Opinion
No. 61078-3-I.
March 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-09978-4, Michael Heavey, J., entered December 3, 2007.
Affirmed by unpublished opinion per Ellington, J., concurred in by Dwyer, A.C.J., and Agid, J.
A jury found Brian Champaco guilty of attempted first degree rape and first degree burglary with sexual motivation after he forced his way into a woman's apartment and threatened her with a hammer. Any error in admitting evidence that Champaco was carrying pornographic videos at the time of the crimes was harmless. We also conclude that a police detective's testimony about interrogation techniques was not an opinion on guilt and that Champaco has not demonstrated any error in the calculation of his offender score. Finally, we reject the contentions raised in Champaco's statement of additional grounds on review. Accordingly, we affirm.
FACTS
On the morning of October 30, 2006, S.T. drove her son to school, purchased groceries, and returned to her Federal Way apartment complex. While S.T. carried the groceries to her second story apartment, a man wearing a maroon and gold jogging suit approached her in the parking lot and asked to use her telephone to call about a ride. S.T. retrieved her cell phone from her apartment and brought it to the man, who waited in the parking lot. The man, later identified as Brian Champaco, made a call and returned the phone to S.T., who continued to carry groceries to her apartment.
A short time later, S.T. encountered Champaco near the top of the stairs, just outside of her apartment, where Champaco asked to use the phone again. S.T. gave him the cell phone and he placed another call while standing on the stairs. As S.T. tried to go around Champaco, he grabbed her by the sweater, slammed her against the wall, and then pushed her through the open door of her apartment. S.T. fell to the floor, hitting her head, and struggled with Champaco, who lay on top of her. Champaco eventually retrieved a hammer, raised it over his head, and yelled at S.T., "you're gonna let me eat your pussy and you're gonna let me have my way with you or I'm gonna fucking kill you." He then ordered S.T. to remove her pants.
Report of Proceedings (RP) (Sept. 27, 2007) at 37.
While S.T. was unbuttoning her pants, Champaco left to make sure the apartment door was closed. At this point, S.T. ran to her bedroom window, knocked out the window screen, crawled out onto the ledge, and screamed for help. S.T. saw Champaco run down the stairs and toward a nearby jogging trail. A cleaning crew supervisor heard S.T.'s screams and called 911.
Officers detained Champaco at a nearby grocery store and arrested him after S.T. identified him as her attacker. A police K-9 unit found Champaco's hammer and sweat jacket along the jogging trail between the apartment complex and the grocery store. Champaco later gave a videotaped statement in which he corroborated S.T.'s account of the attack.
The State charged Champaco with one count of attempted first degree rape and one count of first degree burglary with sexual motivation. Both counts included a deadly weapon allegation. The jury found Champaco guilty as charged, including the sexual motivation and deadly weapon allegations.
DISCUSSION Admission of DVDs
Champaco contends the trial court erred in admitting evidence that he possessed three pornographic videos at the time of his arrest. He argues that the evidence was irrelevant and admitted only to demonstrate propensity in violation of ER 404(b) and that, in any event, the danger of unfair prejudice outweighed any probative value under ER 403.
When officers arrested Champaco, they found three pornographic DVDs in his pocket. Prior to trial, over defense objections of relevancy and undue prejudice, the State argued that Champaco's possession of pornography was relevant to establish sexual motivation for the burglary count and intent to commit rape. The trial court agreed that the DVDs were relevant, noting that they tended "to prove that that's where his mind was," and that "[a] reasonable person could infer that a person . . . carrying three pornographic DVDs around is more likely to attempt a rape than someone who is not." After reviewing the titles of the DVDs and the explicit photographs on the covers, the court ruled that the State could refer to the fact of Champaco's possession, but the DVDs themselves would not be admitted. During closing argument, the deputy argued that Champaco's possession of pornography supported an inference that he intended to rape S.T.
RP (Sept. 12, 2007) at 54.
RP (Sept. 27, 2007) at 95.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The trial court has broad discretion in determining whether evidence is relevant.
ER 401.
State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984).
A defendant's possession of explicit sexual materials may be probative of intent when those materials bear some relationship to the victim or to the method of committing the crime. But no one viewed the DVDs in this case. Nor has the State cited any authority suggesting what inferences can reasonably drawn from the mere fact of possession of sexually explicit materials, whether or not those materials are characterized as "pornographic." Under the circumstances, the fact of possession for Champaco's intent was perhaps marginally relevant.
But for purposes of this appeal we need not determine whether the trial court abused its discretion in ruling that the danger of unfair prejudice did not substantially outweigh the probative value because any error was clearly harmless. Nonconstitutional evidentiary errors are harmless unless the outcome of the trial would have been different had the error not occurred.
State v. Wade, 98 Wn. App. 328, 333, 989 P.2d 576 (1999).
The trial court recognized the graphic nature of the evidence and reduced the potential for unfair prejudice by ruling that only the fact of possession was admissible. In addition, the State's evidence of intent was overwhelming. S.T. testified that Champaco pushed her into her apartment, threatened her with a hammer, and then announced, in explicit detail, that he was going to sexually assault her. He then ordered her to remove her pants. Although Champaco initially claimed in his statement that he intended only to rob S.T., none of his conduct was consistent with that claim, and he eventually acknowledged that S.T.'s account was accurate. Under the circumstances, any error was harmless.
Opinion on Guilt
Champaco next contends the deputy prosecutor committed reversible misconduct by eliciting the following testimony from Detective Wells during redirect examination:
Q: Do you have an interest in getting people to confess who are not guilty?
A: No.
RP (Sept. 27, 2007) at 109.
Champaco argues that the question implies Wells would not have spent time on interrogation unless he thought the defendant was guilty and that the answer therefore constituted an improper opinion on guilt. Champaco maintains that the misconduct was so flagrant and ill intentioned that reversal is required even though defense counsel failed to object.
Generally, witnesses may not express an opinion as to the defendant's guilt. In determining whether statements are impermissible opinion testimony, we consider the circumstances of the case, including (1) the type of witness; (2) the nature of the testimony; (3), the nature of the charges; (4) the type of defense; and (5) the other evidence before the jury.
State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).
Id.
The challenged comment in this case was part of a line of questioning on police interview techniques that began during Wells' direct examination, when Wells acknowledged that during the course of the interview, he had lied to Champaco about the type and amount of evidence the police had obtained. During cross-examination, defense counsel then asked Wells a series of questions about why he had lied to Champaco, including whether the detective's motivation "was essentially to have Mr. Champaco confess to this offense."
RP (Sept. 27, 2007) at 105.
But unlike the testimony elicited by defense counsel during cross-examination, the challenged comment during redirect did not refer to Champaco personally. Nor did Wells purport to offer a personal opinion on guilt in the case on trial. Although the deputy prosecutor's question was clearly prompted by defense counsel's suggestion during cross-examination that Wells' interrogation techniques were biased or unfair, the challenged comment focused on Wells' general motivation when conducting interrogations. Viewed in context, the redirect testimony was not an improper comment on guilt.
Comparability of Out-of-State Convictions
Champaco contends that the sentencing court erroneously included two 2001 Idaho convictions for burglary and fraudulent use of a financial transaction card when calculating his offender score. He argues that because both of the Idaho offenses are broader than comparable Washington offenses and the record does not include documentation of factual comparability, the State failed to satisfy its burden of proving that the foreign convictions were comparable.
Generally, the State bears the burden of proving the existence and comparability of a defendant's prior out-of-state convictions. But when the defense affirmatively acknowledges the accuracy of the State's offender score calculation and that calculation necessarily includes the out-of-state convictions, the State is relieved of its burden and no further proof of comparability is necessary.
State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999).
State v. Lucero, 140 Wn. App. 782, 788, 167 P.3d 1188 (2007); see also State v. Ross, 152 Wn.2d 220, 233, 95 P.3d 1225 (2004).
At sentencing, the deputy prosecutor's calculation of the offender score for each conviction necessarily included Champaco's Idaho convictions. Defense counsel raised no objection to the inclusion of the foreign convictions in Champaco's offender score and expressly acknowledged that "we are in agreement with [the State's calculation], after going through the Sentencing Reform Act yesterday, and we are in agreement with the scoring on this matter." Champaco therefore waived any challenge to the trial court's calculation of his offender score.
RP (Nov. 30, 2007) at 5.
Citing Division Two's decision in State v. Jackson, 129 Wn. App. 95, 117 P.3d 1182 (2005), Champaco argues that defense counsel's agreement to the offender score was not an acknowledgement for purposes of comparability. But this court has expressly rejected the Jackson analysis. See Lucero, 140 Wn. App. at 790.
Relying on State v. Thiefault, Champaco contends that if defense counsel waived comparability, he was denied effective assistance of counsel. In Thiefault, defense counsel failed to object to the sentencing court's erroneous determination that the defendant's Montana conviction was legally comparable. Our supreme court determined that defense counsel's failure to object was deficient performance and that the deficient performance was prejudicial under the circumstances because the record contained insufficient documentation to establish whether the conviction was factually comparable. The court then remanded the case for a determination of factual comparability. But unlike Thiefault, the sentencing court in this case did not undertake a comparability analysis because defense counsel expressly acknowledged the accuracy of the State's calculation. Moreover, contrary to Champaco's assertion, the record shows that defense counsel received certified copies of the Idaho convictions several months before trial and reviewed those convictions prior to trial when he agreed that the convictions would be admissible under ER 609 if Champaco testified. At sentencing, defense counsel again acknowledged that he had reviewed the convictions and informed the trial court that the defense agreed with the State's calculation.
160 Wn.2d 409, 158 P.3d 580 (2007).
Id. at 416-17.
Even if, as Champaco claims, the Idaho convictions were not legally comparable, nothing in the record supports an inference that defense counsel's agreement with the accuracy of the State's calculation of the offender score was based on an erroneous or inadequate review of the Idaho convictions. Nor has Champaco pointed to anything in the record indicating that his Idaho convictions were not factually comparable to Washington offenses. Consequently, unlike the situation in Thiefault, Champaco has failed to make any showing that would overcome the strong presumption that defense counsel's representation was effective and competent.
See State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Statement of Additional Grounds for Review
Champaco has filed a statement of additional grounds for review, enumerating 27 alleged errors. Several of the grounds — miscalculation of the offender score, prosecutorial misconduct, and admission of the DVDs — are identical to the issues already addressed. The additional alleged errors include ineffective assistance, lack of "physical evidence," lack of corpus delicti, improper CrR 3.5 and 3.6 hearings, judicial misconduct, and violations of Miranda, speedy trial, and the Fifth and Sixth Amendment. But these allegations of error are either patently without merit or too conclusory to address on appeal.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
See RAP 10.10(c) (appellate court will not consider statement of additional grounds for review unless it informs the court of the nature and occurrence of alleged errors).
Finally, Champaco alleges that his right to a fair trial was violated when the State vindictively added the burglary charge after he refused to plead guilty to attempted first degree rape. But the mere filing of additional charges after a defendant refuses to plead guilty does not, without more, support a presumption of vindictiveness. Champaco does not identify any evidence in the record supporting this claim.
State v. Korum, 157 Wn.2d 614, 630, 141 P.3d 13 (2006).
In summary, Champaco has failed to identify any error or accumulation of errors that affected the outcome of the trial.
Affirmed.
We Concur: