Opinion
No. 64862-4-I.
April 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-1-11571-9, Richard D. Eadie, J., entered February 1, 2010.
Affirmed by unpublished opinion per Cox, J., concurred in by Grosse and Schindler, JJ.
Gerald Collick appeals the judgment and sentences on six convictions of felony harassment. He claims that there is insufficient evidence to support the exceptional sentences for counts III and IV. The exceptional sentences were based on special jury verdicts that the underlying felony harassment acts had "a destructive and foreseeable impact on persons other than the victim" of the felony harassment. He also claims that the trial court lacked authority under the Sentencing Reform Act (SRA) to impose exceptional sentences on counts III through VI based on a single aggravating factor. Finally, he raises a number of issues in his Statements of Additional Grounds for Review.
Viewing the evidence in the light most favorable to the State and drawing all reasonable inferences from the evidence in the State's favor, we conclude that the jury's findings are not clearly erroneous. There is sufficient evidence to support the special jury verdicts on counts III and IV. We also hold that the imposition of exceptional sentences for counts III through VI was proper under the SRA. The arguments in the Statements of Additional Grounds do not merit reversal. We affirm.
In 2005, Gerald Collick attended Ashmead College with classmates Nathaniel Schleimer and Charity Cox. During the course of the school year, a conflict developed between Collick and Schleimer. Collick confided his frustrations about the school, Schleimer, and other matters in nightly telephone conversations with Cox. Collick's anger escalated and he eventually told Cox that he had purchased a gun and that he wanted to "shoot up the school." She testified that she was concerned that Collick was actually going to shoot people at the school. She informed Schleimer about these conversations, and he notified the police. In 2006, Collick pleaded guilty to harassment of Cox, Schleimer, and another person. The court entered anti-harassment orders protecting all three victims effective through June 19, 2008.
Cox is no relation to the author of this opinion.
During the spring, summer, and fall of 2008, Collick contacted Schleimer and Cox by telephone. Collick left telephone messages for Schleimer on his home telephone in May and on June 13 and 15, 2008. He left two more telephone messages for Schleimer on his cell phone on August 3, 2008.
The State charged Collick by second amended information with six counts of felony harassment for the calls to Schleimer and Cox. Each message formed the basis for each count in the amended information. The August 3, 2008 messages to Schleimer were the subjects of counts III and IV. The State requested exceptional sentences for counts III through VI.
A jury convicted Collick on all six counts. The jury also found, by special verdict, that Collick's conduct had a destructive impact on someone other than the victim of the felony harassment in counts III through VI.
At sentencing, the court imposed concurrent, standard range sentences on counts I and II. The court imposed sentences of 60 months, above the standard range, on each of the remaining four counts. Each of these sentences is to run consecutively to each other and to counts I and II.
Collick appeals.
SUFFICIENCY OF THE EVIDENCE
Collick argues that there is insufficient evidence to support the jury's special verdicts that the messages he left with Schleimer on August 3, 2008, had a destructive and foreseeable impact on someone other than Schleimer. We disagree.
We review a jury's finding of an aggravating factor under the clearly erroneous standard. Findings are clearly erroneous if they are not supported by substantial evidence. Evidence is substantial if it is "sufficient to persuade a fair-minded, rational person of the finding's truth." We defer to the trier of fact to assess the witnesses' credibility. We view the evidence in a light most favorable to the State and draw all reasonable inferences in the State's favor.
State v. Fowler, 145 Wn.2d 400, 405, 38 P.3d 335 (2002).
State v. Davis, 146 Wn. App. 714, 720, 192 P.3d 29 (2008).
State v. Meade, 129 Wn. App. 918, 922, 120 P.3d 975 (2005).
State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998).
State v. Yarbrough, 151 Wn. App. 66, 96, 210 P.3d 1029 (2009) (citing State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).
RCW 9.94A.535(3) states the aggravating circumstances that a jury may find and on which a court may base an exceptional sentence. Specific to this case, acts that involve "a destructive and foreseeable impact on persons other than the victim" may support a sentence above the standard range. The State must prove beyond a reasonable doubt the facts supporting this factor.
Here, Collick only challenges the sufficiency of the evidence to support the jury's special verdicts on counts III and IV. The State claims that the aggravating circumstances for these verdicts are the "destructive and foreseeable impact[s] on" Schleimer's girlfriend. The specific evidence that the State identifies are the two telephone messages Collick left with Schleimer on August 3, 2008. In order to provide context, we consider the trial record.
At trial, Schleimer testified to a series of telephone messages that Collick left for him during the spring and summer of 2008. First, Collick called Schleimer's home phone in late May 2008. At that time, Schleimer and his girlfriend lived together with her children. Their answering machine stated that the caller had reached "Nathaniel and [his girlfriend]," so Collick knew that his message would reach both of them. In the message, Collick threatened to tie Schleimer up and rape his girlfriend. Schleimer testified that his girlfriend heard the May phone call and that it was "quite frightening" and "very threatening." He explained that, as a result of the message, his girlfriend was terrified and nervous. Schleimer further testified that he was so fearful that Collick would carry out his threats that he put a baseball bat under the bed at their home for protection. According to Schleimer, the bat was still there for protection as of the date of his trial testimony.
Report of Proceedings at 146.
Then, the examination moved to the August 3, 2008 calls. Schleimer testified that both messages were left by Collick. The court later admitted the recordings of these messages and played them for the jury. In the first message, Collick states:
Report of Proceedings at 149.
[Y]ou call the Seattle Police Department one more time you little bitch. Talk about you see me okay. Because if anything the motherfuckers mean would fight me like a man instead of having restraining orders you little punk. . . . I know what you said, I'm [sic] fucking kill you for what you did to me last week. I don't give a fuck who'd you tell, I don't give a fuck about your restraining order. I don't give a fuck about Seattle Police. You're going to pay. . . .
When I find you Nathaniel Paul Shumama Shlama whatever the fuck your name is. I'm going to fuck you up. I mean it. I'm going to beat you to death. And you better be ready. I'm going to kill you Nathaniel. I'm not fucking around. . . . I'm not that far away from you and I know where you live at so I suggest if you don't want me to find you. You better pack your shit, leave your fucking house and move to another fucking state or leave the fucking planet. Because I'm taking you out. . . . You better hope and pray I don't find you, but I swear to you I'm going to kill you. I'm going to kill you Nathaniel. I'm going to rip your fucking guts out. . . .
Clerk's Papers at 138-40.
In the second message, Collick continued the threats:
[W]hen I find you I'm fucking you up. You and your principal soldier whatever up there 1733, 1735 fuck around what's that NE 106 Street. I know exactly where the fuck you live at bitch. I know what kind of car you drive. You see. I know what the color of your fucking goddam house looks like on the inside. I know exactly how much food you got in your fucking apartment. I'm gonna fuck you up. You don't play me for no punk. Yeah I'm mentally disturbed. I'm crazy. I've been severely traumatized and now that I'm homicidal and suicidal I don't give a fuck anymore. I don't give a fuck anymore. When I find you I promise you. I'm killing you and your parents and [your girlfriend] is goin [sic] watch. And you know what I might just tie your ass up and rape her and make you watch and then I'll kill you and burn your fucking house to the ground. . . . I ain't got nothing to lose. If I die so be it, but I'm taking you and your friends, and your precious [girlfriend] and house with me. I'm going to burn your fucking house to the ground.
Clerk's Papers at 142-43 (emphasis added).
After discussing all of the messages and phone calls from Collick in the spring and summer of 2008, the exchange between the prosecutor and Schleimer continued:
[Prosecutor]: Tell me what impact it had on you and [your girlfriend], receiving these calls ?
[Schleimer]: Well, it didn't really have any impact on our relationship. I mean, she moved out, but that's not particularly because of the phone calls.
[Prosecutor]: Was she also afraid of these calls?
[Schleimer]: Yeah.
[Prosecutor]: Did it put additional stress on both of you?
[Schleimer]: Yes.
Report of Proceedings at 156 (emphasis added).
Later, the State put Schleimer back on the stand for redirect examination. Schleimer testified that Collick's phone messages in the spring of 2008 came to his house phone. Thereafter, the two phone messages on August 3, 2008, came to his cell phone in Seattle.
Report of Proceedings at 371.
Report of Proceedings at 372.
We view this evidence in the light most favorable to the State and draw all reasonable inferences in the State's favor. Doing so, we conclude that this evidence is sufficient to persuade a fair-minded, rational person of the truth of the jury's special verdicts on counts III and IV.
There is no dispute that Collick made a series of calls to Schleimer's residence during the spring and summer of 2008 that were sufficient to constitute felony harassment of Schleimer. Likewise, there is no dispute that Schleimer's girlfriend lived at the residence at the times Collick called. The issue is whether the State proved beyond a reasonable doubt that the August 3, 2008 messages to Schleimer had "a destructive and foreseeable impact on" his girlfriend.
The recordings of the messages that the jury heard, in full, and Schleimer's testimony proved that the messages had such an impact on his girlfriend. Schleimer expressly testified that she was terrified of the messages. He also testified that the calls put additional stress on her. The evidence also shows that Collick knew that she lived at the residence to which he directed the harassing calls. He specifically mentioned her, by name, both before and during one of the August 3 messages. Thus, it was foreseeable that his very disturbing rants would have a destructive impact on her and there is no question that the calls did have a destructive impact on her. Schleimer's unrefuted testimony is sufficient to meet the State's burden of proof to establish the aggravating circumstances for the exceptional sentences for counts III and IV.
The arguments that Collick makes in support of his challenges do nothing to overcome the State's case. He first argues that the State should have called the girlfriend to testify at trial. Given Schleimer's testimony, there was no need to do so.
See, e.g., State v. Blair, 117 Wn.2d 479, 489, 816 P.2d 718 (1991) (explaining that a missing witness inference is not permitted if the witness's testimony would be cumulative) (citing State v. Davis, 73 Wn.2d 271, 278, 438 P.2d 185 (1968)).
He next claims there is no testimony that the girlfriend knew about the August 3 calls. But Schleimer expressly testified that she was terrified by all the calls that he described at trial. The jury is the judge of credibility and was entitled to infer that she learned about the August 3 calls from Schleimer, furthering the destructive and foreseeable impact the prior calls had on her.
Report of Proceedings at 156.
Finally, Collick argues that the record strongly suggests that she never heard the August 3 calls. He claims these calls were made to Schleimer's cell phone after he changed his home number to avoid Collick's previous harassing calls. Again, it is the jury who is entitled to decide what inferences are reasonable. Here, the jury was entitled to reasonably infer that Schleimer told his girlfriend about the two August 3 calls that he received on his cell phone. This is particularly true since Collick specifically mentioned her name, and Schleimer could well have wanted to warn her that Collick's continuing threats to reach them at their home had not ended.
Collick cites State v. Jackson and State v. Crutchfield for the rule that the impact suffered by others must not be of a type normally associated with the offense at issue. While this general rule is correct, he offers no substantive argument that the impact suffered by Schleimer's girlfriend is normally associated with felony harassment. We need not review an issue raised in passing or unsupported by authority or persuasive argument.
150 Wn.2d 251, 274, 76 P.3d 217 (2003).
53 Wn. App. 916, 927-28, 771 P.2d 746 (1989).
See State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
We conclude that there is sufficient evidence in this record to support the jury's two special verdicts for the aggravating circumstances for counts III and IV.
EXCEPTIONAL SENTENCES
Collick next argues that the trial court erred when it sentenced him to both a sentence outside the standard range and a consecutive sentence for counts III, IV, V, and VI based on one aggravating factor for each. We disagree.
Questions of statutory interpretation are reviewed de novo. In interpreting a statute, the court looks first to the statute's plain language. The court examines the language of the statute, other provisions of the same act, and related statutes to determine the plain meaning. If the plain language is unambiguous, the court should interpret the statute in accordance with its plain meaning.
Dot Foods, Inc., v. Dep't of Revenue, 166 Wn.2d 912, 919, 215 P.3d 185 (2009).
State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
In re Detention of Coppin, 157 Wn. App. 537, 552, 238 P.3d 1192 (2010) (citing City of Seattle v. Allison, 148 Wn.2d 75, 81, 59 P.3d 85 (2002)).
Armendariz, 160 Wn.2d at 110.
Here, the jury found that there was a destructive impact on someone other than the victim for counts III through VI. This is a proper aggravating factor under RCW 9.94A.535(3)(r). Collick does not claim otherwise.
Based on this factor, the court imposed 60 months each on counts III through VI. Those sentences are outside the standard range of 17 to 22 months. The court also ordered that counts III through VI each run consecutively to counts I and II and one another. The total length of his sentences is 262 months.
Collick argues that the trial court was required to base each exceptional aspect of each sentence upon a separate aggravating factor. Specifically, he argues that a sentence above the standard range must be based on a different aggravating factor than that supporting a consecutive sentence. Neither the relevant statutes nor case law support this argument.
Although Collick does not address the language of the statutes governing exceptional sentences, we start with consideration of RCW 9.94A.535. Under that statute "[t]he court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of [the SRA], that there are substantial and compelling reasons justifying an exceptional sentence." The statute explains that "[a] departure from the standards in RCW 9.94A.589 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in this section." RCW 9.94A.589(1)(a) states that "[s]entences imposed under this subsection shall be served concurrently [and c]onsecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535." Thus, a sentence may be exceptional in two different respects: it may be outside the standard range or it may be consecutive to another sentence. But, there is nothing in this statutory scheme that requires a separate basis for either of these respects.
Collick argues that State v. McClure, In re Personal Restraint of Holmes, and State v. Quigg require a different result. Because the holdings of those cases are no longer persuasive in light of the supreme court's decision in State v. Smith, we disagree.
64 Wn. App. 528, 827 P.2d 290 (1992).
69 Wn. App. 282, 848 P.2d 754 (1993), overruled on other grounds by State v. Calle, 125 Wn.2d 769, 888 P.2d 155 (1995).
72 Wn. App. 828, 866 P.2d 655 (1994).
123 Wn.2d 51, 864 P.2d 1371 (1993), overruled in part on other grounds by State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005).
In State v. Batista, the defendant received consecutive sentences based on a "clearly too lenient" aggravating factor. The trial court did not impose a sentence above the standard range because it believed that the aggravating factor at issue could only be used to impose a consecutive sentence. The supreme court disagreed, explaining that "[i]f a presumptive sentence is clearly too lenient, this problem could be remedied either by lengthening concurrent sentences, or by imposing consecutive sentences."
116 Wn.2d 777, 808 P.2d 1141 (1991).
Id. at 779-80.
Id. at 780.
Id. at 785-86.
In McClure, Division Three of this court relied upon this language in Batista. There, the defendant pleaded guilty to murder and assault. The trial court imposed a sentence beyond the standard range for the assault conviction and ordered that it run consecutively to the sentence for murder. Both exceptional sentences were supported by only one aggravating factor. The court held that, based uponBatista, an aggravating factor can support either a sentence outside the standard range or a consecutive sentence, but not both. Holmes and Quigg relied uponMcClure for similar holdings. The question is whether this is a correct interpretation of Batista.
McClure, 64 Wn. App. at 530.
Id.
Id. at 534.
Id.
Holmes, 69 Wn. App. at 293 (holding that a sentencing court could not impose a sentence below the standard range to run consecutively to another sentence based on one aggravating factor) (citing Batista, 116 Wn.2d at 785-86; McClure, 64 Wn. App. at 528);Quigg, 72 Wn. App. at 845 ("In cases of multiple exceptional sentences, only one aggravating factor will not support the imposition of two exceptional sentences.") (citingHolmes, 69 Wn. App. at 293; McClure, 64 Wn. App. at 534).
In Smith, the defendant relied on Batista to argue that the trial court could not impose both a sentence outside the standard range and a consecutive sentence on the same count. The supreme court disagreed:
Smith, 123 Wn.2d at 57.
Petitioner cites language from [Batista]: "If a presumptive sentence is clearly too lenient, this problem could be remedied either by lengthening concurrent sentences, or by imposing consecutive sentences."
However, petitioners fail to read this passage in context. Other sections of that opinion make it clear that "[w]here multiple current offenses are concerned, in addition to lengthening of sentences , an exceptional sentence may also consist of imposition of consecutive sentences where concurrent sentencing is otherwise the standard." Indeed, in State v. Oxborrow, we upheld an exceptional sentence which was both beyond the standard range and consecutive. The SRA itself supports no other result. Thus, we hold that it is permissible to impose an exceptional sentence which includes both sentencing components.
Id. at 57-58 (citations omitted).
Given this clarification, we conclude that McClure is no longer good law to the extent that it holds that a sentence that is both consecutive and outside the standard range requires two separate aggravating factors. Accordingly, neither that case nor the cases that rely on it support Collick's argument.
Collick argues that the holding in McClure is still good law because this court cited McClure inState v. Stewart. In Stewart, the court stated that "[w]here numerous aggravating factors are present, more than one exceptional sentence may be imposed." But, it did not cite McClure for the proposition that each type of exceptional sentence must be based on a separate aggravating factor. Rather, it stated a general principle consistent with RCW 9.94A.535. As such, Stewart does not support the holding of McClure as Collick claims.
72 Wn. App. 885, 901, 866 P.2d 677 (1994).
Id. at 901 (citing McClure, 64 Wn. App. at 534).
Based on the statutory and case authorities we have discussed, we reject Collick's claim.
STATEMENTS OF ADDITIONAL GROUNDS FOR REVIEW
Collick filed two Statements of Additional Grounds for Review in which he argues that his convictions must be reversed. We disagree.
He claims that he did not make the calls at issue and, because he did not testify at trial, the jury never heard his voice for comparison to the recorded messages. This is essentially a challenge to the sufficiency of the evidence for each count of felony harassment.
The State bears the burden of establishing beyond a reasonable doubt the identity of the accused as the person who committed the offense. Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that the defendant committed the crime. The appellate court defers to the trier of fact to assess the credibility of the witnesses.
See State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974).
State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
Boot, 89 Wn. App. at 791.
Here, both Cox and Schleimer testified that they recognized the caller in each message as Collick. Viewed in a light most favorable to the State, the jury was entitled to find that Collick was the caller based on this testimony.
Collick makes a variety of other claims, including that Cox and Schleimer are not credible, that his prosecution is the result of a conspiracy against him, and that his sentence is unconstitutional. He offers no substantive argument in support of these claims. Accordingly, we need not review them.
See Johnson, 119 Wn.2d at 171.
We affirm the judgment and sentence.