Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                        FILED
                                                                     JAN 26, 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.  29456-1-III (cons. with 
                                                )         No. 29457-9-III)
                             Respondent,        )
                                                )
         v.                                     )         Division Three 
                                                )
DAVID JOHN EATON,                               )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  This appeal follows convictions for third degree theft, two counts 

of second degree theft, and a single count of second degree malicious mischief.  The 

court imposed an exceptional sentence based on the jury's affirmative finding of rapid

recidivism.  The defendant challenges the exceptional sentence and urges that his lawyer 

should have done more to exclude statements he gave to the police and to limit the 

prosecutor's inquiry into his criminal past.  The exceptional sentence is supported by the

short time lag between his release from incarceration and these crimes.  And we conclude 

that the court would have had to rule against the defendant on any motion to suppress 

statements or on limiting the State's cross-examination on his prior crimes.  We then  

No. 29456-1-III, 29457-9-III
State v. Eaton

affirm the convictions and the sentence. 

                                            FACTS

       David Eaton is a self-proclaimed "scrapper." He collects things that he believes 

are abandoned and sells them.  He lives in Dayton, Washington. 

       In January 2010, a local school district discovered that a meter base and switch 

box it owned had been taken; both were eventually located on property formerly rented 

by Mr. Eaton.  In the spring of 2010, a red flatbed trailer was reported missing.  On 

April 24, 2010, a county undersheriff saw the trailer being pulled by Mr. Eaton's truck 

and stopped him.  On May 21, 2010, police arrested Mr. Eaton for cutting and taking 

railroad rails that belonged to the Port of Columbia.  

       The State charged Mr. Eaton in two separate charging documents.  Both were 

consolidated for trial and Mr. Eaton was ultimately charged with (1) third degree theft 

related to the railroad rails incident, (2) second degree theft for the flatbed trailer 

incident, (3) second degree theft for the meter base and switch box incident, and (4) 

second degree malicious mischief related to the railroad rails incident.  

       At trial, the officer who stopped Mr. Eaton, after he saw the trailer, testified that 

he asked Mr. Eaton "if he owned the trailer or not."  Report of Proceedings (RP)

(Sept. 28, 2010) at 244. The officer reported that Mr. Eaton said he did not own the 

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No. 29456-1-III, 29457-9-III
State v. Eaton

trailer and that he had borrowed it from a friend named Nutt Nutt and his mother, Dixie.  

Mr. Eaton later denied making the statement about Nutt Nutt or Dixie and instead 

explained that he borrowed the trailer from Bill Waltermire.  Mr. Waltermire owned the 

trailer and had reported it stolen. 

       The State also asked Mr. Eaton about his prior criminal convictions for possession 

of a stolen vehicle, seven convictions for taking a motor vehicle without the owner's 

permission, attempting to elude police, and second degree burglary.  Mr. Eaton's defense 

counsel did not object.  

       The jury found Mr. Eaton guilty as charged.  The trial court, over defense 

objection, then submitted a question to the jury on whether Mr. Eaton's most recent 

crimes supported the aggravating factor of rapid recidivism.  Mr. Eaton had been released 

in November 2009 from incarceration on an earlier conviction.  He was released on 

April 28, 2008, but then was again incarcerated until November 2009, following a 

number of community custody violations.  The current crimes were committed in 

January, April, and May 2010.  The jury found that the requirements for the aggravating 

factor of rapid recidivism had been satisfied.  And the court imposed an exceptional 

sentence of 60 months on each count that were to run concurrently.  

                                        DISCUSSION

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No. 29456-1-III, 29457-9-III
State v. Eaton

Exceptional Sentence -- Rapid Recidivism  

       Mr. Eaton contends that his most recent crimes do not amount to rapid recidivism 

when properly viewed.  He argues that he was released from his prior term of 

incarceration on April 28, 2008.  And his further confinement was the result of two minor 

violations of his conditions of community custody.  These violations, he continues, were 

not crimes for purposes of rapid recidivism.  And, moreover, he argues that a theft in mid-

January 2010 does not amount to rapid recidivism, even assuming a November 25, 2009,

release date.  

       We review de novo a trial court's determination that an aggravating factor justifies 

an exceptional sentence.  RCW 9.94A.585(4); State v. Law, 154 Wn.2d 85, 94, 110 P.3d 

717 (2005). 

       The aggravating sentencing factor of rapid recidivism requires a showing that the 

defendant committed the current offense(s) shortly after being released from 

incarceration.  RCW 9.94A.535(3)(t).  The statute does not require a connection between 

the offenses.  State v. Combs, 156 Wn. App. 502, 506, 232 P.3d 1179 (2010).  What 

constitutes a short period of time will vary with the circumstances of the crime involved, 

but six months is generally considered too long.  Id.

       In Combs, this court addressed what constitutes rapid recidivism after a defendant 

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No. 29456-1-III, 29457-9-III
State v. Eaton

committed the offense of attempting to elude a pursuing police vehicle six months after 

being released from prison for drug possession.  Id. at 504.  We noted that the time frame, 

and specifically when the defendant had the first opportunity to commit another crime,

was relevant:

              If, for instance, Mr. Combs had been delayed in returning to Asotin 
       County from prison or living under close supervision at a work release 
       facility and committed a crime in his first opportunity to do so, it could 
       conceivably constitute rapid recidivism.

Id. at 507 n.4. 

       Here, Mr. Eaton was first released from incarceration in April 2008.  But he then 

violated conditions of his supervision twice and was returned to prison.  He was not 

finally released until November 25, 2009.  We conclude that Mr. Eaton's additional terms 

of incarceration were not for any additional crimes, but that the community custody 

conditions were a part of his original sentence and that the terms of incarceration 

associated with those violations are then part of his original sentence.  Accordingly, the 

correct release date for the rapid recidivism evaluation was November 25, 2009. 

       Mr. Eaton took the meter base and switch box belonging to the local school district 

in January 2010 -- just over a month after his release from incarceration.  He argues that 

no one ever established the exact date the equipment was stolen.  But John Hutchens, the 

maintenance supervisor for the local school district, testified that a storm damaged the 

equipment on January 1, 2010, and then 

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No. 29456-1-III, 29457-9-III
State v. Eaton

"several days" later the equipment was gone.  Mr. Hutchens located the equipment in July 

2010 on property formerly rented by Mr. Eaton.  The reasonable inference is that Mr. 

Eaton took the equipment no later than mid-January.  And it was only a couple months 

after that when Mr. Eaton was caught towing the stolen flatbed trailer and then caught 

cutting railroad rails that were not his. 

       The circumstances here are sufficient to support the jury's finding of rapid 

recidivism as an aggravating sentencing factor.  Mr. Eaton was released for just over one 

month before committing another offense.  The theft convictions were not impulse 

crimes; they required some planning.  The court then had authority to impose an 

exceptional sentence based on this aggravating factor. 

Ineffective Assistance of Counsel

       We review claims of ineffective assistance of counsel de novo.  State v. 

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).  

       Effective counsel is guaranteed by the Sixth Amendment to the United States 

Constitution and by article I, section 22 (amendment 10) of the Washington State 

Constitution.  State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).  To prove 

ineffective assistance of counsel, the defendant must show that defense counsel's 

representation fell below an objective standard of reasonableness, and that this deficient 

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No. 29456-1-III, 29457-9-III
State v. Eaton

representation prejudiced the defendant.  McFarland, 127 Wn.2d at 334-35.  We strongly 

presume effective representation.  Id. at 335.  The defendant carries the burden to show 

ineffective assistance based on the record established in the trial proceedings.  Id.  

Failure to Suppress

       Mr. Eaton also contends that his counsel was ineffective in failing to move to 

suppress his prearrest statements to the police about possession of the stolen flatbed 

trailer.  He contends that he was in custody while being interrogated and, thus, should 
have been given Miranda1 warnings.  But the record suggests otherwise. 

       The officer first made a proper investigative stop based on probable cause; he was 

not required to give Miranda warnings.  State v. Hilliard, 89 Wn.2d 430, 434-36, 573 

P.2d 22 (1977).  Police are required to give Miranda warnings only when the 

interrogation is custodial.  State v. Warner, 125 Wn.2d 876, 884, 889 P.2d 479 (1995).  A 

custodial interrogation involves express questioning initiated after a person is in custody 

or otherwise significantly deprived of his freedom.  State v. Hawkins, 27 Wn. App. 78, 

82, 615 P.2d 1327 (1980).  "'Custody' for Miranda purposes is narrowly circumscribed 

and requires 'formal arrest or restraint on freedom of movement of the degree associated 

with formal arrest.'"  State v. Post, 118 Wn.2d 596, 606, 826 P.2d 172, 837 P.2d 599

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

                                               7 

No. 29456-1-III, 29457-9-III
State v. Eaton

(1992) (internal quotation marks omitted) (quoting Minnesota v. Murphy, 465 U.S. 420, 

430, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984)). 

       Here, an officer stopped Mr. Eaton after he saw him driving his truck with a stolen 

red flatbed trailer attached.  The initial questioning of Mr. Eaton about where he got the 

trailer was an investigative encounter to confirm whether that trailer was the one reported 

stolen.  Mr. Eaton was not in custody when he said that he borrowed the trailer from Nutt 

Nutt.  

       Once Mr. Eaton told the officer that he had borrowed the trailer, the officer seized 

him, placed him in the back of the patrol car and read him his Miranda rights.  There 

were then no grounds to suppress.  The stop was investigative.  Mr. Eaton was not in 

custody. 

Failure to Object

       Mr. Eaton next contends his counsel was ineffective in failing to object to 

evidence of his prior convictions.  He contends that the State's repeated references to his 

prior convictions and propensity type arguments should have raised objections from 

defense counsel.  

       Prior convictions for crimes of dishonesty or false statements are admissible for 

impeachment purposes.  ER 609(a)(2).  If a prior conviction falls within the scope of ER 

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No. 29456-1-III, 29457-9-III
State v. Eaton

609(a)(2), it is per se admissible and the court is not required to balance its probative

value against its prejudicial effect.  State v. Brown, 113 Wn.2d 520, 532-33, 782 P.2d 

1013, 787 P.2d 906 (1989).  Burglary can be a crime of dishonesty.  See State v. 

Schroeder, 67 Wn. App. 110, 115, 834 P.2d 105 (1992).  Possession of stolen property is 

a crime of dishonesty.  State v. McKinsey, 116 Wn.2d 911, 913, 810 P.2d 907 (1991).  

Taking a motor vehicle without permission is a crime of dishonesty.  State v. Teal, 117 

Wn. App. 831, 843, 73 P.3d 402 (2003), aff'd, 152 Wn.2d 333, 96 P.3d 974 (2004).  

       The State here asked about Mr. Eaton's prior criminal history without objection:

              Q  You're a convicted felon aren't you?
              . . . .
              Q Okay.  Isn't it true that in August of 2000 you were convicted of 
       possession of a stolen vehicle felony?
              . . . .
              Q  Isn't it true in March of 2000 you were convicted of two counts 
       of taking a motor vehicle without the owner's permission?
              . . . .
              Q  Isn't it true in February of 2001 you were also convicted of two 
       counts of taking a motor vehicle without permission in Washington State. 
              . . . .
              Q  Okay.  Let's turn to the front and see what counts you were 
       convicted of.
              A  Taking a motor vehicle without the owner's permission. 
              Q  How many counts of that crime?
              A  Two times. 11/28/2000.  That's what it says right there date of 
       crime. 
              . . . .
              Q  So let's see we are up to five felony convictions for taking things 
       that weren't yours, right?
              . . . .

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No. 29456-1-III, 29457-9-III
State v. Eaton

              Q  I'm handing you what's been marked "P73".  I'd like you to look 
       at page 7 and page 8 of "P73" and tell me if you recognize anything on 
       them. 
              A  12/17/99 motor vehicle without the owner's permission. 
              Q Did you recognize anything on those last two pages?
              A  Ah let's see. 
              Q  You recognized your signature on the last Judgment and Sentence 
       . . .
              A  Yeah.
              Q  . . . convicting you of two crimes.
              A  Yes.
              Okay and what are the two crimes that you're convicted of in this 
       Judgment and Sentence? 
              A  Oh taking a motor vehicle without the owner's permission, 
       attempting to elude the police. 
              Q  And is that all of the counts?
              A  Oh is there another taking a motor vehicle without the owner's 
       permission  How could I do it twice  That, that's what I'm saying your 
       records are messed up. 
              . . . .
              Q  And isn't it true that you've also been convicted of burglary in the 
       second degree?
              A  Yes. 

RP (Sept. 28, 2010) at 335-39.

       The State had the right to ask about this prior criminal history and there is nothing 

his lawyer could have done to stop it.  This was not ineffective assistance of counsel. 

       We affirm the convictions.

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

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

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No. 29456-1-III, 29457-9-III
State v. Eaton

RCW 2.06.040.

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________                    _______________________________
Kulik, C.J.                                         Brown, J.

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