Opinion
No. 21946-1-III.
Filed: March 16, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Grant County. Docket No. 02-1-00488-4. Judgment or order under review. Date filed: 03/31/2003. Judge signing: Hon. Evan E Sperline.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), Edward Asa Owens, Grant County Prosecutor's Office, PO Box 37, Ephrata, WA 98823-0037.
Randy A. Bickel appeals his Grant County conviction for residential burglary. We reject his contentions of insufficient evidence, improper admission of evidence, and double jeopardy, and affirm.
FACTS
Grant County Sheriff's deputies were dispatched to Jamie Wilkinson's home regarding a 911 call. The dispatcher believed an assault was in progress. The deputies saw Ms. Wilkinson on the front porch crying and holding a washcloth to her face and head. A witness at the scene told one deputy Melisa Mininger hit Ms. Wilkinson.
Ms. Wilkinson reported Ms. Mininger's boyfriend, Mr. Bickel, had kicked in her back door and entered her house while she was speaking to the 911 operator. Mr. Bickel then pulled the phone from the wall, throwing it and damaging some dishes. The deputy saw a phone wire sticking out of the wall and the phone jack lying on the floor across the room. Mr. Bickel ran when the deputies arrived.
Mr. Bickel was later apprehended and charged with first degree burglary, fourth degree assault, and third degree malicious mischief. The information was later amended to include residential burglary as an alternative to first degree burglary.
Prior to trial, Mr. Bickel moved to exclude the tape and transcript of the 911 call placed by Ms. Wilkinson. The court excluded the tape because of its lack of probative value, but stated, '[i]t would, however, potentially be admissible as rebuttal in the event that there was defense testimony, for instance, that it was a peaceful entry, she invited us in, something like that. Then it would certainly be admissible for rebuttal because it demonstrates the urgency of the situation.' Report of Proceedings (RP) at 27.
At trial, Ms. Wilkinson testified she had called 911 to report an earlier incident between her and Ms. Mininger when she saw a car of people, including Ms. Mininger and Mr. Bickel, arrive. She locked the front and back doors. While the front door was being beaten, loosening the frame, suddenly, Mr. Bickel kicked in the back door, ripped the phone from the wall, and threw it against Ms. Wilkinson's dinette set, breaking a tea cup and chipping a nearby desk. During this time the 911 call recorded the events.
Mr. Bickel testified he 'didn't assault anybody, I did not enter her house, I did not kick her door in.' RP at 144. Ms. Mininger testified she did not intend to assault Ms. Wilkinson when she went to her home or try to get in Ms. Wilkinson's front door; rather, she wanted Ms. Wilkinson to just open the door and come out and talk. Ms. Mininger testified she never broke the door jam, and never pushed on the front door.
Following Ms. Mininger's testimony, the defense rested. The prosecutor asked to admit the 911 tape as rebuttal. The court allowed the tape 'to rebut the defense case in regard to time frame, in regard to the kicking in of the back door, since the defense case suggests no explanation for kicking in the back door' and to rebut Ms. Mininger's testimony. RP at 170.
Regarding possible use of the tape during deliberations, the court inviting any objection, advised counsel, 'if they ask to play Exhibit 1, then my intention is to have the bailiff take the tape recorder in to the jury room, allow the jury to use it to play the tape, allow them to repeat that if they want to repeat it, but when they've finished, to remove the tape recorder from the room.' RP at 205. Mr. Bickel did not object. No evidence in the record shows the jury requested to listen to the tape, or if it was ever replayed.
Mr. Bickel was found guilty solely of residential burglary. Prior to sentencing, Mr. Bickel asked to arrest judgment on grounds of 'insufficiency of evidence.' Clerks Papers (CP) at 63. Attached to the motion was defense counsel's affidavit partly averring evidence insufficiency in the State's proof, 'the Defendant entered or remained in the dwelling.' CP at 64. Defense counsel additionally averred his client's belief, 'the Jury may have been unduly influenced by the repetitious listening to the 911 tapes[.]' CP at 64. When arguing the motion to arrest judgment, Mr. Smith, in a one-paragraph argument, argued solely evidence insufficiency based upon lack of evidence, 'Mr. Bickel was in that house as was instructed to the jury.' RP at 230. The court denied his request. Mr. Bickel appealed.
ANALYSIS A. Evidence Sufficiency
The issue is whether the trial court erred in denying Mr. Bickel's request for arrest of judgment based upon evidence insufficiency.
When reviewing a denial of a motion to arrest judgment, we engage in the same inquiry as the trial court. State v. Longshore, 141 Wn.2d 414, 420, 5 P.3d 1256 (2000). Our function is to determine "whether the evidence is legally sufficient to support the jury's finding." State v. Bourne, 90 Wn. App. 963, 967, 954 P.2d 366 (1998) (quoting State v. Robbins, 68 Wn. App. 873, 875, 846 P.2d 585 (1993)).
Mr. Bickel on appeal contends insufficient evidence exists to support his conviction because the jury acquitted him of malicious mischief; therefore, he argues no evidence shows he intended to commit a crime against property. However, his argument to the trial court was directed solely to whether the evidence supported the proposition that Mr. Bickel entered Ms. Wilkinson's home, a different argument.
Evidence is sufficient to support a jury verdict if, 'after 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. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
The essential elements of residential burglary are entering or remaining unlawfully in a dwelling plus the intent to commit a crime against a person or property therein. RCW 9A.52.025(1). Mr. Bickel now does not dispute the sufficiency of the evidence of unlawful entry. He argues the evidence of criminal intent is insufficient because he was acquitted of malicious mischief, which required a crime against property. This type of argument is presumably based on his view that the jury verdicts are inconsistent, a claim we need not address in the context of a challenge to the sufficiency of the evidence.
Ms. Wilkinson testified Mr. Bickel kicked in her back door. She saw him enter and pull her phone from the wall and throw it down. The investigating deputy saw the damaged back door, phone, and dishes. Viewed in a light most favorable to the prosecution, this evidence is sufficient to prove Mr. Bickel intended to commit a crime against a person or property when he illegally entered Ms. Wilkinson's home. Moreover, proof of unlawful entry alone will support an inference by the jury of criminal intent, unless the unlawful entering or remaining is otherwise explained to the jury's satisfaction. RCW 9A.52.040. No such explanation was offered here. Mr. Bickel simply denied entry. In any event, sufficient evidence shows Mr. Bickel's entry.
B. Double Jeopardy
Mr. Bickel next contends the trial court erred by not granting arrest of judgment because his conviction violated prohibitions against double jeopardy under the State and Federal constitutions.
The double jeopardy clauses of the Fifth Amendment of the United States Constitution and article I, section 9 of the Washington State Constitution protect a defendant from multiple punishments for the same offense. State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991). Both constitutions protect a defendant against multiple prosecutions for the same act. See U.S. Const. amend. V; Wash. Const. art. I, sec. 9. Article I, section 9 provides the same level of protection as the Fifth Amendment. In re Pers. Restraint of Davis, 142 Wn.2d 165, 171, 12 P.3d 603 (2000).
Double jeopardy was not argued below. Nevertheless, RAP 2.5(a)(3) permits such a claim as a manifest error affecting a constitutional right. State v. Turner, 102 Wn. App. 202, 206, 6 P.3d 1226 (2000), review denied, 143 Wn.2d 1009 (2001).
Mr. Bickel's double jeopardy argument is apparently based on multiple prosecutions for the same act. In order to be 'the same offense' for constitutional double jeopardy analysis, the offenses must be the same in law and in fact. In re Fletcher, 113 Wn.2d 42, 46, 776 P.2d 114 (1989). Washington employs the 'same evidence' test to determine this. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). The offenses are the same in law if every element essential to prove one offense is also essential to the other; they are the same in fact if proof of the act charged in either count is sufficient to sustain a conviction under the other. State v. Springfield, 28 Wn. App. 446, 451, 624 P.2d 208 (1981).
We need not compare elements, however, because alternative charging does not constitute a double jeopardy violation. State v. Trujillo, 112 Wn. App. 390, 409, 49 P.3d 935 (2002) (citing State v. Bowerman, 115 Wn.2d 794, 800, 802 P.2d 116 (1990)), review denied, 149 Wn.2d 1002 (2003). The jury was properly instructed it could convict Mr. Bickel solely of one of the alternatives; first degree burglary or residential burglary. Accordingly, we reject Mr. Bickel's double jeopardy claim.
C. 911 Tape
The issue is whether the trial court erred in admitting the 911 tapes as rebuttal evidence and allowing the jury to consider the tapes during deliberations.
Preliminarily, the State correctly objects to the transcript of the tape included in the appendix of Mr. Bickel's opening brief, arguing the transcript was not part of the trial evidence. 'An appendix may not include materials not contained in the record on review without permission from the appellate court.' RAP 10.3(a)(7).
Decisions involving evidentiary issues lie within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). Discretion is abused if it is exercised on untenable grounds or for untenable reasons. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
Prior to trial, the court ruled it would allow the tape as rebuttal if 'there was defense testimony, for instance, that it was a peaceful entry, she invited us in, something like that.' RP at 27. During trial, Mr. Bickel testified he did not kick in Ms. Wilkinson's back door or enter her house. Ms. Mininger testified she did not try to get in Ms. Wilkinson's front door or break or push the front door or door jam. The court allowed the tape 'to rebut the defense case in regard to time frame, in regard to the kicking in of the back door, since the defense case suggests no explanation for kicking in the back door' and to rebut Ms. Mininger's testimony. RP at 170.
The trial court has discretion to admit evidence that otherwise might be inadmissible if the defendant opens the door to the evidence. State v. Bennett, 42 Wn. App. 125, 127, 708 P.2d 1232 (1985) (citing State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969); State v. Olson, 30 Wn. App. 298, 633 P.2d 927 (1981)). Here, the trial court provided tenable grounds to allow the tape as rebuttal evidence.
Regarding use of the 911 tape by the jury, a jury generally receives all exhibits received into evidence along with the appropriate technical means necessary to listen to a recorded exhibit. CrR 6.15(e); State v. Elmore, 139 Wn.2d 250, 296, 985 P.2d 289 (1999). Limiting access to a tape player is discretionary. A tape may go to the jury if the contents bear on the charge and are not unduly prejudicial. Castellanos, 132 Wn.2d at 100. Here, when invited, Mr. Bickel did not object to the court's instructions to the bailiff regarding the procedure to be used if a tape player was requested. Thus, Mr. Bickel waived the issue here. Moreover, nothing in our record shows the jury even requested a tape player. It follows that no prejudice can be shown. Mr. Bickel's speculative, conclusory assertions are insufficient to meet his burden to show prejudice. And, undue prejudice relates to the content of the tape, not access to the tape. See Castellanos, 132 Wn.2d at 100 (control of the jury's access to a tape is not dispositive; rather, the content of the tape is the focus and must not be unduly prejudicial). We conclude Mr. Bickel fails to show trial court error related to the 911 tape.
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, J. and KURTZ, J., concur.