Opinion
No. 29631-4-II.
Filed: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 02-1-00645-9. Judgment or order under review. Date filed: 11/08/2002. Judge signing: Hon. Jay Bryan Roof.
Counsel for Appellant(s), Thomas E. Jr Weaver, Attorney at Law, 569 Division St. Ste E, Port Orchard, WA 98366-4600.
Counsel for Respondent(s), Jeremy Aaron Morris, Kitsap County Prosecuto's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Jeffrey Ellis appeals his jury conviction for forgery. He argues that the trial court erroneously (1) granted two continuances, in violation of his speedy trial rights; and (2) failed to give a unanimity instruction. He also argues that he was denied effective assistance of counsel because his attorney failed to object to testimony about his prior drug use. Finding no error, we affirm.
FACTS I. Forgery
Jeffrey Ellis watched his friend, Mary Sampaio, make out a check to him in payment for some merchandise that he had sold to her. The check belonged to Sampaio's boyfriend, Paul Sheahan, who had not authorized her to use his account.
When Ellis attempted to cash the forged check at the bank, he was detained by the police. Ellis told an officer that his identification was in his wallet on the front seat of his car. When the officer opened the wallet, he found another check made out to Ellis on Sheahan's account.
The State charged Ellis with one count of forgery.
II. Trial
The time for bringing Ellis to trial under CrR 3.3 was due to expire on October 15, 2002. On that date, the State requested a continuance because the prosecutor was trying another case. The trial court considered the speedy trial priority for Ellis's case and several other cases for which the same prosecutor was responsible, found that another case took priority over Ellis's, and set Ellis's trial over five business days to October 22.
On October 22, the prosecutor was in trial on the higher priority case and requested another continuance. The trial court continued the trial for another five days because the prosecutor was unavailable (and also because there was no judge available to preside over Ellis's trial). Thereafter, Ellis requested and was granted a continuance, after which Ellis went to trial on November 4, 2002.
Ellis testified at trial that (1) he had observed Sampaio writing the checks to him; (2) he knew that the account belonged to Sheahan, but he believed that Sampaio had permission to use the account; and (3) he had accepted two separate checks from Sampaio. Sampaio acknowledged at trial that she did not have permission to use the account, but she had written two checks on the account to Ellis.
Sampaio also testified about her and Ellis's drug use and that Ellis was her drug dealer. Ellis's attorney neither objected nor moved to strike. Ellis denied that he was a drug dealer but admitted that he had used drugs with Sampaio. During closing argument, Ellis's counsel used the drug testimony to strengthen his argument that Ellis had obviously been unaware that Sampaio was not authorized to use Sheahan's checking account because Ellis would not have given Sampaio drugs in exchange for a bad check.
The State introduced evidence that Ellis was in possession of two forged checks, even though he was charged with forgery of only one. The trial court instructed the jury on the elements of forgery, but it did not instruct the jury that it had to be unanimous as to the specific criminal act.
The jury found Ellis guilty of forgery. He appeals.
ANALYSIS I. Speedy Trial
Former CrR 3.3(d)(8) (2002) gives the trial court discretion to extend the speedy trial deadline by five-day increments for `unavoidable or unforeseen circumstances beyond the control of the court or the parties.' We will not disturb a trial court's grant of a motion for an extension under CrR 3.3 unless the trial court manifestly abused its discretion. State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293 (1996) (quoting State v. Silva, 72 Wn. App. 80, 83, 863 P.2d 597 (1993)). We find no such abuse here.
Ellis argues that the prosecutor's unavailability was avoidable and, therefore, did not justify the extension, citing an erroneous ruling by the trial court and case mismanagement by the prosecutor. In addition to Ellis's case, the prosecutor had several others where speedy trial dates were at issue. On October 15, the trial court determined that another case took priority in terms of speedy trial and set Ellis's trial for October 22. Ellis argues that the trial court thereby improperly authorized the prosecutor to cover another trial that would potentially conflict with Ellis's October 22 trial date. We disagree.
The trial court did not abuse its discretion in granting the first five-day extension on October 15. That the assigned prosecutor was in another trial was an unavoidable circumstance justifying the extension. Cannon, 130 Wn.2d at 326-27. The trial court did not abuse its discretion in granting the second extension, on October 22, for the same reason. Whether the trial court incorrectly determined the speedy trial dates of other cases, prioritized them, and allowed the prosecutor to try one before Ellis's is not before us. And even assuming error, without so deciding, the delay was a reasonably unavoidable and unforeseen circumstance justifying an extension under former CrR 3.3(d)(8). See State v. Raper, 47 Wn. App. 530, 538, 736 P.2d 680 (a trial court's reliance on erroneous speedy trial expiration date constituted a reasonably unavoidable or unforeseen circumstance), review denied, 108 Wn.2d 1023 (1987).
Ellis also argues that the trial was delayed due to court congestion, an improper justification for trial postponement. We do not address this issue because the primary reason for the the extension here was the prosecutor's unavailability.
See also, State v. Carson, 128 Wn.2d 805, 815-16, 912 P.2d 1016 (1996).
The record does not support Ellis's other argument that the prosecutor's unavailability was a result of case mismanagement. Therefore, we do not consider it. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (this court will not consider arguments that are not supported by relevant citations to authority or the record).
Because the prosecutor was unavailable on both October 15 and October 22, the trial court did not abuse its discretion in granting the two five-day extensions under former CrR 3.3(d)(8).
II. Unanimity Instruction
A unanimity instruction is required where the evidence indicates that several distinct criminal acts have been committed, but the defendant is charged with only one count of criminal conduct. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). Jury unanimity is not required, however, where the defendant's acts form a continuing course of criminal conduct.
State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10, cert. denied, 501 U.S. 1237 (1991). Instead, the jury must agree only that the conduct occurred. Crane, 116 Wn.2d at 330. Such is the case here.
The court evaluates a defendant's actions in a `common sense manner' to determine whether they form one continuing offense. Petrich, 101 Wn.2d at 571. Important factors are whether the acts occurred in a `separate time frame' or `identifying place.' Petrich, 101 Wn.2d at 571. Evidence that the charged conduct occurred at different times and places and against different victims tends to show that several distinct acts occurred rather than a continuing course of conduct. Petrich, 101 Wn.2d at 571. In contrast, evidence that a defendant engaged in a series of actions intended to secure the same objective supports a finding that those actions were a continuing course of conduct rather than several distinct acts. Under the facts here, no unanimity instruction was required. The evidence shows that the two forgeries were part of a continuing course of conduct. Both forged checks were written by Sampaio in payment for goods sold to her by Ellis. Ellis observed her as she completed and signed both checks. Both checks were fraudulently written against Sheahan's account. Unlike State v. King, 75 Wn. App. 899, 878 P.2d 466 (1994), review denied, 125 Wn.2d 1021 (1995), Ellis openly admitted that the two checks were his. Ellis asserted a single defense that he was unaware that the checks were forged. The jury did not believe him.
See State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989); State v. Campbell, 69 Wn. App. 302, 311-13, 848 P.2d 1292 (1993) (because the crime of welfare fraud contemplates a continuing course of conduct to further the single goal of obtaining public assistance to which the defendant is not entitled, neither an election nor a unanimity instruction is required even though the State could have charged the individual acts as single crimes), reversed on other grounds, 125 Wn.2d 797 (1995).
Because Ellis's possession of both checks was continuing conduct, he was not entitled to a unanimity instruction. Accordingly, the trial court did not err in failing to give one.
III. Ineffective Assistance of Counsel
We review an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). Our review begins with a strong presumption that defense counsel's performance was effective. 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 is whether counsel's performance fell below the objective standard of reasonableness and whether this deficiency prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Prejudice results when it is reasonably probable that but for counsel's errors, the result of the proceeding would have been different. Thomas, 109 Wn.2d at 226.
We need not address both prongs of the ineffective assistance of counsel test if the defendant makes an insufficient showing on one prong. Strickland, 466 U.S. at 697. When counsel's conduct can be characterized as legitimate trial strategy, it cannot provide a basis for an ineffective assistance of counsel claim. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999). The decision of whether to object is a clear example of trial strategy. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 ('Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal.'), review denied, 113 Wn.2d 1002 (1989). To prevail on an ineffective assistance of counsel claim based on the failure to object, the defendant must show (1) an absence of legitimate strategic or tactical reasons for failing to object; (2) that the objection would likely have been sustained if raised; and (3) that the result of the trial would have been different had the evidence not been admitted. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998).
In arguing that counsel failed to object to the drug evidence, Ellis makes none of these showings. He shows no absence of trial strategy; on the contrary, the record strongly suggests that counsel's strategy was to use this evidence to Ellis's advantage. Nor does Ellis argue that the objection would have been sustained had counsel raised it. As for whether counsel's failure to object was prejudicial, Ellis states merely that `the toll that methamphetamine has put on Kitsap County has been has been [sic] well publicized by the local media.' Br. of Appellant at 23-24. Ellis has failed to show ineffective assistance of counsel.
It appears from the record that the failure to object was a trial strategy utilized by the defense. In the closing argument, defense counsel reasoned that Ellis would not have exchanged drugs for a bad check.
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, J., and QUINN-BRINTNALL, J., concur.