Opinion
No. 44252-0-I.
Filed: July 16, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, Docket No: 98-1-05310-7, Judgment or order under review, Date filed: 01/29/1999.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Christopher Gibson, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Endel R. Kolde, Criminal Div. Rm W554, 516 3rd Ave, Seattle, WA 98104-2312.
Andrea Altheimer found her former boyfriend and another woman together in a car. She assaulted them and forced the woman to drive off with her. She appeals the resulting convictions, arguing that evidence was improperly admitted, the assault and unlawful imprisonment constituted same criminal conduct, and that in determining her sentence, the sentencing court erred by failing to engage in same criminal conduct analysis of 1995 offenses sentenced concurrently. The latter point is conceded, and we remand for the required determination. We otherwise affirm.
FACTS
Andrea Altheimer and David LaMothe lived together until June 13, 1998, when he left. He spent the weekend with Altheimer's friend, Antoinette Eaton. On Monday morning, June 15, Eaton drove LaMothe to work. Andrea Altheimer was in the parking lot, hoping to talk to him. Enraged, Altheimer approached Eaton's car and said, 'What the F is going on?' Report of Proceedings (RP) (Dec. 1, 1998) at 133. She then returned to her own car, retrieved a gun from under the seat, and came back toward Eaton and LaMothe with the gun cocked and pointed at them. She fired twice, striking LaMothe in the neck at point-blank range. LaMothe told Eaton to run, which she did. He moved into the driver's seat and drove Eaton's car to a nearby convenience store, where he received emergency care. He survived. Eaton fell in the parking lot, and Altheimer approached her as she lay on the ground, holding the gun within inches of Eaton's head. Eaton pleaded for her life. Altheimer lowered the gun and told Eaton she was not going to shoot her. She ordered Eaton into her own car, and drove to her brother's house, refusing Eaton's request to let her out of the car. Altheimer then drove them both to Harborview to see LaMothe, and officers arrested her.
At trial, Altheimer testified that she was inexperienced with guns. She claimed the gun belonged to Eaton, and she was merely attempting to return it to Eaton when it discharged accidentally. The jury found Altheimer guilty of attempted murder, attempted assault, assault, unlawful imprisonment, and unlawful possession of a firearm.
DISCUSSION Evidentiary Matters
In pretrial motions, Altheimer requested that the trial court exclude any reference as to whether the gun was stolen or registered. The State indicated that the origin and status of the gun were relevant, but '[a]t this point we don't intend to introduce any of that evidence.' RP (Nov. 12, 1998) at 54. The trial court made no ruling, stating, 'the [S]tate has indicated they will not be presenting any such evidence in that regard.' RP (Nov. 12, 1998) at 54.
At trial, a police detective testified that he traced the gun and found it was last registered in 1994 to a woman from Idaho. Altheimer's counsel made no objection and questioning continued on another subject. After the jury left, defense counsel told the judge that she thought 'we had an understanding, if not a motion in limine, that the registration history of the gun would not be brought up in court.' RP (Dec. 3, 1998) at 166. The State interjected that there was no objection to the question or answer about the gun, and counsel stated, 'I'm not going to object in front of the jury and have again a juror or jury as a whole believe that I am obstructing their motions in limine.' RP (Dec. 3, 1998) at 167. Altheimer now argues the evidence was introduced in violation of a pretrial order, and was irrelevant and highly prejudicial. We reject those arguments. First, there was no ruling in limine. Second, there was no objection. Even where evidence is introduced in violation of a motion in limine, counsel is obliged to renew the objection to the evidence in order to preserve the error for review, or the issue is waived. CrR 7.6(a)(6); Bellevue v. Kravik, 69 Wn. App. 735, 742, 850 P.2d 559 (1993) (party must renew objection to evidence that is the subject of a motion in limine in order to preserve claimed error for review).
Moreover, the objection must be made as soon as its basis becomes known, so that the trial judge may act to correct any error. ER 103(a)(1); State v. Leavitt, 49 Wn. App. 348, 357, 743 P.2d 270 (1987), affirmed, 111 Wn.2d 66 (1988) (objection untimely when made one day after admission of child hearsay statements); 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice §§ 103.7-.8 (4th Ed. 1999). It is no answer to say the jury was present; counsel could have requested a sidebar to alert the court to the issue. Further, although Altheimer complains of the court's failure to strike the testimony or give a curative instruction, she sought neither at trial. Altheimer's failure to object waived the issue for appeal.
We also reject Altheimer's arguments on the merits. Contrary to Altheimer's claim, the gun registration evidence was relevant. Altheimer denied ownership of the gun. Evidence of its registration was relevant to its ownership history. Nor was the evidence unduly prejudicial. Altheimer argues that evidence of the gun's registration implied the gun was stolen and depicted Altheimer in the 'worst light possible — as a convicted felon who willingly defied the law by possessing a stolen weapon,' and therefore more likely to have committed the crime. Brief of Appellant at 25. But the evidence lacked such inflammatory innuendo. That Altheimer was a convicted felon who possessed a weapon was essentially undisputed. The detective testified that while handguns are registered at their original sale, subsequent registration is 'an individual thing.' RP (Dec. 3, 1998) at 144. The testimony thus created no implication the gun was stolen. The fact it was not registered to Altheimer arguably supported her claim that it was not hers.
Altheimer has failed to demonstrate that admission of the gun registration evidence was improper, or that it so unfairly prejudiced her that a new trial was required. The court did not abuse its discretion in denying the motion for a mistrial. Altheimer also argues that evidence she had applied for a concealed weapons permit and that police recovered a bag of bullets from her home was irrelevant and prejudicial. Altheimer testified that she was unfamiliar with guns, didn't know how to unload a clip, had never seen a gun fired, didn't know how to secure the safety, and would have needed instruction to know how to check to see if the gun was loaded. She also testified that bullets recovered from her apartment weren't hers.
The .22 caliber bullets recovered from her apartment were unrelated to the weapon at issue.
Cross examination of Altheimer about her application for a concealed weapons permit and possession of ammunition was proper because these facts were relevant to her claim she did not understand how the gun operated. Although application for a weapons permit and the safekeeping of a bag of bullets do not conclusively demonstrate a familiarity with weapons, those facts have a tendency to make it more likely that Altheimer knew something about guns. Altheimer argues that even if the evidence is relevant, its relevance is outweighed by its prejudice, because it suggested that Altheimer was more likely than Eaton to own a gun, and was lying when she testified the gun belonged to Eaton. This is precisely what the State was trying to prove. Nearly all evidence is prejudicial in the sense that it is offered for the purpose of inducing the trier of fact to reach one conclusion and not another. Nothing in ER 403 authorizes exclusion of evidence because it is 'too probative.' Tegland, supra, at § 403.3. The question is whether the prejudice is unfair — that is, likely to arouse an emotional response rather than a rational decision among the jurors. Carson v. Fine, 123 Wn.2d 206, 223, 867 P.2d 610 (1994); State v. Rice 48 Wn. App. 7, 13, 737 P.2d 726 (1987) (in determining prejudice, the linchpin word is 'unfair').
There is nothing inherently prejudicial about an application for a concealed weapons permit, or the possession of bullets, nor does that evidence have an unduly prejudicial effect here. The trial court did not abuse its discretion in admitting it. Sentencing Issues Altheimer argues that the second degree assault and unlawful imprisonment convictions constitute the same criminal conduct and that the trial court abused its discretion by treating them separately when calculating her offender score.
A trial court has discretion to determine whether two or more crimes encompass the same criminal conduct. RCW 9.94A.400(1)(a). An appellate court will not disturb a trial court's determination regarding same criminal conduct absent a clear abuse of discretion or misapplication of the law. State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994). Same criminal conduct means 'two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.' RCW 9.94A.400(1)(a). Absent any one of these elements, the trial court must score each offense separately. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). Here, the State maintains that while the assault and unlawful imprisonment involved the same victim, they were not committed simultaneously and Altheimer's criminal intent changed from one crime to the other.
In determining if two crimes share a criminal intent, the relevant inquiry is (1) whether the defendant's intent, viewed objectively, changed from one crime to the next, and (2) whether commission of one crime furthered the other. State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994). Altheimer relies on State v. Taylor, 90 Wn. App. 312, 950 P.2d 526 (1998) to argue that an assault in furtherance of an unlawful imprisonment is the same criminal conduct. In Taylor, the victim was getting out of his car when the defendant struck him in the face, pushing him back into the driver's seat. The defendant then aimed a rifle at the victim's head, got into the car with an accomplice who also pointed a gun at the victim's head, and ordered the victim to drive. In reversing the sentencing counting the assault and kidnapping separately, the court found that Taylor's objective intent in committing the assault was to persuade the victim, by use of fear, not to resist the abduction, and thus the crimes constituted same criminal conduct. Taylor, 90 Wn. App. at 321. The court also noted that the assault and kidnapping were committed simultaneously, precluding a finding of a new intent to commit a second crime after the completion of the first. Taylor, 90 Wn. App. at 322.
In contrast, Altheimer's objective intent in assaulting Eaton was not to persuade her, by use of fear, to submit to an abduction. Altheimer came toward Eaton as she lay on the ground and pointed the gun in her face. Altheimer had an angry expression and appeared to want to hurt Eaton.
Then, perhaps in response to Eaton's pleading, Altheimer's demeanor changed. She became calm, lowered the gun, and told Eaton she wasn't going to shoot her. After that, Altheimer told Eaton to get into the car. Altheimer walked ahead of Eaton as they went toward the car. Once they were in the car, Altheimer placed the gun on the seat between her legs. During the drive, Eaton grabbed the gun, and Altheimer snatched it back and put it back between her legs. Viewed objectively, Altheimer's intent changed, and nothing indicates the assault furthered the unlawful imprisonment.
The court found Altheimer's conduct as to these two offenses separate, and the record supports that determination. There was no abuse of discretion.
The court did not, however, make the same determination as to Altheimer's prior offenses. If sentences for prior offenses were served concurrently, the court must determine whether those offenses constituted the same criminal conduct for purposes of the offender score on the current offense(s). RCW 9.94A.360(5)(a)(i). Each sentencing court has a mandatory and independent obligation to determine this issue and may not rely on a prior court's determination. State v. Reinhart, 77 Wn. App. 454, 458-59, 891 P.2d 735 (1995) (current sentencing court is required to determine whether prior offenses served concurrently count separately). It is undisputed that the trial court did not independently determine whether Altheimer's 1995 convictions were the same criminal conduct for scoring purposes, and we must therefore remand as to this issue. Altheimer's conviction is affirmed, as is the trial court's determination that her offenses here did not constitute the same criminal conduct. We remand for a determination of whether her prior offenses were the same criminal conduct for scoring purposes. Affirmed in part, remanded in part.
WE CONCUR: KENNEDY, J., AGID, J.