Opinion
No. 39485-5-II.
January 11, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Clark County, No. 09-1-00040-9, John F Nichols, J., entered June 12, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Penoyar, C.J., concurred in by Armstrong and Hunt, JJ.
James Atkinson appeals his convictions for first degree burglary, felony harassment (domestic violence), and second degree malicious mischief. He asserts that the trial court commented on the evidence in a limiting jury instruction. He also argues that the trial court erred by instructing the jury on two alternative means of committing harassment when the information charged Atkinson with only one means of committing the crime. Atkinson also raises several issues in his statement of additional grounds (SAG). We affirm in part, vacate the felony harassment conviction, and remand for entry of judgment and sentence for misdemeanor harassment.
RAP 10.10.
FACTS
I. Background
On the afternoon of January 2, 2009, Atkinson had a disagreement with his wife, Shyler Sigsbee. Sigsbee testified that during the argument, Atkinson picked her up, threw her into some boxes, and hit her on the side of her face. Atkinson left for work, and, that evening, Sigsbee, her daughter, and her friend, Kaitlyn Roberts, went to spend the night at Sigsbee's friend's, Fail Zelknovic, apartment.
Atkinson left work at 1 a.m. On his way home, he stopped at a bar and drank a Corona and a double shot of alcohol. Afterward, he went to his father's house, where he drank wine coolers. He then decided to look for Sigsbee. First, he went to the apartment where the couple had been living together. Sigsbee was not there, but Atkinson found her cellular phone.
Atkinson called the last number that had been dialed on Sigsbee's phone. Zelknovic answered the phone; Atkinson recognized his voice and asked to speak with Sigsbee. Zelknovic told Atkinson he could talk to Sigsbee later and hung up the phone. Atkinson redialed the number; this time, Roberts answered the phone. Roberts refused to give the phone to Sigsbee and hung up. Atkinson dialed the number a third time and told Roberts that he was on his way to Zelknovic's apartment.
Atkinson sent a text message to Zelknovic's phone stating that Roberts had "just signed [Sigbee's, Zelknovic's, and Roberts's] death warrants." Report of Proceedings (RP) (May 12, 2009) at 206. Atkinson arrived at Zelknovic's apartment and knocked on the door. Atkinson testified that, upon his arrival, he drank from a flask; Zelknovic and Roberts both testified that Atkinson appeared to be intoxicated. When no one answered, he knocked more forcefully on the door. Roberts asked Atkinson to leave, but he continued to pound on the door and yell. Sigsbee called 911.
Atkinson testified that "[i]n my memory I sent [the text message] to my spare cell phone," RP (May 12, 2009) at 286.
Atkinson kicked Zelknovic's door twice, detaching the striker plate from the door and breaking open the door. When the door opened, Zelknovic slammed it shut and held the door closed. Atkinson then stabbed a knife through the door. Sigsbee testified that as Atkinson was kicking the door, he threatened to kill Roberts, Zelknovic, and Sigsbee. Sigsbee also testified that she believed Atkinson was capable of carrying out those threats because of their earlier argument and because he had "put a knife through the door." RP (May 11, 2009) at 119.
Atkinson walked away from the apartment, taking the striker plate and knife with him. He threw his hands in the air, and the two objects flew onto the ground. Atkinson then called his father to tell him that he "had screwed up." RP (May 12, 2009) at 301.
Clark County Deputy Sheriff Ryan Taylor arrived at the scene. When Taylor contacted Atkinson, he smelled "an odor of an [alcoholic] beverage" on Atkinson and observed that Atkinson's speech "was repetitive and a little slurred." RP (May 12, 2009) at 236. Taylor noted, however, that Atkinson did not express any confusion and answered Taylor's questions clearly. Taylor asked Atkinson if his intoxication was the cause of the incident. Atkinson replied, "What happened tonight was pure adrenaline and aggression, not being drunk, no, sir." RP (May 12, 2009) at 250.
Taylor detained Atkinson in handcuffs and then read Atkinson his Miranda rights before questioning him. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Atkinson told Taylor that he had drank a double shot and a Corona. He did not indicate that he had drank wine coolers or from a flask.
Atkinson also testified that he "[v]aguely" remembered making this statement. RP (May 12, 2009) at 317.
At trial, Atkinson testified that he could not "remember when or where [he] got [his] knife from," but he usually stored it in his truck. RP (May 12, 2009) at 295. When asked if he felt the effects of alcohol on the morning of the incident, Atkinson responded, "[A] couple times I stumbled outside. Tripped on the curb walking to the house. I pounded on the door. I don't even know how I kicked the door. After I kicked it, I kicked my own ankle." RP (May 12, 2009) at 297. He testified that the "only thing I wanted was [for Sigsbee] to come outside" and that he stabbed the door because "I [got] tired and I came to a conclusion that she never wanted to talk to me again. That it was done." RP (May 12, 2009) at 297-98.
II. Procedural History
The State charged Atkinson, by amended information, with first degree burglary, second degree assault, and second degree malicious mischief. The State's amended information also charged Atkinson with felony harassment (domestic violence) under RCW 9A.46.020(1)(a)(i) and RCW 9A.46.020(2)(b)(ii). The trial court's "to convict" harassment instruction defined what would normally be misdemeanor harassment and set forth that Atkinson could be found guilty of harassment if Atkinson knowingly threatened "to cause bodily injury immediately or in the future to Shyler Sigsbee" or "maliciously to do any act which was intended to substantially harm Shyler Sigsbee with respect to her physical health or safety." Clerk's Papers (CP) at 91; Instr. 21. The court also gave the jury a special verdict form elevating the crime to felony harassment in the event the jury found that Atkinson threatened to kill Sigsbee and Sigsbee reasonably feared that the threat to kill would be carried out. However, the jury did not receive an instruction that it must unanimously agree beyond a reasonable doubt before affirmatively answering the special verdict form. Defense counsel did not object to the instructions.
Under RCW 9A.46.020(1)(a)(i), "[a] person is guilty of harassment if . . . [w]ithout lawful authority, the person knowingly threatens . . . [t]o cause bodily injury immediately or in the future to the person threatened or to any other person." Under RCW 9A.46.020(2)(b)(ii), "A person who harasses another is guilty of a class C felony if . . . the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person."
The language in the first alternative comes from RCW 9A.46.020(1)(a)(i). The language in the second alternative comes, in part, from RCW 9A.46.020(1)(a)(iv). The term "mental health" in RCW 9A.46.020(1)(a)(iv) renders that subsection unconstitutionally vague and overbroad. State v. Williams, 144 Wn.2d 197, 212, 26 P.3d 890 (2001). Here, Atkinson is not charged under this subsection, nor is the "mental health" language included in the jury instruction.
Defense counsel did not propose a voluntary intoxication instruction. The jury found Atkinson guilty of second degree malicious mischief, first degree burglary, and felony harassment (domestic violence). The general verdict did not specify under which alternative the jury convicted Atkinson of harassment. The jury also returned a special verdict form finding that Atkinson threatened to kill Sigsbee. The jury acquitted Atkinson of second degree assault. Atkinson appeals.
ANALYSIS
I. Comment on the Evidence
Atkinson argues that "the court's prejudicial comment on the evidence in the limiting instruction requires reversal of Atkinson's harassment conviction." Appellant's Br. at 6 (capitalization omitted). We disagree.
Under article IV, section 16 of the Washington Constitution, a judge shall not convey to a jury that "matters of fact have been established as a matter of law." State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). "[A]ny remark that has the potential effect of suggesting that the jury need not consider an element of an offense could qualify as judicial comment." State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). Judicial comments on jury instructions are presumed prejudicial. Levy, 156 Wn.2d at 725. The State has the burden to show that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted. Levy, 156 Wn.2d at 725.
The trial court must give a limiting instruction when evidence is admitted for one purpose but not for another and the party against whom the evidence is admitted asks for a limiting instruction. ER 105; State v. Gallagher, 112 Wn. App. 601, 611, 51 P.3d 100 (2002).
Instruction 5 provided:
Certain evidence has been admitted in this case for only a limited purpose. This evidence consists of prior bad acts of the defendant, and may be considered by you only for the purpose of Shyler [Sigsbee's] state of mind while the threats were being made. You may not consider it for any other purpose. Any discussion of the evidence during your deliberations must be consistent with this limitation.
CP at 75. Atkinson argues that the instruction's language, "while the threats were being made," suggested that "the jury need not consider the critical element of whether Atkinson threatened Sigsbee. . . . Whether there was a threat was a threshold issue that had to be established for there to be any crime at all." Appellant's Br. at 10-11. Here, the challenged instruction did not relate to the essential elements of the offense charged and thus did not indicate to the jury whether the State's evidence was sufficient to support a conviction. The trial court gave Instruction 5 for the express purpose of limiting the jury's use of prior bad acts evidence. Other instructions clarified that the State's burden to prove all the elements of the charge remained. Instruction 21, the "to convict" harassment instruction, instructed the jury on the essential elements of the crime, and stated, "if, after weighing all the evidence, you have a reasonable doubt as to any one of [the] elements . . . then it will be your duty to return a verdict of not guilty." CP at 91. The jury also received an instruction stating in part:
Our state constitution prohibits a trial judge from making a comment on the evidence. It would be improper for me to express, by words or conduct, my personal opinion about the value of testimony or other evidence. I have not intentionally done this. If it appeared to you that I have indicated my personal opinion in any way, either during trial or in giving these instructions, you must disregard this entirely.
CP at 71; Instr. 1. Instruction 1 also stated, "It is your duty to decide the facts in this case based upon the evidence presented to you during this trial." CP at 69. Viewed in this context, Instruction 5 does not indicate the trial court's opinion regarding evidence presented at trial. Accordingly, we hold that the trial court did not impermissibly comment on the evidence.
II. Uncharged Alternative Means
Next, Atkinson argues that "the trial court erroneously instructed the jury it could convict Atkinson of [felony] harassment on an uncharged alternative means." Appellant's Br. at 11 (capitalization omitted). The State "agrees that the jury was not properly instructed on the elements of the felony, but only on the elements of a gross misdemeanor." Resp't's Br. at 2.
Alternative means statutes provide more than one means of committing a single crime. In re Det. of Halgren, 156 Wn.2d 795, 809, 132 P.3d 714 (2006). When the information charges one of several alternative means, it is error to instruct the jury that they may consider other means by which the crime could have been committed. State v. Bray, 52 Wn. App. 30, 34, 756 P.3d 1332 (1988) (citing State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942)). Instructing a jury on an uncharged alternative means violates the defendant's right to be informed of the nature of the charges against him. U.S. Const. amend. VI; Wash. Const., art. I, § 22; State v. Laramie, 141 Wn. App. 332, 343, 169 P.3d 859 (2007). "The manner of committing a crime is an element and the defendant must be informed of this element in the information in order to prepare a proper defense." Bray, 52 Wn. App. at 34.
Here, the State charged Atkinson with committing felony harassment by knowingly threatening to kill Sigsbee and placing Sigsbee in reasonable fear that the threat would be carried out. The jury instructions instead allowed a conviction if Atkinson knowingly threatened "to cause bodily injury immediately or in the future to Shyler Sigsbee," or "maliciously to do any act which was intended to substantially harm Shyler Sigsbee with respect to her physical health or safety." CP at 91; Instr. 21. Thus, the jury was told that Atkinson was charged with one felony act but was instructed only on two means of committing gross misdemeanor harassment.
An instructional error that favors the prevailing party is presumed prejudicial unless it affirmatively appears that the error was harmless. State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 (2003). Here, it affirmatively appears that the error was harmless, as the language of both alternatives was, for all practical purposes, identical under the facts of this case. The only evidence presented and the only argument advanced was that Atkinson threatened to kill Sigsbee. A threat to kill is clearly both a threat to cause Sigsbee bodily injury and a threat maliciously to do any act which was intended to substantially harm Sigsbee with respect to her physical health and safety. The jury also had and signed a special verdict form asking whether Atkinson's threat to cause bodily harm consisted of a threat to kill Sigsbee, or another person, and whether Sigsbee reasonably feared that the threat to kill would be carried out. Finally, Atkinson had notice that the only threats he was charged with were threats to kill, and he actively defended against those allegations at trial through his testimony, cross-examination, and argument. Under these facts, Atkinson suffered no prejudice from the instructional error.
Atkinson testified that he sent a text message containing the phrase "death warrants," but he thought he had sent it to his spare cellular phone, which he had with him. RP (May 12, 2009) at 286-87. Sigsbee testified that she believed Atkinson's threats, because during their earlier argument, Atkinson had picked her up, thrown her into some boxes, and hit her on the side of her face. Atkinson denied Sigsbee's allegations. During closing, defense counsel argued that the statement "you both signed death warrants" is "at least ambiguous if not confusing." RP (May 12, 2009) at 376. Defense counsel also argued that Atkinson believed he had sent the text message to himself.
However, the State concedes, and we agree, that the jury was not instructed on all the elements required to convict Atkinson of felony harassment and thus we must vacate his felony harassment conviction. The jury's finding of guilt of misdemeanor harassment remains. We remand for resentencing on this and the remaining convictions based on Atkinson's reduced offender score.
A trial court may bifurcate the elevating fact into a special verdict form; however, the jury must be instructed that it must unanimously agree beyond a reasonable doubt before it may affirmatively answer the special verdict. State v. Mills, 154 Wn.2d 1, 10, 109 P.3d 415 (2005). Although the jury affirmatively answered the special verdict form, it was not instructed that it must unanimously agree beyond a reasonable doubt before affirmatively answering the special verdict form.
III. Statement of Additional Grounds
A. Right to Counsel
In his SAG, Atkinson first contends that the trial court violated his Sixth Amendment right to counsel when it refused "to allow him to replace his privately hired attorney." SAG at 3. We disagree.
Defendants have the right to retain counsel of choice and the denial of a motion for continuance may unlawfully deprive the defendant of that right. State v. Chase, 59 Wn. App. 501, 506, 799 P.2d 272 (1990). But, the assertion of the right to retain counsel must be made within a reasonable time before trial. Chase, 59 Wn. App. at 506. The trial court must balance the defendant's interest in counsel of his choice with the public's interest in efficient administration of justice. State v. Roth, 75 Wn. App. 808, 824, 881 P.2d 268 (1994) (quoting Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981)). To make its determination the trial court should consider whether (1) it has granted previous continuances, (2) the defendant has legitimate cause for dissatisfaction with counsel, (3) available counsel is prepared for trial, and (4) denial of the motion is likely to prejudice the defendant's case. Roth, 75 Wn. App. at 825. We review this determination for abuse of discretion. See Roth, 75 Wn. App. at 826.
Atkinson requested to replace his counsel on May 7, 2009, four days before trial started. He indicated that he wanted to replace his counsel, because "[i]nstead of taking a plea, I want to take it to trial" and "I don't think we've been looking at everything fully." RP (May 7, 2009) at 5-6. The trial court rejected Atkinson's request and stated, "I'm not hearing anything that would justify replacement of counsel. . . . And I haven't heard any reason to believe [defense counsel] won't represent you at trial even if he thinks it may be a mistake for you to go." RP (May 7, 2009) at 6-7. Further, it does not appear from the record that Atkinson had counsel available to replace his private attorney. Finally, Atkinson has not shown how the denial of his request to substitute counsel prejudiced his case. In fact, the record shows that counsel obtained acquittal on one of Atkinson's four charges. We conclude that the trial court did not abuse its discretion in denying the continuance and substitution of counsel.
B. Ineffective Assistance of Counsel
1. Standard of Review
Atkinson next argues that his counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, Atkinson must show both ineffective representation and resulting prejudice. See State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). To establish ineffective representation, the defendant must show that counsel's performance fell below an objective standard of reasonableness. McNeal, 145 Wn.2d at 362. In order to prove prejudice, Atkinson must show that there is a reasonable probability that the result would have been different but for counsel's performance. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome after considering the totality of evidence before the jury. Strickland, 466 U.S. at 694-95. There is a strong presumption that trial counsel was effective. McNeal, 145 Wn.2d at 362. We will not find ineffective assistance of counsel if the action complained of is a legitimate trial tactic. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004).
a. Voluntary Intoxication Instruction
First, Atkinson argues that his counsel was ineffective by failing to request a voluntary intoxication instruction for the first degree burglary charge. We disagree.
RCW 9A.16.090 states:
No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such mental state.
When a voluntary intoxication instruction is sought, the defendant must show (1) the crime charged has a particular mental state as an element, (2) there is substantial evidence of drinking, and (3) evidence that the drinking affected the defendant's ability to acquire the required mental state. State v. Gabryschak, 83 Wn. App. 249, 252, 921 P.2d 549 (1996). The evidence must reasonably and logically connect the defendant's intoxication with the asserted inability to form the required level of culpability to commit the crime charged. State v. Griffin, 100 Wn.2d 417, 418-19, 670 P.2d 265 (1983). Evidence of drinking alone is insufficient to warrant the instruction; there must be "substantial evidence of the effects of the alcohol on the defendant's mind or body." Gabryschak, 83 Wn. App. at 253 (quoting Safeco Ins. Co. v. McGrath, 63 Wn. App. 170, 179, 817 P.2d 861 (1991).
Here, the first two requirements are satisfied. First degree burglary requires a particular mental state of intent. RCW 9A.52.020. Additionally, there was evidence presented at trial that Atkinson was drinking on the day of the incident.
A person commits first degree burglary if,
with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.
RCW 9A.52.020.
However, Atkinson's claim fails because there was no evidence presented at trial that the drinking affected his ability to acquire the required mental state. Atkinson testified that he remembered the events and described them in detail. On the morning of Atkinson's arrest, Taylor asked Atkinson if his intoxication caused the incident. Atkinson responded, "What happened tonight was pure adrenaline and aggression, not being drunk, no, sir." RP (May 12, 2009) at 250. Taylor observed that Atkinson's speech "was repetitive and a little slurred;" but, Taylor also noted that Atkinson did not express any confusion and answered Taylor's questions clearly. RP (May 12, 2009) at 236. There was no ineffective assistance.
b. Failure to Investigate
Atkinson also contends that counsel was ineffective by failing to "investigate and call expert witnesses who could have given testimony as to the [effect] of Mr. Atkinson's intoxication on his mental state." SAG at 9. Defense counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In re Pers. Restraint of Davis, 152 Wn.2d 647, 721, 101 P.3d 1 (2004) (quoting Strickland, 466 U.S. at 690). Nothing in the record on appeal supports Atkinson's claim. Accordingly, we hold that counsel was not ineffective.
C. Ex Parte Communications
Atkinson also argues that the trial court violated his constitutional rights by instructing the jury and replaying a 911 tape for the jury during the deliberation stage outside Atkinson's presence. There should be no communication between the court and the jury in the defendant's absence. State v. Caliguri, 99 Wn.2d 501, 508, 664 P.2d 466 (1983). But, error requires reversal only if it is prejudicial. Caliguri, 99 Wn.2d at 508. Though the State ultimately bears the burden of proving the challenged communication was harmless beyond a reasonable doubt, the defendant must first raise the possibility that he was prejudiced. State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120 (1997).
The jury received instructions on the record and in the presence of Atkinson and counsel. Atkinson appears to contest the following exchange:
[DEFENSE COUNSEL]: Does the Court have the standard instructions that's used when you release [the jury] that says don't talk about it, you're still under —
THE COURT: I usually — I'll advise them of that. I won't call you back for that.
[DEFENSE COUNSEL]: Yeah, the only thing I expect to be called back on is if the jury has a question or something.
THE COURT: Question or a decision.
RP (May 12, 2009) at 384.
Here, the jury asked the trial court to replay the recording of Sigsbee's 911 call. While there should be no communication between the court and the jury in the defendant's absence, it appears the jury's request was communicated to trial counsel and no objection appears in the record. Before replaying the 911 tape, the trial court stated, "I'm going to . . . just play this for you one time. . . . And we don't want to emphasize one portion of the testimony over anything else. . . . I have conferred with attorneys. I have advised them of the same thing." RP (May 13, 2009) at 389. Even if the playing of the 911 tape was erroneous because the court communicated with the jury in the defendant's absence, it was harmless error beyond a reasonable doubt. The proceeding was recorded by a court reporter, and Atkinson cannot establish prejudice from the single replaying of the 911 tape, which had been admitted into evidence at trial.
The record merely reflects that the 911 tape was replayed for the jury during deliberations. When the 911 tape played, the record merely states, "(911 TAPE PLAYS)." RP (May 13, 2009) at 389. However, Atkinson fails to establish prejudice from his assertion that he "had [no] opportunity to be present and make objections." SAG at 14.
Atkinson also argues that the trial court erred by instructing the jury not to discuss the case when releasing the jury for the day. There is no record of the trial court instructing the jury outside Atkinson's presence. Atkinson also fails to establish prejudice from the trial court's alleged instruction. We hold that the trial court did not violate Atkinson's constitutional rights.
D. Prior Bad Acts
Next, Atkinson argues that the trial court erred by allowing the admission of photographs of Sigsbee's bruised arm and nose and a police officer's testimony to demonstrate Sigsbee's state of mind at the time of the incident. We disagree.
We review the decision to admit evidence under 404(b) for an abuse of discretion. See State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). The trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. State v. Stein, 140 Wn. App. 43, 65, 165 P.3d 16 (2007), review denied, 163 Wn.2d 1045, 187 P.3d 271 (2008).
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith; however, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ER 404(b). Before a court admits prior bad acts evidence, it must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
In this case, the prior bad acts were admissible to establish Sigsbee's state of mind, which was relevant for the harassment charge. Reasonable fear is an element of harassment. RCW 9A.46.020(1)(b); State v. Talley, 122 Wn.2d 192, 214, 858 P.2d 217 (1993). The record reflects that the trial court found by a preponderance of the evidence that the misconduct occurred, identified the purpose for which the evidence was sought to be introduced, determined that the evidence was relevant to prove Sigsbee's state of mind, and weighed its probative value against its prejudicial effect. We hold that the trial court did not err by admitting the evidence.
E. Cumulative Error
Finally, Atkinson argues that "the accumulation of numerous errors by the trial court deprived him of a fair trial." SAG at 18. Cumulative error may warrant reversal, even if each error standing alone would otherwise be considered harmless, when the errors combined denied the defendant a fair trial. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006); State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. State v. Yarbrough, 151 Wn. App. 66, 98, 210 P.3d 1029 (2009). We hold that the cumulative error doctrine does not apply here.
We affirm Atkinson's first degree burglary and second degree malicious mischief convictions, vacate Atkinson's felony harassment (domestic violence) conviction, and remand for entry of judgment and sentence for misdemeanor harassment.
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.
ARMSTRONG, J. and HUNT, J., concur.