State Of Washington, V Kenneth Sean McMillian, 47559-6

Background

Backyard shed burglary: fresh Vibram-sole boot prints (approx. men’s 11) and missing tools; no usable fingerprints recovered.
Officer Reed found a black SUV parked near a different address that matched witness descriptions; items matching the stolen tools were visible inside; SUV was sealed and towed to impound; warrant obtained and SUV searched next day.
Inside the SUV: stolen tools, bolt cutters, window punch, police scanner, gloves, McMillian’s mail, and his out-of-service cell phone; vehicle alarm disabled by disconnecting the battery; steering column cover missing; later evidence of ignition tampering.
McMillian owned the SUV, lived ~2 miles away, had the keys, reported the SUV stolen five days after impoundment, and retrieved it ~2.5 weeks later; he claimed an alibi (staying at Frankie/Francis Marino’s) but did not call Marino, stating Marino had a warrant.
At trial McMillian was convicted of second-degree burglary, second-degree possession of stolen property, and bribing a witness (for allegedly offering $500 to Miguel Silva to leave the courthouse). He appealed multiple rulings.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (McMillian)	Held
Sufficiency—burglary (did D enter the shed?)	Evidence allowed inference D was at scene and intended theft because stolen items were in his vehicle	No direct or sufficient circumstantial evidence D entered or remained in the shed	Reversed: insufficient evidence for burglary conviction; State failed to prove unlawful entry/remained in building
Sufficiency—possession of stolen property (dominion/control & knowledge)	Ownership, keys, personal items in SUV, locked/alarmed status, and no forced entry support constructive possession and knowledge	Ownership alone insufficient; no direct proof D had the stolen items or knew they were stolen	Affirmed: totality of circumstances established dominion/control and permitted conviction for possession of stolen property
Warrantless seizure / impound of SUV	Officer had probable cause (saw stolen items in plain view) to impound and hold vehicle to obtain a warrant	Seizure violated state constitution; Huff should be overruled; privacy interest infringed	Affirmed: impoundment lawful under existing precedent (Huff, Tyler); officer had probable cause and acted reasonably to obtain a warrant
Prosecutorial misconduct (various comments & cross-exam)	Many remarks were proper reasonable inferences; limiting instruction given for D’s prior conviction	Prosecutor misstated evidence, vouched, implied personal knowledge, and improperly attacked witnesses and defense counsel	Affirmed: even when some remarks were improper, defendant did not show prejudice or remarks so flagrant that instructions could not cure; convictions (except burglary) stand

Key Cases Cited

State v. Salinas, 119 Wn.2d 192 (Wash. 1992) (standard for sufficiency of the evidence review)
State v. Delmarter, 94 Wn.2d 634 (Wash. 1980) (circumstantial and direct evidence carry equal weight)
State v. Camarillo, 115 Wn.2d 60 (Wash. 1990) (deference to trier of fact on credibility)
State v. Tyler, 177 Wn.2d 690 (Wash. 2013) (lawful impoundment and warrantless seizure exceptions)
State v. Huff, 64 Wn. App. 641 (Wash. Ct. App. 1992) (officer with probable cause may seize vehicle to obtain warrant)
State v. Blair, 117 Wn.2d 479 (Wash. 1991) (five-factor missing-witness doctrine)
State v. Sundberg, 185 Wn.2d 147 (Wash. 2016) (defendant has no duty to present evidence; exception for uncorroborated exculpatory testimony)
State v. Emery, 174 Wn.2d 741 (Wash. 2012) (prosecutorial misconduct—standards and prejudice analysis)
State v. Thorgerson, 172 Wn.2d 438 (Wash. 2011) (closing-argument latitude and limits)