Opinion
No. 53272-3-I
Filed: April 18, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-06265-7. Judgment or order under review. Date filed: 10/10/2003. Judge signing: Hon. Michael J. Fox.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Amy R. Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Alvin Keys was charged with two counts of second degree assault for pointing a gun at and threatening two women. Although there was evidence that he struck one of the women with his hand, the state did not charge him with fourth degree assault. The jury acquitted Keys of second degree assault but convicted him of two counts of fourth degree assault, a lesser included offense. Keys claims that the state relied solely on the gun actions, and that there was thus insufficient evidence to convict him of fourth degree assault. Keys also asserts that his confrontation clause rights were violated when the trial court limited his cross-examination of a witness. Finally, Keys claims that the DNA sample taken from him was taken in violation of the Fourth Amendment. We hold that the evidence was sufficient to convict Keys and that his confrontation clause rights and his Fourth Amendment Rights were not violated. We affirm.
FACTS
Alvin Keys was charged with unlawful possession of a firearm, reckless endangerment, and two counts of second degree assault. He was tried in September 2003. The two alleged assault victims, Enid Cooper and Dominique Kirvin, testified at trial. The women alleged that on April 24, 2003, Keys got into an argument with Kirvin and another woman at the doorway to Cooper's home. Cooper alleged that when she asked them to take the argument elsewhere, Keys took a gun out of his pocket and stuck it to Kirvin's chest. Cooper testified Keys then put the gun to Cooper's head. After Cooper slapped his hand away, Cooper claimed Keys punched her. Cooper then testified that Keys put the gun to her side and pulled the trigger. Cooper said she then heard another shot as she was going into the house, and her window shattered. Cooper was not injured. Kirvin's testimony was similar to Cooper's, but Kirvin did not testify that Keys put the gun to her chest.
During closing argument, the prosecutor noted that Keys' actions with the gun, rather than the punching, were the basis for the assault charges. Keys proposed jury instructions that included the lesser charge of fourth degree assault, and the trial court gave those proposed instructions. The jury found Keys not guilty on both counts of second degree assault, but guilty on both counts of fourth degree assault. The jury also answered two special verdict forms, finding that Keys was armed with a firearm at the time he committed the assaults. Keys was also convicted of unlawful possession of a firearm and reckless endangerment. He appeals.
Keys received 87 months for the unlawful possession charge, and 12 months each on the other three charges, all misdemeanors. The misdemeanor sentences run concurrently with the felony sentence. Thus, even if the assault charges were reversed, Keys' prison time would remain the same.
ANALYSIS I. Fourth Degree Assault Convictions
Keys argues that there is insufficient evidence to support his convictions for fourth degree assault. He notes that second degree assault includes assault with a firearm, while fourth degree assault is assault with no additional factors. Keys claims that the state elected to rely solely on the actions involving the gun for the assault charges, specifically excluding the punching as a basis for the charges. Since the jury convicted him of fourth degree assault, rather than second degree assault, Keys argues that the jury necessarily did not base its conviction on his actions with the gun. Thus, Keys argues, the jury must have relied on the evidence of punching, which it was prohibited from doing. As a result, Keys claims, his assault convictions must be reversed due to insufficient evidence. We disagree.
Evidence is sufficient if, when viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). "Where the jury's verdict is supported by sufficient evidence from which it could rationally find the defendant guilty beyond a reasonable doubt, we will not reverse on grounds that the guilty verdict is inconsistent with an acquittal on another count." State v. Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988)
Keys cites State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), for the proposition that if the state elects one factual basis for a conviction, the jury may not rely on other acts as a basis for a conviction. In Petrich, the state charged the defendant with one count of indecent liberties and one count of second degree statutory rape; he was convicted on both counts. Petrich, 101 Wn.2d at 568. At trial, numerous incidents of sexual contact were alleged, and the Court held that the state's failure to elect the act upon which it was relying for a conviction deprived the defendant of his right to a unanimous jury verdict. Petrich, 101 Wn.2d at 568. Keys argues that the implication of Petrich is that the jury cannot rely on acts that the state rejects.
Assuming an election was necessary under Petrich, it was made here. The prosecutor said in closing argument that "the assault is not the pushing or the smacking or punching." However, there are not two distinct sets of facts that could give rise to a charge of second degree assault, but rather one continuing course of conduct with the gun. Petrich is inapplicable to cases involving a continuing course of conduct. See State v. Crane, 116 Wn.2d 315, 325-26, 804 P.2d 10 (1991). Keys' arguments fail.
There was sufficient evidence to support the conviction for fourth degree assault of Cooper while armed with a firearm. Cooper testified that Keys put the gun to her head and said "you don't think I'll shoot you." Cooper also testified that Keys "socked" her on the side of her face. This contact was corroborated by Kirvin. Cooper also testified that Keys cocked the gun and put it to her side, and that she was scared.
Cooper later said that she was scared, "but not really", because she thought Keys was mad and was just trying to scare her. However, the jury was entitled to choose the evidence it found to be credible.
There was also sufficient evidence to support the conviction for fourth degree assault of Kirvin while armed with a firearm. Both Cooper and Kirvin testified that Keys was swinging the gun back and forth, threatening to kill everyone. Kirvin also testified that when Keys cocked the gun, she was scared that he might shoot, so she ran inside.
Furthermore, Ng demonstrates that important considerations prohibit us from second-guessing apparently inconsistent jury verdicts. In Ng, the defendant was charged with 13 counts of first degree felony murder, but the jury acquitted him of those counts and found him guilty of 13 counts of first degree robbery, a lesser included offense. Ng, 110 Wn.2d at 35-36. The Court noted the inconsistency, remarking that "[b]ecause the jury found Ng guilty of the underlying robberies and because Ng did not dispute that the killings occurred, the jury should have found Ng guilty of the felony murder charges." Ng, 110 Wn.2d at 45. Nonetheless, the Court held that the inconsistency was not sufficient to overturn the verdict, noting that there was sufficient evidence to support Ng's robbery convictions. Ng, 110 Wn.2d at 48. The Court noted that to hold otherwise would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case[s] the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake.
Ng, 110 Wn.2d at 46 (quoting United States v. Powell, 469 U.S. 57, 66, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984)). Similarly, we must not second-guess the apparent inconsistencies presented by the verdicts here.
II. Confrontation Clause
Keys claims that he was denied his constitutional right to confront witnesses when the trial court refused to allow him to question Cooper about her unauthorized use of another person's credit card. In an interview with an investigator, Cooper said that she was arrested for trying to use someone else's credit card to buy diapers, but was never charged. Keys offered the evidence under ER 608, as a prior incident indicating untruthfulness. In sustaining the prosecutor's objection, the trial court focused on the fact that the issue was not raised in pre-trial motions, noting that the questions would be incriminating to Cooper and she had a right to a lawyer.
The Sixth Amendment guarantees criminal defendants the right to confront and cross-examine adverse witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). The right is subject to the following limits: "(1) the evidence sought to be admitted must be relevant; and (2) the defendant's right to introduce relevant evidence must be balanced against the State's interest in precluding evidence so prejudicial as to disrupt the fairness of the fact-finding process." State v. McDaniel, 83 Wn. App. 179, 185, 920 P.2d 1218 (1996). An error of this type requires reversal unless it is harmless beyond a reasonable doubt. State v. Portnoy, 43 Wn. App. 455, 462, 718 P.2d 805 (1986).
The threshold for relevance is low: evidence is relevant if it tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. Thus, evidence that Cooper essentially committed forgery likely satisfies this low threshold-it was likely relevant to her untruthfulness and credibility. Since there is nothing in the record to indicate that the evidence is so prejudicial that its admission would have disrupted the fairness of the fact-finding process, its exclusion may have been error.
However, even if the exclusion was error, it was harmless. Whether an error of this type is harmless depends on several factors, including: the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contracting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.
Washington courts also use the "overwhelming untainted evidence test" to determine whether constitutional error was harmless. The court will look only at the untainted evidence to determine whether it overwhelmingly leads to a guilty verdict. McDaniel, 83 Wn. App at 187-88. The result is the same under this test: Kirvin's testimony still established that Keys assaulted both Kirvin and Cooper. It also established the basis for the unlawful possession of a firearm and reckless endangerment convictions.
Portnoy, 43 Wn. App. at 462. Here, Kirvin corroborated much of Cooper's testimony, including Keys brandishing and cocking the gun, and Cooper being struck. In addition, Keys was able to impeach Cooper with other, more probative evidence: he showed that her statements to police were inconsistent with her testimony, and that she mentioned a motive at trial that neither she nor anyone else had mentioned before. Thus, the error is harmless beyond a reasonable doubt.
III. Fourth Amendment
Keys argues that the court-ordered DNA sample taken from him pursuant to RCW 43.43.754 was a search in violation of the Fourth Amendment. The search was not conducted pursuant to a warrant. Keys claims that the search was not justified by special needs other than normal law enforcement, an exception to the warrant requirement. Keys asserts that although the Court in State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993), held that RCW 43.43.754 was constitutional under the special needs exception, more recent United States Supreme Court decisions have made the Olivas decision no longer good law.
Keys' arguments have been foreclosed by our recent decision in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004). In Surge, this court held that Olivas had not been overruled. Surge, 94 P.3d at 347. We further held that even if the Olivas special needs analysis was flawed, RCW 43.43.754 was still constitutional under the minimally intrusive search exception and under the "totality of the circumstances" approach of Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995). Surge, 94 P.3d at 351. Thus, Keys' claim must fail.
IV. Additional Grounds for Review
Keys filed a Statement Of Additional Grounds For Review, claiming that Cooper was an unreliable witness. He claims this is due to her mental state, a result of medication and drugs. However, this claim is unsupported in the record; therefore, we need not address it.
Affirmed.
APPELWICK and COX, JJ.