Opinion
No. 27270-9-II c/w 27303-9-II
Filed: April 29, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 00-1-04426-9 Judgment or order under review Date filed: 04/20/2001
Counsel for Appellant(s), Kevin R. Cole, Attorney at Law, Ste 214, 8015 S.E.38th St, Mercer Island, WA 98040.
Rita Joan Griffith, Attorney at Law, 1305 N.E.35th St. Ste 205, Seattle, WA 98105-4523.
Patricia Anne Pethick, Attorney at Law, P.O. Box 111952, Tacoma, WA 98411-1952.
Counsel for Respondent(s), John Martin Neeb, Attorney at Law, Co City Bldg, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Douglas James-Anderson and Joshua Scott appeal their convictions for two first degree armed robberies, unlawful possession of a firearm, unlawful possession of stolen property, two counts of possession of a stolen firearm, and other related convictions. Both argue that (1) they were denied the right to a speedy trial under CrR 3.3, and (2) the trial court should have dismissed the special weapons enhancement portion of the information. James-Anderson argues separately that his trial should have been severed from Scott's and that a washed-out juvenile offense should have been excluded from his offender score. Scott argues separately that the trial court should have dismissed counts VI and VII, possession of a stolen firearm, for insufficient evidence. We reverse counts VI and VII as to Scott, affirm all other convictions for both defendants, and remand James-Anderson for resentencing without including his 1991 juvenile offense in his offender score.
FACTS I. Crimes A. Two Robberies
On September 16, 2000, James-Anderson and Scott parked a Blazer in front of Cascade Custom Jewelers, entered the store, threatened to kill two employees with a rifle, and tied the employees' hands behind their backs. Scott, who was white, was wearing a black or dark blue ski mask and carried the rifle. He guarded the two employees while James-Anderson, who was black, collected items to steal including: loose diamonds, gold, $700 in cash, three guns, and jewelry from the counters. Scott took a wallet from the pocket of one of the bound employees, Barrett Thompson; they also took a custom-made rose and pearl ring that Thompson had been working on and the store's security video. Scott and James-Anderson conversed with each other during the robbery.
During the robbery, another employee, Peter Filipiuk, had pressed a panic button clipped into his pants pocket. The button alerted the alarm company. Heather Babcock, the shift supervisor at Sonitrol, noticed the 'emergency holdup' alarm come onto a computer screen, immediately dispatched the police, and then continued to listen to the robbery in progress; she heard two people who sounded like partners conversing with each other.
Pierce County Sheriff's Department Detective Sergeant Bret Farrar was driving nearby when the 'armed robbery in progress' call went out. He pulled into a parking lot just south of the jewelry store and contacted Deputy Anthony Filing, who had just arrived. Filing saw a black male wearing a tan stocking cap, pulled down to his eyebrows, exit the store and open the passenger side door of the Blazer parked in front of the store. Filing ordered the man to stop and to show his hands. The man glanced at Filing and ran away to the north, around the store, and west into a field.
A short time later, a white male left the jewelry store and went to the passenger side of the Blazer. He wore a ski mask and carried an AR-15 semi-automatic rifle and a backpack, which he placed in the Blazer. Farrar ordered the man to drop the rifle and to get on the ground. Instead, the man leaned into the passenger side of the Blazer, did something, stood up, turned, and walked away from the officers, leaving the Blazer's engine running (the ignition was broken). At the corner of the building, the man dropped his hands and started spinning around, which prompted Farrar to fire a shot at him. The man then ran away into the field in the same direction as the first man. Filing attempted to follow but lost sight of the man.
Deputy Kevin Fries also responded to the robbery. He drove west of the store after hearing that one of the suspects had fled in that direction. Fries parked on the street behind the store, exited his patrol car, heard two gunshots, took his position, and observed a black male, later identified as James-Anderson, break through the tree-line running. James-Anderson wore tan pants, as described by the store employees, was naked from the waist up, and wore white socks but no shoes. With Deputy Konkel's assistance, Fries arrested James-Anderson, who falsely identified himself as 'Omar Phillips' and gave two different birth dates.
While searching James-Anderson incident to arrest, Konkel found Filipiuk's wallet. As Deputy Page walked from where James-Anderson had been arrested, through the field toward the jewelry store, he found a white 'K-Swiss' tennis shoe approximately fifty feet from the store.
Deputy Michael Noel was also in the street behind the jewelry store, where he observed the other deputies arresting James-Anderson. A short distance to the north, a citizen, who had seen a white man running, directed Noel to a location where he found a man matching one of the robber's description's, lying on the ground in some brush. The man, later identified as Scott, was breathing heavily, sweating, covered with 'sticker bushes,' and wearing white socks but no shoes. Near Scott's right hand was a black ski mask.
Deputy Fries handcuffed Scott and took him to a patrol car. Deputy Filing later confirmed that this man was the same man he had initially chased from the store. Fries advised Scott of his Miranda rights on the way to a patrol car. Scott admitted having robbed the jewelry store. At the police station, he gave a full confession, admitting to the robbery and his knowledge that the Blazer was stolen.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
B. Possession of Stolen Property and Firearms
Officials recovered almost all of the items taken during the robbery, about eighty thousand dollars worth of goods, in the Blazer. They found a total of two rifles and four pistols on the driver's and passenger's sides of the Blazer, and two backpacks, each containing jewelry items and one containing the security video.
One rifle had a round in its chamber and 18 rounds in its magazine.
The other rifle, a .22 caliber Stern Ruger mini 14 semi-automatic rifle, had 36 rounds in its magazine. Both rifles, and a unique three-faced clock, had been stolen during a residential burglary on September 1. Federal Way Police Department Deputy Jeffrey Paynter recovered the stolen clock at James-Anderson's house on November 21.
One of the pistols found on the Blazer's passenger seat was a loaded .40 caliber semi-automatic pistol that belonged to Filipiuk, who had dropped it when the robbers entered the store. The second pistol was a Ruger Single Six .22 caliber revolver, loaded with five rounds, that belonged to Thompson. The other two pistols, a Colt Mark 4 semi-automatic pistol with a separate magazine containing six rounds, and an unloaded Smith Wesson .22 caliber semi-automatic pistol, belonged to George Bastaich. Both Thompson's and Bastaich's pistols had been stored in the jewelry store's safe at the time of the robbery.
Esperanza 'Hopie' Mattos owned the Blazer that Scott and James-Anderson had driven to the crime scene; neither had her permission to drive the vehicle. Someone had stolen the Blazer from her apartment on September 14. She valued the Blazer at $5,500. When the vehicle was returned, the driver's side door handle and steering column were damaged.
The only item not recovered immediately after the robbery was the rose-pearl ring. Deputy Curtis Seevers found the ring later when he searched Scott's holding cell at the police station.
C. Follow-up Investigation
After reviewing the police reports and the surveillance video showing the robbery of the jewelry store, Detective Sergeant Edwin Knutson coordinated a search of the field located behind the jewelry store. The searchers found a green mask, a 'K-Swiss' tennis shoe, and a shirt matching the one worn by the black male robber on the video. The items were strewn in a line from the northwest corner of the jewelry store to the spot where police captured Scott and James-Anderson.
II. Trial
Scott and James-Anderson were arraigned on September 18, 2000; both remained in custody pending trial, which was set to begin on November 15, the 58th day of the CrR 3.3 speedy trial period. On November 15, the trial court granted a continuance because both defense attorneys needed time to prepare for trial. James-Anderson waived his right to a speedy trial to November 29. Scott did not. Trial was rescheduled for November 29. Scott did not object.
On November 29, the trial date was continued a second time to December 6 because both defense attorneys were involved in other unrelated trials and the deputy prosecutor was absent due to a death in the family. The trial court continued the case to December 6.
On December 6, the trial was continued a third time to December 13 because Scott's attorney was involved in another trial and unavailable to begin Scott's trial. Finding that the continuance was justified for the 'due administration of justice' and that the defendants would not be substantially prejudiced, the court continued the case until December 13.
On December 13, trial was postponed one day to December 14 because no courtrooms were available. On the continuance orders, the trial court wrote that the continuance was justified for the 'due administration of justice' and that the defendants would not be substantially prejudiced.
On December 14, the trial date was continued a fifth time to January 2, 2001, because the judge scheduled to hear the case was assigned to preside in Criminal Division 2 of the Pierce County Superior Court until January 2 and the trial date conflicted with the prosecutor's vacation schedule.
The jury found both defendants guilty as charged. Before sentencing, James-Anderson stipulated to two previous juvenile adjudications. Scott also had a prior conviction for residential burglary, which was listed as a serious offense.
ANALYSIS I. CrR 3.3 Speedy Trial
James-Anderson and Scott assert that their speedy trial rights were violated. We disagree. CrR 3.3(c)(1) requires that a defendant in custody be brought to trial not later than 60 days after arraignment. Here, trial was initially set to begin on November 15, 2000, 58 days after the defendants' arraignments.
A. Continuances
CrR 3.3(h)(2) gives the trial court discretion to continue a trial when required for the administration of justice and if the defendant will not be substantially prejudiced thereby in the presentation of his defense. Here, the trial court granted the first continuance for two weeks to November 29 because both defense attorneys needed time to prepare for trial and to provide effective representation for the defendants. Under CrR 3.3(g)(3), such a continuance is justified and, therefore, excludable from the 60-day speedy trial period under CrR 3.3(d)(8). State v Carson, 128 Wn.2d 805, 815, 912 P.2d 1016 (1996). Thus, as of November 29, two days remained to bring the case to trial. Furthermore, James-Anderson waived his right to speedy trial until November 29.
On November 29, the new trial date, both defense counsel requested a second continuance because they were involved in other unrelated trials; moreover, the deputy prosecutor was out of the office due to a death in the family. Acting under CrR 3.3(h)(2), the trial court postponed the trial date one week to December 6. Again, this time was excluded from the 60-day speedy trial period under CrR 3.3(g)(3), and, as of December 6, two days remained in the speedy trial period.
CrR 3.3(d)(8) allows the trial court to extend the time to start trial for 'unavoidable or unforeseen circumstances' that cannot be controlled by the parties or the court. On December 6, the new trial date, Scott's attorney was still engaged in another trial and unable to begin this one. Ruling in writing that the continuance was necessary for the 'due administration of justice' and that the defendants would not 'be substantially prejudiced in the presentation of the defense,' the trial court 'extended' the trial's start date for five days, 'exclusive of Saturdays, Sundays, or holidays,' under CrR 3.3(d)(8) to December 13. CrR 3.3(h)(2). Once again, this extension was excludable from the 60-day speedy trial period, and two days still remained. CrR 3.3(g)(3) and (h)(2).
On December 13, trial was continued a fourth time to December 14 because no courtrooms were available. Defendants argue, and the State concedes, that a continuance for court congestion is improper. State v. Smith, 104 Wn. App. 244, 252, 15 P.3d 711 (2001). Thus, as of December 14, only one day remained of the 60-day speedy trial period and this one-day continuance did not violate the defendants' rights under CrR 3.3.
On December 14, the trial court granted a fifth continuance to January 2, 2001 because the judge assigned to the case was presiding in Criminal Division 2 of the Pierce County Superior Court for the rest of December and attempts to find another judge were eventually abandoned to accommodate the prosecutor's previously scheduled vacation. Additionally, the holiday season was approaching. During the interim two and one-half weeks, punctuated by religious and new year's holidays, the trial court heard and ruled on several substantive pretrial motions, including severance, redaction of Scott's statement, discovery, jury questions, and the size of the jury pool needed to be summoned.
The State argues that the trial effectively commenced when the court began to rule on these pretrial discovery and severance motions on December 14 and 15, the 59th and 60th days of the speedy trial period. The defendants argue that there was no legally sufficient justification for this continuance, thus this period could not be excluded under CrR 3.3(g), and their charges should have been dismissed because they were not brought to trial within 60 days of arraignment as CrR 3.3 requires. Accordingly, we must address two issues: (1) When did the trial commence for purposes of CrR 3.3? (2) If trial actually commenced on January 2, had the speedy trial period expired under CrR 3.3 or was this continuance excludable under CrR 3.3(g)(3) and (h)(2)?
B. Trial Commencement
Under CrR 3.3, a trial commences when the court calls the case for trial and hears preliminary motions. Carson, 128 Wn.2d at 820; State v. Stackhouse, 88 Wn. App. 963, 972-73, 947 P.2d 777 (1997). Typically, pretrial motions are heard and the trial immediately follows. James-Anderson contends that his trial did not begin immediately after the pretrial motions because of court congestion, which is not a reason justifying a continuance under CrR 3.3. Br. of App. James-Anderson at 21.
We agree with James-Anderson that routine court congestion does not justify a continuance extending beyond speedy trial limits, under either CrR 3.3(d)(8) or CrR 3.3(h)(2). Smith, 104 Wn. App. at 252.
The record here shows however, that unlike in Smith, trial court congestion did not delay the start of trial. James-Anderson implies that the trial court did nothing but call the case in December and then took no further action until January 2. The record demonstrates otherwise. Here, the trial court spent considerable time resolving substantial pretrial motions before the holidays so that when trial began the first business day in January, there would be no further delays.
On December 14, the 59th day of the speedy trial period, the trial court ruled on a discovery motion by the State. The next day, the 60th day, the trial court read the parties' memoranda and heard argument on James-Anderson's motion for severance, before which the trial proper could not commence. The State requested copies of both defendants' supporting memoranda and case law in support of James-Anderson's CrR 3.5 motion, a CrR 3.6 motion, and another severance motion by December 26, and the trial court so ordered.
On December 20, the trial court reconvened to address additional preliminary issues, including: (1) a defense motion to exclude evidence of the stolen clock that the State was going to offer under ER 404(b); (2) submission of a short questionnaire for jurors; (3) jury questions and whether the parties could have them prepared by January 2 for the court to review; (4) the number of jurors the parties wanted the Jury Administration to have available the day after the holidays; and (5) the State's redaction of Scott's statement.
Ideally, it would have been preferable to have shortened the two and one-half week period during which the trial court resolved the pretrial motions. But the delay in scheduling was in large part due to defense counsel's trial schedules pushing the trial date unexpectedly into the holiday season and into conflicts with the trial court's previous criminal department obligation and the prosecutor's vacation. Moreover, given the number and complexity of pretrial matters, together with the parties' need to brief and to respond to legal issues, and the intervening holidays, considerable time would have been consumed in any event and the jury likely might not have been empanelled much sooner than it was the day after New Year's Day.
There is no bright line rule governing the length of permissible continuances under CrR 3.3. Nor does the record here support the defense contention that the trial court called the trial in December simply to avoid the CrR 3.3 speedy trial period. We hold, therefore, that the trial court commenced trial within the 60-day period required by CrR 3.3 when it began hearing the pretrial motions on December 14 and continued resolving multiple, substantial pretrial motions and issues during the following weeks. Stackhouse, supra. Accordingly, we cannot say that the trial court abused its discretion by denying defendants' motion to dismiss for failure to bring the case to trial in a timely manner.
II. Motion to Sever
We review the denial of a motion to sever for an abuse of discretion. CrR 4.4. A defendant must show specific prejudice to support a claim that the trial court abused its discretion. State v. Alsup, 75 Wn. App. 128, 131, 876 P.2d 935 (1994).
James-Anderson contends that the trial court abused its discretion by denying his motion to sever. He argues two grounds: (1) Scott's exculpatory redacted statements improperly implied James-Anderson's guilt, and (2) James-Anderson's and Scott's defenses were irreconcilable.
A. Redacted Statement
The officer read to the jury Scott's redacted statement about his participation in the robbery, in pertinent part, as follows:
Scott said he turned around and looked on the floorboard behind the driver and passenger seat of the vehicle and saw a cache of weapons. He noted two assault weapons and several handguns. He said he also observed two ski masks which were in the vehicle. Scott said he looked at the ignition of the vehicle and saw there were no keys in the ignition of the Chevy Blazer. He then assumed he was in a stolen vehicle. Scott said he had never seen the Chevy Blazer prior to today. Scott told me he did not want to go to jail for being caught in a stolen vehicle.
Report of Proceedings (RP) at 1000-01.
James-Anderson asserts that (1) although his name had been excised from Scott's redacted statement, the statement clearly referred to him; (2) because codefendant Scott did not testify at trial, James-Anderson was unable to confront this 'witness' against him; and (3) therefore, his Sixth Amendment constitutional rights were violated.
U.S. Const. amend. VI.
As a general rule, a defendant is deprived of his confrontation rights under the Sixth Amendment when incriminated by a pretrial statement from a codefendant who did not testify during trial. Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). But admission of a non-testifying codefendant's confession redacted to omit all reference to a defendant does not, on its face, violate that defendant's Sixth Amendment confrontation rights. Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Nor are these rights violated where the codefendant's statement later becomes incriminating when linked with other evidence. Richardson, 481 U.S. at 208.
Here, the trial court allowed Detective Harai to read codefendant Scott's redacted statement. The statement did not mention James-Anderson, contained no suggestive blanks or the word 'deleted,' and mentioned only a few times that another person was involved in the crime. The statement did not implicate James-Anderson.
In Gray v. Maryland, 523 U.S. 185, 192, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), the prosecution redacted the nontestifying codefendant's statement by replacing the defendant's name with the word 'deleted' or a blank space. The Supreme Court held that these redactions violated the Bruton rule because use of 'deleted' or a blank space 'obviously refer[s] directly to someone, often obviously the defendant, and . . . involve[s] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.' Gray, 523 U.S. at 196.
Based on the federal cases just cited, we recently laid out a test for properly redacted statements: A redacted statement must be (1) facially neutral; (2) free of obvious deletions, such as 'blanks' or 'Xs'; and (3) accompanied by a limiting instruction. State v. Larry, 108 Wn. App. 894, 905, 34 P.3d 241 (2001). Here, Scott's redacted statement met all three of these requirements.
First, the statement was facially neutral: It did not mention James-Anderson's name. Second, there were no obvious deletions no 'blanks,' 'Xs,' strike-throughs, or the word 'deleted.' Detective Harai read the statement to the jury as a summary in order to avoid the appearance of a redacted statement. Moreover, the record does not show that the jury received a hard copy of the statement. Third, the trial court gave a limiting instruction before the jury heard the statement.
James-Anderson fails to show prejudice from Scott's redacted statement. Thus, the trial court did not abuse its discretion in denying James-Anderson's motion to sever his trial from Scott's.
B. Irreconcilable Defenses
The burden is on James-Anderson to show irreconcilable defenses and prejudice from the trial court's denial of his motion to sever his trial from Scott's. See State v. Grisby, 97 Wn.2d 493, 507, 647 P.2d 6 (1982). James-Anderson fails to meet this burden.
Although at trial both defendants attempted to point to each other as the principal robber, their defenses were not thereby irreconcilable. See Grisby, 97 Wn.2d at 508. Mutually antagonistic defenses, such as the ones here, are irreconcilable so as to warrant severance only if the challenging defendant shows that the defenses are mutually exclusive such that one must be believed and the other disbelieved. State v. McKinzy, 72 Wn. App. 85, 90, 863 P.2d 594 (1993); Grisby, 97 Wn.2d at 508. Such is not the case here.
In Grisby, the co-defendants' defenses were not inherently antagonistic because they agreed they both had been at the crime scene. Rather, their main disagreement was which of them had killed the victims. The Supreme Court held the trial court did not abuse its discretion in denying severance, which defendants had requested based on their antagonistic defenses. Grisby, 97 Wn.2d at 508.
Similar to Grisby, both Scott and James-Anderson agreed and admitted that they were both present at the jewelry store during the robbery, and each wanted the jury to believe that the other was the mastermind of the robbery. As in Grisby, the defenses here were not irreconcilable, and the trial court did not abuse its discretion in denying the motion to sever.
III. Juvenile Convictions
James-Anderson further asserts that his prior juvenile offenses were erroneously included in his offender score calculation. The State responds that because James-Anderson did not turn 23 until after the 1997 amendment to the Sentencing Reform Act (SRA), his prior juvenile adjudications were properly included in his offender score.
James-Anderson was born on September 27, 1976. He committed his first juvenile offense at age 14 in June 1991. He committed his second juvenile offense at age 18 in September 1994. He turned 23 in September 1999. He committed his current offenses in September 2000.
Before the 1997 SRA amendments, RCW 9.94A.030(12)(b)(ii) provided that an adult offender score would include prior juvenile offenses only if the defendant was 15 or older at the time he committed the crimes. In 1996, subsection (iii) was added to provide that, in addition to (ii), prior juvenile offenses were includable in an offender score only if the defendant was less than 23 at the time he committed the offense. State v. Smith, 144 Wn.2d 665, 670, 30 P.3d 1245 (2001). In 1997, the Legislature amended RCW 9.94A.030(12)(b) to eliminate these age restrictions such that all prior juvenile offenses would count when calculating an offender score for sentencing purposes.
Former RCW 9.94A.030(12)(b)(ii) (1996), amended by Laws of 1997, ch. 338, sec. 2, provided in pertinent part:
'Criminal history' shall always include juvenile convictions for sex offenses and serious violent offenses and shall also include a defendant's other prior convictions in juvenile court if: . . . . . . . (ii) the defendant was fifteen years of age or older at the time the offense was committed.
RCW 9.94A.030(12) provides, in part: 'Criminal history' means the list of a defendant's prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere.
Inclusion of a prior conviction in an offender score generally depends on the law in effect when the current offense was committed. Smith, 144 Wn 2d at 672. But the Supreme Court has held that the 1997 amendment did not 'revive' juvenile offenses that had already washed out under former RCW 9.94A.030(12)(b)(ii), before enactment of the 1997 SRA amendment requiring inclusion of such offenses. Smith, 144 Wn.2d at 674-75.
Applying the Smith rationale here, (1) James-Anderson's 1991 juvenile offense washed out under former RCW 9.94A.030(12)(b)(ii) because he was 14 years old when he committed it and he turned 18 before the 1997 amendment; (2) this 1991 juvenile offense remained washed out even after the 1997 SRA amendment to RCW 9.94A.030(12); and (3) that offense should not have counted toward his offender score here. See State v. Cruz, 139 Wn.2d 186, 193, 985 P.2d 384 (1999); State v. Dean, 113 Wn. App. 691, 699, 54 P.3d 243 (2002).
The result differs, however, for James-Anderson's 1994 juvenile offense, which he committed when he was 18, also before the 1997 SRA amendment. James-Anderson was older than 15 when he committed this offense in 1994, and he did not turn 23 until 1999, two years after the 1997 amendment eliminated the 23-year-old 'wash-out' provision. Therefore, because he did not turn 23 before the 1997 amendment, his 1994 juvenile offense did not wash out, and his 1994 juvenile offense was properly included in his offender score under the post-SRA amendment version of RCW 9.94A.030(12).
IV. Sufficiency of Evidence — Possession of Stolen Firearms
Scott contends that the evidence is insufficient to support his two stolen firearm possession convictions, Counts VI and VII (the weapons that the police found in the stolen Blazer) because the State failed to prove beyond a reasonable doubt that he knew the firearms were stolen. He further asserts that the evidence was insufficient to show that he possessed both stolen firearms.
A. Standard of Review
We review a post-conviction challenge to the sufficiency of evidence in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence was sufficient. Salinas, 119 Wn.2d at 201. All reasonable inferences from the evidence are drawn in favor of the State and interpreted strongly against the defendant. Salinas, 119 Wn.2d at 201. A claim of insufficiency admits the truth of the State's evidence and all inferences drawn from it. Salinas, 119 Wn.2d at 201.
B. Knowledge
In order to convict a defendant of possession of a stolen firearm the State must prove beyond a reasonable doubt that a defendant knew that the firearm in his possession was stolen. State v. Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000). Here, the to-convict jury instructions included this element.
Scott admitted to the police that he knew the Blazer was stolen, he had looked at its contents on the way to the robbery, and he had noticed two ski masks, several handguns, and two rifles in the stolen Blazer. But he did not admit knowing that these items were stolen, and there is no evidence in the record before us showing that Scott also knew that these firearms were stolen. Nor is there any evidence supporting a reasonable inference of such knowledge.
On the contrary, it is just as reasonable to infer that the ski masks and firearms were already in the stolen Blazer before they set out to rob the jewelry store. For example, in Scott's redacted statement, he refers only to having been in the car, seeing the weapons, seeing the tampered ignition of the Blazer with no keys, and inferring that the vehicle was stolen. Accordingly, we reverse Scott's convictions for possession of stolen firearms because there is insufficient evidence to support these convictions under Anderson.
V. Firearm Sentencing Enhancements
The defendants next argue that because the information charging Count V omitted critical words 'and in the commission thereof the defendant was armed with a firearm, to wit: a rifle' the trial court should have dismissed the weapon enhancements in that count. Br. of Resp. at 29-30.
A. Standard of Review
RCW 10.37.052 provides that the information must be presented in such a manner 'to enable a person of common understanding to know what is intended.' The charging document need not use the exact words of the statute; rather, it is sufficient if the words conveying the same meaning and import are used to give reasonable notice to the defendant of the charged accusation. State v. Kjorsvik, 117 Wn.2d 93, 108-09, 812 P.2d 86 (1991). If the information contains allegations of the crime that was meant to be charged, it is sufficient even though it does not contain the statutory language. State v. Campbell, 125 Wn.2d 797, 801, 888 P.2d 1185 (1995).
Moreover, when a defendant waits until after a verdict to object to the way in which the offense was charged, the reviewing court applies a liberal standard. Kjorsvik, 117 Wn.2d at 103. Under this liberal standard, we apply a two-prong analysis: (1) Do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and if so, (2) can the defendant show that he was nonetheless actually prejudiced by the inartful language that caused a lack of notice? Kjorsvik, 117 Wn.2d at 105-06. We answer yes to the first question and no to the second.
B. Kjorsvik Test
Count V of the information read as follows:
And I, JOHN W. LADENBURG, Prosecuting Attorney aforesaid, do accuse JOSHUA DEAN SCOTT and DOUGLAS SEAN JAMES-ANDERSON of the crime of POSSESSING STOLEN PROPERTY IN THE FIRST DEGREE, a crime of the same or similar character, and/or a crime based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, and/or so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the others, committed as follows:
That JOSHUA DEAN SCOTT and DOUGLAS SEAN JAMES-ANDERSON, acting as accomplices, in Pierce County, on or about the 16th day of September, 2000, did lawfully, feloniously, and knowingly receive, retain, possess, conceal, or dispose of stolen property other than a firearm, to-wit: a 1990 Chevrolet Blazer, of a value in excess of $1,500.00, belonging to Esperanza Mattos, with intent to appropriate said property to the use of any person other than the true owner or person entitled thereto, and in the commission thereof the defendant was armed with a firearm, that being a firearm as defined in RCW 9.41.010, and invoking the provisions of RCW 9.94A.310, and adding additional time to the presumptive sentence as provided in RCW 9.94A.370, contrary to RCW 9A.56.140(1) and RCW 9A.56.150(1) and 9A.08.020, and against the peace and dignity of the State of Washington.
Clerk's Papers (CP) James-Anderson at 3, CP Scott at 18.
The defendants contend that this part of the information provided no alleged facts to support the idea that either defendant or an accomplice was armed with a deadly weapon or displayed what appeared to be a deadly weapon during commission of the crime or immediate flight from the crime.
The State concedes that the language 'and in the commission thereof the defendant was armed with a firearm, to wit: a rifle' was inadvertently omitted from the information. Br. of Resp. at 29-30. The State argues that even so, the only 'reasonable interpretation' of the language used is that it sought a sentencing enhancement based on use of a weapon. We agree.
Our Supreme Court has held that an information is sufficient if it contains statutory language and cites the statute(s) the State relies on in charging a defendant. State v. Theroff, 95 Wn.2d 385, 392, 622 P.2d 1240 (1980) (citing State v. Cosner, 85 Wn.2d 45, 50-51, 530 P.2d 317 (1975)). See also State v. Henthorn, 85 Wn. App. 235, 239, 932 P.2d 662 (1997). Here, as the State argues, the language used in Count V, 'adding additional time to the presumptive sentence as provided in RCW 9.94A.370,' gave notice to the defendants that the State sought an enhanced sentence based on possession of a firearm while in possession of the stolen Blazer. Thus, it met the first prong of the Kjorsvik test.
B. Prejudice
Count V of the information also meets the second prong of the Kjorsvik test because the defendants have failed to show (1) lack of notice of the firearm enhancement charge that might have impaired their ability to mount a defense, and (2) any prejudice resulting from the inadvertent omission of some of the standard charging language. Accordingly, the trial court did not err in denying the defendants' motion to dismiss the weapons enhancement charge in Count V.
We affirm all convictions except Counts VI and VII, Scott's convictions for possession of stolen firearms, which we reverse. We remand James-Anderson's case for recalculation of his offender score and resentencing without including his 1991 juvenile offense.
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.
On December 14, the trial court continued the trial for more than two weeks beyond the defendants' speedy trial time because of a crowded schedule. Nevertheless, the majority holds that the defendants' speedy trial rights were not violated because trial commenced when the court began hearing pretrial motions on December 14.
We have approved minor delays beyond the speedy trial period where the case has been assigned and called for trial, but jury selection, opening statements, and testimony do not start for several days while the trial court hears pretrial motions. For example, we decided that the speedy trial rule was not violated where the court heard pretrial motions on the last day of the speedy trial period, but did not empanel a jury until the following week. State v. Carlyle, 84 Wn. App. 33, 925 P.2d 635 (1996). Division One reached a similar conclusion in State v. Andrews, 66 Wn. App. 804, 832 P.2d 1373 (1992).
But the delay in these cases was short. In Carlyle, the court heard pretrial motions on a Friday, and a jury was empanelled the following Wednesday. In Andrews, which involved three consolidated cases, the trial was delayed from Friday to the following Monday, then another three days, and finally one more day. More importantly, we have allowed these delays only where the case has been called for trial. '[A] trial commences when the case is assigned or called for trial and the trial court hears and disposes of preliminary motions.' State v. Carson, 128 Wn.2d 805, 820, 912 P.2d 1016 (1996); see also Carlyle, 84 Wn. App. at 36; Andrews, 66 Wn. App. at 810. And our reasoning has been that hearing preliminary motions after a case is called for trial 'is considered a customary and practical phase of the trial.' Andrews, 66 Wn. App. at 810.
Here, the majority goes beyond the bounds we have set in earlier cases. This case was not called for trial on December 14 or 15; rather, it was called for the purpose of continuing it more than two weeks. And the fact that during the two week period the trial court heard pretrial motions does not alter this essential reality. In short, this case was not called for a trial that was delayed a few days because of pretrial motions.
Because of this, I dissent. I would hold that because the defendants' speedy trial rights were violated, this case should be dismissed.