Opinion
No. 36726-2-II.
February 18, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-01993-8, Robert A. Lewis, J., entered August 30, 2007.
Affirmed in part and remanded by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J.; Quinn-Brintnall, J., concurring in the result only.
William Joseph Holeman appeals his convictions for unlawful possession of a controlled substance — methamphetamine, possession of instruments used for financial fraud, second degree identity theft, unlawful possession of payment instruments, and unlawful production of payment instruments. We hold that the trial court properly denied his motion to suppress evidence obtained during the investigative stop. We also hold that there was substantial evidence to support Holeman's unlawful possession of a controlled substance and second degree identity theft convictions. Further, we hold that Holeman was afforded a fair trial, effective assistance of counsel, and the trial court properly denied his motion for mistrial. Additionally, Holeman concedes that the State properly administered his Miranda rights. And the State concedes that the challenged community custody condition is vague. We affirm the convictions, but remand for the sentencing court to strike the vague language in the challenged community custody condition.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
The facts are undisputed.
On August 26, 2006, Vancouver police officers pulled over and arrested Dale Grindahl after discovering he was driving a stolen truck. Upon arrest, Grindahl told the officers that the canopy to the truck could be found at 6604 Oklahoma Drive. Grindahl also told the officers that they would find other stolen vehicles at the property. He mentioned that Shane Goodwin was dealing stolen cars out of the residence and another person, "Computer Bill," was possibly at the residence making and cashing fraudulent checks. RP (May 21, 2007) at 13.
The officers went to 6604 Oklahoma Drive to investigate. Immediately, the officers noticed several cars parked on and around the property, one car being in the garage of the residence, in addition they located the stolen truck canopy on the west side of the house near the driveway. The officers ran the license plates of one car on the street and one car parked in the garage; both came back stolen.
Around this time, Holeman walked out of the house and over to a car that had not been reported stolen. The officers noticed Holeman and motioned for him to come over and talk with them. He complied. They asked Holeman if he knew anything about the stolen vehicles. Holeman hesitated, but responded he knew nothing about the vehicles. The officers then asked Holeman to identify himself and Holeman complied. Holeman had an outstanding felony warrant; the officers placed him under arrest.
Shortly thereafter, Goodwin and several other people exited the house and the officers detained everyone. Goodwin confirmed that he owned the house and that he had a roommate named Dan. He also indicated that other people were staying with him on a temporary basis, including Holeman and his girlfriend, Michelle Carpenter. According to Goodwin, Holeman and Carpenter had been staying in the southeast bedroom for the past two nights. Goodwin gave the officers permission to enter it and conduct a security sweep. During the security sweep of the southeast bedroom, the officers noticed a shelf, above a computer desk, with several glass pipes on it. The officers believed the pipes had been used to smoke narcotics.
Rather than seizing the drug paraphernalia, the officers left the house and obtained a warrant to search for (1) items related to possession of the stolen vehicles and (2) items related to possession of controlled substances, including but not limited to glass pipes and personal property establishing dominion and control of controlled substances. During the search under the initial search warrant, officers found the following items in the southeast bedroom on or immediately around the computer table: (1) used methamphetamine pipes; (2) a plastic baggy with white residue in it; (3) a digital scale; and (4) Holeman's wallet including identification.
Also during execution of the first search warrant, the officers discovered a computer sitting on the computer table with an attached printer. The printer had blue check stock in its tray, the same type and color as a Three Rivers Dairy Queen check found elsewhere in the house. The officers quickly determined that the Dairy Queen check was fraudulent. The officers also discovered documentation with the names, birth dates, and other personal information of at least four different people and checks they believed were stolen. Based on this information, the officers obtained an addendum to the search warrant to seize evidence of identity theft and/or forgery.
During their execution of the addendum to the search warrant, the officers seized the following from the southeast bedroom: the computer and a black, zipped bag containing: (1) Bank of America checks on a joint account for Karen and Alexis Little, Bank of America and Wells Fargo checks on a separate account for Karen Little, and a car title belonging to Karen Little; (2) a Washington Mutual Bank check in the name of Cynthia Chaffee; (3) an MBNA America check in the name of Darin Warnke; (4) a Unitas Community Credit Union check belonging to Sharon Tidwell; and (5) a Washington Mutual check belonging to Razorback Offroad LLC made payable to Holeman.
A forensic investigator from the Vancouver Police Department later searched the computer and together with a Hewlett-Packard representative, determined that: (1) the computer was registered to Holeman, with an e-mail address of cueballdhf@gmail.com; (2) the administrator had loaded a program on the computer called VersaCheck, which could be used to create checking accounts and checks; (3) someone had used VersaCheck to create a "Three Rivers Dairy Queen" account and had printed at least one check; and (4) the hard drive associated exclusively with Holeman's account had a directory titled "bad things." II RP at 295, 307. Further, the bad things directory had subdirectories titled "bank logos," "checks," "people pics," "signatures," "state ID templates," "WA and OR ID templates," and WA and OR miscellaneous documents." II RP at 308. Each of these subdirectories had scanned graphic files in them consistent with the names of each directory.
By third amended information, the Clark County Prosecutor charged Holeman with one count of unlawful possession of a controlled substance — methamphetamine, one count of possession of instruments used for financial fraud, thirteen counts of second degree identity theft, four counts of unlawful possession of payment instruments, and one count of unlawful production of payment instruments. Following trial, the trial court dismissed two of the second degree identity theft counts (counts 9 and 17), without objection, for lack of evidence. After deliberating for two days, the jury convicted Holeman on all the remaining counts. Holeman appeals.
ANALYSIS I. Investigative Stop
Holeman first contends that the law enforcement officers did not have a reasonably articulable suspicion on which to base a Terry detention of him. Therefore, he insists that the trial court should have suppressed all evidence and statements that the State obtained as a result of his arrest. In a challenge to a denial of a motion to suppress, this court reviews de novo the trial court's conclusions of law regarding the validity of a search. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
An investigative stop, although less intrusive than an arrest, is nevertheless a seizure and therefore must be reasonable under the Fourth Amendment and article I, section 7 of the Washington Constitution. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986); State v. Larson, 93 Wn.2d 638, 641, 611 P.2d 771 (1980). A law enforcement officer may make an investigative stop even though he lacks probable cause to believe that a suspect is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 25-26, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Barber, 118 Wn.2d 335, 342-43, 823 P.2d 1068 (1992). In the absence of probable cause to arrest, an investigatory stop is valid if the police have a well-founded suspicion based on objective facts that a suspect is connected to actual or potential criminal activity. Terry, 392 U.S. at 25-26; State v. Glover, 116 Wn.2d 509, 513, 806 P.2d 760 (1991). A well-founded suspicion exists when the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21; Glover, 116 Wn.2d at 514. Courts consider the totality of the circumstances before the investigating officer when evaluating the reasonableness of an investigatory stop. Glover, 116 Wn.2d at 514; Larson, 93 Wn.2d at 649.
Relying on Larson, Holeman argues that the officers that initially approached and detained him did not have a well-founded suspicion based on objective facts that he was involved in criminal activity. But Larson is distinguishable. There, law enforcement officers stopped a car because it was parked in a high-crime area near a closed park and drove away as the police car first approached. Larson, 93 Wn.2d at 640. The officers asked everyone in the car, including passengers, for identification. Larson, 93 Wn.2d at 640. As one passenger, Larson, reached inside her purse to retrieve identification, an officer shone his flashlight into the purse where he noticed a plastic bag containing marijuana. Larson, 93 Wn.2d at 640. The officer arrested Larson and a subsequent search yielded evidence of several additional crimes. Larson, 93 Wn.2d at 640. Larson moved to suppress all the evidence on the basis that there was a seizure that violated her Fourth Amendment rights. Larson, 93 Wn.2d at 640.
The Washington Supreme Court agreed. It held that there was no independent cause to suspect Larson of criminal activity simply because she was a passenger in a parked car that started driving away as the police car pulled up behind it in a high-crime area. Larson, 93 Wn.2d at 645. In other words, Larson was not detained because of a reasonable suspicion based on objective facts that she was involved in criminal activity; rather, she was detained because of her presence in a particular location, even though she had a legal right to be there. Larson, 93 Wn. App. at 645.
In this case, however, the officers had a well-founded suspicion based on objective facts that Holeman was involved in criminal activity. They went to 6604 Oklahoma Drive to investigate a lead that someone was selling stolen vehicles out of that residence. They also had a lead that someone named "Computer Bill" was at the house making and cashing fraudulent checks. RP (May 21, 2007) at 13. When the officers arrived at the residence, they found a canopy outside and other personal items from a recovered stolen truck. The officers also noticed several cars parked on or near the property, some of which they confirmed were reported stolen. Specifically, they confirmed that the car parked inside the opened garage, in plain sight, had been reported stolen. After the officers obtained all this information, Holeman walked out of 6604 Oklahoma Drive.
Thus, the officers had a well-founded suspicion based on specific and articulable facts which, taken together with rational inferences from those facts, that there was a crime of possession of stolen property associated with the house. Moreover, because Holeman walked out of the house, they had a well-founded suspicion that he may be involved with the crime of possession of stolen property. It was, therefore, reasonable for the officers to question Holeman and ask for his identification. Terry, 392 U.S. at 21; Glover, 116 Wn.2d at 514. The trial court correctly found that the officers properly conducted the investigative stop and properly denied Holeman's suppression motion. Terry, 392 U.S. at 21; Glover, 116 Wn.2d at 514.
II. Substantial Evidence
Holeman next contends that the trial court violated his due process rights because it entered judgment against him for offenses that substantial evidence did not support. We disagree.
Although Holeman failed to challenge the evidence before the trial court, he may raise the sufficient evidence requirement for the first time on appeal because it embodies the constitutional considerations of due process. State v. Alvarez, 128 Wn.2d 1, 10, 904 P.2d 754 (1995). "Due process requires that the State bear the burden of proving each and every element of the crime beyond a reasonable doubt." State v. Aver, 109 Wn.2d 303, 310, 745 P.2d 479 (1987). Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency of evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn from it. Salinas, 119 Wn.2d at 201. In determining whether the necessary proof exists, we need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case. Salinas, 119 Wn.2d at 201. We also consider the entire record, including the testimony of the defendant and his witnesses. See e.g., Salinas, 119 Wn.2d at 201-02; State v. Perez, 139 Wn. App. 522, 532, 161 P.3d 461 (2007).
A. Controlled Substances
Holman first challenges his conviction for unlawful possession of a controlled substance because he was one of many people staying in the house where the officers discovered the methamphetamine pipes and baggie with methamphetamine residue. To prove possession of a controlled substance, the State had to show that Holeman possessed methamphetamine in Washington. RCW 69.50.4013(1). Possession of property may be either actual or constructive. Constructive possession means that the defendant does not have actual physical possession of the property but that he had dominion and control over it. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969).
"It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter." RCW 69.50.4013(1).
Accordingly, the State had to establish that Holeman had dominion and control over the controlled substance for a proper conviction under constructive possession. State v. Shumaker, 142 Wn. App. 330, 334, 174 P.3d 1214 (2007). Various factors determine dominion and control, and the cumulative effect of several factors is a strong indication of constructive possession. State v. Ibarra-Raya, 145 Wn. App. 516, 525, 187 P.3d 301 (2008) (citing State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)). We must look to all the evidence to determine whether the trier of fact could reasonably infer, under the totality of the circumstances, that Holeman had dominion and control over the controlled substance. Partin, 88 Wn.2d at 906.
One circumstance from which the jury may infer constructive possession is that the defendant had dominion and control over the premises where the police found the drug. Shumaker, 142 Wn. App. at 334; State v. Cantabrana, 83 Wn. App. 204, 208, 921 P.2d 572 (1996). If the State establishes this, it raises a rebuttable inference of dominion and control over the drugs inside the premises. See Cantabrana, 83 Wn. App. at 208.
Here, the State offered sufficient evidence to establish that Holeman had dominion and control over the southeast bedroom, where they found methamphetamine pipes and a baggie with methamphetamine residue. Holeman testified that he had been staying in the southeast bedroom for two days. He testified that when the police searched the house, his wallet (including his identification), his pack of cigarettes, and his cigarette rolling machine were on the computer table. Holeman also testified that at least one of the glass pipes on the shelf above the computer desk belonged to him. He testified that he used the pipe to smoke methamphetamine while he was staying at the house. In addition, a forensic scientist testified that the plastic bag, found near the glass pipes, contained methamphetamine residue. When viewed in the light most favorable to the prosecution, this evidence is sufficient to establish that Holeman had dominion and control, i.e., constructive possession, of the methamphetamine. See Cantabrana, 83 Wn. App. at 208. There was sufficient evidence to support Holeman's conviction of unlawful possession of a controlled substance. Holeman's argument to the contrary lacks merit.
B. Counts 10, 11, 12, 13, and 20
Similarly, Holeman's contention that there was insufficient evidence to support his convictions under counts 10, 11, 12, 13, and 20 for second degree identify theft again lacks merit. Although Holeman styles this issue as a sufficiency argument, it is actually an evidentiary admission argument concerning the relevancy of exhibits. Holeman concedes that there is sufficient evidence in the record establishing that someone committed second degree identity theft as charged. Nevertheless, he concludes that the evidence is insufficient to prove he committed second degree identity theft because the origin of exhibits 26, 37, and 38 were never identified as pertaining to Holeman. Each exhibit was introduced and testified about by the person whose identity was stolen. Exhibit 26 was a scanned copy of four checks. Each check had been made payable to the Oregonian newspaper and had been stolen at some point. Exhibit 37 and 38 were photocopies of a victim's driver's license and a photocopy of the same victim's driver's license with another person's name on it.
A computer police expert testified that she had taken information from the computer and made it into exhibits for presentation to the jury. And Holeman testified that the computer that was seized and from which these exhibits were taken was registered to him and access to his profile was password protected. The court admitted the exhibits, without objection from the defense. In fact, the defense referred to exhibit 26 during closing argument, stating that the law enforcement officers found the checks making up the exhibit on the computer. The defense also acknowledged that law enforcement officers discovered exhibits 37 and 38 on the computer.
Any error in the admission of the evidence is an evidentiary error; Holeman provides no authority that admission of the exhibits is an error of constitutional magnitude. As we have previously observed, failure to specifically object to an inadequate foundation does not create manifest constitutional error. State v. Newbern, 95 Wn. App. 277, 288, 975 P.2d 1041, review denied, 138 Wn.2d 1018 (1999). Accordingly, Holeman did not independently preserve this issue for appeal. RAP 2.5(a); Newbern, 95 Wn. App. at 288. In any event, we hold that there was sufficient evidence linking Holeman to the exhibits. As with all sufficiency challenges, we examine the entire record, including Holeman's testimony during which he identified the computer. See e.g., Salinas, 119 Wn.2d at 201-02; Perez, 139 Wn. App. at 531-32.
Accordingly, we hold that substantial evidence supports Holeman's convictions for unlawful possession of controlled substances and second degree identity theft. See Salinas, 119 Wn.2d at 201.
III. Fair Trial
Next, Holeman asserts that the trial court prejudiced his constitutional right to fair trial. He maintains that the trial court (1) erred when it admitted evidence of other crimes that were more prejudicial than probative and (2) erred when it denied his proposed jury instructions. We disagree.
Holeman specifically challenges the trial court's admission of exhibits 29, 31, 32, 33, and 34, which were recovered from the computer and were a number of financial documents and accompanying photographs and signatures taken from a number of named persons. Under ER 404(b), evidence of other bad acts is admissible if relevant to a material issue and more probative than prejudicial. State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984). Before admitting evidence under ER 404(b), the trial court must engage in a three-part analysis. First, the trial court identifies the purpose for which the evidence is admitted. State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986). Second, the trial court determines whether the evidence is relevant and necessary to prove an essential element of the crime charged. Smith, 106 Wn.2d at 776 (citing State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982)). Third, if the evidence is logically relevant, the trial court determines whether its probative value outweighs any potential prejudice. Smith, 106 Wn.2d at 776 (citing Saltarelli, 98 Wn.2d at 362). We review Holeman's challenge to the admission of evidence under ER 404(b) for an abuse of discretion. State v. Tharp, 27 Wn. App. 198, 205-06, 616 P.2d 693 (1980), aff'd, 96 Wn.2d 591, 637 P.2d 961 (1981).
Generally, to preserve appellate review of an alleged error, a defendant must timely and specifically object on the record at trial. See, e.g., State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). Otherwise, objections not raised at trial are usually waived unless they are manifest errors affecting constitutional rights. RAP 2.5(a). And evidentiary errors under ER 404(b) are not of constitutional magnitude and are harmless unless the outcome of the trial would have differed had the error not occurred. State v. Wade, 98 Wn. App. 328, 333, 989 P.2d 576 (1999).
Here, the trial court did not err when it entered exhibits 29, 31, 32, 33, and 34. The State entered exhibit 29, which apparently was of checks recovered from the computer, without defense objection. Although Holeman objected to exhibits 31 (signatures), 32 (state ID templates), 33 (WA and OR ID templates), and 34 (WA and OR documents), immediately after they were entered the trial court orally gave a limiting instruction for those exhibits:
Before Exhibits 31, 32, 33, and 34 are admitted, and evidence concerning these exhibits is allowed, the Court advises you that you may consider this evidence only for the purpose of determining the intent of the person in possession of the computer and the software on the computer. You must not consider this evidence for any other purpose.
II RP at 277. The trial court also included the same instruction in the written jury instructions. And we presume the jury followed the court's instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). Accordingly, Holeman has not established that the outcome of trial would have differed had the trial court not entered exhibits 31, 32, 33, and 34. Moreover, Holeman has failed to establish the outcome of trial would have differed had the trial court not admitted exhibit 29. It is difficult for us to judge whether the exhibits were prejudicial because the parties did not include them in the record. It is Holeman that has the burden to provide an adequate record to review his issues, but he has failed to do so here. See RAP 9.2. The record here simply does not support Holeman's contention that when the trial court admitted exhibits 29, 31, 32, 33, and 34, it denied him a constitutionally fair trial.
Likewise, the record does not support Holeman's next contention that he was denied a fair trial because the trial court denied his proposed jury instructions. Instructions to the jury must convey that the State bears the burden of proving every element of a criminal offense beyond a reasonable doubt. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007). Instructions must also properly inform the jury of the applicable law, not mislead the jury, and permit each party to argue its theory of the case. Bennett, 161 Wn.2d at 307.
Holeman specifically asserts that the trial court erred when it denied his proposed instruction no. 1, reading:
Mr. Holeman has a constitutional right to collect information including financial or personal information. Mere possession of such information is not a crime. A crime requires possession with a criminal intent specifically described for each crime charged.
CP at 160. He maintains that without this instruction, he could not effectively argue that intent is required to convict him of unlawful possession of instruments of financial fraud. But Holeman's argument is unconvincing, particularly given that the trial court addressed the requisite element of intent in the to-convict instruction for unlawful possession of instruments of financial fraud.
The to-convict jury instruction reads in part:
To convict the defendant of the crime of Unlawful Possession of Instruments of Financial Fraud as charged in Count 2, each of the following elements of the crime must be proved beyond a reasonable doubt:
1. That on or about August 26, 2006, the defendant possessed a check-making machine, equipment, or software;
2. That the defendant had intent to use or distribute checks for purposes of defrauding an account holder, business, financial institution, or any other other [sic] person or organization;
3. That the acts occurred in the State of Washington.
CP at 203. Additionally, the trial court defined intent for the jury.
Also unconvincing is Holeman's argument that the trial court erred when it denied his proposed instruction no. 2. His proposed instruction reads:
Mere proximity to a controlled substance is not enough to establish constructive possession.
CP at 163. To his credit, Holeman correctly asserts that under Washington law, mere proximity, without more, is insufficient to establish dominion and control necessary to establish construction possession. See State v. Castle, 86 Wn. App. 48, 61, 935 P.2d 656, review denied, 133 Wn.2d 1014 (1997). But trial courts have considerable discretion in wording instructions. Castle, 86 Wn. App. at 62. It is not error for a trial court to refuse a specific instruction when a more general instruction adequately explains the law and allows each party to argue its case theory. Castle, 86 Wn. App. at 62.
The trial court instructed the jury on possession of a controlled substance. Jury instruction 11 defines possession, including actual and constructive possession. Holeman was still able to, and in fact did, argue that he did not have possession of the methamphetamine. Thus, contrary to Holeman's assertion, the trial court properly denied his proposed instruction 2. See Castle, 86 Wn. App. at 62. Holeman received a constitutionally fair trial. See Castle, 86 Wn. App. at 62.
Jury instruction 11 reads:
Possession means having a substance in one's custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the substance. Dominion and control need not be exclusive to establish constructive possession.
CP at 200.
IV. Effective Assistance of Counsel
Holeman next claims his counsel was ineffective. To prevail on a claim of ineffective assistance of counsel based on a failure to object, Holeman must show (1) deficient performance, i.e., the absence of a legitimate strategic or tactical reason for not objecting and that the trial court would have sustained the objection if made, and (2) prejudice, i.e., the result of the trial would have differed if the evidence had not been admitted. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996); State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998). If Holeman fails to satisfy either prong of the ineffective assistance of counsel test, this court need not address the other prong. Hendrickson, 129 Wn.2d at 78.
We presume that counsel's representation was effective. Hendrickson, 129 Wn.2d at 77. Holeman can overcome this presumption by showing that counsel's performance fell below an objective standard of reasonableness and that the challenged actions were not sound trial strategy. "If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Holeman contends that his counsel was ineffective because he failed to object to testimony that the laptop was registered to him under the e-mail address cueballdhf@gmail.com. He argues that this testimony was inadmissible hearsay because it, presumably, came from Hewlett-Packard business records, which were never authenticated.
Records of regularly conducted activity are an exception to the general hearsay rule. ER 803(a)(6). RCW 5.45.020 governs admission of these records is governed by, which provides:
A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
RCW 5.45.020 does not require examination of the person who actually made the record. See Cantrill v. Am. Mail Line, Ltd., 42 Wn.2d 590, 607-08, 257 P.2d 179 (1953). Testimony by a person who has custody of the record as a regular part of his work or who has supervision of its creation is sufficient to properly introduce the record. Cantrill, 42 Wn.2d at 608.
Here, the record does not reflect that a proper foundation was laid for admitting testimony under the business records exception to the hearsay rule; therefore, it was error to admit the testimony. State v. Walker, 16 Wn. App. 637, 640, 557 P.2d 1330, review denied, 89 Wn.2d 1004 (1977). And although Holeman's counsel did not object to the improper testimony, the record reveals that this was likely a legitimate tactical decision. During the defense's case, Holeman, himself, testified that the computer in question was registered to him. He also testified that the e-mail he used to register the computer was cueballdhf@gmail.com. Moreover, Holeman's defense strategy was that he registered the computer and installed programs for his friend, but that he did not have access to the computer except to play video games. We hold that Holeman's counsel's failure to object was not ineffective assistance.
V. Motion for Mistrial
Next, Holeman complains that the trial court erred when it denied his motion for a mistrial based on juror misconduct. The record does not support Holeman's argument.
While the jury was deliberating, it sent out a number of questions, including: "Can the Court provide a legal definition of aiding and abetting." IV RP at 570. With both parties' agreement, the trial court replied that it would not provide further jury instructions. For reasons unknown, that jury note was never filed with the court. A later inquiry was filed with the court, however, and it stated:
Jurer [sic] #8 looked at the definition of "aid abet" on Google last night shared parts [of] the definition with the group. Half of the group did not hear the definition when it was shared it was not repeated.
CP at 167. Upon receiving this note, Holeman moved for a mistrial. The trial court denied Holeman's motion and it is this ruling that he now challenges.
Every criminal defendant is entitled to a fair trial by an impartial jury. U.S. Const. amends. VI, XIV § 1; Wash. Const. art. I, §§ 3, 21, 22. "Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).
A trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant receives a fair trial. State v. Jungers, 125 Wn. App. 895, 901-02, 106 P.3d 827 (2005). We review a trial court's denial of a motion for mistrial for abuse of discretion. Jungers, 125 Wn. App. at 902.
Holeman faults the trial court for failing to hold an evidentiary hearing after learning of possible juror misconduct, citing United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981), cert. denied, 456 U.S. 962 (1982). The seemingly mandatory requirement of an evidentiary hearing set forth in Bagnariol, however, has been modified in subsequent Ninth Circuit holdings. United States v. Saya, 247 F.3d 929, 934 (9th Cir.), cert. denied, 534 U.S. 1009 (2001). In determining the necessity for such a hearing, the trial court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source. Saya, 247 F.3d at 935. An evidentiary hearing is not necessary where the court knows the exact scope and nature of the alleged misconduct. Saya, 247 F.3d at 935.
Juror use of extraneous evidence is misconduct and entitles a defendant to a new trial if the defendant has been prejudiced. State v. Briggs, 55 Wn. App. 44, 55, 776 P.2d 1347 (1989). Once established, such misconduct gives rise to a presumption of prejudice that the State has the burden of disproving beyond a reasonable doubt. State v. Murphy, 44 Wn. App. 290, 296, 721 P.2d 30, review denied, 107 Wn.2d 1002 (1986). This presumption, however, is not conclusive and a party may overcome it if the trial court determines that the misconduct was harmless to the defendant. Murphy, 44 Wn. App. at 296. "[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith, 455 U.S. at 217.
The trial court decided whether the alleged misconduct prejudiced Holeman. It interviewed the juror independently, with both counsel present. Through that interview, the court satisfied itself that the juror did not bring prejudicial information into the jury room. Moreover, when Holeman brought the misconduct to the trial court's attention, it expressly offered to give the jury the WPIC definition of accomplice liability. Holeman refused the offer. Instead, the trial court orally instructed the jury to disregard the juror's independent research. This cured any potential error. The trial court clearly stated that the jury must not consider Google's definition of "aid and abet." IV RP at 591. And we must presume that jurors follow curative instructions. State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983).
Accordingly, Holeman has failed to show that the juror misconduct prejudiced him such that he was entitled to a mistrial. The trial court did not abuse its discretion. It properly denied his motion for a mistrial.
VI. Community Custody Condition
Finally, Holeman challenges his community custody condition prohibiting possession or use of "any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances." CP at 282. He contends that the condition is "hopelessly vague." Br. of Appellant at 42.
In light of our state Supreme Court's recent decision in State v. Bahl, 164 Wn.2d 739, 193 P.3d 678 (2008), the parties agreed that the proper remedy is to strike the last clause of the condition that pertains to facilitating the sale or transferring controlled substances. We therefore remand to the sentencing court to strike the latter language in the challenged condition.
VII. Cumulative Error
Finally, Holeman insists that the trial court violated his right to a fair trial because it committed cumulative error. We have authority to reverse due to cumulative trial court errors, even if each error is harmless on its own. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). But Holeman has not established multiple errors so we need not address this issue.
To conclude, we affirm Holeman's convictions but remand for the sentencing court to strike the last clause in the challenged community custody condition pertaining to facilitating the sale or transferring controlled substances. Because we find no error other than the community custody condition language, we do not address Holeman's contention that he is entitled to a new trial due to cumulative errors committed during trial. Finally, because Holeman withdrew his Miranda issue during oral argument, we need not address it.
Affirmed but remanded for correction of the judgment and sentence by striking the vague language referred to in this opinion.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Penoyar, A.C.J., concur.
I concur with the majority ruling and analysis affirming William Joseph Holeman's convictions. But I concur in the majority decision to strike Holeman's challenged community custody condition solely because the State agreed that the condition is vague. Without this concession, I would hold that the condition is not ripe for review.
In State v. Bahl, 164 Wn.2d 739, 193 P.3d 678 (2008), our Supreme Court addressed community custody conditions implicating the First Amendment. I believe the majority's application of Bahl to this context is inappropriate because, rather than a First Amendment-protected activity, the condition at issue here is a standard condition prohibiting a convicted drug offender of possessing paraphernalia that can be used for ingesting controlled substances. I believe that the recent decision in State v. Valencia, No. 36029-2-II, 36115-9-II, 2009 WL 73277 (Wash.Ct.App. Jan. 13, 2009), demonstrates the distinction between the community custody condition at issue in Bahl and that at issue in the present case. Even under Bahl, challenges to conditions requiring factual determinations are premature when raised on direct appeal without the factual context of enforcement. Valencia, 2009 WL 73277 at *9. Accordingly, I believe that Holeman's challenge to his community custody conditions to be speculative and not ripe for review.