Opinion
No. 24410-5-III.
April 24, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-00560-6, Cameron Mitchell, J., entered July 21, 2005.
Affirmed by unpublished opinion per Kato, J. Pro Tem., concurred in by Sweeney, C.J., and Kulik, J.
Zachariah Lee Bailey was convicted of first degree assault and first degree unlawful possession of a firearm. The court imposed a standard range sentence plus five years for a firearm enhancement. Mr. Bailey claims the State violated discovery rules and the court improperly imposed the sentence enhancement. He filed additional grounds for review as well. We affirm.
On April 16, 2005, Robert "Troy" Hartley was on his farm when he was told there was smoke in the canyon on his property. He drove to the area and saw something burning along with three men standing near a maroon pickup.
The men saw Mr. Hartley and took off. While he followed them, a bullet hit his windshield, entering the passenger seat headrest.
Later that morning, a red pickup pulled into a neighboring farm. One of the occupants approached Garrett Moon and asked for gas. Mr. Moon gave them gas. He took the pickup's license plate number as they left. He later identified Jesse Chenoweth as the driver of the pickup.
Mr. Chenoweth was with Dan Madrigal. The two had gone to Mr. Bailey's house. All three then left in the pickup and went to a remote canyon where Mr. Bailey began burning wire. After 20 to 30 minutes, he saw a farmer watching them. He grabbed the wire and the men fled. Mr. Chenoweth was driving with the farmer following them when Mr. Bailey began shooting out the window. They then ran out of gas, pulled into a nearby farm, and asked for gas. When they got back on the road, Mr. Bailey threw the gun out the window.
That evening, a Benton County deputy stopped a vehicle matching the description of the maroon pickup. Several spent .380 shell casings were found in the back of the truck. The investigation led to a house where Mr. Bailey was found and arrested. An unused .380 bullet was found in his front pants pocket.
The police recovered a gun near the area Mr. Chenoweth said Mr. Bailey had dumped it. David Marx told the police he had initially purchased the gun, but had sold it to Mr. Bailey.
A firearms examiner testified the spent casings were fired from this gun. The unfired cartridge found on Mr. Bailey would fit in the gun recovered by the police. Mr. Bailey's deoxyribonucleic acid (DNA) was also found on the handle of the gun.
The police matched Mr. Bailey's shoes to a footprint left at the area where Mr. Hartley had seen the threesome burning the wire.
The State charged Mr. Bailey by amended information with first degree assault and first degree unlawful possession of a firearm. He offered an alibi defense, claiming he had not been with Mr. Chenoweth or Mr. Madrigal on the day of the incident.
The jury convicted Mr. Bailey on both counts and returned a special verdict finding he was armed with a firearm at the time he committed first degree assault. The court imposed a standard range sentence plus five years for the firearm enhancement. This appeal follows.
Mr. Bailey claims the State committed several discovery violations warranting dismissal of the charges against him. He was arraigned on April 22, 2005. On May 6, he requested discovery, including any crime lab reports. The State responded it did not then have any such reports.
On May 20, Mr. Bailey again asked for crime lab reports and other materials. The State did not have the reports. On May 27, Mr. Bailey moved to dismiss for discovery violations because he still had not received any reports. The State responded it would provide the reports as soon as it got them. The court denied the motion to dismiss. Trial was scheduled to begin June 13, 2005.
By June 3, Mr. Bailey had received no lab reports, so he argued he was unable to adequately prepare a defense. The court said trial would stay set for June 13.
On June 8, the State told the court the lab report regarding the fingerprints on the weapon should be faxed that day. But the ballistics and DNA tests were incomplete. Mr. Bailey moved to dismiss based on discovery violations. He claimed he had to choose between his right to a speedy trial and his right to prepare a defense, thus forcing him into an untenable choice. The court again left the trial date on June 13 and set discovery for June 12.
On June 10, the State informed the court it had provided the defense with fingerprint and shoe print reports, but was still waiting on DNA results. The State requested a one-week continuance of the trial date to June 20. Mr. Bailey renewed his request for dismissal, claiming he did not have time to obtain any independent investigation of these results prior to trial and did not wish to waive his right to speedy trial. He also objected to the continuance. The court continued the pretrial hearing date for one week.
At the June 17 pretrial hearing, the State did not have DNA results. Mr. Bailey indicated he would be asserting an alibi defense. The State revealed that a forensic scientist doing the DNA test would be a new potential witness.
On June 20, trial was scheduled to begin and there was still no DNA report. Mr. Bailey objected to any DNA testing being admitted as evidence. The court reserved ruling on the issue and proceeded to jury selection.
During jury selection, the DNA report was produced and indicated Mr. Bailey's DNA was on the firearm used in the crime. Mr. Bailey again moved to suppress. The court denied the motion, indicating the State had not done anything to delay this evidence. The court told Mr. Bailey he could move for a continuance, but his motion to suppress was denied. Mr. Bailey elected to continue the trial to July 11. He now claims the court erred by denying his motions to dismiss for discovery violations.
A court is given wide latitude in granting or denying such a motion. State v. Woods, 143 Wn.2d 561, 582, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001). We will not reverse the denial of the motion to dismiss unless it constitutes a manifest abuse of discretion. Id. "Dismissal of a case for discovery abuse is an extraordinary remedy that is generally available only when the defendant has been prejudiced by the prosecution's actions." State v. Cannon, 130 Wn.2d 313, 328, 922 P.2d 1293 (1996). Whether dismissal is an appropriate remedy for discovery violations is a fact-specific inquiry decided on a case-by-case basis. State v. Ramos, 83 Wn. App. 622, 637, 922 P.2d 193 (1996).
Here, Mr. Bailey claims the State was not diligent as evidenced by the delay in the completion of the forensic reports.
"[I]f the State inexcusably fails to act with due diligence, and material facts are thereby not disclosed to defendant until shortly before a crucial stage in the litigation process, it is possible either a defendant's right to a speedy trial, or his right to be represented by counsel who has had sufficient opportunity to adequately prepare a material part of his defense, may be impermissibly prejudiced. Such unexcused conduct by the State cannot force a defendant to choose between these rights. The defendant, however, must prove by a preponderance of the evidence that interjection of new facts into the case when the State has not acted with due diligence will compel him to choose between prejudicing either of these rights."
Woods, 143 Wn.2d at 582-83 (quoting State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980)).
In Woods, the State had indicated the reports would be completed in October 1996. Woods, 143 Wn.2d at 583. The reports were not completed until February 1997, in part because the State had inadvertently frozen Mr. Woods' blood requiring that a new sample be taken. There was also a delay because of a vacation of a forensic scientist. Id. The court held that these actions could be attributed to the State; however, dismissal was not required because these reports did not inject new facts into the case. Id. at 584. Mr. Woods was aware the State intended to use these test results to prove he committed the crimes. Because there was no new evidence, Mr. Woods could not establish dismissal was required as a remedy. Id. at 585.
The incident here occurred on April 16, 2005. Mr. Bailey was arraigned April 22. All lab reports were completed by June 20. At the first omnibus hearing on May 6, the parties discussed the forensic reports that were being prepared. Mr. Bailey knew the State was going to use forensic evidence to prove its case. Thus, the reports referred to on May 6 were not new evidence.
Mr. Bailey argues in his additional grounds for review that the delayed DNA evidence was indeed new evidence requiring dismissal. The defense first learned the State was conducting DNA tests on June 3, 2005. On June 8, the parties appeared in court and argued about the tests being performed on the firearm, including the DNA tests. On June 15, the State obtained a warrant and took a DNA sample from Mr. Bailey. The results indicating Mr. Bailey's DNA matched that on the gun were provided to him on June 20.
Mr. Bailey was aware of forensic tests being done in May 2005. The State was planning to use this evidence to tie him to the crime. On June 3, Mr. Bailey learned of the DNA tests. All these tests were relevant to identification of Mr. Bailey as the perpetrator. The results became known on June 20, 2005, but do not constitute new evidence in these circumstances.
Mr. Bailey could, and did, argue the State could have obtained the DNA sample from him sooner so the results could have come in earlier. But this alone is not evidence of lack of diligence. The delay here was also not even as long as the delay in Woods. Mr. Bailey has not met his burden to establish the court abused its discretion by denying his motion to dismiss.
Mr. Bailey next claims the court erred by imposing the firearm enhancement. Although there is a mechanism to impose a deadly weapon enhancement, he argues there is no such procedure for a firearm enhancement. Contrary to Mr. Bailey's claim, RCW 9.94A.533(3) provides the procedure for imposing a firearm enhancement and it was in effect at the time of his crime.
He further contends that pursuant to State v. Recuenco, 154 Wn.2d 156, 162-63, 110 P.3d 188 (2005), rev'd on other grounds, 126 S. Ct. 2546 (2006), the court cannot impose a firearm enhancement when a jury only found facts supporting a deadly weapon enhancement. His reliance on Recuenco is misplaced. The jury was instructed on a firearm enhancement and returned a special verdict that Mr. Bailey was armed with a firearm during the commission of the crime. The court properly instructed the jury on the firearm enhancement. There was no error.
Mr. Bailey further claims he was punished twice for using a firearm during the commission of an assault. The conviction for first degree assault required the jury to find he used a firearm. The jury also entered a special verdict finding he was armed with a firearm, thus enhancing his sentence.
Double jeopardy prohibits multiple punishments for the same offense. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). The legislature has the authority to define offenses and set punishments. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). When a defendant's conduct violates more than one statute, the critical question is whether the legislature intended that result. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004); Calle, 125 Wn.2d at 776. Washington has consistently held firearms enhancements "do not violate a defendant's double jeopardy rights where possession or use of a firearm is an element of the underlying offense because the legislature has clearly indicated its intent in the statute that the enhancements shall apply." State v. Esparza, 135 Wn. App. 54, 67, 143 P.3d 612 (2006). There was no error.
Mr. Bailey further claims the court erred by denying his motion to dismiss at the close of the State's case when the evidence was insufficient to establish the requisite intent for first degree assault. But because Mr. Bailey presented his case-in-chief, he may not appeal the denial of his motion to dismiss. State v. Jackson, 82 Wn. App. 594, 608, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997). We will treat it instead as a claim of insufficiency of the evidence. Id. at 608-09.
"`A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.'" State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) ( quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). When a criminal defendant challenges the sufficiency of the evidence, this court will draw all reasonable inferences from the evidence in favor of the State and against the defendant. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). This court will reverse a conviction for insufficient evidence only if no rational trier of fact could find that all of the elements of the crime were proved beyond a reasonable doubt. Id. This court "may infer criminal intent from conduct, and circumstantial evidence as well as direct evidence carries equal weight." State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004) (citing State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)).
Mr. Bailey was convicted of first degree assault. "A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm: (a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death." RCW 9A.36.011(1)(a). "A person acts with intent when he or she acts with the objective or purpose to accomplish a result constituting a crime." State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994); see RCW 9A.08.010(1)(a).
The evidence established Mr. Bailey told the others they had to flee when he saw Mr. Hartley watching them. When Mr. Hartley pursued them, Mr. Bailey started firing a gun at his pickup. From this evidence, the jury could infer he intended to inflict great bodily harm. The evidence was sufficient to support the verdict.
Mr. Bailey claims the court erred by failing to instruct the jury on the lesser-included offense of second degree assault. But the failure to give a particular instruction is not error when no request was made for such an instruction. State v. Hoffman, 116 Wn.2d 51, 111-12, 804 P.2d 577 (1991). Similarly, lesser-included offense instructions are not required when not requested. Id. at 112. Because the court was not required to give a lesser-included offense instruction on its own motion, this contention fails.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and KULIK, J., concur.