Opinion
No. 59944-5-I.
June 9, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-06877-3, Jeffrey M. Ramsdell, J., entered April 5, 2007.
Affirmed in part and remanded by unpublished per curiam opinion.
Robert Webster appeals his convictions for attempted first degree murder, felony violation of a court order, and felony harassment. He contends that (1) the trial court's use of the term "victim" in a single jury instruction requires reversal of the attempted murder charge; (2) the jury's verdict on first degree assault must be vacated on double jeopardy grounds; (3) the conviction for felony violation of a court order must be reversed; and (4) the trial court improperly determined his offender score. Because the use of the term "victim" did not result in prejudice, we affirm the attempted murder conviction. We also hold that the trial court did not violate Webster's double jeopardy rights. We accept the State's concession of error regarding the felony violation of a court order, vacate that conviction, and remand for entry of judgment on a misdemeanor violation of a court order. Although we affirm the trial court's determination that the attempted murder and harassment did not constitute the same criminal conduct, Webster's offender score must be recalculated to reflect the reduction caused by vacating his conviction for felony violation of a court order.
FACTS
On September 30, 2006, Terri Edwards went to Robert Webster's apartment despite the fact that he had assaulted her in the past and was subject to a domestic violence order prohibiting contact with her. Webster attacked her with a hammer, hitting her repeatedly in the head, shoulder, and arm. Edwards attempted to fend him off with a small knife or pair of scissors, but Webster continued to hit her with the hammer and yell that he was going to kill her. When she fell to the floor, Webster began strangling her. After hearing a woman's muffled screams and a man yelling, "I'm going to kill you," a neighbor intervened and helped Edwards, who was bleeding profusely, out of the apartment.
The State charged Webster with attempted first degree murder, first degree assault, felony violation of a no-contact order, and felony harassment. At trial, Webster testified that he awoke to find Edwards holding a pair of scissors to his chest, grabbing his groin area, and taunting him. He grabbed the hammer and started swinging it at her to get free of her grasp. When Edwards kept charging at him, he hit her again until he dropped the hammer and crawled out of the apartment to get help.
The jury found Webster guilty as charged. The trial court did not enter judgment on the first degree assault charge, but imposed a standard range sentence on the remaining counts. Webster appeals.
ANALYSIS
Webster first contends that trial court impermissibly commented on the evidence by referring to Edwards as "the victim" in the instruction to the jury regarding self-defense as a defense to attempted murder. Judges may not comment on what the testimony proved or failed to prove or instruct the jury that matters of fact have been established. State v. Baxter, 134 Wn. App. 587, 592-93, 141 P.3d 92 (2006). Where such comments relieve the State of its burden of proving an element of the charged crime, the State must show the absence of prejudice, unless the "`record affirmatively shows no prejudice could have resulted.'" Id. at 593 (quoting State v. Levy, 156 Wn.2d 709, 725, 132 P.3d 1076 (2006)).
Although use of the term "victim" is not encouraged or recommended, it did not necessarily relieve the State of its burden to disprove Webster's self-defense claim under the facts and circumstances of this case. It was undisputed that Webster hit Edwards in the head and shoulders with a hammer a sufficient number of times to cause serious injuries and profuse bleeding. The question was whether Webster's actions were justified by his claimed need to defend himself.
See, e.g., State v. Alger, 31 Wn. App. 244, 249, 640 P.2d 44, review denied, 97 Wn.2d 1018 (1982).
But even if the single use of the word "victim" were considered error, it could not have been prejudicial in this context. First, the State presented overwhelming evidence contradicting Webster's claim of self-defense. Consistent with Edward's testimony, neighbor Tanisha Miller described the muffled female screams she heard from the apartment as "Like scared, like trying to get away or get up or needed help." She also testified that Webster crawled to the door "acting like he was hurt," but that she did not see any injuries on Webster besides a little scratch on his chest, and she did not believe that he was hurt. Police Officer Mark Wong testified that he did not see any marks on Webster, and emergency medical personnel determined that Webster did not need any medical attention despite Webster's claim that he had been stabbed. In addition, other evidence presented at trial tended to support Edward's testimony and undermine Webster's claims. Edwards testified that she came to the apartment with Kentucky Fried Chicken because Webster had asked her to get his dinner. The apartment manager testified that he later found a bag of chicken where Edwards claimed she left it. Contrary to Webster's claim that Edwards attacked him while he was sleeping on his bed, photographs of the apartment showed the bed was neatly made and undisturbed.
The trial court instructed the jury that (1) the jury members were the sole judges of credibility and (2) the jury should disregard any apparent comment on the evidence by the judge. Also, the trial court instructed the jury on self-defense with regard to the first degree assault charge without using the term "victim." In light of the evidence presented and the trial court's complete instructions to the jury, we conclude that Webster was not prejudiced by the single use of the term "victim" and affirm his conviction for attempted first degree murder.
Webster next argues that the jury's verdict on first degree assault must be vacated on double jeopardy grounds. The double jeopardy doctrine prohibits multiple punishments for the same offense in the same proceeding. In re Pers. Restraint of Percer, 150 Wn.2d 41, 49, 75 P.3d 488 (2003). Relying on State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007), Webster contends that the trial court's decision to enter judgment only on the attempted murder verdict was insufficient to avoid a double jeopardy violation.
But in Womac, the Supreme Court determined that the trial court violated double jeopardy by reducing to judgment three separate convictions constituting the same criminal conduct, despite the fact that it only imposed sentence on one count. Womac, 160 Wn.2d at 660. Where, as here, the trial court enters judgment on a single charge and does not mention in the judgment and sentence the jury's finding of guilt on an additional charge based on the same evidence, double jeopardy is not violated. State v. Ward, 125 Wn. App. 138, 144, 104 P.3d 61 (2005) (no double jeopardy violation where trial court entered judgment and sentence only on second degree felony murder charge and did not mention jury's guilty verdict on alternative charge of first degree manslaughter); State v. Trujillo, 112 Wn. App. 390, 411, 49 P.3d 935 (2002) (jury verdict on alternative charge that is not reduced to judgment does not violate double jeopardy), review denied, 149 Wn.2d 1002 (2003).
Next, Webster contends that his conviction for felony violation of a no-contact order must be vacated under RCW 26.50.110(4) and State v. Azpitarte, 140 Wn.2d 138, 995 P.2d 31 (2000). Violation of a domestic violence protection order is a gross misdemeanor unless it involves certain circumstances elevating the crime to a felony. RCW 26.50.110(1)(a). Here, the State charged Webster with a felony because his violation of the no-contact order involved an assault. But RCW 26.50.110(4) elevates such violations to felonies only where the assault at issue "does not amount to assault in the first or second degree."
The State concedes that the prosecutor invited the jury to base its decision on the no-contact order violation on the same evidence presented to support the first degree assault charge and did not offer any evidence of a separate predicate assault. We accept the State's concession and agree that Webster's conviction for felony violation of a no-contact order must be vacated. See Azpitarte, 140 Wn.2d at 142 (felony verdict set aside where jury could have relied on second degree assault to find defendant guilty of felony violation of a court order).
However, the State requests remand for entry of judgment on a misdemeanor violation of a no-contact order. This court may remand for entry of a conviction on a lesser offense as long as the jury necessarily found all the elements of the lesser offense. State v. Gilbert, 68 Wn. App. 379, 384, 842 P.2d 1029 (1993). Here it is undisputed that in returning the guilty verdict on the felony charge, the jury necessarily found every element of a misdemeanor violation of a no-contact order. Thus, we remand for entry of judgment on a misdemeanor violation of a no-contact order.
Finally, Webster challenges the trial court's decision to count his convictions for attempted murder, felony violation of a court order, and felony harassment as separate offenses for purposes of his offender score. Current offenses are counted separately in determining the offender score unless the crimes "encompass the same criminal conduct." RCW 9.94A.589(1)(a). "[S]ame criminal conduct" means the crimes require the same criminal intent, are committed at the same time and place, and involve the same victim. Id. We review a trial court's determination of what constitutes the same criminal conduct for abuse of discretion or misapplication of the law. State v. French, 157 Wn.2d 593, 613, 141 P.3d 54 (2006).
Given our decision vacating the conviction for felony violation of a court order and remanding for entry of judgment on a misdemeanor violation of a court order, we need not address Webster's same criminal conduct argument regarding that offense.
The State concedes that the attempted murder and the felony harassment involved the same time, place, and victim. The question is whether Webster's intent, viewed objectively, changed from one crime to the next or whether one crime furthered another. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987).
Webster contends that because he attempted to kill Edwards and threatened to kill her simultaneously, common sense dictates that his objective intent did not change from crime to crime. But as the State contends, felony harassment requires an intent to knowingly frighten the victim with a realistic threat, while first degree attempted murder involves an intent to cause the death of another. It is reasonable to conclude that Webster's objective intent in hitting and choking Edwards was to cause her physical harm, while his threats were designed to frighten and terrorize her, causing psychological harm. Neither offense required the other, and neither furthered the other. Because the facts here could support a finding that Webster had different criminal intents with respect to each count, we will defer to the trial court's determination that the offenses do not constitute the same criminal conduct. State v. Rodriguez, 61 Wn. App. 812, 816, 812 P.2d 868, review denied, 118 Wn.2d 1006 (1991). However, Webster's offender score must be recalculated on remand based on our decision vacating the felony violation of a court order.
Affirmed in part and remanded.