Opinion
No. 24263-3-III.
December 12, 2006.
Appeal from a judgment of the Superior Court for Benton County, No. 04-1-00799-6, Robert G. Swisher, J., entered June 8, 2005.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA, 99169-1408.
Counsel for Respondent(s), Andrew Kelvin Miller, Benton County Prosecutors Office, M/s G, 7122 W Okanogan Ave, Kennewick, WA, 99336-2341, Heather Dawn Czebotar, Attorney at Law, 7122 W Okanogan Pl Ms G, Kennewick, WA, 99336.
Affirmed in part and reversed in part by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Schultheis, J.
Sergio Oliva appeals his convictions for delivery of a firearm to an ineligible person, possession of a short-barreled shotgun, and bail jumping. We hold the evidence is sufficient for the weapon charge, but insufficient as to the possession of a short-barreled shotgun and bail-jumping charge. The State agrees the failure to give a unanimity instruction was error on the weapon possession count, and we decide it was not harmless. We reject all other contentions made by Mr. Oliva through counsel and pro se. Accordingly, we reverse the possession of a short-barreled shotgun and bail jumping convictions but affirm the conviction for delivery of a firearm to an ineligible person.
FACTS
In July 2004, while investigating a June 2004 homicide, Kennewick Police Detective Rick Runge developed information that Sergio Oliva had supplied the sawed-off shotgun used in the homicide. The lead was developed from Jose Barragan, a participant in the homicide events, who said his unapprehended friend, Luis Barragan, was the shooter. The State initially charged Mr. Oliva with possession of a short-barreled shotgun and delivery of a firearm to Luis, an ineligible person (under 18 years of age). The State added a bail jumping charge when Mr. Oliva failed to appear at necessary hearings.
At trial, Detective Runge described his contact with Mr. Oliva, relating Mr. Oliva said that Luis Barragan had asked him if he had any guns. Mr. Oliva said he didn't, but "he might be able to hook him up." Report of Proceedings (RP) (May 26, 2005) at 49. According to Mr. Oliva, he and his good friend, Julio Garcia, met someone the same night known simply as "Rene" who Mr. Oliva believed could supply guns. At around 2:00 a.m. the next morning, Mr. Oliva called Rene from Mr. Barragan's home to arrange a meeting between Mr. Barragan and Rene. Rene soon arrived at Mr. Barragan's house with a sawed-off shotgun that was sold to Mr. Barragan for $60.
While various spellings are found in the record, we use this form for clarity.
According to Mr. Garcia, the sale events took place about one to two months before the homicide. Mr. Oliva denied he personally sold the shotgun. Mr. Oliva did not testify at trial.
Material witness Selene Lopez related she didn't want to come to court, but was unafraid. Ms. Lopez, who worked with Luis, testified Mr. Oliva and Mr. Garcia came to her workplace after the shooting worried that Luis would be caught and would implicate Mr. Oliva by saying "Sergio was holding the gun, or gave it to him. I don't know." RP at 20. Referring to Mr. Oliva, Ms. Lopez said she "confessed" after officers contacted her, "because they told me that somebody else had confessed that he had sold him the gun." RP at 21. Ms. Lopez, again referring to Mr. Oliva, was asked to tell, "what [she] knew about the one gun" and she responded: "That he had sold it to Luis or gave it to him." RP at 22.
The jury learned Detective Runge showed Ms. Lopez a set of photographs during an interview, Exhibit 3, which included a photo of Mr. Oliva. Ms. Lopez signed Mr. Oliva's photo, above which she wrote: "This is the person that said sold the guns to Luis Barragan." RP at 26. Finally, Ms. Lopez said "Yes" when at the end of her direct testimony the State asked: "Selene, is this the person that told you that they sold the shotgun?" RP at 27.
At the end of the State's case, it called Officer John Davis to say Ms. Lopez told a prosecutor the day before that she was afraid to come and testify. During argument, the State appeared at one point to be arguing accomplice liability, apparently when commenting on Mr. Oliva's defense that relied on Mr. Garcia to minimize Mr. Olivia's involvement.
Regarding the bail jumping charge, Mr. Oliva signed a notice of court appearances and advisement of rights that notified him he was required to be present at an omnibus hearing on October 27, 2005. Mr. Oliva was present on October 27, and the court continued the hearing, at the parties' request, to November 10, 2005. Mr. Oliva did not appear on November 10. The court continued the hearing to November 17, 2005, and Mr. Oliva, again, failed to appear. The jury convicted Mr. Oliva as charged. Mr. Oliva appealed.
ANALYSIS A. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Oliva's convictions for possessing a short-barreled shotgun, delivering a firearm to an ineligible person, and bail jumping.
We review a challenge to the sufficiency of the evidence in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We consider the State's evidence true and consider all reasonable inferences for the State. Id. Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the fact finder in matters of witness credibility and evidence weight. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). We will affirm if the trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinas, 119 Wn.2d at 201.
First, regarding the gun possession and delivery counts, the State did not try Mr. Oliva as an accomplice as Mr. Oliva now contends. The State relied mainly upon Ms. Lopez's damaging testimony showing Mr. Oliva's admissions of guilt to her.
An individual is guilty of unlawful possession of a short-barreled shotgun if he "sell[s], . . ., furnish[es], . . ., or ha[s] in [his] possession or . . . control? any . . . short-barreled shotgun." RCW 9.41.190(1). An individual is guilty of "deliver[ing]" a firearm to an ineligible person if he "has reasonable cause to believe [the person] is ineligible under RCW 9.41.040 to possess a firearm" because he is under 18 years of age. RCW 9.41.080; RCW 9.41.040(2)(a)(iii).
A court is required to define technical terms for a jury when an instruction is requested. State v. Olmedo, 112 Wn. App. 525, 534, 49 P.3d 960 (2002). Non-technical terms do not need definition. Id. A term is non-technical if its legal definition is the same as its common meaning. Id. Non-technical terms are given their ordinary dictionary meaning if they are not otherwise defined by a statute or by a jury instruction. State v. Edwards, 84 Wn. App. 5, 10, 924 P.2d 397 (1996); State v. Holt, 119 Wn. App. 712, 720, 82 P.3d 688 (2004), overruled on other grounds by State v. Easterlin, 126 Wn. App. 170, 173, 107 P.3d 773 (2005).
The court defined "possession":
Possession means having a firearm in one's custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the item.
Clerk's Papers (CP) at 35.
The court did not define the remaining terms: "sell," "furnish," "control," or "delivery." CP at 38. We may define these terms using a statutory definition or common meaning. Edwards, 84 Wn. App. at 10.
The term "sell" is defined by statute as: "refers to the actual approval of the delivery of a firearm in consideration of payment or promise of payment of a certain price in money." RCW 9.41.010(15). The term "furnish" is commonly defined as: "to provide or supply." Webster's Third New Int'l Dictionary 923 (1993). The term "control" is commonly defined as: "to exercise restraining or directing influence over." Id. at 496. Finally, the term "delivery" is commonly defined as: "the act of putting property into the legal possession of another." Id. at 597.
Our record shows Mr. Oliva admitted to Ms. Lopez that he sold the shotgun to Luis Barragan. Ms. Oliva said she "confessed" basically because she thought someone else had already "confessed" that Mr. Oliva had sold the sawed-off shotgun to Luis Barragan. RP at 21. Ms. Lopez identified Mr. Oliva's photograph and had written: "This is the person that said sold the guns to Luis Barragan." RP at 26. Ms. Lopez said "Yes" when the State asked: "Selene, is this the person that told you that they sold the shotgun?" RP at 27. Mr. Oliva admitted to Detective Runge that he was present when the shotgun was sold to Luis. Mr. Garcia corroborated Mr. Oliva's presence, although he claimed the pair were merely watching TV and did not participate in the shotgun sale.
Given the State's evidence of Mr. Oliva's admissions of direct sale, the jury was free to disregard the evidence about the mysterious Rene entirely. Given this, we do not analyze Mr. Oliva's accomplice liability arguments because under the State's case theory, Mr. Oliva acted as a principal, not an accomplice. And, accepting the State's theory, as the jury apparently did, the jury could easily find Mr. Oliva possessed the sawed-off shotgun before delivering it to Luis Barragan, a minor.
Further, the State was not required to define the terms, in addition to possession, since Mr. Oliva did not argue the terms were technical in nature and he did not ask for those instructions below. Olmedo, 112 Wn. App. at 534; see State v. Scott, 110 Wn.2d 682, 691, 757 P.2d 492 (1988) (lack of a defining instruction cannot be raised for the first time on appeal.).
In sum, the evidence supports the convictions for possession of a short-barreled shotgun and delivery of a firearm to an ineligible person.
Second, regarding the bail jumping count, Mr. Oliva argues evidence did not show he knew he was required to appear on November 10, or that he was notified of the continuance of the November 10 hearing and the subsequent requirement that he appear on November 17. The State responds sufficient evidence exists to support Mr. Oliva's conviction since the amended information stated: "on or about the 17th day of November, 2004." CP at 81. The State contends the "on or about" language includes Mr. Oliva's failure to appear on November 10. CP at 80-81. However, we believe the State is required to prove facts supporting the specific date charged, November 17.
An individual is guilty of bail jumping if he fails to appear in court after "having been released by court order . . . with knowledge of the requirement of a subsequent personal appearance before any court of this state." RCW 9A.76.170(1). An individual is considered to have knowledge if he "was given notice of his court date." State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004).
Here, Mr. Oliva signed a notice of court appearances and advisement of rights that required his presence in court on October 27, 2004 (omnibus hearing), December 22, 2004 (pre-trial hearing), and January 3, 2005 (trial). Mr. Oliva was present in court on October 27. The court allowed the parties to continue the hearing until November 10. Mr. Oliva was responsible to appear on November 10, but did not. The court continued the case until November 17, where Mr. Oliva, again, failed to appear.
The instructions required Mr. Oliva to act knowingly. Mr. Oliva was present in court and given notice of the requirement to appear on November 10. The November 10 hearing was a continuation of the October 27 hearing, in which his presence was required. The jury could have found Mr. Oliva had notice of the November 10 hearing based on the reasonable person standard in the jury instructions. State v. Willis, 153 Wn.2d at 366, 374, 103 P.3d 1213 (2005); Salinas, 119 Wn.2d at 201. But nothing in the record shows that Mr. Oliva received any further notice of the November 17 appearance requirement. Because the charge inexplicably specified November 17, and the evidence does not support a conviction for that date, we reverse.
B. Unanimity Instruction
The issue is whether the trial court reversibly erred in not giving a unanimity instruction for possession of a short-barreled shotgun.
"In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means." State v. Kitchens, 110 Wn.2d 403, 410-11, 756 P.2d 105 (1988). In reviewing "an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt." Id.
An individual is guilty of unlawful possession of a short-barreled shotgun if he "manufacture[s], own[s], buy[s], sell[s], loan[s], furnish[es], transport[s], or ha[s] in [his] possession or under control, any . . . short-barreled shotgun." RCW 9.41.190(1).
The State concedes error in instructing the jury on each of the alternative means listed above without providing a unanimity instruction, but argues the error is harmless because the unsupported alternatives were mere surplusage. State v. Johnson, 1 Wn. App. 553, 555, 463 P.2d 205 (1969). We have determined the evidence is sufficient to support at least one means for committing the shotgun possession count, but considering the defense's accomplice arguments and the other means, we cannot say no other rational conclusion could be reached about the particular means. Thus, we cannot say the error was harmless. Id; State v. Martin, 73 Wn.2d 616, 627, 440 P.2d 429 (1968). Therefore, we must reverse the conviction for possession of a short-barreled shotgun.
C. No Prosecution Misconduct
The issue presented is whether the prosecutor engaged in misconduct when she elicited certain testimony from Detective Runge, impeached Ms. Lopez, and allegedly misled the jury in closing arguments.
A defendant may raise the issue of prosecutorial misconduct for the first time on appeal. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). A claim for prosecutorial misconduct places the burden on the defendant to show: (1) the prosecutor engaged in misconduct, and (2) the misconduct prejudiced the jury. Id.
A prosecutor's statements are reviewed for misconduct "within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." Id. Misconduct is prejudicial if "there is a substantial likelihood that the . . . misconduct affected the verdict." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). The prosecutor's comments must be "so flagrant and ill intentioned that it cause[d] an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Id. at 86.
First, Mr. Oliva contends the prosecutor engaged in misconduct by eliciting testimony from Detective Runge regarding Mr. Oliva's credibility. The State cannot elicit an opinion from a witness regarding the credibility of another witness. State v. Walden, 69 Wn. App. 183, 185, 847 P.2d 956 (1993). Credibility determinations are to be left solely to the jury. Walden, 69 Wn. App. at 186-187.
Detective Runge testified he employed a ruse to question Mr. Oliva, telling Mr. Oliva he had witnesses who reported he had sold the gun to Mr. Barragan. On redirect testimony, the State then asked Detective Runge:
Q. When [Mr. Oliva] stated that he did not sell the gun to [Mr. Barragan], was that a true statement, to the best of your knowledge? A. No, that's not a true statement. Q. That he didn't sell the gun to him? A. He didn't do a hand-to-hand transaction, but facilitating it is basically the same thing.
RP at 67.
While these questions and answers may have merely expanded upon the ruse, they may also be understood to relate to Mr. Oliva's credibility and whether he lied when he told Detective Runge he did not sell the gun. The questions were, in that context, improper. Walden, 69 Wn. App. at 186-87. But Mr. Oliva has not shown the testimony was so prejudicial as to require reversal. Russell, 125 Wn.2d at 85-86. Detective Runge explained his opinion by stating Mr. Oliva's facilitation of the sale of the gun was "basically the same" as selling it. RP at 67. Mr. Oliva could have objected and asked the court to instruct the jury to either disregard the testimony or to find Mr. Oliva guilty as a principal, and not an accomplice. Russell, 125 Wn.2d at 85-86.
Second, regarding impeachment of Ms. Lopez, Mr. Oliva argues the prosecutor engaged in misconduct when she elicited testimony from Officer Davis to impeach Ms. Lopez on whether she was indeed afraid to testify. A prosecutor cannot bolster a witness' testimony by eliciting a statement from the witness to show the witness is fearful of testifying, without an attack on the witness' credibility. State v. Bourgeois, 133 Wn.2d 389, 400-01, 945 P.2d 1120 (1997). The evidence is impermissible on direct examination since it could lead the jury to view a witness' fear as substantive evidence of guilt (that the defendant has somehow threatened the witness.). Id. at 400.
A prosecutor is, however, permitted to call a witness to impeach a previous witness' statements, so long as the prosecutor does not ask the witness to express an opinion as to his or her beliefs or opinions about the previous witness' credibility. ER 607; State v. Lavaris, 106 Wn.2d 340, 344, 721 P.2d 515 (1986); Walden, 69 Wn. App. at 186-87.
Here, the prosecutor asked Ms. Lopez if she was concerned about testifying and Ms. Lopez responded she was not concerned. Ms. Lopez testified during defense voir dire that she was "kind of scared" when she made statements to the police. RP at 25. Defense counsel managed to elicit testimony that she may have been mistaken in some of her statements to police. The State then called Officer Davis to testify that Ms. Lopez said she was afraid to testify because of Mr. Oliva.
The prosecutor's impeachment of Ms. Lopez, through Officer Davis' testimony, was not improper. ER 607; Lavaris, 106 Wn.2d at 344; Walden, 69 Wn. App. at 186-87. The prosecutor was entitled to impeach Ms. Lopez when she provided inconsistent testimony regarding her statements to police. ER 607; Lavaris, 106 Wn.2d at 344. Officer Davis' testimony explained Ms. Lopez's earlier comment that she was scared to give a statement to police and it provided a reason for the inconsistencies in her statements. Officer Davis did not provide an opinion or belief as to the credibility of Ms. Lopez's testimony. Walden, 69 Wn. App. at 186-87. He instead simply testified to what Ms. Lopez indicated to the prosecutor.
Officer Davis' testimony did not impeach Ms. Lopez on a collateral matter. State v. Dickenson, 48 Wn. App. 457, 468, 740 P.2d 312 (1987). His testimony addressed evidence related to the case against Mr. Oliva. Id.
Further, even if the prosecutor did improperly impeach Ms. Lopez, Mr. Oliva has not shown prejudice. Russell, 125 Wn.2d at 85-86. Mr. Oliva could have asked the court to instruct the jury to disregard the Officer Davis' testimony and rely on Ms. Lopez's previous statements. Id.
Third, Mr. Oliva contends the prosecutor engaged in misconduct when she improperly argued accomplice liability during closing arguments. A prosecutor's closing arguments must be confined to reflect the law, as defined by the jury instructions. State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984). The State cannot argue a defendant is guilty based on the theory of accomplice liability if the jury has not been instructed on accomplice liability. Id.
The deputy prosecutor did not directly use the words "accomplice liability" during closing arguments. RP (May 27, 2006) at 55-63. She did, however, argue Mr. Oliva was guilty of the delivery and possession charges based on his conduct in helping Mr. Barragan to obtain the gun. While the State may have been anticipating the defense argument, it should not misrepresent that accomplice liability was before the jury. Davenport, 100 Wn.2d at 760-61. It is unclear what point the State may have been trying to make by mentioning accomplice liability. In any event, Mr. Oliva has not shown prejudice. Russell, 125 Wn.2d at 85-86. And, no curative instruction was requested. Id. Considering all, we find no reversible error.
D. Confession is Corroborated
The issue is whether the State presented sufficient corroborative evidence to support the admission of Mr. Oliva's confession. Mr. Oliva contends no independent evidence shows he actually "delivered" or "sold" the gun to Mr. Barragan.
The State must present corroborative evidence to establish the corpus delicti, or the "'body of the crime,'" before admitting a defendant's confession. State v. Aten, 130 Wn.2d 640, 655-56, 927 P.2d 210 (1996). Evidence is sufficient if it prima facie establishes the crime charged. Id. at 656 (citing State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995) (quoting 1 McCormick on Evidence  § 145, at 227 (John W. Strong ed., 4th ed. 1992)). Prima facie means "there is evidence of sufficient circumstances which would support a logical and reasonable inference of the facts sought to be proved. The independent evidence need not have been sufficient to support a conviction or even to send the case to the jury." Vangerpen, 125 Wn.2d at 796 (quoted in Aten, 130 Wn.2d at 656).
Here, the necessary independent evidence exists. Mr. Garcia places Mr. Oliva at Mr. Barragan's home when the shotgun was sold. According to Mr. Garcia, Mr. Oliva called Rene, who reportedly arrived at the house with a sawed-off shotgun. Mr. Barragan purchased the shotgun. Mr. Oliva then approached Ms. Lopez and indicated he was concerned Mr. Barragan would tell the police he sold the gun. This is sufficient prima facie evidence of the corpus delicti. Aten, 130 Wn.2d at 656.
E. Effective Assistance of Counsel
Mr. Oliva contends he received ineffective assistance of counsel. But given our rulings so far in rejecting his concerns about corpus delicti, Detective Runge's testimony, Officer Davis' impeachment testimony, and the State's closing arguments regarding accomplice liability, he does not establish any deficient performance for his counsel's alleged failures to object in those areas.
We review ineffective assistance of counsel claims de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). We presume defense counsel's performance was reasonable. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). An appellant must first establish deficient performance by showing "defense counsel's performance fell below an objective standard of reasonableness." Id. at 334. Strategic or tactical reasons do not support ineffective assistance claims. Id. at 336. Next, an appellant must establish prejudice by showing "a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 335.
Mr. Oliva has not established deficient performance. Not having established deficient performance, we need not analyze prejudice because both must exist to establish an ineffective assistance of counsel claim.
F. Additional Grounds for Review
First, Mr. Oliva appears to move for an order allowing him to file a brief and for an order allowing the production of additional transcripts. He is not entitled to file an additional brief. RAP 10.10. Further, Mr. Oliva has not indicated what additional transcripts he needs or how those would be helpful for review. See RAP 9.10.
Second, Mr. Oliva apparently attempts to raise several issues involving facts outside our record that may be raised in a personal restraint petition. McFarland, 127 Wn.2d at 335. Specifically: (1) whether the State failed to provide Mr. Oliva with exculpatory evidence, and (2) whether Mr. Oliva received ineffective assistance because his counsel did not file motions as requested, failed to conduct discovery, improperly released discovery to a private investigator, and coerced Mr. Oliva to waive his speedy trial rights.
Third, Mr. Oliva contends the information failed to allege accomplice liability. But as reasoned here the State was not required to pursue an accomplice liability theory.
Fourth, Mr. Oliva contends the court prejudicially erred when it allowed the State to amend the information to include the bail-jumping charge. But the State amended the information five months before Mr. Oliva's trial. Thus, the amendment was not prejudicial. State v. Hull, 83 Wn. App. 786, 799-800, 924 P.2d 375 (1996).
Fifth, Mr. Oliva contends his speedy trial rights were violated. A defendant has the responsibility to raise a speedy trial objection before a violation of his rights occurs. State v. Becerra, 66 Wn. App. 202, 206, 831 P.2d 781 (1992). The failure to raise an objection constitutes a waiver of the issue. Id. The record does not show Mr. Oliva raised a timely speedy trial objection.
CONCLUSION
We reverse the possession of a short-barreled shotgun and bail jumping convictions but affirm the conviction for delivery of a firearm to an ineligible person.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.