Opinion
No. 37243-6-II.
January 6, 2009.
Appeal from a judgment of the Superior Court for Mason County, No. 07-1-00487-4, Toni A. Sheldon, J., entered January 7, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Armstrong, J.
UNPUBLISHED OPINION
A jury convicted Michael A. Stromberg of one count of felony violation of a no-contact order for having contact with his ex-girl friend, Marsha Zwieg, on October 18, 2007. At the time of the contact, a Mason County court order prohibited Stromberg from having personal contact with Zwieg and a Kitsap County order prohibited him from coming within 500 feet of Zwieg or her residence. Stromberg appeals his conviction, arguing that (1) the trial court erred by failing to instruct the jury that they must be unanimous as to which order Stromberg violated and (2) the evidence is insufficient to support the jury's guilty verdict because there was no proof that he had personal contact with Zwieg or that he knew she was living on the family property at the time. Because the evidence was sufficient to prove beyond a reasonable doubt that Stromberg had personal contact with Zwieg and was necessarily within 500 feet of her at the time of the contact, Stromberg's appeal lacks merit and we affirm.
Stromberg does not dispute that he had two prior convictions for violating no-contact orders and that, if properly convicted of the charge, it was a Class C felony. RCW 26.50.110(5).
DISCUSSION
Stromberg argues that the violation of the no-contact order charges should be reversed and dismissed because the State failed to present sufficient evidence to meet its burden to prove beyond a reasonable doubt that Stromberg (1) had contact with Zwieg on October 18, 2007, or (2) that he willfully (knowingly) was at her residence on the date in question. He also asserts that, although he did not ask the court to give the jury a unanimity instruction, he may raise this issue for the first time on appeal. RAP 2.5(a)(3); State v. Deal, 128 Wn.2d 693, 698, 911 P.2d 996 (1996). We disagree with both arguments. Sufficiency of the Evidence The Mason County Superior Court instructed the jury that, in order to find Stromberg guilty of violating a no-contact order, the State must prove the following beyond a reasonable doubt:
(1) That on or about the 18 day of October, 2007, [Stromberg] willfully violated the provisions of a no contact or protections order that excluded him from a residence or having contact with Marsha Zwieg;
(2) That [Stromberg] knew of the existence of the no contact or protection order; and
(3) That the acts occurred in the State of Washington.
Clerk's Papers at 35. Our review of the record establishes that the State proved these elements beyond a reasonable doubt.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. State v. Luther, 157 Wn.2d 63, 77, 134 P.3d 205 (quoting State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002)), cert. denied, 127 S. Ct. 440 (2006). A defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. Luther, 157 Wn.2d at 77-78 (citing State v. Alvarez, 105 Wn. App. 215, 223, 19 P.3d 485 (2001)).
In considering the sufficiency of evidence, we give equal weight to circumstantial and direct evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). We defer to the trier of fact on issues of conflicting testimony, witness credibility, 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)). We do not substitute our judgment for that of the jury on factual issues. State v. Israel, 113 Wn. App. 243, 269, 54 P.3d 1218 (2002) (citing State v. Farmer, 116 Wn.2d 414, 425, 805 P.2d 200, 812 P.2d 858 (1991)), review denied, 149 Wn.2d 1013 (2003). "In determining whether the requisite quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case." State v. Jones, 93 Wn. App. 166, 176, 968 P.2d 888 (1998), review denied, 138 Wn.2d 1003 (1999).
Here, our review of the record reveals that overwhelming evidence supports the jury's verdict finding Stromberg guilty of felony violation of a no-contact order.
The State produced copies of two no-contact orders. The first, a Kitsap County order filed July 7, 2003, prohibited Stromberg from contacting Zwieg (d.o.b. 07/07/1959) for five years. The order is signed by Stromberg and expressly provides as follows:
[Stromberg] is RESTRAINED from having any contact whatsoever in person or through others, by telephone, mail, computer, or by any other means, except for service of process of court documents by a third party or contact by [Stromberg's] lawyer with the victim.
[Stromberg] is RESTRAINED from entering or knowingly coming within or knowingly remaining within 500 [feet] of the Victim's [residence and place of work].
Ex. 2.
The second no-contact order was a post-conviction order issued by the Mason County Superior Court on September 5, 2003, and had an expiration date of September 5, 2008. It is also signed by Stromberg and provides:
The court finds that [Stromberg] has been charged with, arrested for, or convicted of a domestic violence offense, and further finds that to prevent possible recurrence of violence, this Domestic Violence No-Contact Order shall be entered pursuant to chapter 10.99 RCW. The person(s) protected by this order is (Name, DOB): Marsha D. Zwieg (070759).
. . . .
[Stromberg] is PROHIBITED from:
. . . .
Coming near and from having any contact whatsoever, in person or though others, by phone, mail or any means, directly or indirectly, except for mailing or service of process of court documents by a 3 party or contact by [Stromberg's] lawyers with the protected person(s).
Ex. 3.
At trial, Zwieg testified that, on October 18, 2007, she was living at "East 72[sic] Coulter Road" in Belfair with her mother, father, brother, and sister. Report of Proceedings (RP) Zwieg identified Stromberg as her ex-boyfriend and testified:
Q. And was he there at the house that day?
A. Yes.
Q. Okay. And was he there when the police arrived?
A. Yes.
Q. And are you aware of there being orders that prohibit him from having contact with you?
A. Yes. I didn't apply for those orders; the Court did.
Q. They're court orders, right?
A. [No audible response.]
Q. Now, about how long was he at the address that day?
A. Just maybe for an hour.
Q. And —
A. I had asked him to come over to winterize my home and he didn't really want to but I needed to get it weatherized for the winter.
Q. Did he ever go inside your house?
A. No.
Q. Was he outside your house?
A. Um . . . yeah.
Q. What was his behavior like?
A. It was okay.
Q. What do you mean by okay?
A. I mean just himself.
Q. Did you guys get into an argument?
A. No.
Q. Anything ever get loud?
A. [No audible response.]
Q. No.
. . . .
Q. Did things get loud at all?
A. No, not between me and him.
Q. Were you the one who called the police?
A. No.
RP at 35-36.
Zwieg then identified Exhibit 1, a certified copy of her driver's license showing her address as 782 East Coulter Creek Road, Belfair, and acknowledged that it showed her true and correct address and date of birth: 07-07-1959. This evidence was sufficient to prove beyond a reasonable doubt that Stromberg violated the Mason and Kitsap County court orders prohibiting and restraining him from having contact with Zwieg.
But the State presented additional evidence. Zwieg's father, Walter Zwieg, testified that around 12:30 or 1 am, his grandson woke him saying that there was a "bunch of hollerin' and screamin' going on." RP at 42. He stated that he went to his daughter's (Zwieg's) trailer where he confronted Stromberg in the driveway "hollerin' and cussing and making all kind of obscene noises." RP at 42. Walter Zwieg asked Stromberg to quit and leave the property. When Stromberg refused, Walter Zwieg had his daughter, Vicki, call the police.
In response to the call, Mason County Sheriff's Deputy Byron Baty was dispatched to 782 East Coulter Creek Road in Mason County where he found Stromberg hiding behind a "leg on the shelter" which covered Zwieg's residence and arrested him. RP at 51.
Stromberg also testified. He admitted being at East Coulter Creek Road but claimed that he had gone there to do some work for Zwieg's brother, who lived in a separate modular home, and that he did not know that Zwieg was living on the family property at that time. Stromberg also asserted that he was not hiding from Deputy Baty but had taken refuge under the shelter because it was raining. He denied that the no-contact orders contained his signature but acknowledged that "it might be a copy of [his] signature." RP at 69.
Based on this overwhelming evidence, the jury found Stromberg guilty of violating a no-contact order and that the offense was committed against a family or household member as charged. The second stage of the trial followed in which the jury was asked to determine whether Stromberg has twice been previously convicted of violating a court order. The jury found that he had. Accordingly, overwhelming evidence supports Stromberg's felony conviction for violating a no-contact order. Unanimity Instruction On appeal, for the first time, Stromberg contends that he is entitled to a reversal of that conviction because the trial court erred by not giving the jury a unanimity instruction. He acknowledges that he did not request an instruction requiring that the jury unanimously agree on which of the alternative means — contact with Zwieg or exclusion from her residence — Stromberg committed.
When two or more acts constitute the offense charged, the jury must agree unanimously on the same act to convict the defendant. State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), overruled in part by State v. Kitchen, 110 Wn.2d 403, 405-06 n. 1, 756 P.2d 105 (1988).
The failure to give a required unanimity instruction is a constitutional violation that is harmless only if a rational trier of fact could have no reasonable doubt as to whether each act established the charged crime. Kitchen, 110 Wn.2d at 411; see also State v. Hanson, 59 Wn. App. 651, 659, 800 P.2d 1124 (1990) (failure to give a unanimity instruction may be raised for the first time on appeal). Assuming without deciding that a unanimity instruction was required, on the evidence presented, a rational trier of fact could have no reasonable doubt that Stromberg knowingly violated court orders prohibiting him from contacting Zwieg in person or at her residence on October 18, 2007. Accordingly, error, if any, in the absence of a jury unanimity instruction was harmless. Statement of Additional Grounds for Review (SAG)
RAP 10.10.
In his SAG, Stromberg complains that when the State produced new evidence on the morning of trial, it deprived his counsel of sufficient time to examine and investigate. The remedies for discovery violations are set forth in CrR 4.7(h)(7)(i), which states that if a party fails to comply with an applicable discovery rule the court may "grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances." CrR 4.7(h)(7)(i); State v. Ramos, 83 Wn. App. 622, 636, 922 P.2d 193 (1996). Here, the trial court offered to continue the trial date but counsel declined.
Although the record suggests that the State was surprised that Zwieg responded to its subpoena, there was no change in the list of witnesses the State had indicated it would call or the evidence of the events that occurred at the Zwieg residence on October 18, 2007. Nothing suggests that the defense counsel required more time to investigate. The new evidence in question was a copy of the Kitsap County no-contact order. This order was substantially identical to the Mason County order except that it also prohibited Stromberg from coming within 500 feet of Zwieg's residence or place of work. According to Zwieg's testimony, Stromberg came to her home at her request to weatherize it and, although he did not enter her home, she had contact with him there for about an hour on October 18, 2007. Stromberg's counsel declined the trial court's continuance offer. Moreover, Stromberg was not denied his right to a fair trial by the untimely disclosure of a no-contact order from an adjacent county.
We affirm.
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. Penoyar, A.C.J., concur.