Opinion
Nos. 60143-1-I; 60171-7-I.
October 13, 2008.
Appeals from a judgment of the Superior Court for King County, No. 05-1-13668-1, Richard D. Eadie, J., entered June 8, 2007.
UNPUBLISHED OPINION
Richard Jones and Douglas Freeman were charged and convicted of first degree murder while armed with a deadly weapon, committed by the alternative means of premeditated murder or felony murder predicated on robbery. Jones and Freeman contend that the to-convict instruction did not make clear that the State was required to prove each of the elements for both alternative means of committing murder. Jones argues that the trial court abused its discretion in failing to sever his trial from Freeman's. And Freeman argues that the trial court erred in denying his motion for a mistrial. We affirm the convictions, but remand to correct the erroneous portion of the judgment and sentence relating to community custody.
FACTS
Douglas Freeman was charged with first degree murder while armed with a deadly weapon committed by two alternative means — premeditated murder and felony murder predicated on first degree robbery. He was also charged with second degree taking of a motor vehicle without permission. Codefendant Richard Jones was charged with the same crimes, plus an additional charge of second degree arson. Jones's and Freeman's cases were joined for trial. At trial, witnesses testified to the following events.
David Koenigs hired Richard Jones to help renovate a home he owned in the Beacon Hill area of Seattle. Koenigs allowed Jones to stay at the house during the renovation. Koenigs, who owned a BMW, would sometimes drive to the house after work to check on the progress of the job.
On December 14, 2005, Seattle firefighters responded to the report of a fire at the Beacon Hill house. After extinguishing the fire, they noticed a trail of blood outside the back door. Koenigs' body was found about 25 yards from the house. An autopsy determined that the cause of death was strangulation in combination with a knife wound to the neck, multiple stab wounds, and multiple blunt force injuries to the head. The injuries occurred at roughly the same time.
Detectives recovered a metal bar in the bushes near a concrete path to the north of Koenigs' home. A pair of Koenigs' eyeglasses was also found on the path. Several credit cards belonging to Koenigs were found in the living room of the house. Koenigs' wallet was never recovered. Koenigs' wife Tamara said that her husband had posted a letter on the wall of the Beacon Hill house, listing the names of two individuals working at the home with permission. The letter was not found in the house. Tamara Koenigs recalled that one of the individuals in the letter was named Richard.
The following day, Oregon police officer Nick Neville was at a gas station in plain clothes in an unmarked car. Jones, Freeman, and Freeman's girl friend Ashley Boggess pulled into the gas station and stopped in front of him. They were in a BMW that was later determined to be Koenigs' stolen car. Freeman, who was driving, asked Officer Neville if he had any money for gas. Officer Neville thought it was odd that three people in a clean new BMW would not have money for gas. He ran the car's license plate number and determined that it was stolen from Seattle and connected to a homicide. He notified other officers for assistance, and the three were arrested.
Detectives discovered a knife in the backseat door panel of the BMW. Brian Smith, a man who had previously been hired by the Koenigs to work on the Beacon Hill home, said it was the same knife he had given to Jones. A backpack found in the car contained the letter that Koenigs had posted in the house stating that Jones would be working there. Koenigs' watch was also found in the car.
Police seized the clothing of Jones, Freeman, and Boggess. Washington State Patrol crime lab experts found extensive amounts of Koenigs' blood on both Jones's and Freeman's clothes and boots. It appeared that a knife-like object with blood on it had been wiped on Jones's pants, and one of his pants pockets had a blood transfer stain on the inside, consistent with a person with bloody hands putting his hand in the pocket. Numerous bloodstains, including expirated blood, were found on Freeman's shoes, and contact transfer blood was on his sweatpants. One of Freeman's pants pockets had a blood transfer stain on the inside. Five human hairs found on the bottom of Jones's right boot matched Koenigs' DNA (deoxyribonucleic acid). The knife recovered from the BMW and the metal bar found near Koenigs' house also tested positive for Koenigs' DNA. No bloodstains of evidentiary significance were found on Ashley Boggess's clothing. No fingerprints were recovered from the knife, the metal pipe, or Koenigs' credit cards left at the crime scene.
Boggess testified that she was 70 percent certain that the metal pipe found by police was the same one that she and Freeman had found downtown. She remembered that either Jones or Freeman had cut a hole in their jacket sleeve to carry the pipe.
Ashley Boggess testified at trial as a State's witness. She and Freeman were homeless, living in shelters, a tent city, or on the street. They talked about stealing a car and leaving Seattle. They met Jones outside a shelter, and Jones invited them to stay at Koenigs' house. Two or three days later, David Koenigs showed up at the house. He told Jones that Freeman and Boggess were not supposed to be there.
Boggess had pleaded guilty to taking a motor vehicle without permission in the second degree. A rendering criminal assistance charge was dismissed.
Koenigs returned to the house and was upset to find that Boggess and Freeman were still there. Jones asked Koenigs to step outside. Jones, Freeman, and Koenigs went outside, and on the way out, Boggess heard someone say, "We are going to roll him." 6 Report of Proceedings (RP) (Apr. 23, 2007) at 737. Boggess heard scuffling noises outside. She heard Koenigs say, "Why? Why Richard? I was only trying to help you. Why?" Id. at 739. Eventually Jones and Freeman came back inside. Jones went into the bathroom and washed blood off his hands. They had Koenigs' wallet and car keys, and they went through his wallet. She said Jones poured a liquid on the floor and sprayed an aerosol can in the living room and on the floorboards, but she did not see a fire. She put her belongings in the BMW, and they all left. Boggess said she did not know Koenigs was dead until a detective told her.
Douglas Freeman testified at trial, blaming the killing entirely on Jones. Freeman said that he waited outside on the porch while Jones and Koenigs were talking inside. The door opened and he heard Jones say, "Hey, Dave, come out here. I want to talk to you about something." 7 RP (Apr. 24, 2007) at 944. Koenigs and Jones came outside and walked past Freeman. He heard some "scuffling" that sounded like a fight and walked closer to see what was happening. He saw Jones hitting Koenigs with an iron pipe and heard Koenigs saying, "Richard, why are you doing this? I'm only trying to help you." Id., at 948. Freeman said that he stood five feet away and watched the attack. He went inside and told Boggess not to go outside. He then went back outside and saw Jones stabbing Koenigs. He saw Jones going through Koenigs' pockets. Jones told Freeman to get a flashlight. Freeman went inside, returned with a flashlight, and shined it on Koenigs. Freeman said he "got freaked out," dropped the flashlight, and went back in the house. Id., at 956. Jones came inside with Koenigs' wallet, car keys, and watch. Jones had blood on his hands and clothes. Jones gave Freeman the car keys, and they all drove away in Koenigs' car.
Jones denied killing Koenigs, but he did not testify at trial. Jones's only witness was Michael Chadwick, a prisoner at the King County jail. Chadwick testified that he spoke with Freeman when the two were incarcerated in February 2007. Chadwick said that Freeman admitted murdering someone on Beacon Hill, that Freeman's codefendant was housed at the Regional Justice Center and that "[Freeman] thought he would be able to get off because he said his girlfriend was going to testify that the guy at the RJC did it." 8 RP (Apr. 25, 2007) at 1062. Freeman denied saying these things to Chadwick.
The jury found both Jones and Freeman guilty of first degree murder while armed with a deadly weapon and of taking a motor vehicle without permission in the second degree. Jones was acquitted of arson in the second degree. The trial court imposed standard range sentences. Jones and Freeman appealed.
ANALYSIS
Jury Instructions
Jones and Freeman argue that the "to convict" instruction for first degree murder is defective because it failed to make manifestly apparent that (1) the jury must acquit if the State failed to prove any one element of the crime beyond a reasonable doubt and (2) the jury must find each element of the crime proved beyond a reasonable doubt in order to convict. The State contends that the challenged instruction, when considered in conjunction with other instructions and counsel's closing arguments, clearly conveyed to the jury that the State had to prove each element of either alternative theory of first degree murder.
The challenged instruction for each defendant provided,
To convict the defendant, [Richard Jones] [Douglas Freeman], of the crime of murder in the first degree, as charged in count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
Premeditated Murder
(1) That on or about December 14th, 2005, the defendant, [Richard Jones] [Douglas Freeman] or an accomplice:
a) Killed David Koenigs;
b) Acted with intent to cause the death of David Koenigs;
c) That the intent to cause the death was premeditated;
d) That David Koenigs died as a result of the defendant's or an accomplice's acts; and OR Felony Murder — Robbery
(2) That on or about December 14th, 2005, the Defendant, [Richard Jones] [Douglas Freeman], or an accomplice:
a) killed David Koenigs
b) was committing Robbery in the First Degree;
c) caused the death of David Koenigs in the course of or in furtherance of such crime or in immediate flight from such crime; and
d) That David Koenigs was not a participant in the crime
(3) That the acts occurred in the State of Washington. If you find from the evidence that either elements 1(a), 1(b), 1(c), or 1(d)
OR 2(a), 2(b), 2(c), 2(d) AND element (3) have been proven beyond a reasonable doubt, then it will be your duty to return a verdict of guilty as to Count I. Elements 1(a) — (d) and 2 (a) — (d) are alternatives and only one need be proved. You must unanimously agree that either 1(a) — (d) or 2(a) — (d) has been proved. You are not required to unanimously agree which or either 1(a) — (d) or 2(a) — (d) has been proved.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to 1(a) — (d) and 2(a) — (d) or (3), then it will be your duty to return a verdict of not guilty as to count I.
Clerk's Papers (CP) at 70-71.
The trial judge expressed concern that the jury might find the instruction ambiguous or confusing. Jones's counsel responded, "We are trying to wrap our brains around it. You have to focus on reading. But, I think if you do, it makes sense." 9 RP (Apr. 26, 2007) at 1090. The court agreed that "if you go back and look at what the elements are, it would probably be intuitively obvious that each one of those had to be made. . . ." Id. at 1090-91. The trial court left the instruction unchanged, stating that it would read the "dash" mark in the instructions as "through" when reading the instructions to the jury. Neither defendant objected to this instruction below.
The trial court stated, "Does anybody share a concern that that may be confusing to the jury when it says that you must find that either element 1-A, 1-B, 1-C, and it doesn't say explicitly that you must find either all of the 1's, or all of the 2's and 3's?. . . .Then we get down to elements 1A-2, and 2A alternative, and only one need be proved. Again, this leaves in my mind, and maybe I am being picky about it, some ambiguity when we are saying elements 1A-C, meaning all of 1A through 1B, or are each of them alternatives? I think if you go back and read it, maybe it makes perfect sense because you have to have all of them in there." 9 RP (Apr. 26, 2007) at 1090.
Jones and Freeman now argue that their attorneys were ineffective for failing to object to this instruction. To establish ineffective assistance of counsel, Jones and Freeman must show that defense counsel's representation was so deficient that it fell below an objective standard of reasonableness and that the deficient performance resulted in prejudice such that there was a reasonable probability that the result of the trial would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption that counsel's representation was effective. McFarland, 127 Wn.2d at 335.
Freeman also argues that the defective instruction is a manifest constitutional error that may be raised for the first time on appeal under RAP 2.5(a)(3). A "manifest error affecting a constitutional right" may be raised for the first time on appeal. RAP 2.5(a)(3). A constitutional error is manifest only if it causes actual prejudice. State v. Kirkman, 159 Wn.2d 918, 934, 155 P.3d 125 (2007). "Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case." State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). If a manifest constitutional error was committed, the court undertakes a harmless error analysis. Id. "Whether a flawed jury instruction is harmless error depends on the facts of a particular case." State v. Carter, 154 Wn.2d 71, 81, 109 P.3d 823 (2005). "An erroneous instruction is harmless if, based on the evidence, it appears beyond a reasonable doubt that the error did not contribute to the verdict." State v. Bland, 128 Wn. App. 511, 516, 116 P.3d 428 (2005).
The appellate court reviews the adequacy of a challenged "to convict" instruction de novo. State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003). "Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law." State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). Instructions must make the relevant legal standard "'manifestly apparent to the average juror.'" State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996) (internal quotation marks omitted) (quoting State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984)). Whether a defendant has been accorded full constitutional rights depends on how a reasonable jury would read the instruction. State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 (1997). Instructional error is presumed prejudicial unless it affirmatively appears to be harmless. Clausing, 147 Wn.2d at 628.
Jones and Freeman assert that the "to convict" instruction suffers from three separate infirmities and that reversal is required because these errors were tantamount to omitting an element of the crime from the "to convict" instruction. Automatic reversal is required when an instruction erroneously relieves the State of its burden to prove every element of the crime charged. State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002).
First, the instruction states, "If you find from the evidence that either elements 1(a), 1(b), 1(c), or 1(d) OR 2(a), 2(b), 2(c), 2(d) AND element (3) have been proven beyond a reasonable doubt, then it will be your duty to return a verdict of guilty as to Count I." CP at 71. They claim that the use of the word "either" along with commas would be construed by a reasonable jury to mean that, in order to convict, one need only find that any one element of 1(a), 1(b), 1(c), 1(d), 2(a), 2(b), 2(c), or 2(d) was required to be proved beyond a reasonable doubt.
Second, the instruction states, "Elements 1(a) — (d) and 2 (a) — (d) are alternatives and only one need be proved." CP at 71. They claim that the jury was forced to guess what the word "one" referred to and that a reasonable jury would believe that the phrase "only one need be proved" refers to the individual elements of the alternative offenses rather than the offenses themselves.
Third, the instruction states, "On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to 1(a) — (d) and 2(a) — (d) or (3), then it will be your duty to return a verdict of not guilty as to count I." CP at 71. They claim that a reasonable jury would read this to mean that it had a duty to return a "not guilty" verdict only if it had a reasonable doubt as to all of the first four elements of the first alternative means or all of the first four elements of the second alternative means, rather than understanding that doubt as to any single element of the offenses requires acquittal.
We conclude that Jones and Freeman have failed to demonstrate ineffective assistance of counsel or manifest constitutional error. The "to convict" instruction begins by plainly stating, "[E]ach of the following elements of the crime must be proved beyond a reasonable doubt." CP at 70. It then lists each element of the two alternatives. It would have been preferable for the latter part of the instruction to follow the revised WPICs. But when construed as a whole, a reasonable jury would understand that the instruction placed the burden on the State to prove each element, not just one of the elements. Moreover, instruction 2 specified that the State has the burden to prove each element of the crime beyond a reasonable doubt, and the prosecutor reinforced the proper standard in closing argument. The instructions did not omit an element of the crime or fail to inform the jury that the State had the burden of proving every element beyond a reasonable doubt. There was no manifest constitutional error, and defense counsel were not ineffective for failing to object to this instruction.
WPIC 26.02 and 26.04, the WPIC "to convict" instructions for premeditated first degree murder and first degree felony murder, provide, "On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty." 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 26.04, at 289 (Supp. 2005).
Moreover, Jones and Freeman have not demonstrated prejudice. When an element is omitted from or misstated in a jury instruction, the error is harmless if that element is supported by uncontroverted evidence. Brown, 147 Wn.2d at 341 (2002). Freeman contends that the error was not harmless because his testimony and that of Boggess set up a fundamental conflict in the evidence regarding which defendant was responsible for Koenigs' death. But this argument overlooks the overwhelming evidence that Jones and Freeman were accomplices in the death and robbery — including contact, spatter, and expirated bloodstains that matched Koenigs.
Severance
Jones argues that the trial court abused its discretion in denying his motion to sever his case from that of his codefendant Freeman's because the two codefendants had mutually antagonistic defenses. The State contends that the trial court did not abuse its discretion because Jones has not proved that severance was necessary to promote a fair determination of his guilt or innocence and because Washington law does not mandate a severance even where the defenses are antagonistic. Freeman did not move to sever his case from Jones's at trial, and he does not join in Jones's appeal of this issue.
Jones moved pretrial to sever his trial from that of Freeman's on the ground of antagonistic defenses. He renewed his motion to sever during the evidentiary portion of the trial, and again following the close of evidence. The court denied all of these motions.
CrR 4.4(c)(2) provides that the court should grant a motion to sever when
(i) if before trial, it is deemed necessary to protect a defendants rights to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of a defendant; or
(ii) if during trial upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of the guilt or innocence of a defendant.
Denial of a motion to sever is reviewed for manifest abuse of discretion. State v. Medina, 112 Wn. App. 40, 52, 48 P.3d 1005 (2002). Abuse of discretion occurs when the trial court's discretion is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Separate trials are not favored in Washington. State v. Dent, 123 Wn.2d 467, 484, 869 P.2d 392 (1994). To show that the trial court abused its discretion in denying a motion to sever, the defendant must demonstrate specific prejudice arising from the joint trial. State v. Grisby, 97 Wn.2d 493, 507, 647 P.2d 6 (1982). "Specific prejudice may be demonstrated by showing 'antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive.'" Medina, 112 Wn. App. 52-53 (quoting State v. Canedo-Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995)).
But "the mere existence of mutually antagonistic defenses does not require severance." State v. McKinzy, 72 Wn. App. 85, 89, 863 P.2d 594 (1993). "'Rather, it must be demonstrated that the conflict is so prejudicial that defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.'" Medina, 112 Wn. App. at 53 (quoting State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991)). The defenses must be "mutually exclusive to the extent that one must be believed if the other is disbelieved." McKinzy, 72 Wn. App. 85, 90, 863 P.2d 594 (1993). The joint trial must be so manifestly prejudicial as to outweigh the concern for judicial economy. Hoffman, 116 Wn.2d at 74.
Jones contends that reversal is required because their defenses were mutually antagonistic and irreconcilable. The only potential killers were Jones and Freeman. Jones's defense was that Freeman alone killed Koenigs, and Freeman's defense was that Jones alone killed Koenigs. We disagree. The defenses were not irreconcilable because Freeman's testimony supported a finding of accomplice liability regarding the felony murder — robbery charge. Furthermore, Jones has not demonstrated that the conflict was so prejudicial that the jury unjustifiably inferred from this conflict alone that both were guilty. Even if Freeman had not testified, the jury could have convicted Jones based on the overwhelming evidence that he was a principal or an accomplice to the charged crimes. And the trial court instructed the jury that each defendant's case should be decided separately and that their verdict as to any defendant should not control their verdict as to the other defendant. The jury is presumed to have followed this instruction. Grisby, 97 Wn.2d at 509.
Improper Questioning
Freeman argues that the trial court abused its discretion in denying his motion for a mistrial when defense counsel for Jones asked Freeman two questions regarding his status as a registered sex offender during a lengthy cross-examination. Denial of a motion for mistrial based on alleged misconduct will not be disturbed absent a manifest abuse of discretion. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). The trial court is in the best position to determine whether misconduct prejudiced a defendant's right to a fair trial. State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995). Denial of a motion for mistrial will only be overturned if there is a substantial likelihood that prejudice affected the jury's verdict. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).
A mistrial is warranted where an irregularity occurs during trial and, as a result, the defendant's right to a fair trial is "so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly." State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979). The reviewing court should examine the seriousness of the irregularity, whether the improper statement was cumulative evidence, and whether it could have been cured by an instruction to disregard the remark. State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987). The defendant has the burden of demonstrating the impropriety of the remarks and their prejudicial effect. State v. Guizotti, 60 Wn. App. 289, 803 P.2d 808 (1991). Misconduct can be so prejudicial that it cannot be cured by an objection or a curative instruction. State v. Stith, 71 Wn. App. 14, 23, 856 P.2d 415 (1993). "[R]eversal is not required if error could have been avoided by a curative instruction, but the defense failed to request one." Guizotti, 60 Wn. App. at 296-97.
During a lengthy cross-examination, Jones's counsel asked Freeman, "Is that the name you have to [sic] registered as a sex offender under?" Freeman answered, "No." 7 RP (Apr. 24, 2007) at 1001. Freeman's counsel objected, but the trial court said nothing. Jones's counsel then asked, "Did you tell Tent City that you were a sex offender?" Id. at 1002. Before Freeman could answer the question, his counsel again objected. This time, the trial court stated, "Why don't you move on past this and we'll take it up." Id. 1002.
The following day, Freeman's counsel moved for a mistrial. He argued that the questions were extremely prejudicial and that a curative instruction would reinforce the improper comments and have no curative effect. The prosecutor acknowledged that the questions were improper, but mistakenly asserted that the objections were sustained in arguing that a mistrial was not warranted. The trial court ruled that the questions were not a proper basis to impeach Freeman's credibility, but denied the mistrial motion. The court mistakenly stated that the objections were sustained. The court offered Freeman the possibility of a curative instruction, but he never requested it. The issue of sex offender registration did not come up again at any point during the trial.
Freeman argues that the improper questions caused severe, incurable prejudice. He contends that credibility and character were crucial in establishing reasonable doubt, particularly where the two defendants were pointing the finger at each other. He also argues that the questions prejudiced his affirmative defense to felony murder, which required him to show that he had no reason to believe he was involved in a crime in which someone was going to be assaulted or killed with a weapon. According to Freeman, because sex crimes are the most horrendous of criminal offenses, a jury would improperly conclude that a sex offender would be more likely to be involved in a killing or a robbery resulting in death. The State concedes that the questions were improper, but argues that they were not of sufficient magnitude to deprive Freeman of a fair trial.
We conclude that the trial court did not abuse its discretion in denying Freeman's motion for a mistrial. The two improper questions did not constitute a serious irregularity in the context of the case. Freeman's answer to the first question was simply "no." He did not answer the second question. These questions arose during a lengthy cross-examination relating to Freeman's criminal history. His sex offender status was not logically relevant to the charges he was facing.
Those areas of cross-examination are not being challenged on appeal.
And given the extensive forensic evidence and witness testimony implicating Freeman, the improper questions would not have been a significant factor in the jury's determination of his credibility.
Furthermore, Freeman's counsel did not request a curative instruction even though the court offered to consider one. Freeman, relying on Stith and Escalona, argues that a curative instruction would not have lessened the prejudice. Both cases are factually distinguishable. The irregularities in Stith "clearly reflect[ed] the prosecutor's personal assurances to the jury as to the defendant's guilt" and "impl[ied] that the trial was a useless formality." 71 Wn. App. at 23. And in Escalona, a second degree assault case, the court held that the court's instruction could not cure the prejudicial impact of an improper reference to the defendant's previous conviction for "stabbing someone."
The court reasoned that the seriousness of the irregularity combined with its logical relevance to the charge that the defendant was facing and the weakness of the State's case rendered it incurable by instruction. Escalona, 49 Wn. App. at 256. The potential prejudicial impact of the improper questions in Freeman's case is far less severe.
Community Custody
In the judgment and sentence for both Jones and Freeman, the trial court checked the box ordering community custody pursuant to RCW 9.94A.710, which governs community custody for sex offenses. Jones and Freeman argue that the sex offender term of community custody should be stricken because they were not convicted of a sex offense. The State concedes, and we agree, that this was a scrivener's error that should be corrected. Accordingly, we remand to the trial court to strike this term. CrR 7.8(a); In re Pers. Restraint of Mayer, 128 Wn. App. 694, 701, 117 P.3d 353 (2005).
Statement of Additional Grounds for Review
In a statement of additional grounds for review, Jones states, "The partial DNA found on murder weapon included Douglas Freeman and excluded myself (Richard Jones) as a match." This factual allegation impliedly asserts that the evidence was insufficient to support his conviction. The argument is without merit.
"The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Here, the state crime lab technician testified that there was DNA from two individuals on the knife handle. The major component of the DNA was a match for Koenigs. Regarding the minor component, the technician testified that Jones and Boggess could be excluded but that Freeman could not. This fact does not exculpate Jones. The overwhelming evidence in this case was more than sufficient to prove that Jones was guilty beyond a reasonable doubt.
In sum, there was no ineffective assistance of counsel or manifest constitutional error associated with the jury instructions. The trial court did not err in denying the motion to sever and the motion for mistrial. Accordingly, we affirm both convictions, and remand to the trial court to correct the scrivener's errors regarding terms of community custody for Jones and Freeman.