Opinion
No. 32882-8-II.
Filed: April 11, 2006.
Appeal from Superior Court of Lewis County. Docket No. 03-1-00611-9. Judgment or order under review. Date filed: 01/26/2005. Judge signing: Hon. Richard Lynn Brosey.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 404, Olympia, WA 98501-1189.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 404, Olympia, WA 98501-1189.
Counsel for Respondent(s), Michael Maltby, Ahlf Law Office, 1230 Ruddell Rd SE Ste 201, Lacey, WA 98503-5749.
UNPUBLISHED OPINION
A jury convicted Marty Mullins of delivery of a controlled substance and bail jumping. On appeal, he raises claims of insufficient evidence, instructional error, and evidentiary error. We affirm the delivery conviction but reverse and dismiss the bail jumping conviction because the to-convict instruction contained an otherwise unnecessary element for which there was insufficient evidence. We remand for resentencing.
FACTS
On June 28, 2002, Dennis Morris made a controlled buy of methamphetamine from Mullins in Mullins's home. Mullins's roommate, Laura Lee Jordan, was also present at the buy. Officer Douglas Lee debriefed Morris after the buy and Morris gave a recorded statement. Officer Lee transcribed Morris's recorded statement on the same day.
The State charged Mullins with delivery of a controlled substance, a violation of former RCW 69.50.401(a)(1)(ii) (1998). On August 15, 2003, Mullins was released from custody pending trial and he signed an order setting conditions of release that required him to return to court on 'August 28, 2003 @ 9:30 a.m. and as directed.' Ex. 4. Mullins failed to appear for a hearing on October 9, 2003, and the State amended the information to add a count of bail jumping, a violation of RCW 9A.76.170(1) and (3)(c).
At trial, Morris testified that Mullins sold him methamphetamine. Morris could not recall certain details, such as how the methamphetamine was packaged, whether anyone else was present, or whether Morris and Mullins conversed during the buy. The record suggests that Morris had a change of heart about participating in the controlled buy and testifying against Mullins. The State attempted to refresh Morris's recollection under ER 612 by showing him the transcript of his debriefing statement. Morris remained unsure about certain details, testifying that his memory was '[n]ot that great' and '[y]ou tend to put things behind you after you move forward.' Report of Proceedings (RP) at 86. The State then offered the transcript as an exhibit and sought to admit it as a recorded recollection under ER 803(a)(5). The court sustained defense counsel's objection.
On cross-examination, defense counsel posed the following question to Morris: 'Now, when you gave a statement to the police on the 28th, showing you what has been marked as Plaintiff's Identification 9 . . . you told the police that [Jordan] weighed it and she gave it to you?' RP at 97. Morris answered affirmatively.
On redirect, the State renewed its motion to admit the transcript under ER 803(a)(5). Defense counsel again objected, maintaining that the transcript was inadmissible because Morris had not adopted it when the controlled buy was fresh in his memory. The court overruled the objection, citing Morris's testimony that the transcript was 'an accurate statement at that time given' and '[w]hatever is on that tape is there on that piece of paper.' RP at 101-03. The court permitted Morris to read a portion of the transcript into the record:
THE WITNESS: 'Officer Lee: Today's date is the 28th of June, 2002. The time now is approximately 9:47 a.m. This is a taped statement with a confidential source. Are you aware this is a taped statement?'
This is me. Then I say, 'Yeah.'
This is Officer Lee, 'Is this being done with your permission?[']
This is me, [']Yeah.[']
This is officer Lee. 'Okay. Earlier today did we meet at a pre-arranged location?'
This is me. 'Yeah.'
This is Officer Lee. [']Okay. At the pre-arranged location were you searched?[']
This is me. 'Yeah.'
[']Did you have any drugs or money on you at that time?[']
Then me, [']No, no, no I did not.[']
This is Officer Lee. [']Okay. At that time were you provided with some pre-recorded UNET buy funds?[']
That's all it says.
[THE STATE]: Nothing further.
RP at 109-10.
Jordan corroborated Morris's testimony that Mullins sold him methamphetamine. According to Jordan, she walked into the room as Mullins was weighing the methamphetamine and completing the sale. Jordan testified that the methamphetamine belonged to both her and Mullins.
The jury found Mullins guilty as charged. This appeal followed.
ANALYSIS Bail Jumping Instructions and Sufficiency of the Evidence
A defendant is guilty of bail jumping if he fails to appear for a court appearance after 'having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state.' RCW 9A.76.170(1). Bail jumping is classified by statute as a class A, B, or C felony or a misdemeanor, depending on the class of the underlying crime for which the defendant failed to appear or surrender on. RCW 9A.76.170(3). The underlying crime also determines the seriousness level of the bail jumping charge. See former RCW 9.94A.515 (2001).
Here, the jury was instructed that to find Mullins guilty of bail jumping, it had to find each of the following elements were proved beyond a reasonable doubt:
(1) That on or about the 9th day of October, 2003, the defendant knowingly failed to appear before a court;
(2) That the defendant was charged with Delivery of a Controlled Substance, to-wit: methamphetamine;
(3) That the defendant had been released by court order or admitted to bail with the requirement of a subsequent personal appearance before that court on October 9, 2003;
(4) That the defendant knew of the requirement to subsequently appear before the court on October 9, 2003, at the time the defendant was released or admitted to bail; and
(5) That the acts occurred in the State of Washington.
Supp. Clerk's Papers (CP) at 52 (emphasis added). Mullins raises two issues concerning the to-convict instruction: first, that the instruction omitted the essential element of the class of the underlying offense for the bail jumping charge; and second, that the italicized language added an unnecessary element for which there was insufficient evidence. We reject the first contention but agree with the second.
The underlying offense of a bail jumping charge is an essential element of bail jumping. State v. Ibsen, 98 Wn. App. 214, 217-18, 989 P.2d 1184 (1999); see also Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). But once the jury finds the underlying offense, the statutory classification of the offense is a legal determination for the sentencing court to make. See State v. Hughes, 154 Wn.2d 118, 137, 110 P.3d 192 (2005) (sentencing court retains the authority to make legal determinations). The jury was not required to find the class of the delivery of a controlled substance charge.
However, the to-convict instruction was erroneous in another respect: It compelled the State to prove Mullins 'knew of the requirement to subsequently appear before the court on October 9, 2003, at the time [he] was released or admitted to bail.' Supp. CP at 52. This level of specificity is not required to sustain a bail jumping conviction; the State need only prove that the defendant knew prior to the hearing of his required presence at the hearing for which he failed to appear. See State v. Ball, 97 Wn. App. 534, 536-37, 987 P.2d 632 (1999); State v. Bryant, 89 Wn. App. 857, 870-71, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999). Under the 'law of the case' doctrine, the State assumes the burden of proving otherwise unnecessary elements that are included without objection in the to-convict instruction. See State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998).
The State concedes that the language at issue was unnecessary but it disputes Mullins's interpretation of it. According to the State, Mullins 'did not cease to be admitted to bail or released by the court at the end of [August 15, 2003]. His admission to bail or release was ongoing . . . until the time he was confined again, or his bail was revoked.' Br. of Resp't at 11. Thus, the State maintains it could prove the unnecessary requirement of the to-convict instruction with evidence that Mullins knew of the required October 9 court date at any time while he was on release or bail admittance. The State's position is unpersuasive for at least two reasons.
First, the State's interpretation aligns the phrase 'at the time of release or admittance to bail' with the phrase 'while on release or admittance to bail.' These phrases do not share the same meaning: the first signifies a set point in time while the second signifies a period of time. See generally State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 (1997) (jury instructions interpreted in the way 'a reasonable juror could have interpreted the instruction'); State v. LeFaber, 128 Wn.2d 896, 902, 913 P.2d 369 (1996) (jury instructions must be 'manifestly clear').
Second, even if we accepted the State's interpretation, the record contains no evidence that Mullins learned of the required October 9 court date during his period of release. It appears from the State's closing argument at trial that Mullins signed a court document on August 28, 2003, that set the October 9 court date; this document is not in our record. The State carries the burden of perfecting the record with the evidence that supports its position. RAP 9.2(b), 9.6(a), 10.3(a)(5), 10.3(b); see also In re Pers. Restraint of Davis, 152 Wn.2d 647, 712, 101 P.3d 1 (2004) (closing arguments are not evidence).
The to-convict instruction obliged the State to prove that Mullins knew of the required October 9 court date at the time of his release on August 15, 2003. There is no evidence in the record to support this finding. See State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (standard of review for a challenge to the sufficiency of the evidence). It is undisputed that on August 15, 2003, Mullins knew only that he had a court appearance set for August 28, 2003. Because the evidence was insufficient to support all of the elements of bail jumping as the State set them out in the to-convict instruction, we reverse and dismiss Mullins's bail jumping conviction with prejudice. See Hickman, 135 Wn.2d at 103.
Accomplice Liability Instruction
Mullins also challenges the adequacy of the court's accomplice liability instruction, given for the delivery of a controlled substance count. The instruction provided:
A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word 'aid' means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
Supp. CP at 50. According to Mullins, this instruction is erroneous because it 'allowed the jury to convict if Mr. Mullins was present and ready to assist whether or not he did or said anything.' Br. of Appellant at 6. Mullins is incorrect.
The court's instruction tracks 11 Washington Pattern Jury Instruction: Criminal 10.51, at 136 (2d ed. Supp. 2005). The instruction correctly sets forth the law that accomplice liability exists if, '[w]ith knowledge that it will promote or facilitate the commission of the crime,' an individual 'solicits, commands, encourages, or requests [another] person to commit it' or 'aids or agrees to aid [another] person in planning or committing it.' RCW 9A.08.020(3)(a)(i)-(ii). 'Aid' means assistance through words, acts, encouragement, support, or presence; 'aid' can be accomplished by being present and ready to assist. State v. Borrero, 147 Wn.2d 353, 364, 58 P.3d 245 (2002). This instruction accurately conveyed the law that accomplice liability requires more than either presence at the crime scene, presence plus knowledge of the criminal act, or presence plus assent to the criminal act. The court's accomplice liability instruction was proper. Admission of the Transcript
See In re Welfare of Wilson, 91 Wn.2d 487, 588 P.2d 1161 (1979):
Washington case law has consistently stated that physical presence and assent alone are insufficient to constitute aiding and abetting. Presence at the scene of an ongoing crime may be sufficient if a person is 'ready to assist'. . . .
. . . Even though a bystander's presence alone may, in fact, encourage the principal actor in his criminal or delinquent conduct, that does not in itself make the bystander a participant in the guilt. It is not the circumstance of 'encouragement' in itself that is determinative, rather it is encouragement plus the intent of the bystander to encourage that constitutes abetting. We hold that something more than presence alone plus knowledge of ongoing activity must be shown.91 Wn.2d at 491-92 (citations omitted) (quoted with approval in State v. Everybodytalksabout, 145 Wn.2d 456, 472, 39 P.3d 294 (2002), and State v. Rotunno, 95 Wn.2d 931, 933-34, 631 P.2d 951 (1981)); State v. Ferreira, 69 Wn. App. 465, 471, 850 P.2d 541 (1993) ('A person's physical presence and assent alone are insufficient to establish accomplice liability. He must knowingly aid or agree to aid.') (citations omitted).
Mullins lastly maintains that the court erred in admitting the transcript of Morris's recorded statement under ER 803(a)(5), the hearsay exception for a recorded recollection. We agree but conclude that the error was both invited and harmless.
A record is admissible as a recorded recollection if (1) the record pertains to a matter about which the witness once had knowledge; (2) the witness has an insufficient recollection of the matter to provide truthful and accurate trial testimony; (3) the witness made or adopted the record when the matter was fresh in the witness's memory; and (4) the record accurately reflects the witness's prior knowledge. ER 803(a)(5); State v. Alvarado, 89 Wn. App. 543, 548, 949 P.2d 831, review denied, 135 Wn.2d 1014 (1998). If the record is admitted, it may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. ER 803(a)(5).
The transcript was double hearsay: the recording of Morris's out-of-court statement and the transcription of the recording. Hearsay within hearsay is admissible if each level of hearsay is independently admissible. ER 805. Mullins concedes that the recording was admissible as a recorded recollection but he maintains that the transcript was not. We agree.
The issue here does not involve the best evidence rule. Under ER 1003, a duplicate of a recording is admissible to the same extent as an original unless the authenticity of the original is challenged or it would be unfair to admit the duplicate in lieu of the original. A written transcript is not a duplicate of an electronic recording. State v. Clapp, 67 Wn. App. 263, 272, 834 P.2d 1101 (1992), review denied, 121 Wn.2d 1020 (1993).
The transcript did pertain to a matter that Morris once had knowledge of but lacked a sufficient recollection of at trial to provide truthful and accurate testimony. However, Morris did not make or adopt the transcript while the controlled buy was fresh in his memory. See State v. Derouin, 116 Wn. App. 38, 45 n. 1, 64 P.3d 35 (2003) (discussing cases where the record was not made or adopted by the witness). Nor could he adopt the document two years later at trial when he testified that his memory of the controlled buy was weak. In addition, without adopting or making the transcript, and with a questionable memory of the controlled buy, Morris could not testify that the transcript accurately reflected his recorded statement. And while this foundational element could possibly have been established by Officer Lee's testimony that the transcript accurately reflected the recording, it was not. See Derouin, 116 Wn. App. at 45-47; Alvarado, 89 Wn. App. at 550-52.
Morris offered the following testimony: 'I left there, went down there and I gave a taped statement. You guys transcribed it word for word from that tape. That's what you got. I can't go back. That's what you got. Whatever is on that tape is there on that piece of paper.' RP at 102-03. As this testimony reflects, Morris assumed that the transcript must be accurate.
The transcript was not admissible as a recorded recollection. However, the transcript was potentially admissible subsequent to defense counsel's cross-examination where he read aloud from the transcript and asked Morris: '[Y]ou told the police that [Jordan] weighed it and she gave it to you?' RP at 97. Up to this point, the State had used the transcript only to refresh Morris's recollection. See ER 612. It was defense counsel who first used the transcript as substantive evidence. Under ER 106, the court had discretion to admit other parts of the transcript which in fairness should be considered contemporaneously with the portion defense counsel read. See generally State v. Carroll, 81 Wn.2d 95, 101, 500 P.2d 115 (1972) (appellate court may affirm the trial court on any basis supported by the record). Defense counsel invited the court's error in admitting the transcript as a recorded recollection. See State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996).
The jury was not instructed to consider this question solely for impeachment purposes.
Moreover, any error in admitting the transcript was harmless. A nonconstitutional evidentiary error requires reversal only if the error, within reasonable probability, materially affected the outcome of the trial. State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993). Here, the court did not admit the transcript as an exhibit and the State did not read into the record any portion of the transcript concerning the controlled buy itself. The portion read established only that Morris was searched by Officer Lee before the controlled buy and that he did not have drugs or money beforehand. These facts were undisputed. Mullins's challenge to the admission of the transcript fails.
We affirm the conviction for delivery of a controlled substance, reverse and dismiss the bail jumping conviction with prejudice, and remand for resentencing.
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.
ARMSTRONG, J. and PENOYAR, J., concur.