Opinion
No. 36931-1-II.
February 18, 2009.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-1-00824-1, James J. Stonier, J., entered October 25, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Bridgewater, J.
Kenneth Ashman appeals his second degree assault conviction and sentence as a persistent offender, arguing trial court evidentiary and sentencing error. We affirm.
FACTS
We derive the facts from the trial evidence.
At about 1:30 p.m. on June 26, 2006, Ashman stood in the parking lot behind the Longview Community House, a shelter that provides meals to the homeless. He saw a small plastic bag and picked it up, assuming it was trash.
Joseph Galyan, a bystander, accused Ashman of taking the bag out of a Dumpster, which Galyan claimed contained someone else's mail. Galyan moved to take the bag and a confrontation began.
The record of proceedings spells Galyan's name phonetically as Galleon.
Ashman pulled a knife from his pants and told Galyan to "just leave me alone." II Report of Proceedings (RP) at 88. Two witnesses saw Galyan run away as Ashman pursued him with his knife. One of the witnesses, Curtis Jackson, heard Ashman yell at Galyan, "[D]on't ever threaten me again." I RP at 48. Galyan fell and Ashman stood over him, thrusting the knife toward Galyan and yelling at him.
The altercation ended when Ashman left and Valerie Edwards, the other witness, walked Galyan to her nearby office and called the police. The police administered first aid to Galyan's scraped elbow. The officer then looked for Ashman and found him sitting on a nearby bench. Once another officer arrived, Officer Michael Rabideau activated his overhead lights, got out of his car, drew his gun, and ordered Ashman to the ground. He then placed Ashman under arrest and photographed him. The officers did not find the knife on him.
At trial, Ashman testified he threw the knife away.
The State charged Ashman with second degree assault with a deadly weapon enhancement. At trial, the State sought to admit two photographs of him. The trial court admitted a photograph of him facing forward as probative of establishing identity and corroborating the arrest. The trial court excluded the other photograph of his back with his cuffed hands as unduly cumulative.
The trial court instructed the jury on second degree assault with a deadly weapon enhancement and the lesser included charge of unlawful display of a weapon. The jury returned a guilty verdict on both second degree assault and unlawful display of a weapon. By special verdict, the jury also found a weapon enhancement.
At sentencing, the State argued that Ashman should be sentenced under the Persistent Offender Accountability Act, chapter 9.94A. RCW, because he had had two Oregon strike offenses comparable to Washington State criminal convictions. His Oregon convictions included an attempted second degree assault conviction based on a plea of guilty and a third degree robbery conviction. The trial court found the Oregon convictions comparable, counted them as two strikes, and sentenced Ashman as a persistent offender. He appeals his conviction and sentence.
On appeal, Ashman does not dispute that his Oregon third degree robbery conviction counts as a strike.
ANALYSIS
Ashman first contends that the trial court admitted photographs that expressed an opinion of guilt. He asserts that but for the admission of the two photographs, the jury would have acquitted on the assault charge and found him guilty only of the lesser charge of unlawful display of a dangerous weapon.
Ashman incorrectly claims that two photographs were admitted showing him in police custody. The trial court marked two photographs, but it admitted only the one that showed him facing forward without his cuffed hands visible.
The law entitles a defendant to a fair trial but not a perfect one. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 267, 172 P.3d 335 (2007). A fair trial includes protection from unfairly prejudicial evidence. State v. French, 157 Wn.2d 593, 605, 141 P.3d 54 (2006). ER 403 sets forth this principle and provides that evidence may be excluded if the danger of unfair prejudice substantially outweighs its probative value.
The admissibility of photographs lies within the sound discretion of the trial court, and we will not disturb its ruling on appeal absent an abuse of discretion. State v. Adler, 16 Wn. App. 459, 465, 558 P.2d 817 (1976). A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Partee, 141 Wn. App. 355, 361, 170 P.3d 60 (2007).
Here, the trial court analyzed the probative value and risk of unfair prejudice for each of the two photographs of Ashman handcuffed and in custody. The trial court admitted the photograph of him facing forward as probative of establishing identity and corroborating the arrest. The trial court excluded the other photograph of his back and visibly cuffed hands as unduly cumulative. Given this analysis and the trial court's selection of the photograph that had the lesser risk of unfair prejudice, it did not abuse its discretion in admitting the one photograph. Ashman's argument fails.
Ashman also contends that the trial court erred in counting his Oregon attempted second degree assault conviction as a strike. He argues that Oregon's and Washington's second degree assault crimes do not identically compare because Oregon's broader statute includes knowing as well as intentional acts.
Ashman does not dispute that he had an Oregon conviction based on his pleading guilty to attempted second degree assault.
Under former RCW 9.94A.030(33) (2006), a persistent offender is one who, prior to the commission of the current offense, has been convicted of at least two most serious felony offenses. Washington law provides that "[o]ut-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law." RCW 9.94A.525(3).
We review a sentencing court's decision to consider a prior conviction as a strike de novo. State v. Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007). Out of state convictions count as strikes when they are comparable to a strike offense under Washington law. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 252, 111 P.3d 837 (2005). But where elements are not identical, or if the foreign statute is broader than the Washington definition of the particular crime, the court may look at the defendant's conduct set forth in the charging information to determine whether the conduct would have violated the comparable Washington statute. State v. Duke, 77 Wn. App. 532, 535, 892 P.2d 120 (1995).
Ashman argues that Oregon's second degree assault statute comprises broader actions, including both intentional and knowing mental states. Whereas, he argues, the Washington statute includes only intentional acts.
Oregon's statute for attempted crimes provides that "[a] person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime." Oregon Revised Statute 161.405(1). By pleading guilty to attempted second degree assault, Ashman admitted that he intentionally engaged in conduct constituting a substantial step toward the act of assault.
Moreover, the Oregon charging document includes facts confirming the intentional nature of Ashman's actions. For example, he intentionally threw another person from a car and caused the person to be dragged by a moving vehicle.
In sentencing Ashman, the trial court compared the Oregon conviction with its counterpart under Washington law and considered the factual basis for the plea. As a result, the court properly included the Oregon attempted second degree assault conviction as a strike and did not err in sentencing Ashman as a persistent offender.
Affirmed.
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, J. and Van Deren, C.J., concur.