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State v. Douangdala

The Court of Appeals of Washington, Division One
Mar 12, 2007
137 Wn. App. 1037 (Wash. Ct. App. 2007)

Opinion

No. 57399-3-I.

March 12, 2007.

Appeal from a judgment of the Superior Court for King County, No. 03-1-06186-3, Gregory P. Canova, J., entered November 21, 2005.

Counsel for Appellant(s), Eric J. Nielsen, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.

Counsel for Respondent(s), Christine Wilson Keating, King County Prosecutors Office, 516 3rd Ave Rm W554, Seattle, WA, 98104-2312.


Affirmed by unpublished per curiam opinion.


Soonthai Douangdala was convicted of one count of second degree taking a motor vehicle and one count of attempting to elude a pursuing police vehicle. He challenges the sufficiency of the evidence, the effectiveness of trial counsel's representation, the trial court's rulings on certain proferred testimony, and the inclusion of his prior juvenile convictions in his offender score. Finding no error, we affirm.

FACTS

At about 2:30 a.m. on March 1, 2003 Tom Knudtson (Knudtson) was driving northbound on I-5. He saw a Honda like car enter the freeway and proceed past him at between 80 and 100 miles per hour. The driver was wearing what appeared to be a bulky, dark ski parka. Officers Dain Jones and Steve Clark of the Seattle Police Department were also driving a marked patrol car northbound on I-5 at this time. The Honda exited the freeway, and the officers followed. The officers ran the car's license plate number and discovered that it had been reported stolen. They activated their emergency lights and sirens and continued to follow. After a short time, they saw the Honda pulled over on the street with the driver's door open, the radio on, and the engine running. They did not see the driver.

Knudtson had also exited the freeway and was driving in the area when he saw an individual run toward his car, almost hitting it. This person was wearing a jacket identical to the one the Honda's driver was wearing. Dave Ryan (Ryan) and Robyn Katto (Katto) were sitting in a car parked in the area and saw the Honda and the police car pass. Soon afterward, an individual run past them from the direction the cars had gone. When the officers ran by a moment later, Ryan told them that the individual had something orange around his neck and he and Katto pointed out the direction the individual had gone. The officers followed and caught up to the individual, later identified as Soonthai Douangdala. He was wearing a baggy black coat and had neon orange Mardi Gras beads around his neck. A k-9 unit officer who responded to the scene had her dog perform a track from the car; although the dog did not follow the route Douangdala took, the dog led the officer to Douangdala and indicated that the track was complete.

Douangdala was charged with second degree taking a motor vehicle and attempting to elude a pursuing police vehicle. After an initial trial ending in a hung jury, a second jury found Douangdala guilty as charged. Based on an offender score that included numerous juvenile convictions, the trial court imposed concurrent 25 month sentences. Douangdala appeals.

SUFFICIENCY

Douangdala contends that the evidence identifying him as the driver of the Honda was insufficient to support his convictions. This court reviews a challenge to the sufficiency of the evidence by determining "whether, after viewing the evidence in the light most favorable to the [State], 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, 220-222, 616 P.2d 628 (1980).

In support of his sufficiency challenge, Douangdala asserts that the only identification evidence is the dog track. He argues that Knudtson, Ryan and Katto identified only the clothing and not the person, and that there was no physical evidence, such as fingerprints, to link him to the Honda.

Acknowledging that dog track evidence alone is not enough to convict an individual of a crime, State v. Loucks, 98 Wn.2d 563, 566, 656 P.2d 480 (1983), we conclude that the totality of all the evidence supported the convictions. In contrast to Loucks, where the other evidence tended to exculpate the defendant, the other evidence in this case was inculpatory. Knudtson saw that the person driving the Honda was wearing a black jacket, and identified the person a few minutes later because he was wearing the same jacket. Ryan and Katto told the police that the individual was wearing baggy black pants and a big hooded black sweatshirt, that he had something orange around his neck, and that he had a shaved head. When the officers stopped him, Douangdala was wearing a dark, puffy winter jacket and orange beads around his neck, and had a very short, almost shaved haircut. And there was no other foot traffic in the area that late hour. This evidence is sufficient to support Douangdala's convictions.

INEFFECTIVE ASSISTANCE OF COUNSEL

Douangdala claims that he received ineffective assistance of counsel because trial counsel did not request a jury instruction cautioning the jury that, in the absence of some other evidence of guilt, dog track evidence is insufficient to support a conviction. To establish a claim of ineffective assistance of counsel, the defendant has the burden of proving both that trial counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 669, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 324, 899 P.2d 1251 (1995).

"The rule in Washington is that dog tracking evidence must be supported by corroborating evidence; standing alone it is insufficient for a criminal conviction." State v. Wagner, 36 Wn. App. 286, 287, 673 P.2d 638 (1983). The Wagner court concluded that even if the State presented other evidence, it was error to fail to give a cautionary instruction pointing out that dog track evidence must be supported by other evidence. Wagner, 36 Wn. App. at 287-88. Later, this court noted that "[t]he lack of a limiting instruction on the weight of dog tracking evidence . . . is subject to a constitutional harmless error analysis." State v. Bockman, 37 Wn. App. 474, 483, 682 P.2d 925 (1984). The court stated that

even with a cautionary instruction, the jury is permitted to consider the dog tracking evidence in conjunction with the other evidence. It follows that generally where abundant evidence corroborates dog tracking evidence, failure to provide the instruction is of minor significance.

Bockman, 37 Wn. App. at 484.

Because the cautionary instruction is required, under Wagner defense counsel erred in failing to request it. But because there was sufficient other evidence that the jury could consider along with the dog tracking evidence, there was no prejudice and the error was harmless. Douangdala did not receive ineffective assistance of counsel.

RIGHT TO PRESENT A DEFENSE

Douangdala contends that the trial court denied his constitutional right to present a defense in sustaining objections to cross-examination of Officer Jones regarding his opinion of the success and necessity of the dog track and his knowledge of police booking procedures. A defendant has a constitutional right to cross-examine witnesses to expose bias, prejudice, or interest. State v. Buss, 76 Wn. App. 780, 787, 887 P.2d 920 (1995). But the right is not absolute, and we review the trial court's limiting cross-examination for abuse of discretion. State v. Robinson, 61 Wn.2d 107, 109, 377 P.2d 248 (1962).

Douangdala argues that the trial court should have allowed the testimony under CR 701 because it was not a direct comment on his guilt or a witness' veracity, was otherwise helpful to the jury, and was based on inferences from the evidence. City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993). We disagree.

Evidence Rule 701 states that

if the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact issue.

As the trial court stated, Officer Jones was not a dog track expert. Officer Molly Clark, the officer who was a qualified expert and performed the dog track with her canine partner, Rocky, testified at trial. Officer Clark testified that Rocky was not tracking the suspect step by step, but by scent. Because the track occurred only minutes after the suspect abandoned the car, the scent would have been in the air. Officer Clark explained that a tracking dog does not necessarily follow the exact route the suspect took, because the scent is in the air and moves with the air. In this case, Rocky tracked to Douangdala and gave numerous signs that this was the person he was tracking. To allow Officer Jones, who had no training or experience in dog tracking, to give an opinion on the efficacy or necessity of the dog track would only have muddied the waters for the jury. The trial court did not err in sustaining the objections to this testimony.

Nor did the trial court err in stating that limiting cross-examination of Officer Jones' knowledge of the booking process would not prevent the defense from arguing that the officers should have taken Douangdala's clothing into evidence. Defense counsel argued in closing that the officers were so sure they had the right person that they didn't do lots of things, including taking the clothing into evidence, taking fingerprints, or requesting DNA testing of the napkin found on the floor of the Honda. And defense counsel had already elicited the testimony that Officer Jones did not take the clothing into evidence because he did not think it was necessary. The trial court's rulings did not prevent Douangdala from putting on a defense.

JUVENILE ADJUDICATIONS IN OFFENDER SCORE

Douangdala argues that the trial court erred in including his prior juvenile adjudications in his offender score. Our state supreme court has recently affirmed this court's decision in State v. Weber, 127 Wn. App. 879, 112 P.3d 1287 (2005) that juvenile adjudications are not facts that a jury must find and are properly included in a defendant's offender score. State v. Weber, ___ Wn.2d ___, 149 P.3d 646 (2006). We decline to further address this issue.

CONCLUSION

Affirmed.

BECKER and DWYER, JJ., concur.


Summaries of

State v. Douangdala

The Court of Appeals of Washington, Division One
Mar 12, 2007
137 Wn. App. 1037 (Wash. Ct. App. 2007)
Case details for

State v. Douangdala

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. SOONTHAI DOUANGDALA, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 12, 2007

Citations

137 Wn. App. 1037 (Wash. Ct. App. 2007)
137 Wash. App. 1037