Opinion
Nos. 54547-7-I; 55440-9-I.
June 26, 2006.
Appeals from a judgment of the Superior Court for Snohomish County, No. 04-1-00552-8, Stephen J. Dwyer, J., entered June 16, 2004.
Counsel for Appellant/Cross-Respondent, Corey Marika Endo, Federal Public Defender, 1601 5th Ave Ste 700, Seattle, WA 98101-1642.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent/Cross-Appellant, Constance Mary Crawley, Prosecutors Office, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Appelwick, C.J., concurred in by Baker and Cox, JJ.
Martin John Healy was convicted of one count of second-degree burglary and one count of attempted second-degree theft. He argues that the to-convict instruction for the burglary charge resolved a disputed factual issue and thereby relieved the State of its burden of proof. He contends that this error was not harmless and permeated the entire jury deliberations, such that both his burglary and theft convictions should be reversed. Healy also argues that his juvenile adjudications should not have been used to increase his offender score and that the trial court exceeded its authority in issuing the restitution order. We agree that the to-convict instruction relieved the State of its burden of proof and reverse Healy's burglary conviction. We affirm on all other grounds and remand for resentencing and a new trial.
FACTS
At about noon on February 23, 2004, Snohomish County Sheriff's Deputies responded to an intruder alarm at Jim French's south Everett property. The first deputy who arrived at the French house saw Martin Healy standing next to a utility flatbed hauler. The deputy testified that Healy looked `puzzled' or `surprised . . . like a kid getting his hand caught in the cookie jar.' The door to French's detached garage had been forced open, with what a deputy described as `fresh' damage, although he could not place a timeframe on when the damage occurred. Three vehicles (a riding lawn mower, a dune buggy, and an ATV) were lined up outside the garage. There was a cable attached to the hauler, but it was unclear whether the cable was also attached to any of the vehicles.
Healy said that the garage door was already open when he arrived, and the vehicles were already outside. French, who had been out of town for approximately three months when the burglary occurred, testified that he secured the vehicles inside his locked garage before he left. French's stepson, Glenn Garvin, testified that the vehicles were in the garage and the door was locked and undamaged the prior evening at 10:00 pm. A second suspect, Russell Lott, was found in the garage. A third suspect who was never identified fled as the deputies arrived. `Obvious' greasy boot prints were found in the garage. Photographs of the boot prints were compared with photographs of the soles of boots seized from Lott upon his arrest. These showed `a lot of consistency.' Healy said that he had been there only for about 15 minutes and had not entered the building. There was no indication that Healy had entered the garage. The boot prints were not consistent with Healy's boots.
Healy told the deputies that he had accompanied Lott to help Lott recover a car that belonged to Lott. There was some history between Lott and Garvin involving an exchange of title to vehicles owned by Lott and Garvin. Lott's car was in Garvin's possession at the site of the burglary on February 23. Josephine Wolfe, a friend of Healy, was speaking to her husband on the telephone the night before the burglary and overheard a background conversation between Healy and Lott. She heard Lott repeatedly ask someone to go with him to recover some of his belongings. He was told no quite a few times, but kept asking. Healy eventually agreed to help. A deputy noticed a white utility truck with a flashing amber light a couple of blocks away from the house. He had heard that the subjects had arrived in a white truck. He ran the license plate of the white utility truck and discovered that the truck had been stolen from a Seattle business a few days earlier. At trial, a representative of that business testified that the truck's ignition was broken and the locks on the tool cribs on the truck canopy were drilled out. The truck contained a pry bar and had a trailer hitch installed, neither of which was with the truck when it was stolen. A drill motor and drills taken from French's property were found in the truck.
Other tools were missing from French's garage that were never recovered.
Healy was charged with second-degree burglary and attempted second-degree theft. The jury convicted Healy as charged. The trial court calculated Healy's offender score including points for prior juvenile adjudications. Healy was sentenced to a 56-month term on the burglary and 365 days on the attempted theft. The court held a restitution hearing at which French testified to the value of tools he discovered missing from his garage. The trial court entered restitution in the amount of $1,599. Healy appeals.
ANALYSIS
I. Instructional Error Warrants Reversal of Healy's Burglary Conviction
The State is required to prove each element of a crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The dual purpose of a trial is to determine whether a crime occurred and, if so, to determine who committed the crime. State v. Bogner, 62 Wn.2d 247, 254-55, 382 P.2d 254 (1963). When the State uses a theory of accomplice liability, it must prove accomplice liability beyond a reasonable doubt. State v. Cronin, 142 Wn.2d 568, 579-80, 14 P.3d 752 (2000). In this case, the State agreed that there was no evidence that Healy personally entered the garage. Therefore, in order to convict Healy of second-degree burglary, the State proceeded on an accomplice liability theory.
Healy argues that the trial court impermissibly commented on the evidence in its to-convict instruction to the jury on the burglary charge.
Generally, a defendant cannot challenge a jury instruction on appeal if he did not object to the instruction in the trial court. State v. Salas, 127 Wn.2d 173, 181, 897 P.2d 1246 (1995). A defendant can raise an error for the first time on appeal if it invades a fundamental right of the accused. State v. Levy, 156 Wn.2d 709, 719, P.3d (2006). Because `a comment on the evidence violates a constitutional prohibition, [a defendant's] failure to object or move for a mistrial does not foreclose [the defendant] from raising this issue on appeal.' Levy, 156 Wn.2d at 719-20; State v. Lampshire, 74 Wn.2d 888, 893, 447 P.2d 727 (1968). Thus, we address Healy's challenge to the to-convict instruction for second-degree burglary. We review jury instructions de novo, within the context of the jury instructions as a whole. Levy, 156 Wn.2d at 721. `A judge is prohibited by article IV, section 16 from `conveying to the jury his or her personal attitudes toward the merits of the case' or instructing a jury that Qmatters of fact have been established as a matter of law." Levy, 156 Wn.2d at 721 (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)). Moreover, the court's personal feelings on an element of the offense need not be expressly conveyed to the jury; it is sufficient if they are merely implied. Levy, 156 Wn.2d at 721. An instruction improperly comments on the evidence if it resolves a disputed issue of fact that should have been left to the jury. Becker, 132 Wn.2d at 64-65. There are three relevant instructions in this case. Instruction 6 defined second-degree burglary:
The parties each proposed a set of instructions. It is unclear from the record which party's proposed instructions were adopted, although the State represented at oral argument that it was the State's to-convict instruction. The court asked both parties for objections and each party asserted it had no objection.
A person commits the crime of burglary in the second degree when he or she enters or remains unlawfully in a building with intent to commit a crime against a person or property therein.
Instruction 8 (emphasis added) was the to-convict instruction for the burglary:
To convict the defendant or the person to whom he was an accomplice of the crime of burglary in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 23rd day of February, 2004, the defendant or the person to whom he was an accomplice entered or remained unlawfully in a building;
(2) That the entering or remaining was with intent to commit a crime against a person or property therein; and
(3) That the acts occurred in the State of Washington.
Instruction 9 defined accomplice:
A person is an accomplice in the commission of the crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word `aid' means all assistance whether given by words, acts, encouragements, support or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
When the State uses an accomplice liability theory, the to-convict instruction will often state that the crime is proved if `the defendant or an accomplice' commits certain acts that establish the elements of the crime. State v. Teal, 117 Wn. App. 831, 835, 73 P.3d 402 (2003), aff'd, 152 Wn.2d 333 (2004). In this case, the to-convict instruction did not set out only liability as a principal and rely on a separate instruction for accomplice liability as in Teal. It also did not use the usual language, `the defendant or an accomplice.' Instead, it used the language `the defendant or the person to whom he was an accomplice.'
In Becker, the disputed factual issue was whether a `Youth Education Program' was a school. Becker, 132 Wn.2d at 56. The special verdict form asked Was the defendant, Donald Becker, within 1000 feet of the perimeter of school grounds, to wit: Youth Employment Education Program School at the time of the commission of the crime.
Becker, 132 Wn.2d at 75 (Talmadge, J., dissenting). The Becker court noted that `[b]y effectively removing a disputed issue of fact from the jury's consideration, the special verdict form relieved the State of its burden to prove all elements of the sentence enhancement statute.' Becker, 132 Wn.2d at 65. The court vacated the sentence enhancements. Becker, 132 Wn.2d at 66.
Here, the State proceeded entirely on an accomplice liability issue. Whether Healy was an accomplice of Lott was the primary disputed factual issue at trial. The jury instruction required the jury to convict Healy if `the defendant or the person to whom he was an accomplice' committed the acts comprising second-degree burglary. Healy argues that it was error to use the words `the person' rather than the words `a person,' and that the language of this instruction presupposed that Healy was an accomplice. The definite article `the' indicates that the subject following the article refers to `someone or something previously mentioned or clearly understood from the context or the situation.' Webster's Third New International Dictionary 2368 (1969). The indefinite article `a' is used `when the individual in question is undetermined, unidentified, or unspecified.' Webster's Third New International Dictionary 1. Thus, by stating `the person to whom he was an accomplice,' the instruction implied that it was clearly understood that Healy was an accomplice to someone. This presupposed that (1) a crime occurred and (2) Healy was an accomplice to the principal of the crime. We conclude that the instruction's impermissible comment on the evidence resolved the main factual dispute at trial and relieved the State from its burden to prove Healy was an accomplice.
The next question is whether this error requires reversal.
Washington courts apply a two-step analysis when deciding whether reversal is required as a result of an impermissible judicial comment on the evidence in violation of article IV, section 16. Judicial comments are presumed to be prejudicial, and the burden is on the State to show that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted.
Levy, 156 Wn.2d at 723. Healy's status as an accomplice was central to the State's case. The State recognized that there was no evidence that Healy entered the garage and relied entirely on an accomplice liability theory. The evidence supporting this theory was (1) Healy's presence at the scene, (2) the `puzzled' and `surprised' look on Healy's face when the police arrived, and (3) the overheard telephone conversation. The trial court struggled with the issue and took great pains to come to terms with whether I thought that there was evidence on these questions, especially some of the questions dealing with the accomplice liability. And that was the focus, as everyone recalls and knows, with whether or not that had been proven.
The State argues that although the to-convict instruction, read in isolation, may presuppose that Healy was an accomplice to the crime, the court's other instructions to the jury and the closing arguments of both counsel cured any prejudice. We disagree. The court's other instructions to the jury did not correct the error in the to-convict instruction. In Becker, the verdict form instructed the jury that the youth education program was `a school.' Although the jury was also instructed as to the definition of school, the Becker court held the other instructions did not cure the defect in the verdict form. Becker, 132 Wn.2d at 59, 65. Similarly, the jury here was instructed that Healy was an accomplice. The additional instruction defining `accomplice' did not cure that defect. The closing arguments of counsel also did not cure the defect. Both parties focused their closing arguments on the State's burden to prove Healy was Lott's accomplice. It is apparent that both parties understood this to be the main factual issue for the jury to resolve and treated it as such. However, the court properly instructed the jury that the attorney's arguments are not evidence and that it must regard such arguments to the extent they are not supported by the evidence or the law stated by the court. Under the law of this case, the jury was told that Healy was an accomplice. Counsels' arguments could not cure this prejudice. We conclude that the State has not met its burden of showing that the defendant was not prejudiced, and the record does not affirmatively show that no prejudice could have resulted. We vacate Healy's burglary conviction.
The Becker court also instructed the jury that
The law does not permit me to comment on the evidence. I have not intentionally done so. If it appears to you that I have so commented during any of the trial or the giving of these jury instructions, you must disregard such comment entirely.
Becker, 132 Wn.2d at 78 (Talmadge, J., dissenting). A similar instruction was given to Healy's jury. The Becker majority did not find that this instruction cured the defect. Becker, 132 Wn.2d at 65 ('Nor did the other instructions cure the defect inherent in the special verdict form').
II. Healy's Theft Conviction Was Not Tainted By the Error in the Burglary To-Convict Instruction
Healy argues that the trial court's comment on the evidence permeated the jury's deliberations and that the court should also reverse Healy's theft conviction. Healy argues that under Teal, the jury was permitted to convict him on a theory of accomplice liability for the theft charge even though the theft to-convict instruction did not explicitly involve accomplice liability. See Teal, 152 Wn.2d at 338-39.
Accomplice liability is not an element of or an alternative means of committing a crime, and the rule requiring all elements of a crime to be listed in a single instruction is not violated when accomplice liability is described in a separate instruction. Teal, 152 Wn.2d at 338-39. Therefore, a to-convict instruction that presents the elements of the crime with the defendant as principal can be sufficient to allow the jury to convict the defendant as an accomplice if the jury instructions as a whole accurately state the law. Teal, 152 Wn.2d at 339. In Teal, a to-convict instruction that did not explicitly provide for accomplice liability together with a separate instruction on accomplice liability provided a sufficient basis for a jury to convict the defendant as an accomplice. Teal, 152 Wn.2d at 338-39.
However, `the better practice in a case prosecuted on the theory of accomplice liability might be to include the language `the defendant or an accomplice' in a `to convict' instruction.' Teal, 152 Wn.2d at 336 n. 3.
However, the instructions given in Teal were different from those given here. The Teal jury was instructed that `A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.' Teal, 117 Wn. App. at 836. Healy's jury was not given this instruction and thus was not instructed that it could convict Healy of theft if he was an accomplice to theft. Only the to-convict instruction for burglary permitted the jury to convict Healy on an accomplice liability theory. Moreover, because the separate accomplice definition did not permit the jury to convict Healy as an accomplice for any crime and the burglary to-convict instruction explicitly did permit the jury to convict Healy as an accomplice, these instructions taken together implied that the jury was not permitted to convict Healy as an accomplice for the theft. We presume the jury followed the court's instructions. State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982). We affirm Healy's theft conviction.
III. Prior Juvenile Adjudications Can Be Used to Increase an Offender Score
Healy argues that the inclusion of his prior juvenile adjudications in his offender score violated his right to a jury trial and to due process of law. Healy addresses cases and statutes that recognize the difference between juvenile adjudications and adult convictions. But these cases are not in the context of the use of juvenile adjudications as criminal history in subsequent adult prosecutions. Rather, Washington case law upholds the use of juvenile adjudications as criminal history in later adult prosecutions. See State v. Johnson, 118 Wn. App. 259, 264, 268, 76 P.3d 265 (2003); State v. Smathers, 109 Wn. App. 546, 549-50, 36 P.3d 1078 (2001); State v. J.H., 96 Wn. App. 167, 177-79, 978 P.2d 1121 (1999); State v. Randle, 47 Wn. App. 232, 240-44, 734 P.2d 51 (1987). The Washington Sentencing Reform Act (SRA) explicitly recognizes that an adjudication of guilt under Title 13 is a `conviction' for purposes of adult offender sentencing. RCW 9.94A.030(11), .030(30).
In Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the U.S. Supreme Court reiterated the rule set out in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000): `[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' The Blakely Court expressly retained the prior conviction exception in its recitation of the Apprendi rule. Blakely, 542 U.S. at 301. Recently, this court decided that juvenile adjudications that meet constitutionally-required safeguards fall within the prior conviction exception. State v. Weber, 127 Wn. App. 879, 892, 112 P.3d 1287, review granted, 156 Wn.2d 1010 (2005). Healy contends that Weber was wrongly decided. At this time Weber controls and Healy's argument fails.
IV. Restitution Order
Because we reverse Healy's burglary conviction, we vacate the trial court's restitution order. We briefly address Healy's assignments of error on restitution issues because they are likely to arise on retrial.
The theft conviction was for attempted theft of a motor vehicle, and thus does not support the restitution order.
A. No Right to Jury Trial to Determine Facts of Restitution
Healy argues that the facts underlying the restitution order must be found by a jury beyond a reasonable doubt because they increase punishment beyond that authorized by the verdict alone. The Washington Supreme Court rejected this argument in State v. Kinneman, 155 Wn.2d 272, 282, 199 P.3d 350 (2005) and held that `[t]here is no right to a jury trial to determine facts on which restitution is based under RCW 9.94A.753.' Thus Healy's argument fails.
B. Trial Court Did Not Abuse Its Discretion in Ordering Restitution
Healy argues that the trial court exceeded its authority in ordering restitution. At the restitution hearing on the burglary charge, French testified that the total value of tools he noticed missing from his garage was $1,599, including $10 to repair the garage door. The trial court concluded that French's uncontroverted testimony was admissible and entered a restitution order against Healy for $1599.
Trial courts have broad statutory authority to impose restitution. State v. Enstone, 137 Wn.2d 675, 682, 974 P.2d 828 (1999). A trial court's restitution order is reviewed for abuse of discretion. State v. Woods, 90 Wn. App. 904, 906, 953 P.2d 834 (1998). Restitution is limited to losses causally related to the offense charged. Woods, 90 Wn. App. at 907. A loss is causally related to the defendant's crime if it would not have occurred `but for' the defendant's criminal conduct. State v. Landrum, 66 Wn. App. 791, 799, 832 P.2d 1359 (1992). Whether `but for' causation exists is a factual determination made by the trial court and the trial court's determination is given deference. Rasmussen v. Bendotti, 107 Wn. App. 947, 959, 29 P.3d 56 (2001).
`Evidence supporting restitution is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.' State v. Hughes, 154 Wn.2d 118, 154, 77, 110 P.3d 192 (2005) (internal quotation omitted). The trial court can determine the amount of restitution by a preponderance of the evidence. Hughes, 154 Wn.2d at 154. There is no requirement that a victim's damages be foreseeable. Enstone, 137 Wn.2d at 680-81.
In State v. Dauenhauer, 103 Wn. App. 373, 375, 12 P.3d 661 (2000), the defendant was convicted of three counts of burglary for entering three separate storage units to steal property. In fleeing the police after the burglaries, the defendant sped through two fences, ran a stop sign, and collided with a truck. Dauenhauer, 103 Wn. App. at 375. Division Three of this court concluded that the damage to the truck and the fence were not part of the burglary charge, and that the defendant could not be ordered to pay restitution for the general scheme of acts merely connected to the burglaries. Dauenhauer, 103 Wn. App. at 379-80. And in Woods, the court held that the defendant, who stole a vehicle, could not be ordered to pay for all items that were in the vehicle when it was stolen because that loss `undeniably occurred before the criminal act for which the defendant was convicted.' Woods, 90 Wn. App. at 910 (quoting State v. Tetters, 81 Wn. App. 478, 481, 914 P.2d 784 (1996)).
Healy contends that under Dauenhauer and Woods, the losses in this case were not causally connected to the burglary charge. The Dauenhauer decision does not support Healy's contention. In Dauenhauer, this court remanded to the trial court to enter a revised restitution order identifying the victims entitled to restitution and limiting that group to `the burglary victims and their insurance carriers.' Dauenhauer, 103 Wn. App. at 380. Here, French is properly identified as Healy's burglary victim. See also State v. Smith, 61 Wn. App. 277, 809 P.2d 763 (1991) (recognizing that restitution is appropriate for damage to or loss of property when burglary is charged).
And, unlike in Woods, it is not `undeniabl[e]' that the loss here occurred prior to the burglary. To the contrary, French testified that when he left for vacation, the garage was locked and secured. Garvin testified that at 10:00 pm the night before the burglary, the garage was secured. Garvin testified that he did not go into French's garage and did not have keys to the garage. At the restitution hearing, French testified to the value of items he noticed were missing from his garage when he returned from vacation that had been in his garage prior to the time he left for the vacation. French's testimony as to the value of the missing tools was uncontroverted.
Healy argued to the trial court and in his brief on appeal that other reasonable scenarios could explain how the tools could have been taken prior to Healy's presence at the house. The trial court acknowledged that there `are other possibilities or other inferences that could be d[r]awn as to when these things might have been taken, but the evidence we have leads to the conclusion that more likely than not they were stolen as a product of the joint venture that Mr. Healy was engaged in.' The trial court's finding is supported by sufficient evidence and the trial court did not abuse its discretion in ordering restitution. However, because we reverse the burglary conviction, we vacate the restitution order.
We affirm Healy's theft conviction. We reverse Healy's burglary conviction. We remand for resentencing on the theft conviction and a new trial on the burglary charge.
COX and BAKER JJ., concur.