Opinion
No. 36321-6-II.
November 25, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02250-7, Thomas P. Larkin, J., entered May 7, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Bridgewater, J., concurred in by Houghton and Armstrong, JJ .
Montiae Colden McHenry appeals his convictions of fourth degree assault, two counts of second degree assault — count III with a firearm and count IV with a knife, and first degree unlawful possession of a firearm. We reverse count IV, the second degree count with the knife, and remand for retrial; we affirm all other convictions and remand for resentencing on those counts.
FACTS
In May 2006, 15-year-old T.B. was at her home when a man nicknamed Buddha stopped by to get a compact disc from her father, McHenry. McHenry was not home, so T.B. attempted to call him on the phone but was unable to reach him. Buddha left but came back a few minutes later to see whether McHenry had returned, but he had not.
The following morning, McHenry confronted T.B., ordering her to tell the truth about what she had done with Buddha the previous day. T.B. testified that her father punched her several times in the back with his closed fist, causing her to hunch over and then fall to the floor. When T.B. curled up and attempted to protect her face, McHenry started kicking her. McHenry then left the room and grabbed a hammer, which he used to hit her in the knee, on her elbows, and in her back. McHenry stated, "You won't be able to walk no more if you don't tell me the truth, and I'll break your knees and you know that." 4 RP at 132.
When McHenry stopped hitting her with the hammer, he dragged her toward the dining room, where she stood up and then sat on the couch. He then accused her of lying about something and instructed her that she needed to tell the truth. At that point, McHenry became very upset and dragged T.B. back to the kitchen. He said, "I'm tired of you flaunting yourself in the doggone yard," and he then began cutting off her hair, first with a pair of scissors and then with a butcher knife because the scissors would not work. 4 RP at 134. He then pushed her outside and said, "Now you can go and try to be pretty." 4 RP at 136.
When T.B. came back inside the house, she sat on the couch and McHenry continued to ask her to tell the truth. He then picked up a chair and hit her over the head, shattering the chair. McHenry went upstairs to get his gun, which he brought downstairs and placed on a table. He told T.B., "I'll kill you" and when she asked him whether he would actually kill his daughter, he replied, "I'll just shoot you in your foot." 4 RP at 142-43.
Teaisha Jackson, one of T.B.'s two stepmothers came into the house from the yard when McHenry hit T.B. with the chair. McHenry told Jackson, "You guys need to try to get this out of her and just explain to her or something before I end up hurting this girl." 4 RP at 143. McHenry then picked up the gun and fired the gun toward the back of the house, telling T.B. that it was merely a warning shot. At some point, McHenry pointed the gun at T.B. Jackson was in the room when McHenry fired the warning shot. McHenry then took the gun to the basement.
McHenry has two wives, Taeisha Jackson and Turasha Prater, one legal and the other through is mosque.
One of the neighbors called the police to report the gunshot. Detective Terry Krause responded to the call. Detective Krause parked and began walking south on M Street. He heard someone inside 2112 South M Street yelling something to the effect of, "They're not coming in," and then Detective Krause heard the sound of a "rifle action being cycled" followed by a gunshot. 3 RP at 50.
T.B. testified that she heard McHenry tell Jackson to get the police away from the house and to tell them that the noise was a firecracker. Detective Krause testified that the shot did not sound like a firecracker. Officers arrested McHenry when he attempted to leave the house through the back door.
T.B. asked the police to get her an ambulance. Detective Krause testified that T.B. had some kind of facial injury and her hair appeared hacked up. T.B. had a swollen elbow and she limped when walking. Officer Jeff Thiry stated that T.B. complained of injuries and that he could see a large lump forming on her elbow. The hospital photographed T.B.'s many injuries, including injuries to her elbow, knees, back, shoulders, hips, and thighs.
Detective Krause then left the house to obtain a search warrant. Officers recovered at least one big firework in the home, but they did not recover any evidence that anyone had lit a firecracker within the home. They took photographs of the broken chair, clumps of hair, a lamp with a hole in it, a hole in the wall of the living room, several magazines for rifle ammunition, a bag of rifle rounds, a hammer, a butcher knife, and a rifle hidden behind a dresser in the basement.
Among other charges, the State charged McHenry with second degree assault with a deadly weapon — a rifle (count III), second degree assault with a deadly weapon — a knife (count IV), and first degree unlawful possession of a firearm (count V). McHenry stipulated that he could not possess or own a firearm due to a previous conviction for a serious offense.
The jury found McHenry guilty on counts III, IV, and V, and found by special verdict that McHenry was armed with a firearm, a rifle, at the time of commission for count III and was armed with a deadly weapon, a knife, for count IV. The trial court held that the felony assaults in counts III and IV constituted the same criminal conduct for the purpose of McHenry's offender score. The trial court imposed a low-end sentence, including the mandatory 48 months for the sentence enhancements.
ANALYSIS I. Ineffective Assistance For Failure To Request Jury Instructions
Because it is dispositive in this case, we first address one of McHenry's arguments from his Statement of Additional Grounds for Review (SAG). McHenry argues that defense counsel provided ineffective assistance by failing to request a jury instruction that described the "parent discipline defense." SAG at 30. We begin an ineffective assistance of counsel analysis with the strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The claimant bears the burden of demonstrating ineffective assistance. McFarland, 127 Wn.2d at 337. To prove ineffective assistance, a defendant must show that counsel's deficient performance resulted in trial prejudice. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996), overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
RAP 10.10.
Differences of opinion regarding trial strategy or tactics will not support a claim of ineffective assistance. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). And "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691. On direct appeal, we do not consider matters outside the record. McFarland, 127 Wn.2d at 335, 338 n. 5.
McHenry argues that defense counsel was deficient by failing to offer a "parent discipline defense" as provided in RCW 9A.16.020(5) and State v. Singleton, 41 Wn. App. 721, 723, 705 P.2d 825 (1985) as a viable defense against count IV. SAG at 30. While RCW 9A.16.020 does not discuss parent discipline, RCW 9A.16.100 does:
It is the policy of this state to protect children from assault and abuse and to encourage parents, teachers, and their authorized agents to use methods of correction and restraint of children that are not dangerous to the children. However, the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child. Any use of force on a child by any other person is unlawful unless it is reasonable and moderate and is authorized in advance by the child's parent or guardian for purposes of restraining or correcting the child.
The following actions are presumed unreasonable when used to correct or restrain a child: (1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a closed fist; (3) shaking a child under age three; (4) interfering with a child's breathing; (5) threatening a child with a deadly weapon; or (6) doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks. The age, size, and condition of the child and the location of the injury shall be considered when determining whether the bodily harm is reasonable or moderate. This list is illustrative of unreasonable actions and is not intended to be exclusive.
In order to find that McHenry received ineffective assistance of counsel based on the failure of trial counsel to request a jury instruction, we must find that he was entitled to the instruction, that counsel's performance was deficient in failing to request the instruction, and that the failure to request the instruction prejudiced McHenry. State v. Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007).
Here, Jackson provided testimony that McHenry's religion allowed him, as a father, to cut his daughter's hair if he believed she was using her beauty to be promiscuous. Our state allows parents to physically discipline their children within reason. RCW 9A.16.100.
The related 11 Washington Practice: Washington Pattern Jury Instructions — Criminal 17.07 (2d ed. 1994) (WPIC) provides:
It is a defense to a charge of assault that the force used was lawful as defined in this instruction.
The physical discipline of a child is lawful when it is reasonable and moderate, and is inflicted by a [parent] . . . for purposes of restraining or correcting the child.
You must determine whether the force used, when viewed objectively, was reasonable and moderate.
You may, but are not required to, infer that it is unreasonable to do the following act(s) to correct or restrain a child: [throwing, kicking, burning, or cutting a child] [striking a child with a closed fist] [shaking a child under age three] [interfering with a child's breathing] [threatening a child with a deadly weapon] [doing any act that is likely to cause, and which does cause, bodily harm greater than transient pain or minor temporary marks. You shall consider the age, size, and condition of the child, and the location of the injury, when determining whether the bodily harm is reasonable or moderate.] This inference is not binding upon you, and it is for you to determine what weight, if any, such inference is to be given.
The [State] [City] [County] bears the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the [State] [City] [County] has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
Note on Use
Use this instruction when the defense is raised that the defendant was lawfully disciplining a child.
11 WPIC 17.07, at 209-10.
It is unclear strategically why defense counsel did not present this defense. We hold that McHenry received ineffective assistance when trial counsel failed to request this instruction because McHenry, as T.B.'s father, was entitled to the instruction. Counsel's performance was deficient in failing to request the instruction, and that the failure to request the instruction prejudiced McHenry. Johnston, 143 Wn. App. at 21. Accordingly, we reverse McHenry's conviction for count IV and remand for retrial on this count.
II. Sufficiency for Second Degree Assault with a Firearm
McHenry next contends that insufficient evidence supported his second degree assault with a firearm conviction. "In a claim of insufficient evidence, a reviewing court examines whether ' any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,' viewing the evidence in the light most favorable to the State." State v. Brockob, 159 Wn.2d 311, 336, 150 P.3d 59 (2006) (citing State v. Hughes, 154 Wn.2d 118, 152, 110 P.3d 192 (2005)). When a criminal defendant challenges the sufficiency of the evidence, we must draw all reasonable inferences from the evidence in favor of the State and interpret it most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Moreover, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
In order to establish second degree assault with a firearm, the State must prove that on or about May 18, 2006, McHenry assaulted T.B. with a deadly weapon, a rifle, and that the acts occurred in the State of Washington. McHenry contends that the State offered only T.B.'s uncorroborated testimony. Specifically, he faults the State's lack of ballistic evidence of new bullet holes, the lack of other eyewitnesses, and the lack of any allegations that the bullet struck any person or object. This argument fails.
Here, T.B. testified that McHenry brought the firearm downstairs and set it on the table before telling her that he was going to kill her, or alternatively, that he would shoot her in the foot. She testified that he actually fired the gun. McHenry pointed the gun at T.B. Detective Krause testified that he heard the sound of a "rifle action being cycled," followed by a gunshot, and that the shot did not sound like a firecracker. 3 RP at 50. Sufficient evidence supported this conviction.
III. Sufficiency for Unlawful Possession of a Firearm
McHenry next contends that insufficient evidence supported his conviction of first degree unlawful possession of a firearm. In order to prove this charge, the State had to prove that on or about the May 18, 2006, McHenry knowingly owned a firearm or had a firearm in his possession or control; that McHenry had previously been convicted of a serious offense; and that the ownership, possession, or control of the firearm occurred in the State of Washington.
McHenry argues that the lack of corroborative physical evidence coupled with the lack of fingerprint evidence proves that insufficient evidence supported his conviction. McHenry stipulated that he had been previously convicted of a serious offense that prevented him from possessing a firearm. The jury heard testimony that Detective Krause heard the gun cycle and fire. The police found the gun in the basement after T.B. testified that McHenry took the gun to the basement and returned without it. T.B. testified that McHenry previously brought the gun into the house after her stepmothers made him mad. The officers recovered several ammunition magazines, one of which was on the kitchen table, and a bag of bullets when they executed the warrant. In addition, the evidence supporting second degree assault supports this count; TB's testimony alone is sufficient for conviction.
The trial court instructed the jury that possession means having a firearm in one's custody or control and that the possession could be actual or constructive. The trial court then defined both actual and constructive possession. Sufficient evidence supported this conviction.
IV. Prosecutorial Misconduct
McHenry contends that the prosecutor committed reversible error when she argued during closing that McHenry had a duty to produce witnesses and when she commented on McHenry's decision not to testify. Br. of Appellant at 13. In order to establish prosecutorial misconduct, McHenry must prove that the prosecutor's conduct was improper and that it prejudiced his right to a fair trial. State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004) (citing State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003)). A defendant can establish prejudice only if there is a substantial likelihood that the misconduct affected the jury's verdict. Carver, 122 Wn. App. at 306. We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Carver, 122 Wn. App. at 306. In addition, a prosecutor's improper remarks are not grounds for reversal if the defense counsel invited or provoked the comments; they are a pertinent reply to defense counsel's arguments, and are not so prejudicial that a curative instruction would be ineffective. Carver, 122 Wn. App. at 306 (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)).
But the trial court must have the opportunity to correct any alleged error, and the defendant's failure to object at trial waives his right to challenge the remarks on appeal. State v. Fullen, 7 Wn. App. 369, 389, 499 P.2d 893, review denied, 81 Wn.2d 1006 (1972), cert. denied, 411 U.S. 985 (1973). Here, defense counsel objected to both alleged errors and, thus, preserved these issues for appeal.
McHenry's first prosecutorial misconduct claim is that the prosecutor commented during her closing argument on his failure to testify.
[THE PROSECUTOR] And inside the black duffel bag downstairs found in the basement, there were additional magazines, empty ones. Inside of the house, there was a bullet hole and another bullet hole in the vase. [T.B] testified that the defendant fired this rifle in [the] house before, that he was the one who caused the bullet holes, that the gun was fired in April of 2004; but the Defense, this is what they want you to believe: The defendant wants you to believe that he had no idea, none whatsoever, that he knew there was a rifle in the house. Why? Because he knows —
[DEFENSE COUNSEL]: I am going to object. The defendant never testified, and I think it is improper for the State to be telling the jury what the defendant wanted.
THE COURT: Well, this is argument, and she has some leeway. You'll get a chance to respond to it. She has a chance to argue what she thinks you're going to argue.
You may continue.
[THE PROSECUTOR]: Counsel is absolutely right, you didn't hear from the defendant, but you heard from his wife. You heard his wife, Mrs. McHenry, testify that he had no idea that there was a rifle in the house. And again, why? Because the Defense knows that the State has to prove that he knew that there was a rifle.
6 RP at 279-80.
The prosecutor referred to the defendant instead of the defense twice during this interaction. The first time, the prosecutor said that the "defendant wants you to believe." 6 RP at 279. It appears that this statement was merely an inadvertent slip of the tongue, as the prosecutor commonly referred to the defense as a whole. McHenry fails to show that a curative instruction would not have been effective to correct this slip of the tongue. Carver, 122 Wn. App. at 306.
After the prosecutor mentioned the defendant, McHenry objected. The second time that the prosecutor referred to the defendant was in response to McHenry's objection, clarifying that it was McHenry's wife that testified that McHenry did not have knowledge. The prosecutor's response was a pertinent reply to defense counsel's arguments and the response was not so prejudicial that a curative instruction would be ineffective. Carver, 122 Wn. App. at 306.
McHenry next contends that during closing argument, the prosecutor improperly attempted to shift the burden to him under the missing-witness doctrine. Under the missing-witness doctrine, where evidence that would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and that party fails to do so, the jury may infer that the evidence would be unfavorable to that party. State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991).
Here, the prosecutor did not present a jury instruction for a missing witness but, during cross-examination, did elicit information from Jackson about Prater's whereabouts. The trial court addressed this issue during the prosecutor's closing argument.
[THE PROSECUTOR]: Ladies and gentlemen, before you decide whether you can believe her or not, think of this: It is my burden. I have the burden to prove beyond a reasonable doubt that he's guilty, and you know that. But you know what else? When the Defense puts on a defense, the defendant doesn't have to prove anything, not one piece of evidence. It is my burden, and I bear that burden gladly; but once he puts on evidence, his evidence is subject to the same level of scrutiny that you would give my evidence, the State's evidence. You have to examine the Defense's evidence in the same manner that you examine the State's evidence, and you have to say to yourselves —
[DEFENSE COUNSEL]: I'll object to this. Your Honor. This is shifting the burden.
6 RP at 290-91. The trial court then excused the jury to hear argument from both sides.
[DEFENSE COUNSEL]: Your Honor, the State may certainly attack what testimony, if any, I put on and ask the jury to disbelieve it. The State is not allowed in a defense of general denial to ask the jury to consider why we haven't called other witnesses. That is a clear shifting of the burden of proof, and therefore, it waters down the burden which the State has in a case like this. I would ask that the Court forbid [the prosecutor] from getting into why we didn't call the other Mrs. McHenry or why we didn't call anyone else.
[THE PROSECUTOR]: The State, in fact, according to the evidence and foundation it laid, was entitled to a missing witness instruction.
THE COURT: Well, that is what I'm just looking at here, and we don't have a missing witness instruction here.
[THE PROSECUTOR]: No, there is not, but it does not prohibit the State from arguing. And if the Court needs case law, I would invite the Court to look at State vs. Jerry Cheatam. It is a Supreme Court decision. It was a case that I tried where the same exact argument, no missing witness instruction, but arguments were made with respect to a key witness that the Defense had failed to produce, and the Supreme Court of Washington said there was no wrong — there was no burden shifting when the foundation had been clearly laid that that witness was particularly available to the Defense.
6 RP at 291-92.
The State then described the evidence it elicited from Jackson about Prater's whereabouts, but the State's argument did not persuade the trial court. The trial court sustained McHenry's objection and instructed the jury to disregard any information about a missing witness. We presume that the jury follows the trial court's instructions. State v. Sivins, 138 Wn. App. 52, 61, 155 P.3d 982 (2007). McHenry's argument fails.
V. Ineffective Assistance
McHenry next asserts that defense counsel erred by failing to file a motion to dismiss following the State's case in chief. Again, we hold that counsel was effective. Strickland, 466 U.S. at 689. McHenry must show that counsel's deficient performance resulted in trial prejudice. Hendrickson, 129 Wn.2d at 77-78.
"The failure to seek dismissal of the charges, where a motion to dismiss would probably be granted, constitutes ineffective assistance of counsel." Johnston, 143 Wn. App. at 18 (citing State v. Carter, 56 Wn. App. 217, 224, 783 P.2d 589 (1989)). "But this court cannot find prejudice unless there is a reasonable probability that the charges would have been dismissed had trial counsel sought a dismissal." Johnston, 143 Wn. App. at 18. There is no likelihood that the trial court would have dismissed McHenry's charges here even if defense counsel had asked for the dismissal.
Next, McHenry claims that his counsel was deficient by failing to request a nexus jury instruction for his two enhancements. This argument fails. State v. Willis, 153 Wn.2d 366, 374, 103 P.3d 1213 (2005), provides that the nexus language is not required if the language of the instruction informs the jury that it must find a relationship between the defendant, the crime, and the deadly weapon. Here, jury instruction 26 required the jury to determine whether there was a connection between the deadly weapon and the defendant, and between the deadly weapon and the crime.
McHenry asserts that his counsel was deficient for failing to point out that the State failed to carry its burden to prove a line of sight between the basement and the living room. This argument lacks merit, as the State has no such burden.
McHenry argues that defense counsel's failure to object to T.B.'s lies prejudiced his case. We do not address matters of credibility. Thomas, 150 Wn.2d at 874-75.
McHenry alleges that defense counsel failed to call a latent print examiner for the defense. Again, differences of opinion regarding trial strategy or tactics do not support a claim of ineffective assistance. Lord, 117 Wn.2d at 883.
He next challenges defense counsel's failure to request an unwitting possession jury instruction. He argues that the main issue at trial was whether he knowingly possessed the firearm. This argument fails because the State already bore the burden of proving knowing possession without the addition of an unwitting possession instruction. To the extent that he argues the jury should have believed his witness's story that the gun belonged to one of T.B.'s friends, we do not review credibility determinations on appeal. Thomas, 150 Wn.2d at 874-75.
In addition to challenging defense counsel's failure to request the instruction, McHenry faults the trial court for failing to provide the instruction. As discussed in McHenry's ineffective assistance argument, he did not need the unwitting possession instruction because the State already bore the burden of proving McHenry's knowledge. The jury found that McHenry knew of the firearm. The trial court did not err.
McHenry presents several arguments involving facts or evidence outside of the record. These include defense counsel's failure to submit into evidence letters from T.B. that expressed fault and failed to inform the trial court that T.B. violated a restraining order, failure to hire a new private investigator, and failure to object when the trial court granted continuances "against the order of" Judge Beverly Grant, who ordered that there would be no more continuances in his case. In addition, McHenry argues that his private investigator's failure to take statements from his wives denied him a fair trial and the trial court erred by granting the continuances. SAG at 42, 47. These issues involve facts outside the record and we will not review them on appeal. McFarland, 127 Wn.2d at 335, 338 n. 5.
This argument fails as well because the facts are outside the record.
VI. Uncharged Offenses
In his SAG, McHenry repeats the prosecutorial misconduct argument from his direct appeal, which we will not address again here, but also adds several additional allegations. Specifically, he challenges the prosecutor's opening statement, in which she described a narrative to which T.B. would testify. The prosecutor described that McHenry punched, kicked, dragged, and broke a chair over T.B.'s head. But, as we mentioned above, T.B. testified to each of these instances. Accordingly, McHenry cannot establish any prejudice.
VII. Sufficiency for Second Degree Assault with a Deadly Weapon
McHenry argues in his SAG that insufficient evidence supported his second degree assault with a deadly weapon, a knife. Specifically, he contends that he cut T.B.'s hair without felonious intent while acting in accord with his religion, T.B. was not afraid while he cut her hair, and the knife did not count as a deadly weapon based on its use.
To convict McHenry of second degree assault with a deadly weapon, a knife, the State had to prove that on or about May 18, 2006, McHenry intentionally assaulted T.B. with a knife and thereby recklessly inflicted substantial bodily harm, or assaulted T.B. with a deadly weapon, a knife, and the acts occurred in the State of Washington. The knife recovered at McHenry's house had a blade of around eight inches in length. Under RCW 9.94A.602, a knife having a blade over three inches constitutes a deadly weapon. Thus, sufficient evidence supports this conviction.
The only remaining question for this court on this issue is whether this conviction violated McHenry's constitutional rights. Article I, section 11 of the Washington Constitution, which absolutely protects the free exercise of religion, provides broader protections than the federal constitution. First Covenant Church of Seattle v. City of Seattle, 120 Wn.2d 203, 229-30, 840 P.2d 174 (1992). We analyze McHenry's claim under the broader Washington protections. State action is constitutional under our constitution if the action results in no infringement of a citizen's right or if a compelling state interest justifies any burden on the free exercise of religion. First Covenant, 120 Wn.2d at 226.
We analyze free exercise claims in a three-part analysis. First, we determine if the parties have an arguably sincere religious belief central to the practice of their religion. Munns v. Martin, 131 Wn.2d 192, 199, 930 P.2d 318 (1997). Second, the challenging party must show that the challenged enactment burdens his free exercise of religion. State v. Balzer, 91 Wn. App. 44, 54, 954 P.2d 931, review denied, 136 Wn.2d 1022 (1998). Once the party establishes a burden on a religious free exercise, this court determines if the burden is offset by a compelling state interest served by the least restrictive means to achieve that interest. Balzer, 91 Wn. App. at 56.
Here, Jackson testified that in his religion, if a man believes that a woman in the family is using her beauty to be promiscuous, the man is allowed to cut her hair. But, this is essentially the only evidence about McHenry's religion found in the record. Without more information, we are not in a position to analyze this claim. As this matter is beyond the record, we need not address it on appeal. See McFarland, 127 Wn.2d at 338 n. 5 ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record").
McHenry clarifies in his SAG that he is not legally married to both women, but only to Prater (now Mrs. McHenry). He married Jackson through his mosque according to the Al Islam practice.
VIII. Consecutive Sentences For Enhancements
McHenry alleges that the trial court erred by sentencing him to two consecutive enhancements. He argues that the trial court determined that counts III and IV constituted the same course of conduct, which it did. It appears that he is faulting the trial court for sentencing him for both special verdict findings. Since we are reversing count IV and are remanding for retrial, we do not address sentencing on the enhancement based on this count except to vacate the sentence and its enhancement. If McHenry is convicted upon retrial, the trial court will be required to impose the enhancement.
XIX. Out-of-State Conviction
McHenry asserts that the trial court erred by including an out-of-state conviction from Oregon when it calculated his offender score. He claims that the trial court failed to compare the conviction to the related crime in Washington and that the Oregon conviction should have washed out. RCW 9.94A.525(2)(c) provides:
Except as provided in (e) of this subsection, class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
(Emphasis added).
Here, the trial court determined that McHenry's third degree assault charge from Oregon was comparable to Washington's third degree assault. The State presented evidence that Oregon released McHenry on May 20, 1999, and that he committed a forgery on October 18, 2002, for which he was convicted in 2005. Accordingly, McHenry's argument fails because he failed to satisfy RCW 9.94A.525's requirement that he not commit any crime within five years of release.
X. Consideration of Enhancements
McHenry contends in his SAG that the trial court erred by allowing the jury to consider his deadly weapon enhancements on counts III and IV. Although we are reversing count IV, we address this argument in relation to count IV because the retrial may require consideration of this same question upon a conviction. His argument fails because RCW 9.94A.602 provides:
In a criminal case wherein there has been a special allegation and evidence establishing that the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant or an accomplice was armed with a deadly weapon at the time of the commission of the crime.
The trial court did not err by requiring the jury to consider McHenry's deadly weapon enhancements by special verdict.
XI. Jury Instructions — Unanimity
McHenry next contends in his SAG that the trial court erred by failing to instruct the jury that it must unanimously agree on the facts supporting each conviction. This argument fails.
McHenry is essentially arguing for a Petrich instruction, which applies in multiple acts cases where the court instructs the jury to unanimously determine the act or incidents that constitute the crime. State v. Petrich, 101 Wn.2d 566, 573, 683 P.2d 173 (1984), overruled on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988). This case is not a multiple acts case and, thus, no Petrich instruction was necessary.
XII. Jury Instructions — Armed Defendant
McHenry claims that the trial court erred by failing to instruct the jury about when a defendant is considered armed. He cites State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), as support for his argument, but Green provides no such direction. Here, the trial court properly instructed the jury as to the elements of second degree assault. This argument fails.
XIII. Opinion Testimony
McHenry next contends that the trial court erred by allowing Detective Krause to testify that he heard a gunshot and by allowing forensics specialist Martin to testify that it can be difficult to recover latent fingerprints from certain materials. ER 702 allowed Martin to explain the difficulty in obtaining latent prints. ER 602 allows witnesses to testify to matters to which the witness has personal knowledge. This argument fails.
ER 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
XIV. Confrontation Rights
McHenry claims that the trial court erred by failing to allow him to confront his accuser, the 911 caller. It is unclear from the record as to who, other than a neighbor, called 911. Both the Sixth Amendment to the federal constitution and article I, section 22 of the Washington Constitution provide an accused person the right to be confronted with the witnesses against him. But, the record here provides merely that a neighbor called 911 when they heard a gunshot, without indicating that that individual witnessed any of the acts or parties in this case. This argument fails.
XV. Miscellaneous Trial Court Errors
A. The Hole
McHenry contends that the trial court erred by allowing Detective Krause to testify about the bullet hole in the dining room because Detective Krause could not state for sure that the rifle found in the basement caused the bullet hole. Again, ER 602 allowed Detective Krause to testify about a bullet hole that he observed. This argument fails.
B. Reason for Officer Thiry's Presence
McHenry contends that the trial court erred by allowing Officer Thiry to testify about why he went to McHenry's residence. It is unclear what McHenry refers to here. Officer Thiry testified that he went to the area after another officer reported that shots had been fired. 4 RP at 103. This testimony was not error.
C. Prater
McHenry contends that the trial court erred by allowing the State to ask Jackson about Prater's whereabouts. ER 602 allowed Jackson to testify about matters to which she had personal knowledge. This argument fails.
D. Improper
Hearsay McHenry argues that the trial court erred by allowing forensic specialist Martin to review forensic specialist Renee Campbell's fingerprint analysis. RAP 2.5(a) provides that we will not review issues not first raised in the trial court. McHenry did not object at the trial court and we deny review of this issue.
E. Biased Expert Testimony
McHenry contends that the trial court erred by allowing forensic specialist Martin to testify because he was actually at the crime scene to take photographs, thus biasing McHenry's trial. It is unclear what McHenry is arguing here. RAP 10.10(c) requires McHenry to inform this court of the nature and occurrence of the alleged error. Because he fails to do so, we decline review of this issue.
XVI. Juvenile Convictions
McHenry asserts that the trial court erred by including two juvenile convictions for second degree assault and unlawful possession of a controlled substance when it calculated his offender score. This argument fails because RCW 9.94A.525 provides for the calculation of McHenry's offender score using both his adult and juvenile previous convictions. RCW 9.94A.525(9).
XII. Search Warrant
McHenry contends that the search warrant in this case was deficient to allow officers to search his residence. The record here does not include the search warrant or any challenge to its sufficiency. As such, we will not review it here. McFarland, 127 Wn.2d at 335, 338 n. 5.
XIII. Probable Cause
McHenry contends that the State lacked probable cause to arrest him. "Probable cause exists when the arresting officers are aware of facts and circumstances, based on reasonably trustworthy information, sufficient to cause a reasonable officer to believe a crime has been committed." State v. Mance, 82 Wn. App. 539, 541, 918 P.2d 527 (1996) (citing State v. Lund, 70 Wn. App. 437, 444-45, 853 P.2d 1379 (1993), review denied, 123 Wn.2d 1023 (1994). The facts and circumstances within the officer's knowledge at the time of arrest determine probable cause. Mance, 82 Wn. App. at 541.
The State's declaration for determination of probable cause establishes ample evidence to support probable cause.
Detective Krause heard a radio call for a possible domestic dispute in progress; he responded to the area and stopped and got out of the car to determine if he could hear anything; Detective Krause noted the front door was ajar at 2112 South "M" St.; from inside 2112 South "M" Detective Krause heard an angry male voice say something to the effect of "They're not coming in" [and] then he heard the action of a firearm and immediately he heard a gunshot[. . . .] the defendant, Montiae Colden McHenry, exited the back of the house.
CP at 3. This argument fails.
XIX. Vehicle Search
McHenry contends that officers illegally searched his vehicle. The record here does not contain any information about officers searching McHenry's vehicle and, accordingly, we do not review this issue. McFarland, 127 Wn.2d at 335, 338 n. 5.
We reverse count IV and remand for retrial; we affirm the convictions of all other counts, but remand for resentencing without the conviction and sentence in count IV.
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.
HOUGHTON, P.J. and ARMSTRONG, J., concur.