Opinion
No. 31239-5-II
Filed: August 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-1-01756-8. Judgment or order under review. Date filed: 12/19/2003. Judge signing: Hon. Gary Steiner.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Bruce Michael Casaway appeals from his conviction and sentence for first degree assault and first degree unlawful possession of a firearm. We affirm.
FACTS A. Procedural History
On April 16, 2003, the State charged Casaway with first degree assault and second degree unlawful possession of a firearm. The charges arose from a shooting incident that occurred on I-5 on April 15. Curtis Cornwell drove the Honda involved in the shooting. The State charged Casaway and Cornwell as co-defendants. The other passenger in the car was Eugene Bamba.
Casaway remained in custody awaiting his June 2 trial date. A trial date of June 2, left 13 days in his speedy trial period. On May 20, the court continued his trial to June 16. At that time, Casaway waived his right to speed trial.
On June 16, the court called Casaway's case. However, the prosecutor had plans to attend a Continuing Legal Education (CLE) class and Casaway needed to complete further research so the court recessed the case until the following Tuesday, June 24. The court did not hear any pretrial motions before recessing.
The next trial date was June 24. The State notified the court that it had reached an agreement with Cornwell to provide testimony in Casaway's case. Casaway informed the court that he had not had the opportunity to interview Cornwell and that he also needed time to have some evidence tested for fingerprints. Despite this, Casaway made it clear that he was not waiving his right to a speedy trial. But on June 24, the court granted Casaway's motion to sever his trial when it signed an order continuing the co-defendant's case. At the same time, the court denied Casaway's motion to dismiss the case. The court recessed to allow Casaway the opportunity to prepare for trial; i.e., to complete discovery because the State had reached an agreement with the co-defendant in exchange for his testimony.
On June 30, the court told the parties that it was unable to resume the trial because it had not yet finished another trial. Casaway also told the court that he had not yet completed discovery. He again stated that he was not waiving his right to a speedy trial. The court recessed the case to accommodate its schedule and to allow Casaway to finish discovery.
Trial resumed on July 7. Casaway advised the court that the State had reached an agreement with Eugene Bamba. Casaway had not had the chance to interview Bamba. The court recessed the case to allow Casaway the opportunity to interview Bamba.
On July 9, defense counsel requested a continuance even though Casaway objected to any further delay. The interview with Bamba raised some evidentiary issues that required a ballistics expert. The court continued the case until September 15.
On September 15, the State requested a two-week recess because it was scheduled to start a two-week murder trial. Casaway objected to the further extension of time and refused to waive his speedy trial rights. The court recessed the case until September 29.
Casaway's case did not resume on September 29, because the trial judge was ill. On October 1, the parties returned to court. The court set the trial to begin on October 13, because it had to hear another case.
On Monday, October 13, the court was still in trial on a different case. The court recessed Casaway's case to start that Wednesday morning. But on October 15, the State asked for a recess because one of its witnesses was out of the country. The court again recessed the case to begin the following Monday. At that time, the court heard some pretrial motions.
One of those motions involved Cornwell. At the time the officers arrested Cornwell, he had his girlfriend's ex-husband's identification. The State wanted an order prohibiting Casaway from questioning Cornwell about it. The court found that the identification had no relevancy to Casaway's case, stating that, '[i]n the event you come up with something, we will take it up again before we select the jury.' Report of Proceedings (RP) (Oct. 15, 2003) at 59.
The court also granted the State's motion to exclude testimony about Bamba's drug problem.
On October 20, the court heard more pretrial motions. The court reserved ruling on whether to allow Casaway to introduce the victim's, Joseph Fink, driving record, which included several driving while license suspended convictions.
Fink testified that on the night of April 15, he had played two softball games and then went to a friend's house to watch a basketball game. He left his friend's house around 9:00 p.m. and reached southbound I-5 around 9:30 that night. Fink stated that as he merged onto the freeway, he pulled in front of a black Honda Civic. As he entered the freeway, he was traveling around 75 to 80 m.p.h. Fink testified that he put on his brakes to slow down a bit. He then noticed the Honda come around on his side so he got into the other lane and sped off. He and the Honda were racing down the freeway.
Fink testified that the Honda got into the left-hand lane and he moved back into the right-hand lane. Fink moved back into the center lane and the Honda pulled back in behind him. At that point, he put on his brakes. The Honda then pulled to the left side of him and right in front of him. As the car passed, Fink stated that he looked into the car and saw three individuals. He testified that there were two people in the front and one in the back. Fink stated that he could not tell the ethnicities of the individuals in the car.
As the Honda moved to Fink's left, it slowed down and Fink looked over and saw a male pointing. He next heard a bang. He did not feel anything inside his vehicle and actually thought the shot went underneath the car. Fink testified that the shooter was sitting in the passenger seat. He then stated that after the shooting, the Honda pulled ahead of him, sped off, and then got over all four lanes of traffic and took the South Tacoma Way exit. Fink followed behind the Honda, grabbed his cell phone, and called 911.
The cars exited the freeway onto South Tacoma Way and the Honda took a left on 100th Street. Fink testified that he followed the Honda in order to get the license plate number. He lost sight of the car for a while when it took a right down by Clover Park Technical College. Fink stated that he then saw the car turn back onto Steilacoom Boulevard and that he again lost sight of the car. As Fink approached near the Bowlero Bowling Alley, he saw the Honda sitting behind the Les Schwab store. It appeared the driver was standing outside of the vehicle. Fink drove down Steilacoom Boulevard and took a left. He then saw the driver get back into the car and start coming back toward him. The 911 operator then advised Fink to go into a well-lit area and wait. Fink parked in the bowling alley parking lot. He saw the Honda come up between the Les Schwab store and another store and take off.
A short time later, police contacted Fink. Fink testified that he did not find the bullet in his vehicle but that an officer did. The bullet had hit Fink's seat and came to rest between his legs. Fink stated that the bullet had come through the door.
Curtis Cornwell also testified for the State. Cornwell testified that on the day of the incident only he drove the Honda. He also stated that the rear windows of the car were fixed in place. Cornwell testified that Casaway was in the passenger seat next to him. He stated that he was driving on I-5 when a car came out of nowhere and almost ran the Honda into a guardrail. Cornwell testified that Casaway was mad at the driver of the other car. As the Honda pulled alongside Fink's car, Cornwell stated that Casaway pulled out a gun and started shooting at Fink. During cross-examination, Casaway asked Cornwell what the State charged him with as a result of his plea agreement. Cornwell responded, '[r]endering criminal assistance.' RP (Oct. 21, 2003) at 184. Casaway then asked if Cornwell knew what his prison time would have been had he not pleaded. Cornwell guessed 15 to 20 years. Casaway next asked if Cornwell was concerned about the prospect of receiving a life sentence if he had received a conviction for first degree assault. The State objected to the question. The court then advised the parties they would discuss the matter in chambers. When cross-examination resumed, the court sustained the State's objection. Casaway did not make a record of the parties' discussion.
The State also called Clarence Mason, a forensics investigator with the Pierce County Sheriff's Department. Mason determined that a projectile entered from the front left of Fink's vehicle in a downward angle. Based on his analysis, Mason determined that the Honda was positioned in front and to the left of Fisk's vehicle during the shooting.
The State next called Deputy Trent Stephens with the Pierce County Sheriff's Department. Deputy Stephens heard the dispatcher's call about the shooting and responded. He testified that he headed in the general direction of the location of the Honda. The deputy saw the Honda several blocks ahead of him on South Tacoma Way. He saw at least two to three people inside the vehicle once he pulled in behind it. Deputy Stephens testified that the vehicle he pursued was a black Honda.
Deputy Stephens had his sirens and lights activated but the Honda continued driving and turned eastbound onto 86th Street. The Honda then made a left-hand turn and then another hard left. He testified that the Honda appeared to be looking for a left-hand turn in order to get out of the residential area. Both cars went around a corner and the Honda missed the turn that would have put the vehicles back on 84th Street. The Honda ended up on a dead end street by a school.
Once the Honda stopped, Deputy Stephens stated he got out of his car with his gun drawn and ordered the occupants out of the Honda. The passenger side door of the Honda opened and Casaway jumped out of the car. Deputy Stephens began yelling at Casaway to stop and put his hands up. He stated that Casaway looked at him, turned around, and took off running away from the Honda.
Deputy Stephens followed Casaway. As the deputy ran past the Honda, he noticed two other people inside the car. The deputy further testified that as they ran, Casaway had his hands in front of him and appeared to be grabbing for something. Deputy Stephens observed Casaway reaching down toward his groin/waist area and grabbing for things. The deputy stated that he could hear things 'clanking and banging' as they fell. RP (Oct. 23, 2003) at 274.
The deputy continued pursuing Casaway through the Village Green Mobile Home Park. The two passed the first street and then went down past four or five trailers when Casaway made a right-hand turn between two trailers. Deputy Stephens followed behind Casaway. They turned a corner and Casaway made a 180-degree turn back toward where the two had entered around the carport. The deputy lost track of Casaway for a few brief seconds and then spotted him in the carport. Deputy Stephens testified that Casaway took off around the corner where they came in and the deputy lost him.
Deputy Stephens waited for the canine unit to arrive. The canine unit started where the foot chase began. The officers followed the dog to where Deputy Stephens had last seen Casaway. The deputy went behind the trailer park and went up to one of the trailers. At that point, the dog started to alert.
The officers went around to another carport and the dog became excited and went between a trailer and a carport, found Casaway, and grabbed hold of him. The dog got Casaway on the ground and after a brief struggle, Casaway gave up.
After securing Casaway, the deputy walked him back along the same route they had taken. The canine unit also started on an evidence track. Deputy Stephens testified that the dog found a 9 mm semiautomatic handgun along the same path that Casaway took when he fled the Honda.
Another witness for the State was Brenda Robinson, a forensic scientist with the Washington State Patrol Crime Lab. Robinson examined the bullet found in Fink's car. She testified that that there was not enough information on the core of the bullet for her to determine whether the bullet came from a particular weapon. But she concluded that the caliber of the core was a medium, which included 9 mm handguns.
During cross-examination, Casaway discovered that Robinson had notes that were different from her report. Casaway requested a recess so that he could review Robinson's notes. After the recess, Casaway objected to the late disclosure or the failure to disclose the information contained in the notes. The State responded that Casaway had never requested Robinson's notes and that it had provided Robinson's report to Casaway in a timely manner. The State further argued that it was not in possession of Robinson's notes and did not know that the notes existed. Casaway explained to the court that he was not asking for particular relief at that moment.
The court recessed to give Casaway a chance to review the notes with his ballistics expert. When cross-examination resumed, Casaway asked Robinson if she had an opinion as to whether the bullet had come from a pistol or rifle. Robinson responded that she could not say with certainty that the bullet came from the pistol the police recovered.
The State's final witness was Pierce County Sheriff Deputy John Unfred. Deputy Unfred responded to the dispatcher's call on April 15 and went to the Bowlero Bowling Alley parking lot and contacted Fink. Deputy Unfred testified that Fink told the deputy he had been involved in a road rage incident on I-5 and that someone had shot at his car. The deputy stated that he found a bullet hole in the side of Fink's car.
Deputy Unfred further testified that Fink described the passenger as an Asian male with short, black hair. After the deputy got a clear version of Fink's story, he examined Fink's car. The deputy stated that he found a bullet lying on the floor right below the driver's seat.
On cross-examination, Casaway asked the deputy why his description of Casaway was not included in his typed report. The deputy's answer is unclear but he did state that there was nothing else in his notes that was not included in his typed report.
Casaway called Michael Howard, a self-employed criminalist forensic scientist. Howard examined Fink's vehicle and calculated the bullet's trajectory. He determined that the Honda would have to be eight to nine feet away from Fink's car if the shot was fired from a height of 36 inches with a 15-degree angle. Howard also testified that it was unlikely that the shot came from the driver's side of the car. After presenting Howard's testimony, Casaway rested.
The jury found Casaway guilty of first degree assault and also that he was armed with a firearm when he committed the crime. It also found him guilty of first degree unlawful possession of a firearm. The court set Casaway's sentencing hearing for November 21.
B. Sentencing
On November 21, the State requested a continuance to December 5, because defense counsel had just notified the State that morning that one of Casaway's prior convictions was for third degree aggravated assault and the State had been unable to find the out-of-state statute for that particular conviction. Casaway objected to the continuance, but the court granted it.
Court reconvened on December 5, and the State argued that Casaway's recent conviction was his third strike. The State asserted the first strike was a Texas conviction for aggravated assault that occurred on December 13, 1991. The second strike was a March 14, 1998, Texas conviction for second degree robbery. The State presented the court with Casaway's guilty plea for the second degree robbery conviction. The State asserted that the elements for second degree robbery in Texas were equivalent to the elements of second degree robbery in Washington. The State then listed the elements.
The State handed three exhibits to the court regarding the aggravated assault conviction. The first exhibit was a certified copy of Casaway's statement of defendant on plea of guilty. The second exhibit was the judgment on plea of guilty and Casaway's waiver of jury trial. The State argued that the Texas statute for aggravated assault stated an assault occurred when a person caused serious bodily injury to another. The Washington statutes discussed great bodily harm for first degree assault and substantial bodily harm for second degree assault.
The State contended that Texas's definition of serious bodily injury was similar to first degree assault in Washington, which required great bodily harm. But if the court found that was not true, then substantial bodily harm for second degree assault was still a strike. The State asked the court to find that it had proved beyond a preponderance of the evidence that Casaway had two prior strikes.
Casaway objected to the materials the State presented to the court. He wanted to see a brief that laid out for the court the documents the State submitted as exhibits for the court to review. Casaway also wanted the court to have copies of the relevant statutes from the relevant time periods. He asked the court to impose a standard range sentence because the State had failed to prove its case.
The court asked the State to prepare a brief and rescheduled the sentencing hearing. Casaway objected to the further delay, arguing that because the State had failed to meet its burden, the court should sentence him to the standard range.
On December 19, the court resumed Casaway's sentencing. The State briefly discussed its sentencing memorandum and requested that the court impose a life sentence.
Casaway argued that the State had failed to attach a definition of 'theft' in its materials. RP (Dec. 19, 2003) at 462. Because the definition was missing, Casaway did not believe that the court determine the elements of the offense under Texas law.
The State responded that it had provided the definition of 'theft.' RP (Dec. 19, 2003) at 462. After a quick review of the documents, the State recanted its statement and told the court that it had failed to provide the definition but that it had directly cited the statute in its brief. The court told the State to look to its brief and read the statute. The State then read into the record the elements of the Texas statute that were pertinent. The court then asked the State to supplement the record with an actual copy of the statute. It then sentenced Casaway to life in prison without the possibility of parole.
ANALYSIS I. Speedy Trial Rights
Applying the speedy trial rule, CrR 3.3, to a particular set of facts is a question of law subject to de novo review. State v. Branstetter, 85 Wn. App. 123, 127, 935 P.2d 620, review denied, 132 Wn.2d 1011 (1997). Unless time is excluded or extended by rule, the trial of a defendant charged in superior court who is in custody on the charge must begin no more than 60 days after arraignment. Former CrR 3.3(c)(1) (2001). Otherwise, the charge must be dismissed with prejudice. Former CrR 3.3(i) (2001); State v. Swenson, 150 Wn.2d 181, 187, 75 P.3d 513 (2003). When a defendant signs a waiver of speedy trial rights with an explicit expiration date, the running of the 60-day limit is tolled during the effective period of the waiver. State v. Ramsay, 41 Wn. App. 380, 383, 704 P.2d 657 (1985).
The commencement of a trial satisfies the purpose of the speedy trial rule. State v. Mathews, 38 Wn. App. 180, 183, 685 P.2d 605, review denied, 102 Wn.2d 1016 (1984). The hearing and disposition of preliminary motions by the trial judge after a case is called for trial is considered a customary and practical phase of a trial. Mathews, 38 Wn. App. at 183.
Here, the 60-day speedy trial period started to run on April 16, 2003, the date of Casaway's arraignment. Thirty-five days of the speedy trial period ran before it was tolled on May 20, 2003, when Casaway waived his speedy trial rights to June 16, the new date for trial. Thus, the speedy trial period did not begin to run again until June 16, 2003, the date the waiver expired. On June 16, 25 days remained in the 60-day period.
On June 16, the court called the case but then recessed until June 24. Casaway claims that he did not waive his speedy trial rights and the period continued to run. When trial resumed on June 24, 16 days remained in the 60-day period. On June 24, the court made two rulings on motions of the defendant — i.e., it denied Casaway's motion to dismiss, but it granted his motion to sever. These two motions, combined with the fact that the case had been called for trial, leaves no doubt that the trial began on June 24, if not on June 16. And June 24 was well within the 60-day speedy trial period.
The court recessed the case until June 30 so that Casaway's counsel could complete discovery. There was no error in recessing the case. Even if this was a continuance, it was proper because defense counsel needed time to prepare.
Casaway did not assert any speedy trial objection until October 20, when other pretrial motions were heard; witnesses were called on October 21. As we have already held, the trial commenced no later than June 24. But there is an equally compelling reason why we would deny the speedy trial claim, even if it had not been previously commenced.
The general rule is that to preserve an error for consideration on appeal, a party must object to the error before the trial court. State v. Leavitt, 49 Wn. App. 348, 357, 743 P.2d 270 (1987), aff'd, 111 Wn.2d 66 (1988). The failure to do so waives the right to appeal the alleged error. Leavitt, 49 Wn. App. at 357. 'Former CrR 3.3(f) (2001) also imposes upon a defendant the obligation to object to an untimely trial date.' State v. Raschka, 124 Wn. App. 103, 111, 100 P.3d 339 (2004).
A defendant waives his objection if he fails to make it before the expiration of the speedy trial period. State v. Malone, 72 Wn. App. 429, 433, 864 P.2d 990 (1994). Although defense counsel asserted often that Casaway was not waiving his speedy trial rights, he did not object and affirmatively state that the time in the speedy trial period had expired. Instead, Casaway waited until October 20, 2003, and moved to dismiss the charges against him for a speedy trial violation. Because Casaway did not object earlier in the proceedings, which would have allowed the trial court an opportunity to address the issue, he cannot now raise the issue.
Further, each recess or continuance taken in Casaway's case was for a legitimate reason. It is important to note that defense counsel requested most of the recesses. More importantly, if counsel had not requested the recesses, Casaway would have a legitimate claim for ineffective assistance of counsel. Also, the court decided preliminary motions throughout the lengthy recess period.
Casaway fails to assign error to any of the trial court's actions. He claims only that his trial commenced after the expiration of his speedy trial period. But Casaway failed to provide the trial court with a count of the days remaining in his speedy trial period. To assert that one is not waiving his speedy trial rights when the court grants a recess is not the same as stating that a defendant believes that his speedy trial period has expired or that only a certain number of days remain in the speedy trial period. Because Casaway did not object to the court's characterization of the multiple delays as recesses, he never alerted the court that he was asserting that his trial had in fact not commenced on June 16 or 24. The responsibility was on Casaway to affirmatively let the trial court know that he wished to proceed to trial, which he did not do. Thus, he cannot now claim a violation of his speedy trial rights.
There was no speedy trial violation.
II. Blakely Violation
Casaway asserts that the trial court erred when it failed to submit his criminal history to the jury to find that his out-of-state convictions were comparable to Washington crimes. Casaway relies on Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), to support his assertion. This reliance is misplaced.
We have recently addressed these issues in State v. Ball, No. 31750-8-II, 2005 WL 1331808 (Wash.Ct.App. June 7, 2005). We held that Blakely does not apply to sentencing under the Persistent Offender Accountability Act (POAA). Ball, 2005 WL 1331808 at *2. As such, we followed our Supreme Court in State v. Wheeler, 145 Wn.2d 116, 121, 34 P.3d 799 (2001), cert. denied, 535 U.S. 996 (2002), holding that POAA convictions need not be charged in the information and the sentence need not be submitted to a jury. Thus, Blakely is not relevant to this case.
III. Out-of-State Convictions
The Sentencing Reform Act requires that a defendant's criminal history that includes out-of-state convictions be classified "according to the comparable offense definitions and sentences provided by Washington law." State v. Wiley, 124 Wn.2d 679, 683, 880 P.2d 983 (1994) (quoting former RCW 9.94A.360(3) (2001)).
A sentencing court determines if a foreign crime is comparable to a Washington offense by looking to the elements of the crime. State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998). Specifically, the court must compare the elements of the out-of-state crime to the elements of the Washington criminal statute in effect at the commission of the foreign crime. Morley, 134 Wn.2d at 606. The foreign crime counts toward the defendant's offender score as if it were the comparable Washington offense where the elements of the foreign conviction are comparable to the elements of a Washington strike offense on their face. Morley, 134 Wn.2d at 606.
A. Third Degree Aggravated Assault
Casaway committed the 1991 third degree aggravated assault in Texas and was convicted in 1992. The elements for third degree aggravated assault in Texas in 1991 were as follows:
(a) A person commits an offense if the person commits assault as defined in Section 22.01 of this code and the person:
(1) causes serious bodily injury to another, including the person's spouse;
. . . .
(4) uses a deadly weapon.
. . . .
(c) An offense under this section is a felony of the third degree, unless the offense is committed under Subdivision (2) of Subsection (a) of this section and the person uses a deadly weapon, in which event the offense is a felony of the first degree.
Texas Penal Code (TPC) sec. 22.02(a). Clerk's Papers (CP) at 135-36.
'Assault' was defined in section 22.01 of the TPC in 1991 as:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; or
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
TPC sec. 22.01(a). CP at 137.
The Texas Penal Code also defined '[s]erious bodily injury' as: bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
TPC sec. 1.07(a)(34). CP at 143.
The Texas Penal Code outlines two ways to commit the crime of third degree aggravated assault: causing serious bodily injury to another or assaulting another with a deadly weapon. The elements of first degree assault in Washington in 1991 were as follows:
(1) 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; or
(b) Administers to or causes to be taken by another, poison or any other destructive or noxious substance; or
(c) Assaults another and inflicts great bodily harm.
Former RCW 9A.36.011(1) (1997). CP at 149.
RCW 9A.04.110(4)(c) defined '[g]reat bodily harm' as 'bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ.' CP at 152. Washington's definition of 'great bodily harm' contains similar terms as the Texas Penal Code's definition of 'serious bodily harm.' Some of those terms are 'significant risk of death,' 'serious permanent disfigurement,' and 'protracted loss or impairment of the function of any bodily member or organ.' Therefore, in 1991, committing the crime of third degree aggravated assault in Texas was comparable to committing first degree assault in Washington.
Further, third degree aggravated assault using a deadly weapon in Texas is comparable to the Washington crime of second degree assault. In 1991, the elements of second degree assault were:
(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or
. . . .
(c) Assaults another with a deadly weapon.
Former RCW 9A.36.021(1) (1996). CP at 150.
We find that under either manner listed in TPC sec. 22.02(a)(1) or (4) the Texas crime of aggravated assault is equivalent to Washington's crime of first degree assault or second degree assault. Thus, the Texas conviction counted as one strike under RCW 9.94A.030(28) because both first degree assault and second degree assault are a '[m]ost serious offense.'
B. Second Degree Burglary
Casaway's criminal history also listed a 1998 conviction in Texas for the crime of second degree robbery.
In 1998, TPC sec. 29.02 defined robbery as:
(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
(b) An offense under this section is a felony of the second degree.
CP at 144. The TPC defined 'theft' as 'unlawfully appropriating property with intent to deprive the owner of property.' TPC sec. 31.03 (1998). CP at 132.
In 1998, the elements of the crime of first degree robbery in Washington were:
(1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he:
(a) Is armed with a deadly weapon; or
(b) Displays what appears to be a firearm or other deadly weapon; or
(c) Inflicts bodily injury.
(2) Robbery in the first degree is a class A felony.
Former RCW 9A.56.200 (2002). CP at 156.
Second degree robbery is defined as:
(1) A person is guilty of robbery in the second degree if he commits robbery.
(2) Robbery in the second degree is a class B felony.
RCW 9A.56.210. CP at 157.
'Robbery' in Washington is defined as:
A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
RCW 9A.56.190. CP 158.
Second degree robbery in Texas occurs when a person commits theft and either causes bodily injury to another or threatens or places another in fear of imminent bodily injury or death. The Texas statute incorporates the elements of first degree robbery and second degree robbery in Washington. Both first degree robbery and second degree robbery are classified as a '[m]ost serious offense' under RCW 9.94A.030(28). We find that this conviction counted as Casaway's second 'strike.'
C. Missing Theft Statute
Casaway contends that the State failed to prove comparability because the State failed to include the Texas statute's definition of 'theft.' Br. of Appellant at 20. The State, however, included the definition in its sentencing brief. The court also had the State read the definition from its brief into the record.
The State had to prove by a preponderance of the evidence that the Texas crimes were comparable to Washington crimes. It was not necessary for the court to have a written definition of 'theft' in order to find that the elements of the Texas statute were comparable to the elements of the Washington statutes. Any error that occurred when the court allowed the State to supplement its brief with the definition of 'theft' after the sentencing hearing was harmless. The State adequately proved comparability and the sentencing court did not err by sentencing Casaway as a persistent offender.
IV. Insufficient Evidence of Assault
Casaway argues that the State provided insufficient evidence to show he assaulted Fink with a deadly weapon. We disagree.
Sufficient evidence exists to support a conviction if, when viewed in the light most favorable to the State, the evidence permits any rational trier of fact to find all of the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). When a defendant claims insufficient evidence, he admits the truth of the State's evidence and all reasonable inferences are drawn in favor of the State and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence have equal weight. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In reviewing the evidence, we give deference to the trier of fact, which evaluates the credibility of witnesses, resolves conflicting testimony, and generally weighs the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
Casaway's argument is that insufficient evidence existed to show that he fired the shot at Fink because the testimony about the identity of the shooter was controversial. He also contends that there was insufficient evidence to show the intent to inflict great bodily harm.
At trial, Fink testified that he saw a black car with three people inside of it but that he could not tell the ethnicity of the occupants. Fink did not identify Casaway as the person who shot at his car. But, Casaway's expert testified that the shot could not have come from the driver's side of the vehicle. The driver, Cornwell, testified that Casaway was in the front passenger seat and that Casaway fired the shot. Deputy Unfred testified that Casaway exited the vehicle from the front passenger's seat. Additionally, that Casaway fled the car and dropped a gun while he fled is circumstantial evidence that he committed the assault. Neither party presented evidence that someone else was in the passenger seat when the shot was fired. Sufficient evidence existed for the jury to conclude that Casaway fired the shot at Fink. There was also sufficient evidence to show intent.
As previously stated, circumstantial evidence is no less reliable than direct evidence. Delmarter, 94 Wn.2d at 638. The trier of fact may infer specific criminal intent when a defendant's conduct plainly indicates the requisite intent as a matter of logical probability. Delmarter, 94 Wn.2d at 638. 'Intent' is defined as: '[a] person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.' RCW 9A.08.010(1)(a).
The State presented evidence that Casaway shot at Fink because he was angry with Fink's driving. The jury could infer Casaway's intent from the circumstances of the case. Here, the black Honda pulled alongside Fink's car. Fink heard a gunshot. When police stopped the Honda, Casaway fled. Further, the shot was not fired over the car but directly at the car. The State presented sufficient evidence to show intent.
V. Discovery Violation
Casaway asserts the State deprived him of a fair trial because it failed to provide him with exculpatory evidence. His assertion is meritless.
Criminal Rule 4.7(a) discusses the prosecutor's obligations regarding discovery. Under CrR 4.7(a)(4), '[t]he prosecuting attorney's obligation under this section is limited to material and information within the knowledge, possession or control of members of the prosecuting attorney's staff.'
Casaway raises for the first time on appeal that the State failed to provide him with Brenda Robinson's ballistics notes. Here, the record shows that the State found out about the notes at the same time as Casaway. Moreover, the court recessed to allow Casaway the opportunity to review the notes with his expert. Because the prosecutor did not have possession or knowledge of the notes, we find the State did not violate CrR 4.7(a)(4).
Casaway also claims that Deputy Unfred, the State's witness, omitted exculpatory evidence from his report. At trial, Deputy Unfred testified that Fink described his assailant as a Asian male 'with short black hair.' RP (Oct. 27, 2003) at 342. There is no evidence that suggests the prosecutor knew this information and withheld it. The deputy's testimony did not violate CrR 4.7(a)(4) because prosecutor did not know or possess the information.
VI. Ineffective Assistance of Counsel
Casaway alleges he received ineffective assistance of counsel because defense counsel failed to request either Washington Pattern Jury Instructions-Criminal (WPIC) 6.05, the accomplice instruction, or have the court admonish the jury to exercise great caution when evaluating Cornwell's testimony. We disagree.
We review an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). We maintain a strong presumption that defense counsel's performance was within the broad range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The test for ineffective assistance of counsel consists of two prongs: (1) defense counsel's performance fell below an objective standard of reasonableness; and (2) this deficiency prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
In order to show that counsel's performance was deficient, a defendant must show that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Thomas, 109 Wn.2d at 225 (quoting Strickland, 466 U.S. at 687). Second, the defendant must show that the deficient performance prejudiced the defense. Thomas, 109 Wn.2d at 225. Counsel's errors had to be such that they deprived the defendant of a fair trial, a trial whose result is reliable. Thomas, 109 Wn.2d at 225-26. If a defendant fails to make both showings, his claim for ineffective assistance of counsel fails. Thomas, 109 Wn.2d at 226.
Casaway fails to establish the first prong of the Strickland test. As Cornwell was not an accomplice, the cautionary instruction Casaway argues for is irrelevant. RCW 9A.08.020(3)(a) defines an accomplice as:
(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it.
Casaway shot the gun from Cornwell's car. The record contains no evidence that Cornwell promoted or facilitated the commission of the crime. Nor does either party present evidence in the record that Cornwell encouraged, aided, solicited, or commanded Casaway to commit the crime. It is only appropriate to give WPIC 6.05 when an accomplice is present in the case. That situation does not exist here.
Casaway also fails to show any deficiency by defense counsel for failing to request WPIC 6.05. Even assuming Cornwell was an accomplice, it was not reversible error for defense counsel to not request the instruction. First, the State relied on other evidence besides Cornwell's testimony to convict Casaway. Where accomplice testimony is substantially corroborated by testimonial, documentary, or circumstantial evidence, the failure to give the instruction is not reversible error. State v. Harris, 102 Wn.2d 148, 155, 685 P.2d 584 (1984), overruled on other grounds, State v. Brown, 111 Wn.2d 124, 157, 761 P.2d 588 (1988). Expert witnesses testified that the shot came from the passenger's seat. The police found Casaway in the passenger seat when they stopped the vehicle shortly after the shooting. Casaway fled from the passenger's side of the car when police stopped the car. Further, Cornwell's testimony was also consistent with the statement he gave to the arresting officer: Casaway fired the gun.
Given all of the corroborating evidence, it was not necessary to give WPIC 6.05. Casaway fails to show ineffective assistance of counsel.
VII. Cross-Examination
Casaway's next argues that the trial court impermissibly limited cross-examination of Cornwell and Fink. But this argument also fails.
Casaway first claims the court limited his cross-examination regarding Cornwell's benefits under his plea agreement. But Casaway failed to make an offer of proof regarding this issue.
At trial, when Casaway cross-examined Cornwell, he asked him if he was concerned that he might face a life sentence if convicted of first degree assault. The State objected. The parties then held a sidebar and the court sustained the objection. Casaway never made a record of the sidebar.
If a defendant does not make an offer of proof that tends to establish the admissibility of testimony, then the defendant fails to preserve his right to appeal from the ruling that the evidence was inadmissible. State v. Carlson, 61 Wn. App. 865, 875, 812 P.2d 536 (1991), review denied, 120 Wn.2d 1022 (1993). Here, Casaway failed to preserve his right to appeal. Nothing in the record suggests that Cornwell faced a life sentence if convicted of first degree assault. Although Cornwell had a lengthy criminal history, nothing suggested his priors were most serious offenses. Casaway fails to show that the court improperly limited cross-examination because he fails to establish that his questions were permissible.
Casaway next asserts the trial court erred when it failed to let him ask about Cornwell possessing his girlfriend's ex-husband's identification. But Casaway offered no evidence that Cornwell had ever used the identification. The court tentatively agreed with the State that the evidence was irrelevant but stated that if Casaway wanted to raise the issue later he could.
But Casaway never renewed his objection and thus the court never had an opportunity to correct any purported error. Carlson, 61 Wn. App. at 875.
Finally, Casaway contends that the court improperly precluded him from asking Fink about his bad driving record. Before voir dire, the State moved to exclude Casaway from asking Fink whether he was driving with a suspended driver's license. The court instructed Casaway not to mention the issue during voir dire but that it would consider if Casaway showed its relevance.
But Casaway failed to raise the issue again before trial ended. Moreover, he fails to show that Fink's driver's license status was relevant to the assault. Thus, this argument is meritless.
VIII. Additional Grounds for Review
RAP 10.10.
Casaway raises several more issues that do not warrant review.
He first argues that the State violated his right to a speedy trial. As noted above, there was no violation of his speedy trial right.
Next, Casaway asserts that he received ineffective assistance of counsel. He contends that counsel was ineffective because counsel failed to request a stay of proceedings during sentencing so that the State could supply the court with sufficient documentation of Casaway's out-of-state convictions.
To prevail on this claim, Casaway must show both that counsel's representation fell below a standard of reasonableness and prejudice. Thomas, 109 Wn.2d at 226. Casaway fails to establish both prongs. The State's evidence was sufficient to show that Casaway had two prior convictions and Casaway does not show that other, contradictory evidence was available to him.
Casaway next argues that the court erred when it imposed a life sentence because a jury had not found his prior convictions beyond a reasonable doubt. But as noted above, Blakely v. Washington does not apply to Casaway's case.
Finally, Casaway argues that the prosecutor committed prosecutorial misconduct when he failed to disclose exculpatory evidence. We find this argument meritless under CrR 4.7(a)(4). The State did not know about Robinson's notes until trial. No evidence shows witness tampering.
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.
HOUGHTON, P.J. and VAN DEREN, J., concur.