Opinion
No. 38258-0-II.
Filed: September 9, 2009.
Appeal from the Superior Court, Clark County, No. 07-1-00767-9, John P. Wulle, J., entered July 28, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Hunt, JJ.
Unpublished Opinion
A jury entered a verdict finding Dylan Yeates guilty of bail jumping. Yeates appeals his conviction, arguing that the trial court erred when, over his objection, it instructed the jury on the affirmative defense of uncontrollable circumstances. Specifically, Yeates argues that including the challenged instruction violated his constitutional right to control his defense and confused the jury by imposing on him the burden to prove facts not at issue. Because Yeates presented evidence he contended excused his failure to appear, the trial court properly instructed the jury on the elements of the statutory affirmative uncontrollable circumstances defense. RCW 9A.76.170(2). The jury was properly instructed on the applicable law and we affirm.
FACTS
On April 26, 2007, Vancouver Police Officer Corporal Greg Zimmerman stopped Yeates's vehicle for failing to signal two turns. Zimmerman ran a check on Yeates's driver's license and learned that Yeates's privilege to drive was suspended. Zimmerman arrested Yeates for driving with a suspended driver's license and searched his vehicle incident to that arrest.
During the search, Corporal Zimmerman found a digital scale and a compact disc player case with two small plastic bags inside it underneath the driver's seat. Zimmerman recognized the bag and scale as items "normally . . . associated with drug paraphernalia." 1 Report of Proceedings (RP) at 60. Zimmerman also found methamphetamine and a second scale in the vehicle.
On April 27, 2007, the trial court entered a supervised release order and maintained the bond Yeates had posted the day before. On May 1, 2007, Clark County charged Yeates with one count of possession of a controlled substance — methamphetamine, one count of third degree driving with a suspended license, and one count of unlawful use of drug paraphernalia. At arraignment on May 8, 2007, the trial court entered a scheduling order, setting a trial date of July 16, 2007, with a readiness hearing on July 12, 2007. Later, the trial court reset the trial to October 22, 2007, with a readiness hearing date of October 18, 2007. On October 18, 2007, the trial court again reset the trial to January 7, 2008, with a readiness hearing on January 3, 2008. During the October 18, 2007 appearance, the trial court advised Yeates that failure to appear on the January 3, 2008 and January 7, 2008 dates could subject him to the additional charge of bail jumping.
On January 3, 2008, the trial court called Yeates's case but Yeates was not present. On January 14, 2008, Clark County charged Yeates with the additional crime of bail jumping. On January 16, 2008, the trial court issued a bench warrant for Yeates's arrest and struck the January 7, 2008 trial date. On January 18, 2008, Yeates filed a motion to quash the warrant and to set a new trial date. On January 23, 2008, all the parties appeared in court and the court reset trial to April 14, 2008. The parties appeared again on April 10, 2008, and the trial court reset the trial for July 21, 2008.
At trial, Yeates testified that on October 18, 2007, he left the courthouse believing his next required court appearance was January 7, 2008, because he heard the judge, defense counsel, and the prosecutor repeatedly say, "the 7th." 1 RP at 173. Yeates also testified that he was distracted just before his trial date because he was in the hospital from December 26, 2007 to December 31, 2007, for severe ulcerated colitis and gastroparesis. Yeates admitted that on October 18, 2007, when he signed the final scheduling order, he knew of his required appearance on January 3, 2008. Yeates indicated that later he became confused and believed the hearing had been cancelled because his defense counsel, Brian Walker, told him that he would be in trial on another matter that day and unavailable to represent him. Finally, Yeates testified that he did not appear on January 7, 2008, because Walker's office notified him that he had missed the January 3, 2008 readiness hearing. Yeates appeared with Walker on January 23, 2008, Walker's first date of availability, on the motion to quash.
During review of the jury instructions, Walker denied that Yeates presented an affirmative defense and objected to the court giving jury instruction no. 18A on the affirmative defense of uncontrollable circumstances. The trial court included the instruction over Yeates's objection.
RCW 9A.76.170(2) provides: "It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist."
The jury instructions at issue state:
INSTRUCTION NO. 17
To convict the defendant of the crime of bail jumping as charged in Count 4, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 3rd day of January, 2008, the defendant failed to appear before a court as required;
(2) That the defendant had been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before that court;
(3) That the defendant was being held for, or was charged with the crime of Possession of a Controlled Substance — Methamphetamine; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Clerk's Papers (CP) at 138.
INSTRUCTION NO. 18
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.
Acting knowingly or with knowledge also is established if a person acts intentionally.
CP at 139.
INSTRUCTION NO. 18A
It is a defense to the crime of bail jumping that uncontrollable circumstances prevented the person from appearing, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear, and that the person appeared as soon as such circumstances ceased to exist. The defendant has the burden of proving this defense by a preponderance of the evidence.
"Uncontrollable circumstances" means an act of nature such as a flood, earthquake, or fire, or a medical condition that requires immediate hospitalization or treatment, or an act of man such as an automobile accident or threats of death, forcible sexual attack, or substantial bodily injury in the immediate future for which there is no time for a complaint to the authorities and no time or opportunity to resort to the courts.
CP at 140.
On July 22, 2008, the jury entered a verdict finding Yeates not guilty of possession of a controlled substance — methamphetamine and unlawful use of drug paraphernalia; the jury entered a verdict finding Yeates guilty of bail jumping.
The State dismissed the third degree driving with a suspended license charge due to lack of evidence.
Yeates timely appeals only his bail jumping conviction.
ANALYSIS
Yeates argues that the trial court erred in giving jury instruction 18A, uncontrollable circumstances, over his objection. Yeates argues that jury instruction 18A violated his constitutional right to control his defense and confused the jury by imposing on him the burden to prove facts not at issue. We disagree.
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 19.17, at 333 (3rd ed. 2008), states:
It is a defense to a charge of bail jumping that:
(1) uncontrollable circumstances prevented the defendant from [ personally appearing in court][or][failing to surrender for service of sentence]; and
(2) the defendant did not contribute to the creation of such circumstances in reckless disregard of the requirement to [ appear][or][surrender]; and
(3) the defendant [ appeared][or][surrendered] as soon as such circumstances ceased to exist.
For the purposes of this defense, an uncontrollable circumstance is an act of nature such as a flood, earthquake, or fire, or a medical condition that requires immediate hospitalization or treatment, or an act of man such as an automobile accident or threats of death, forcible sexual attack, or substantial bodily injury in the immediate future for which there is no time for a complaint to the authorities and no time or opportunity to resort to the courts.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [ as to this charge].
Every competent defendant "has a constitutional right to at least broadly control his own defense." State v. Jones, 99 Wn.2d 735, 740, 664 P.2d 1216 (1983) (alteration in original). Neither the State nor the trial court may compel a defendant to raise or rely on an affirmative defense. State v. McSorley, 128 Wn. App. 598, 605, 116 P.3d 431 (2005). When considered as a whole, instructions are sufficient if they properly state the law. State v. Stafford, 44 Wn.2d 353, 355, 267 P.2d 699 (1954) (citing State v. Refsnes, 14 Wn.2d 569, 128 P.2d 773 (1942)). "[T]he test of an instruction's sufficiency is an additional safeguard to be applied only where the instruction given is first found to be an accurate statement of the law." State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977).
In State v. Ball, 97 Wn. App. 534, 987 P.2d 632 (1999), the defendant was convicted of bail jumping under former RCW 9A.76.170(1) (1983). Ball argued that the State failed to prove the knowledge element of bail jumping because it did not prove he was aware of his duty to appear on the precise date of the scheduled hearing. Ball, 97 Wn. App. at 536. We affirmed Ball's conviction, holding that knowledge on the specific date of the hearing is not an element of the offense. Ball, 97 Wn. App. at 536-37. Moreover, we opined that if there were such a requirement, "[t]he defendant could admit knowledge on every previous day but claim to have forgotten about his duty to appear on the hearing day. The statute does not require this, only proof that Ball was aware of his obligation to appear." Ball, 97 Wn. App. at 537.
RCW 9A.76.170(1) provides in relevant part:
Any person 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 . . . and who fails to appear or who fails to surrender for service of sentence as required is guilty of bail jumping."
(Emphasis added.) Under a plain reading of the statute, the State must prove that Yeates had knowledge of the requirement of a subsequent personal appearance when he was released by court order or admitted to bail. RCW 9A.76.170(1); State v. Carver, 122 Wn. App. 300, 305-06, 93 P.3d 947 (2004) (the State must prove only that the defendant was given notice of his court date, not that he had knowledge of this date every day thereafter, and that the claim to have forgotten is not a defense to the crime of bail jumping).
Here, Yeates's "lack-of-knowledge" defense is a legally insufficient affirmative defense. Yeates admitted at trial (1) to having had knowledge in October of the January 3, 2008 court appearance; (2) that he signed the scheduling order noting the January 3, 2008 date; (3) that he knew there would be consequences should he fail to appear; and (4) that he failed to appear on January 3, 2008. Yeates also testified that he "kind'a" lost "recollection" of his obligation to return to court on January 3, 2008. 2 RP at 199. That Yeates got "busy with so many things going on" is not a legally recognizable defense to the crime of bail jumping. 2 RP at 199; see RCW 9A.76.170; Carver, 122 Wn. App. at 306.
The record shows that the trial court included the uncontrollable circumstances defense jury instruction to clarify the legal effect of Yeates's December hospitalization which he offered to excuse his missed appearance on January 3. The trial court properly gave jury instruction no. 18A. On the evidence Yeates presented, the trial court had a general duty to inform the jury of the applicable law on the affirmative defenses to bail jumping, of which there is only one: the uncontrollable circumstances affirmative defense in RCW 9A.76.170(2).
The trial court did not impose an affirmative defense on Yeates; rather, it clarified any potential confusion the jury may have had regarding the legal sufficiency of the defense Yeates chose to present. The jury instructions, read as a whole, properly state the law on bail jumping and the legally cognizable affirmative defense to the charge.
Accordingly, we affirm Yeates's bail jumping conviction.
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.
BRIDGEWATER, P.J. and HUNT, J., concur.