Opinion
No. 61728-1-I.
September 21, 2009.
Appeal from the Superior Court, King County, No. 07-1-08487-4, Christopher A. Washington, J., entered May 19, 2008.
Affirmed by unpublished opinion per Leach, J., concurred in by Schindler, C.J., and Ellington, J.
Jimmie York appeals his convictions for domestic violence felony violation of a court order, felony harassment with a deadly weapon, and first degree unlawful possession of a firearm, asserting instructional errors and prosecutorial misconduct. In order to establish felony harassment, the State must prove that the defendant made a threat that is a "true threat." But the definition of "true threat" need not be included in the "to convict" instruction. The trial court's "to convict" instruction for felony harassment was therefore constitutionally sufficient. Because the evidence established only one incident of felony harassment, Jimmie York's challenge to jury unanimity also fails, and we reject York's allegations of prosecutorial misconduct. Finally, the arguments raised in York's statement of additional grounds are either without merit or insufficient to permit appellate review. Accordingly, we affirm York's convictions.
FACTS
The State charged Jimmie York with a series of offenses following an incident on December 2, 2007. The evidence presented at trial supported the following sequence of events.
Jimmie York and Lashae Hawkins met in 2005 and have had an intermittent and turbulent relationship. The couple have one child. In December 2007, the couple continued their relationship despite two court orders prohibiting York from contacting Hawkins.
On December 2, 2007, York and Hawkins were staying at the home of Melissa Hubbard, a friend of Hawkins' mother. Several other adults and children were also present in the house, including Hubbard's daughter Nicole and Hubbard's friend Eric Peoples. During the evening, Hawkins woke up York, who was sleeping on the couch, and told him that she and Nicole were going to the store. York reacted angrily, and Hawkins left the house.
York followed the women and caught up with Hawkins as she walked down the street. He grabbed her and said, "Bitch, you're not going nowhere. I'll hurt you. You're playing with me. I'm not playing." York tried to hit Hawkins, but slipped. He then grabbed her, banged her head against a nearby parked car, and started pulling her back towards Hubbard's house.
Nicole ran back to the house and told Hubbard about the fight. Hubbard asked Peoples to get Mel Talley, a neighbor who is also Hawkins' cousin. At about the same time, Hubbard saw Talley's car outside and contacted him. Nicole and Hawkins came over to the car to talk, and Hawkins told Talley she was scared.
Talley eventually persuaded Hawkins to come with him, but before she could get into the car, York grabbed her and threw her to the ground. York pulled out what witnesses described as a pocket knife or box cutter, pointed it at Hawkins as she lay on the ground, and said, "Bitch, you're not going nowhere." York also threatened to kill Hawkins. Talley got out of the car and confronted York with a golf club. When Hawkins got up and ran away, York chased her as she ran around the house a couple of times.
A short time later, Talley confronted York again. York advised Talley that he had a gun. He then threw down the knife and challenged Talley to a fight. Concerned that York was going to use the gun, Talley got into the car and drove away.
At some point, Hawkins ran over to Talley's house, where Talley's girlfriend let her in. York arrived a short time later and began pounding on the front door, yelling, among other things, "Tell that bitch to come out. I'm going to kill her. Tell that bitch to come out." When Talley drove up, York went over and said something like, "Now I'm ready for you." Talley noticed that York was carrying a camouflage backpack. Still concerned that York had a gun, Talley drove to a nearby store and called the police.
York returned to Hubbard's house and encountered Peoples inside. When the police arrived a short time later and surrounded the house, York became extremely upset and repeatedly said that he was going to "hurt" someone. At one point, York opened his backpack and showed Peoples a gun. Peoples was concerned because there were children in the house. York said he was facing a "third strike" and told Peoples not to open the door. After unsuccessfully trying for about five minutes to persuade York to leave, Peoples told him, "You got to do what you got to do, but I'm opening up this door." Peoples then opened the door and walked out with the children.
Police officers arrested York as he attempted to go out the back door. The arresting officers found a knife or box cutter in York's pants pocket and a camouflage backpack in a kitchen cabinet. The backpack contained a loaded .22 revolver. Hawkins claimed that after his arrest, York called her and offered her $1,000 to say "he didn't do it."
York testified that Talley had initiated the conflict by demanding money in exchange for not telling the police that York was violating the no-contact order. York maintained that Hawkins fell to the ground when she tried to break up the confrontation and that he used the pocket knife only for protection when Talley threatened him with the golf club. York denied threatening Hawkins with the knife or asking her to change her trial testimony. He claimed that the camouflage backpack did not belong to him and that he did not have a gun.
The State charged York with two counts of domestic violence felony violation of a court order (counts I and VI), felony harassment with a deadly weapon (count II), and tampering with a witness (count V), all involving Hawkins; felony harassment with a firearm (count IV) and unlawful imprisonment with a firearm (count VII), involving Eric Peoples; and one count of first degree unlawful possession of a firearm (count III). The jury found York guilty as charged of felony violation of a court order (count I), felony harassment with a deadly weapon (count II), and first degree unlawful possession of a firearm (count III), and acquitted him of the remaining charges. The court imposed a standard range sentence totaling 95 months.
DECISION
York first contends that the "to convict" instruction for felony harassment as charged in count II was constitutionally deficient because it failed to include the essential element of a "true threat." He argues that because a felony harassment conviction based on a threat to cause bodily injury requires the State to prove a "true threat," the "true threat" requirement is an essential element of the offense that must be included in the "to convict" instruction.
State v. Kilburn, 151 Wn.2d 36, 41, 84 P.3d 1215 (2004).
See State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003) ("to convict" instruction must generally contain all elements of charged offense).
But, as York concedes, we rejected an essentially identical contention in State v. Tellez. In construing the analogous felony telephone harassment statute, RCW 9.61.230(2)(b), we concluded that "the constitutional concept of 'true threat' merely defines and limits the scope of the essential threat element in the felony telephone harassment statute and is not itself an essential element of the crime." Consequently, the "true threat" requirement need not be included in the charging document or the "to convict" instruction and, as here, an instruction defining "true threat" protects the defendant's First Amendment right.
141 Wn. App. 479, 170 P.3d 75 (2007).
Tellez, 141 Wn. App. at 484.
Tellez, 141 Wn. App. at 484. Instruction 17 correctly defined a threat as a statement or act that "must occur in a context or under such circumstances where a reasonable person would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat." See Kilburn, 151 Wn.2d at 43.
We decline York's invitation to revisit the Tellez analysis. The "to convict" instruction for felony harassment was constitutionally sufficient.
See generally State v. Schaler, 145 Wn. App. 628, 639-40, 186 P.3d 1170 (2008). review granted, 165 Wn.2d 1015 (2009).
York next contends that his constitutional right to a unanimous jury was violated when the trial court failed to give a unanimity instruction for count II, the felony harassment charge involving Hawkins. Because the evidence established only one incident that permitted the jury to find the offense beyond a reasonable doubt, no unanimity instruction was necessary.
When the State alleges multiple acts, any one of which could constitute the crime charged, the jury must unanimously agree on which incident constituted the crime. In order to ensure jury unanimity, the State must either elect the act on which it relies for each count or the court must instruct the jury that all jurors must unanimously agree that at least one particular act constituting the charged crime has been proved beyond a reasonable doubt. But if the evidence at trial "proves only one violation, then no [unanimity] instruction is required, for a general verdict will necessarily reflect unanimous agreement that the one violation occurred."
State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988).
Kitchen, 110 Wn.2d at 411; see also State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).
State v. Hanson, 59 Wn. App. 651, 657, 800 P.2d 1124 (1990)
In count II, the State alleged that York had committed felony harassment by, among other things, threatening to cause bodily injury to Hawkins. The State further alleged that during the commission of count II, York was armed with a deadly weapon, i.e., "a knife or box cutter." The evidence at trial established only one incident that supported this charge: Hawkins' testimony that when she attempted to get into Melvin Talley's car, York grabbed her, threw her to the ground, pointed a knife or box cutter at her, and threatened to kill her. Contrary to York's assertion, the deputy prosecutor unambiguously identified the same incident as the basis for count II during closing argument:
In this case, Lashae testified that the defendant grabbed her as she was trying to get in the car, threw her to the ground, stood over her and said, you are not going anywhere, I am going to kill you, and he pulled out [the box cutter or knife]. The deputy prosecutor also clearly informed the jury that the deadly weapon allegation was based on the same incident.
York points to evidence of separate incidents in which he allegedly banged Hawkins' head against a car and pushed her to the ground. But neither of those assaults involved a deadly weapon and could not have established felony harassment as charged in count II. After considering the charge, the evidence, and closing argument, the jury could have found only one incident as the basis for felony harassment as charged in count II. Accordingly, the trial court did not err in failing to provide a unanimity instruction for count II.
York contends that the deputy prosecutor violated his right to a fair trial by eliciting testimony that he faced a life sentence under Washington's three-strike law. He maintains that because the testimony was untrue, the deputy prosecutor improperly sought to obtain convictions based on a misrepresentation of York's criminal history. But York fails to demonstrate that the deputy prosecutor's questioning constituted misconduct or that the alleged misconduct was unfairly prejudicial.
During his direct testimony, Eric Peoples testified how upset York became after police surrounded the house. Peoples indicated that he wanted to leave the house at this time, but York told him not to open the door. According to Peoples, York repeatedly said that he was going to "hurt" or "smoke" someone and, at one point, showed Peoples the gun in his backpack. Three times during the course of his testimony, Peoples said York told him he was facing a "third strike," a comment that for Peoples underscored the seriousness of York's comments.
A defendant claiming prosecutorial misconduct bears the burden of establishing that the challenged conduct was both improper and prejudicial. Prejudice occurs only if "there is a substantial likelihood the instances of misconduct affected the jury's verdict." We review misconduct claims in the context of the total argument, the evidence addressed, the issues in the case, and the jury instructions. Because defense counsel did not object to the "three strikes" remarks, any error is waived unless the misconduct was so flagrant and ill-intentioned that no instruction could have cured the resulting prejudice.
State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003).
State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).
State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
When Peoples' testimony is viewed in context, the record does not support York's suggestion that the deputy prosecutor intentionally elicited the "three strikes" comments. Rather, the questioning consistently sought to elicit, from an obviously reluctant witness, precisely what York had said and done during the period after the police arrived and the effect of York's actions and words on Peoples before he left the house. This evidence was critical for the felony harassment and unlawful imprisonment charges involving Peoples. Moreover, the deputy prosecutor never referred to the "three strikes" comments, suggested that they were true, or asked the jury to draw any inferences from the comments, either during Peoples' testimony or during closing argument. Under the circumstances, the questioning did not constitute misconduct.
As the State notes, Peoples' reaction to York's own statement was relevant to the determination of whether his fear of injury was reasonable for purposes of the harassment charge and whether York had restrained Peoples through intimidation for purposes of the unlawful imprisonment charge.
Moreover, York fails to demonstrate any prejudice resulting from the alleged misconduct. The fact that the jury acquitted York of the felony harassment and unlawful imprisonment charges involving Peoples, as well as two additional charges involving Hawkins, belies any suggestion that the "three strikes" comments may have unfairly prejudiced the jury against him by tainting him as a serious offender.
York's contention that the deputy prosecutor committed misconduct when Hawkins mentioned that he had been in jail after a previous accusation of assault is equally without merit. The record shows that Hawkins' reference to jail was nonresponsive to the deputy prosecutor's question. At defense counsel's request, the trial court immediately instructed the jury to disregard whether or not York had been in jail. When Hawkins again referred to jail during cross-examination, she apologized and acknowledged she been told multiple times not to mention it. Under the circumstances, there was no misconduct, and York has not shown that the trial court's curative instruction was inadequate or ineffective.
Finally, York contends that the deputy prosecutor vouched for the credibility of a State witness during closing argument by claiming that Melissa Hubbard "has no motive to lie because she's here telling the truth." But just before the challenged comment, the deputy prosecutor pointed out that Hubbard had testified she had no problems with much of York's conduct and had seemingly minimized the seriousness of York's actions. The prosecutor's remarks were clearly an attempt to persuade the jury that based on the nature of her testimony, Hubbard was a credible witness and not biased against York. The comments therefore fell within the wide latitude afforded the deputy prosecutor to draw and express reasonable inferences from the evidence.
See State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997).
York has filed a statement of additional grounds for review as permitted by RAP 10.10. He first challenges the sufficiency of the evidence to support his conviction for first degree unlawful possession of a firearm. He argues that because there were no fingerprints on the gun and he was arrested more than 30 feet away from the backpack, the evidence was insufficient to establish possession or control. But Eric Peoples testified that York repeatedly mentioned that he had a gun and then showed him the gun in the backpack. Viewed in the light most favorable to the State, the evidence was sufficient to establish beyond a reasonable doubt that York possessed or controlled the gun.
York's second ground appears to be a challenge to the calculation of his offender score. But he has not sufficiently "inform[ed] the court of the nature and occurrence of alleged errors." We therefore cannot review this claim.
RAP 10.10(c).
Affirmed.
WE CONCUR.