Opinion
No. 60321-3-I.
November 17, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-00393-7, Anita L. Farris, J., entered June 14, 2007.
Affirmed by unpublished per curiam opinion.
Following a jury trial in Snohomish County Superior Court, Karl Ammann was convicted of one count of stalking, one count of violating a domestic violence protection order, and one count of violating a civil antiharassment protection order. Ammann appeals from the judgment and sentence entered on the verdicts, contending that there was insufficient evidence presented for the jury to convict him of violating the civil antiharassment protection order and that, in any event, the conviction merges into his conviction for felony stalking. Ammann further contends that the trial court improperly ordered him to take medication prescribed to him during mental health treatment imposed as a condition of his community custody. We conclude that there was sufficient evidence presented to support the verdict convicting Ammann of violating the civil antiharassment protection order and that the conviction does not merge with the felony stalking conviction. We also conclude that the trial court properly ordered Ammann to take all medications prescribed to him during the mental health treatment imposed as a condition of his community custody sentence. Accordingly, we affirm.
I
Ammann met Brenda Sharp in an online support group. The two became romantically involved, but remained friends when their romantic relationship dissolved. Sharp testified that, around Easter 2005, Amman and Sharp had an altercation at Sharp's home. When Ammann told Sharp that he was the greatest prophet of all time, and she expressed doubt, he threatened to kill her. Ammann testified that he did not threaten Sharp but, rather, left her home peaceably.
After this incident, Sharp obtained a civil antiharassment protection order against Ammann. Ammann received a copy of the order approximately three weeks after Easter. The order restrained Ammann from making any attempts to contact Sharp. After service upon Ammann, Sharp received an email from his doctor, which she did not welcome. At a hearing in the district court, an order was entered, effective through May 23, 2006, restricting Ammann from contacting Sharp either personally or through third parties.
On May 4, 2006, Sharp and Ammann encountered one another in a Fred Meyer store parking lot. Sharp testified that she told Ammann that he was violating the civil antiharassment order. Ammann testified that they engaged in a friendly conversation. A day or two later, Sharp received a card and a note from Ammann in the mail. Then, Sharp found a letter from Ammann on her doorstep. On two other occasions in the first two weeks of May, Sharp encountered Ammann: at the Alderwood Mall and, later, at a Costco store.
On May 14, Ammann was arrested. When questioned, he admitted meeting Sharp at Fred Meyer, but claimed that she had agreed to meet with him. He also admitted sending her the card and leaving the letter on her doorstep.
On May 15, Sharp received a third letter from Ammann in the mail. Sharp called the police and turned the letters over to them.
On June 6, Sharp obtained a domestic violence protection order that expired one year later, on June 6, 2007. Ammann was present at the court hearing and was instructed to stay away from Sharp.
On January 29, 2007, Sharp found Ammann at her door and called the police. Ammann testified that he did not go to Sharp's home in January 2007.
Ammann was charged by information with three separate offenses involving contact with Sharp: (1) felony stalking occurring between May 3 and May 14, 2006, in violation of RCW 10.99.020; (2) gross misdemeanor violation of a domestic violence protection order on January 29, 2007, in violation of RCW 10.99.020; and (3) gross misdemeanor violation of a civil anti-harassment protection order on May 15, 2006, in violation of RCW 10.14.170.
The jury convicted Ammann on all three counts. On the felony count, the court sentenced Ammann to 12 months of confinement, plus 12 months of community custody. The court found that reasonable grounds existed to believe that Ammann was a mentally ill person, and that this condition was likely to have influenced the offense. The court therefore ordered Ammann to undergo a mental status evaluation and participate in outpatient mental health treatment when on community custody. The court required Ammann to comply with all treatment conditions, including taking any prescribed medication.
On the gross misdemeanor counts, the court imposed consecutive sentences of 365 days in custody, with 182.5 days suspended. The court also ordered 24 months of probation, with the terms and conditions being the same as for community custody on the felony sentence. Accordingly, Ammann was sentenced to a total of 24 months of confinement followed by 12 months of community custody and 24 months of probation.
Ammann appeals.
II
Ammann first challenges the sufficiency of evidence supporting his conviction for violating the civil antiharassment protection order. Ammann contends that the State was required to prove beyond a reasonable doubt that the crime occurred on May 15, 2006, and failed to do so. The State responds by citing the jury instructions, which provided that in order to convict Ammann, the jury was required to find that Ammann willfully disobeyed the order "on or about May 15, 2006." We hold that the evidence was sufficient to support the conviction.
Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).
Ammann was charged by information with violating an antiharassment protection order, committed "on or about the 15th day of May, 2006," as proscribed by RCW 10.14.170, which provides:
Any respondent age eighteen years or older who willfully disobeys any civil antiharassment protection order issued pursuant to this chapter shall be guilty of a gross misdemeanor.
The State submitted this charge to the jury with a to-convict instruction that read:
To convict the defendant of the crime of violation of an anti-harassment order as charged in Count III, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about May 15, 2006 the defendant was a respondent of a temporary anti-harassment protection order; and
(2) that the defendant did willfully disobey the terms of that order.
Jury instructions not objected to become the law of the case, and the State assumes the burden of proving otherwise unnecessary elements of the offense. State v. Hickman, 135 Wn.2d 97, 102-03, 954 P.2d 900 (1998). Pursuant to the law of the case doctrine, the State was required to prove beyond a reasonable doubt that Ammann violated the temporary civil antiharassment order "on or about May 15, 2006."
Contrary to Ammann's contention, the State was not required to prove Ammann committed the offense charged on May 15, 2006. Rather, the State was required to prove that he committed the offense on or about May 15, 2006. "[W]here time is not a material element of the charged crime, the language 'on or about' is sufficient to admit proof of the act at any time within the statute of limitations, so long as there is no defense of alibi." State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788 (1996). In Hayes, proof that the victim was abused on June 4 was sufficient to show that the abuse occurred "on or about" May 31. Hayes, 81 Wn. App. at 433.
Here, the State introduced sufficient evidence from which a reasonable juror could conclude that Ammann violated the civil antiharassment protection order as charged. Ammann testified that he sent the letter. The letter was postmarked May 13, 2006. Also, Sharp testified that she received the letter from Ammann on May 15. Proof that the letter was sent on May 13 and received on May 15 was sufficient to show that it was mailed "on or about" May 15. The jury reasonably found that the State proved that Ammann violated the civil antiharassment protection order as charged and under the jury instructions given.
III
Ammann next contends that his conviction for violating the civil antiharassment protection order should have merged with his conviction for felony stalking because the date when he sent the letter is included in the charging period for the felony stalking conviction. We disagree.
As explained in State v. Borsheim, 140 Wn. App. 357, 165 P.3d 417 (2007): "[A contention] asserting that all jurors must agree on the same act underlying any given count has to do with jury unanimity and the right to jury trial. [A contention] asserting that the jury could not use the same act as a factual basis for more than one count has to do with the right against double jeopardy; at least in the context here, to use one act as the basis for two counts is to convict twice for the same crime."
Borsheim, 140 Wn. App. at 366 n. 2 (quoting State v. Ellis, 71 Wn. App. 400, 404, 859 P.2d 632.
Stalking requires a finding of repeated harassment or repeated following. RCW 9A.46.110. Two harassing events are sufficient to satisfy the requirement that the behavior be repeated. State v. Parmelee, 108 Wn. App. 702, 711, 32 P.3d 1029 (2001). Stalking is elevated to felony status if "the stalking violates any protective order protecting the person being stalked." RCW 9A.46.110(5)(b). The merger doctrine is relevant when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code. State v. Eaton, 82 Wn. App. 723, 730, 919 P.2d 116 (1996). The merger doctrine is a rule of statutory construction and applies only where the legislature has clearly indicated that in order to prove a particular degree of crime, the State must prove not only that a defendant committed that crime, but also that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes. Parmelee, 108 Wn. App. at 710-11 (quoting State v. Vladovic, 99 Wn.2d 413, 420-21, 662 P.2d 853 (1983)). We review claims of a merger violation de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
In Parmelee, the defendant was convicted on three counts of violating a protection order and on one count of felony stalking. At trial, the State used the same evidence to convict Parmelee of violating the protection orders and of felony stalking. On appeal, we held that two of the defendant's convictions for violating a protection order were essential to the elements of the crime of felony (1993)). stalking, and because the acts were defined as criminal elsewhere in the criminal statutes, they merged into the stalking conviction. Parmelee, 180 Wn. App. at 711. But, because the State needed only to provide evidence of two harassing events to constitute stalking, we held that the third protection order violation conviction was not essential to an element of the felony stalking charge and, thus, stood as an independent conviction. Parmelee, 108 Wn. App. at 711.
Similarly, here, the State charged Ammann with felony stalking for repeated events occurring on or about May 3, 2006, through May 14, 2006. The State provided evidence of several events in that time period, including: (1) the encounter in the Fred Meyer parking lot; (2) the card sent to Sharp; (3) the letter left on Sharp's doorstep; (4) the encounter at the Alderwood Mall; and (5) the encounter at Costco. Thus, the State provided the evidence of repeated events that a felony stalking conviction requires without any reliance on the letter received by Sharp on May 15. That letter, sent in violation of the civil antiharassment protection order entered against Ammann, was not an essential element of proof of the stalking charge. The trial court properly ruled that the convictions did not merge.
IV
Ammann also challenges a sentencing condition requiring him to take all medication prescribed during the mental health treatment imposed as a condition of his community custody. First, Ammann contends that the Sentencing Reform Act of 1981, chapter 9.94A RCW, did not authorize the trial court to require Ammann to take "all prescribed medication." The State responds that medication may legitimately be considered a part of "treatment," pursuant to the relevant statute. We agree.
Former RCW 9.94A.505(9) (2006) provided that the trial court could order mental health treatment as a condition of community placement:
Amended by Laws of 2008, ch. 231, § 25.
The court may order an offender whose sentence includes community placement or community supervision to undergo a mental status evaluation and to participate in available outpatient mental health treatment, if the court finds that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is likely to have influenced the offense.
(Emphasis added.) The order requiring treatment must be based on a presentence report. Former RCW 9.94A.505(9). In this case, the trial court's order complied with these conditions. The court based its decision on a presentence report, found that reasonable grounds existed to believe that Ammann was a mentally ill person as defined by statute, and found that the condition likely influenced the offense.
Ammann cites to no authority in support of his contention that prescribed medication cannot constitute a part of mental health treatment. To the contrary, in State v. Eaton, 82 Wn. App. 723, 919 P.2d 116 (1996), we considered whether a trial court may order a defendant to cooperate in a treatment program pursuant to former RCW 9.94A.120(8)(c)(iii) (1994). We held that, at a minimum, the trial court could require cooperation in a treatment program, otherwise there would be no point in ordering a defendant into treatment at all. Eaton, 82 Wn. App. at 734. Similarly, here, if Ammann's mental health treatment requires medication, but the court was without authority to order him to take such medication, then ordering mental health treatment would be pointless.
Next, Ammann contends that if medication does properly constitute a part of treatment, as authorized by former RCW 9.9A.505(9), then the requirement that he take it violates his constitutional liberty interest in his personal autonomy. According to Ammann, the condition requiring him to participate in treatment by taking all prescribed medications is equivalent to forcibly administering antipsychotic medication and, therefore, the trial court was without authority to enter this condition because it did not engage in the balancing test required by Washington v. Harper, 494 U.S. 210, 229, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990). However, because Ammann actually requested mental health treatment during sentencing, Harper is inapplicable.
In Harper, the Supreme Court held that an individual has a recognized constitutional liberty interest in refusing the unwanted and forced administration of antipsychotic drugs. Harper, 494 U.S. at 220-21. In balancing the State's interest in the defendant's ability to stand trial with the inmate's interest in personal autonomy, the Court held that the State may only forcibly treat an unwilling inmate with antipsychotic medication if the inmate is a danger to himself or others, and the treatment is in the inmate's best interest. Harper, 494 U.S. at 227.
The Supreme Court has elaborated on its holding in Harper in two significant cases, Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003), and Riggins v. Nevada, 504 U.S. 127, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992). In Riggins, the Court emphasized the importance of a determination that the administration of the medication be involuntary for the constitutional concern to even arise. Riggins, 504 U.S. at 133. In Sell, the Court set forth the four considerations with which the trial court must grapple in order to order the administration of antipsychotic drugs over the objection of the defendant or inmate: (1) "First, a court must find that important governmental interests are at stake," Sell, 539 U.S. at 180; (2) "Second, the court must conclude that involuntary medication will significantly further those concomitant state interests. . . . At the same time, it must find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense." Sell, 539 U.S. at 181; (3) "Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results," Sell, 539 U.S. at 181; and (4) "Fourth, as we have said, the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition. The specific kinds of drugs at issue may matter here as elsewhere. Different kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success." Sell, 539 U.S. at 181. In addition, the Court noted:
We emphasize that the court applying these standards is seeking to determine whether involuntary administration of drugs is necessary significantly to further a particular governmental interest, namely, the interest in rendering the defendant competent to stand trial. A court need not consider whether to allow forced medication for that kind of purpose, if forced medication is warranted for a different purpose, such as the purposes set out in Harper related to the individual's dangerousness, or purposes related to the individual's own interests where refusal to take drugs puts his health gravely at risk.
Sell, 539 U.S. at 181-182 (citing Harper, 494 U.S. at 225-226).
Thus, the inquiry called for in Harper, Sell, and Riggins, requires, at a minimum, the proposed administration of particular antipsychotic drugs, the inmate's refusal to take the drugs, and particular evidence about the effects of both taking and not taking the drugs. No evidence is in our record on any of these questions.
Instead, at sentencing, both Ammann and his attorney asked for and agreed to mental health treatment for Ammann as one of the conditions of his community custody. On this record, the trial court could not have weighed Ammann's interest in being free from the unwanted administration of medication because Ammann expressed no unwillingness to undergo such treatment. Simply put, the trial court did not err by failing to engage in the analysis referenced in Harper, Sell, and Riggins because that analysis was impossible to perform where the person at issue offered no objection to the treatment proposed and no specific treatment was actually proposed. The sentencing court was under no obligation to engage in a futile act.
V
Ammann has also filed two pro se pleadings on appeal challenging his convictions: a statement of additional grounds for review timely filed pursuant to RAP 10.10, and a supplemental reply brief not filed consistent with the terms of the RAPs. Rather than disregard the supplemental reply brief, we exercise our discretion to accept it and address it as an addendum to Ammann's statement of additional grounds. See RAP 10.7. After considering the arguments that Ammann advances in these pleadings, we conclude that they are meritless.
Ammann also untimely filed a separate, different, and significantly over-length statement of additional grounds on July 25, 2008. Because an appellant is only entitled to file a single statement, we have neither considered nor will further address this late filing.
In Ammann's supplemental reply and in his first stated additional ground for review, Amman contends that the State did not prove beyond a reasonable doubt that he committed the crimes charged. Sufficient evidence supports a jury's determination of guilt if, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Zunker, 112 Wn. App. 130, 135, 48 P.3d 344 (2002) (citing Green, 94 Wn.2d at 221). We find abundant evidence in the record supporting the jury's verdict.
Ammann contends in ground number two that his misdemeanor conviction for violating the domestic violence protection order violates double jeopardy because it also provided the basis for a finding that he violated his probation in a separate cause. This issue is raised for the first time on appeal, probably because the two convictions are not "identical in fact and in law," In re Pers. Restraint of Borrero, 161 Wn.2d 532, 537, 167 P.3d 1106 (2007), cert. denied, 128 S. Ct. 1098, 169 L. Ed. 2d 832 (2008), and thus do not implicate double jeopardy concerns.
In his third stated ground for review, Ammann again challenges the quality of the evidence presented against him. The analysis of this claim is identical to that of Ammann's first stated ground.
In his fourth stated ground, Ammann contends that he was deprived of his right to confront his accusers, whom he describes as the officers who arrested him. However, because these officers' statements were not used as evidence against Ammann, they cannot serve as the basis for a Confrontation Clause violation. See Davis v. Washington, 547 U.S. 813, 823, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (Confrontation Clause "applies only to testimonial hearsay").
Ammann next contends, in his pro se reply brief and in his fifth ground, that the testimony of a sheriff's deputy should have been suppressed because its content was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Ammann's counsel expressly waived this argument at trial, probably because it is utterly unsupported by the record.
In Ammann's sixth stated additional ground for review, he argues that Sharp was improperly allowed to offer expert opinion testimony concerning Ammann's psychiatric condition, a subject about which she was not qualified to opine. Ammann does not point to any specific testimony in support of this claim, and we find none in the record — certainly none to which Ammann objected at trial and thus which might be germane to appellate review.
Ammann also contends in his seventh ground that his trial amounted to religious persecution and so violates the First Amendment of the United States Constitution. Ammann has not identified to which, if any, religion he belongs, or exactly how he believes that he was persecuted. Based on the record, we are unable to determine the basis upon which Ammann raises this argument, much less conclude that it has merit.
Ammann's eighth additional ground is apparently a reiteration of his fourth and fifth, although it is difficult to tell.
In his ninth additional ground, Ammann argues that his conviction must be reversed because of prosecutorial misconduct, although he does not point to any specific instance of alleged misconduct by counsel for the State, nor was any such objection raised below. Failure to object to a prosecutor's allegedly improper conduct constitutes a waiver of the claim of error unless the conduct is so flagrant and ill-intentioned that it could not have been remedied by a curative instruction. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). Here, Ammann fails to demonstrate any misconduct, much less misconduct that could not have been remedied by a jury instruction.
Similarly, in ground number 10, Ammann alleges judicial misconduct. The record shows none.
In numerous stated additional grounds, but particularly his eleventh, Ammann contends that his rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution were violated by his prosecution. As best we can make out, Ammann appears to believe that this is so because the laws that he was convicted of violating discriminate against men in favor of women. Ammann argues that his conviction should be reversed because Sharp should have been prosecuted for harassing him, rather than vice versa, and that the only reason that this did not occur is because of invidious discrimination against Ammann based on his gender. But the language of the statutes at issue is gender neutral, as was their application in this case. Accordingly, we find Ammann's argument without support in either law or fact and, insofar as it attempts to shift blame to the victim, repellant.
Ammann contends in grounds 12, 13, and 14 that ER 404 and RCW 73.34.115(1) are unconstitutional, and that CrR 3.3 is unconstitutionally vague, without elaborating further. Not having been presented with rational argument to support these claims, we hold them to be meritless.
In his fifteenth additional ground, Ammann complains about the conditions of his incarceration. This is irrelevant to his direct appeal of his convictions.
In his sixteenth additional ground, Ammann contends that his counsel was unconstitutionally ineffective. "A defendant is denied effective assistance of counsel if the complained-of attorney conduct (1) falls below a minimum objective standard of reasonable attorney conduct, and (2) there is a probability that the outcome would be different but for the attorney's conduct." State v. Benn, 120 Wn.2d 631, 663, 845 P.2d 289 (1993) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Ammann contends that his trial attorney was ineffective for failing to object to incriminating evidence. The evidence to which Ammann refers, as best we can discern, is the letter to Sharp postmarked May 13, 2006. There is nothing in the record indicating that this letter was inadmissible. Accordingly, the evidence was unobjectionable and Ammann's attorney did not act unreasonably by not objecting to it.
Ammann's seventeenth ground is largely incoherent, but appears to take issue with the evidence presented at trial. As such, its resolution is identical to that of Ammann's first ground.
In his eighteenth ground, Ammann contends that he was denied the right to represent himself. But he fails to demonstrate that he actually requested to represent himself. Thus, he necessarily also fails to show that the trial court denied such a request, much less denied it improperly.
Ammann's nineteenth ground is also largely incoherent, but appears to be nothing more than a reiteration of his eleventh.
In his twentieth ground, Ammann contends that there was not probable cause to arrest him. The record shows otherwise.
In his twenty-first and final ground, Ammann contends the record in this case is "corrupt." We disagree.
Affirmed.