Opinion
No. 57174-5-I.
April 9, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-06493-1, Andrea A. Darvas, J., entered October 14, 2005.
Affirmed in part and remanded by unpublished per curiam opinion.
FACTS
Amy Wishart Newman owned a house in Auburn and lived there with her boyfriend, James Shannon. The house was a split-level, and she rented out the lower floor of the house to Shannon's son Jason Shannon, Jason's girlfriend, and their three children. Newman and Shannon shared a bedroom upstairs. Everyone living in the house shared the kitchen upstairs. Newman and Shannon used the laundry facilities downstairs at times convenient for those living on the lower floor.
One night, Newman and Shannon began fighting in a bedroom on the upper floor of the house. Newman ran out of the house, not wearing any shoes, and drove to the home of Ann Shipley, a business acquaintance. Newman told Shipley that she was hurt, and Shipley testified that Newman appeared to be in pain. Shipley drove Newman to the hospital, where she was treated for two broken ribs and a punctured lung. When interviewed by a physician's assistant at the hospital, Newman said that she was injured when a man hit her with the butt of a gun. Police also asked Newman how she was injured, and she told them the same story. She gave them her home address, and police obtained a search warrant. When police arrived at the house, Jason volunteered to police that he had a gun in his bedroom.
In searching the house, police found a Remington rifle in Newman and Shannon's bedroom closet and found an SKS (Samozariadnyis Karabina Simonova) assault rifle in Jason's bedroom. Newman testified at trial that the SKS rifle belonged to her. Police found different calibers of ammunition, some compatible with the SKS rifle, throughout the upper floor of the house (in the living room and near Newman and Shannon's bed). Shannon was charged with second degree assault and two UPFA counts.
At trial, Newman described a different version of events that resulted in her injuries. She stated that she and Shannon had a fight and that after the fight, she went into a dark bedroom. She found a shotgun in the closet and held it in her arms while sitting on a rocking chair. She testified at trial that Shannon found her sitting with the shotgun and was concerned for her safety. She testified that he struggled to get the shotgun out of her arms and that she was injured in the struggle, but that she did not believe he had intended to hurt her. Police never found a shotgun in the house, but Newman testified about when she bought it, where she kept it, and how she handled it during the event in question.
Newman acknowledged that this version of events is different from the one she originally told at the hospital, but explained that she had wanted to hide her methamphetamine use at the hospital. She testified that Shannon wanted to get the shotgun away from her because she was under the influence of methamphetamine, but because she did not want to disclose her drug use, she created a different story at the hospital.
During jury deliberations, the jurors asked the trial court, "Do [the UPFA counts] refer to specific weapons (i.e., Remington, Exh 1 and SKS, Exh 2) or may they include unlawful possession of another firearm (e.g. a shotgun)?" The trial court refused to answer this question, instructing the jury to re-read the instructions. The jury convicted Shannon of second degree assault (domestic violence) and two second degree UPFA counts, and Shannon timely appeals.
ANALYSIS
Sufficiency of the Evidence for One UPFA Conviction
Shannon argues that there is insufficient evidence to support one of his UPFA convictions. Police found two firearms (a Remington rifle and an SKS assault rifle) in Shannon's house, and Newman also testified that Shannon had been in possession of a shotgun that was never found. Shannon argues that the prosecutor conceded that there was insufficient evidence of the shotgun's existence and that the prosecutor thus elected not to rely on the shotgun as a basis for an UPFA conviction. Shannon also argues that there is insufficient evidence he had dominion and control over the SKS assault rifle. We separately address the arguments related to each firearm.
Shotgun
Shannon argues that because the prosecutor conceded during closing argument that there was insufficient evidence to establish the existence of a shotgun, and a jury inquiry indicated that the jurors were considering whether a conviction could be based on the shotgun, one of Shannon's UPFA convictions cannot stand because it violates his right to a unanimous verdict.
Evidence is sufficient if, when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime to have been proved beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). Where the State submits evidence of alternative acts that could independently prove the essential elements of the crime, the State must either elect which factual basis it is relying upon for a conviction or the jury must be instructed that it must unanimously agree on the same act that formed the basis of the conviction. State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988); State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).
Where each of the alternative acts is supported by sufficient evidence and the jury has been instructed that it must unanimously agree, there is no unanimity problem. Petrich, 101 Wn.2d at 571-72.
Shannon acknowledges that the jury was properly instructed under Petrich, but asserts that the State attempted in closing argument to elect to rely on the evidence of the Remington rifle and the SKS rifle — not the shotgun. Shannon argues that the unanimity is an issue because the jury's inquiry during deliberations demonstrates that jurors were considering the shotgun possession as a basis for an UPFA count, even though the prosecutor had admitted that there was insufficient evidence to support the existence of the shotgun and had elected not to rely on the shotgun.
But the prosecutor's closing argument does not amount to an election or a concession that there was insufficient evidence to support the shotgun possession. The prosecutor did acknowledge that the shotgun had not been found at the house and was thus not in evidence — as were the Remington rifle and the SKS rifle — and that he personally believed it was more likely that the Remington rifle (rather than the "mythical" shotgun) was the weapon used in the assault. Verbatim Report of Proceedings (VRP) (Aug. 24, 2005) at 35-36, 67-69. But the prosecutor clearly stated in his rebuttal argument that the jury had
three opportunities to find that Mr. Shannon was in possession of a firearm when he should not have been. One, two and the shotgun, if you buy that theory.
There is an instruction in there that indicates you must all agree on that aspect of it. So if, in fact, you all agree that there is a shotgun, great. If you all agree it's the Remington, great. If you all agree it's the SKS assault rifle, which I point out, I don't think you can hook it up without a screwdriver, it has even a little bayonet on the top there, a handy thing to have around the house. That is fine, but if you can't agree for the shotgun, for the Remington, I think the instruction is clear you must all twelve agree.
VRP (Aug. 24, 2005) at 68-69. This argument demonstrates that the prosecutor did not make an election against the shotgun evidence. The record contained Newman's detailed testimony about this shotgun: when she bought it, where she kept it, how Shannon had injured her with it, and how Shannon was the last person seen holding it. Even when no firearm is recovered, witness testimony is sufficient to sustain an UPFA conviction. State v. Thomas, 150 Wn.2d 821, 875, 83 P.3d 970 (2004). The fact that the prosecutor may have entertained doubts regarding Newman's testimony about the shotgun is irrelevant because credibility determinations are made by the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). As the jury was instructed, attorneys' arguments are not evidence and the jury is free to draw its own conclusions from the evidence presented.
So, despite the prosecutor's doubts about Newman's shotgun testimony, the jurors were free to consider the shotgun evidence while deliberating because the prosecutor did not elect to not rely on the shotgun as a basis for an UPFA charge or concede that there was insufficient evidence to support an UPFA charge based on the shotgun. The jury was properly instructed that it must unanimously agree which act constituted the criminal violation, and we presume that the jury followed its Instructions. See State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983). Because of that instruction, the State was not required to elect which firearms were the bases for the UPFA charges. Because we conclude that the State did not make an election ruling out consideration of the shotgun evidence and there was sufficient evidence of Shannon's possession of the shotgun, there was no unanimity problem if one of the UPFA convictions was based on the shotgun.
SKS Assault Rifle
Shannon argues that there was insufficient evidence presented that he had dominion and control over the SKS rifle or over the premises where the item was found. Therefore, Shannon argues that his due process rights were violated by the UPFA conviction based on the SKS rifle.
Unlawful possession of a firearm can be based on actual or constructive possession. State v. Alvarez, 105 Wn. App. 215, 221, 19 P.3d 485 (2001). Constructive possession may be established by proof of dominion and control either over the item itself or the premises where the item is found. Alvarez, 105 Wn. App. at 221. We agree with the State that sufficient evidence supports Shannon's dominion and control over the SKS rifle.
While police never ascertained whether or to whom the SKS rifle was registered and Jason told police that the firearm was his, there was evidence in the record that Shannon had constructive possession of the firearm. Police found ammunition of several calibers, including a caliber compatible with the SKS rifle, in Shannon's bedroom and in the living room. Furthermore, Newman testified that the SKS rifle was, in fact, her firearm and she did not know it was downstairs — which supports an inference that the SKS rifle was normally kept upstairs. Because Shannon exercised dominion and control over the upstairs portion of the house (where he resided) and there was evidence presented from which the trier of fact could infer that the SKS rifle was routinely kept upstairs, there is sufficient evidence in the record that Shannon exercised dominion or control over the SKS rifle. Because we conclude that the record supports Shannon's dominion or control over the firearm, we need not consider whether Shannon had dominion or control over the part of the house where the firearm was found. Thus, Shannon's due process rights were not violated if one of his UPFA convictions was based on the SKS rifle.
It is arguable whether Shannon had dominion and control over the premises where the rifle was found (in the downstairs portion of the house where he did not reside), but there was nothing that would have prevented him from accessing the SKS rifle downstairs. Given our disposition of this issue on the basis of Shannon's constructive possession of the rifle, we need not determine whether his ability to access amounts to dominion and control over the downstairs portion of the house.
Sufficiency of the Evidence for Assault
Shannon argues that his assault conviction is not supported by substantial evidence because Newman recanted her original version of the crime, which was the only source of evidence about Shannon's intent to assault her. Intent to act is an essential element of assault, and Shannon argues that the State failed to establish intent by substantial evidence.
At the hospital, Newman told medical personnel that a man hit her with the butt of a rifle. Newman also told police that Shannon was the person who hit her. Newman did, on the witness stand, recant many of her statements made to police — including her description of how and why she sustained her injuries — but she never disputed that Shannon caused her injuries. She did testify that she did not believe Shannon intended to hurt her, but that is distinct from whether Shannon intended to act.
A person is guilty of second degree assault if he or she intentionally assaults another and thereby recklessly causes substantial bodily harm. RCW 9A.36.021(1)(a). "Recklessly causing harm is not the same as intentionally causing harm. Thus, under the statute, second degree assault by battery requires an intentional touching that recklessly inflicts substantial bodily harm. It does not require specific intent to inflict substantial bodily harm." State v. Esters, 84 Wn. App. 180, 185, 927 P.2d 1140 (1996). See also State v. Fryer, 36 Wn. App. 312, 316, 673 P.2d 881 (1983).
Either of Newman's versions of how she was injured would establish sufficient evidence to support the jury's finding that Shannon intentionally touched her. Newman originally told medical personnel and the police that she was injured while fighting with Shannon over a gun. At trial, she recanted her earlier version of events, but did not deny that Shannon's handling of the gun caused her injuries. She recanted that the assault had been an act of domestic violence — she testified that she did not believe Shannon intended to hurt her, but was only trying to protect her from using a gun while under the influence of methamphetamine. But the statute does not require that a defendant intend to cause substantial bodily harm, but only that he or she intended to act and in so acting, recklessly inflicts substantial bodily harm — and Newman never denied that Shannon's shoving of the gun caused her injuries. She only denied that Shannon intended to hurt her, but that specific intent to cause substantial bodily harm is not required by the statute. See Esters, 84 Wn. App. at 185. Thus, whether or not the jury believed Newman's original statements or her trial testimony, there was sufficient evidence presented to support the jury's finding that Shannon committed second degree
Same Criminal Conduct
Although a defendant may be charged with a separate UPFA for each firearm possessed, when a sentencing court finds that separate offenses constitute the "same criminal conduct," they count as one crime for offender-score purposes at sentencing. RCW 9.41.040(7), 9.94A.589(1)(a). Multiple crimes constitute the "same criminal conduct" if they result from the same criminal intent, are committed at the same time and place, and involve the same victim. RCW 9.94A.589(1)(a). The "same criminal conduct" statute is construed narrowly such that most crimes are not considered to constitute the same criminal conduct. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997).
At sentencing, neither Shannon nor the State addressed whether Shannon's two UPFA convictions should be considered the same criminal conduct for scoring purposes, and Shannon was sentenced within the agreed standard range. On appeal, Shannon asserts that his counsel was ineffective for failing to argue that the convictions constituted the same criminal conduct. The State initially conceded that Shannon had been prejudiced by counsel's failure to raise this argument and that he should be resentenced. But after the State made this concession, Division Two of this court issued an opinion concluding that a defendant's multiple UPFA convictions did not constitute the same criminal conduct because the firearms were in different areas of the house. State v. Stockmyer, 136 Wn. App. 212, 148 P.3d 1077 (2006). This court granted the State's motion to withdraw its concession of error, and both parties filed supplemental briefing on this issue.
In his supplemental briefing, Shannon argues that the trial court abused its discretion by failing to determine whether the convictions constituted the same criminal conduct, given that Stockmyer had not been decided at the time he was sentenced. But he cites no authority requiring a trial court to determine whether convictions constitute same criminal conduct sua sponte. At the sentencing hearing, the same criminal conduct issue was not before the court because neither party raised it, and the statute does not impose a duty on the trial court to inquire whether crimes constitute "same criminal conduct." See RCW 9.94A.589(1)(a) ("[I]f the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime."). But even assuming the court was required to make a finding, there is nothing to suggest that the court would not have reached the same conclusion reached by the Stockmyer trial and appellate courts — that different rooms in the same house are "different places." Because Shannon has cited no authority requiring the court to, on its own motion, make a finding on "same criminal conduct," and the "same place" requirement was not met here in any event, we conclude that the court did not err in failing to find "same criminal conduct."
In his opening and reply brief, Shannon also argues that his counsel was ineffective for failing to argue that his convictions constituted the same criminal conduct. To prevail on an ineffective assistance of counsel claim, a defendant must show that (1) defense counsel's performance was deficient and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). A defendant must make both showings to prevail on an ineffective assistance claim. Thomas, 109 Wn.2d at 226 (quoting Strickland, 466 U.S. at 687).
The State argues that Shannon cannot establish the second Strickland prong because under Stockmyer, the firearms were recovered in different areas of Shannon's home and, thus, he cannot meet RCW 9.94A.589(1)(a)'s "same place" requirement. While Shannon urges that Stockmyer should not be followed, we conclude that Stockmyer's reasoning does apply here.
In Stockmyer, the defendant was charged with, inter alia, three UPFA counts based on firearms found in his home. Police found one of the firearms in a closet near the front door and one on top of the refrigerator in the kitchen, and Stockmyer shot at police with a third gun that he kept with him in the front room or in his bedroom, depending on where he slept. Stockmyer also kept four firearms in a safe in his friend's garage.
The Stockmyer court reasoned that because the "same place" requirement is construed narrowly and firearms were found in different rooms of the same house, those firearms were not in the "same place" for "same criminal conduct" purposes under RCW 9.94A.589(1)(a). They further reasoned that multiple firearms in different rooms of a felon's home increases danger to police and the public. As to the firearms Stockmyer kept in the safe, the court concluded that those UPFA counts did constitute "same criminal conduct" because the firearms were kept in the "same place."
Shannon argues that an older Division Two case, State v. Simonson, 91 Wn. App. 874, 885-86, 960 P.2d 955 (1998), instead of Stockmyer, should control the result here because Stockmyer merely distinguished Simonson factually without overruling it. In Simonson, the defendant stored six firearms in the bedroom area of a trailer, all near the bed. The court concluded that all prongs of "same criminal conduct" test had been met on those facts, where all six firearms were found in one area and were all accessible from the bed.
But the facts of this case are more analogous to Stockmyer than Simonson. The two firearms found in Shannon's home were in different rooms on different floors of the house. Like the Stockmyer court, we conclude that — particularly because we construe the "same place" requirement narrowly — firearms found in different rooms of the same house do not meet the "same place" requirement of RCW 9.94A.589(1)(a). We find the facts of this case to be an even stronger example of different "places" than Stockmyer, because one of the firearms was found in an area of the house where — due to the living arrangements in the house — Shannon did not routinely have dominion and control. We conclude, therefore, that Shannon's UPFA convictions do not constitute "same criminal conduct," and thus, Shannon has not established that he was prejudiced by his counsel's failure to raise this issue below. We affirm Shannon's sentence because the trial court did not abuse its discretion in counting Shannon's offender score as separate criminal conduct and Shannon's attorney's performance was not prejudicial.
For the foregoing reasons, we affirm.