truck and heard the engine start.

The trial court found the heavily damaged ignition would not have been obstructed from Duman's view by a middle passenger. It found the damage was so obvious Duman had to have seen it at least once during the evening. It found Duman was present when Roane started the truck with a screwdriver as the group left Paula Duman's house. It found Duman to be an incredible witness. Finally, the court found the circumstances showed Duman knew the truck was stolen. Duman assigns error to each finding and argues the evidence is insufficient to prove he knew the truck was stolen.

Evidence is sufficient to convict a criminal defendant if any rational trier of fact, after accepting the truth of the State's evidence and drawing all reasonable inferences from it in favor of the State, could have found the essential elements of the crime beyond a reasonable doubt. *fn1 The trial court's credibility determinations are not subject to review. *fn2

The State charged Duman with taking a motor vehicle without permission under RCW 9A.56.070. *fn3 The crime may be committed either by actually taking the vehicle or by riding in it, knowing it to have been unlawfully taken. *fn4 The court found Duman committed the latter violation.

Duman relies on State v. L.A. *fn5 for his argument the State failed to prove beyond a reasonable doubt he knew the truck was stolen. But L.A. is easily distinguishable. In fact, it supports Duman's conviction. There a juvenile was pulled over while driving a stolen vehicle. She did not flee. Officers observed a broken rear wing window, but did not testify as to any other defects or damage to the car. We reversed her conviction, holding that absent "corroborative evidence such as a damaged ignition, an improbable explanation or fleeing when stopped, there is not sufficient evidence to support the finding that L.A. knew the vehicle was taken unlawfully." *fn6

The very evidence lacking in L.A. -- a damaged ignition -- is present here. Although Duman testified he neither saw the ignition nor Roane start the truck with a screwdriver, the court did not believe him. We cannot review this credibility determination. In any event, the ignition's close proximity to the missing stereo, which Duman immediately noticed and asked about, the several stops the group made during the course of the night, Roane's leaning over toward Duman when stopped, and the several grounds for ...


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