Opinion
No. 61481-9-I.
January 11, 2010.
Appeal from a judgment of the Superior Court for King County, No. 07-1-00365-3, Catherine D. Shaffer, J., entered February 28, 2008.
Affirmed by unpublished opinion per Dwyer, A.C.J., concurred in by Cox and Appelwick, JJ.
John Charles Franklin appeals, on various grounds, from his conviction of and sentence for eight felony counts. Finding his various contentions to be without merit, we affirm.
I
After listening to telephone conversations between Franklin and a cooperating suspect in which Franklin and the suspect arranged for a narcotics transaction to take place shortly after the last conversation, police officers staked out Franklin's residence. The officers stopped and arrested Franklin as he drove away from the residence en route to the arranged drug sale. At the time of his arrest, Franklin possessed approximately 40 grams, or roughly 1.4 ounces, of crack cocaine. Although the officers surveilled Franklin's movements and stopped him because of their belief that he was in possession of narcotics en route to an arranged drug sale, the officers told Franklin that the reason for his arrest was an outstanding arrest warrant.
Upon arresting Franklin, Officer David Bauer recited Miranda warnings to Franklin from memory. Franklin was then transported to the precinct. There, Officer Bauer again advised Franklin of his Miranda rights, this time reading from a printed card. Other officers then interviewed Franklin. He told the police that they would find guns and more drugs at the residence, and he consented to a search of his house. After obtaining Franklin's consent, the police applied for and obtained a warrant to search Franklin's residence. Franklin was transported back to the house, where Officer Amy Branham advised him of his Miranda rights once again and then questioned him.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In searching the residence, police discovered numerous items, including additional suspected drugs, drug paraphernalia, two firearms, and ammunition. In addition, officers encountered two women who resided with Franklin: Sara Shorr and Charlene Nicholson. Shorr appeared to be injured. Shorr was photographed, interviewed, and taken to the hospital. She had recently suffered a fractured nose, a fractured rib, and prominent bruising on her left thigh. Shorr described to police multiple instances in which Franklin had assaulted her, on one occasion strangling her and on another punching her in the face and hitting her with a wooden board.
The State subsequently charged Franklin with (1) a violation of the Uniform Controlled Substances Act, chapter 69.50 RCW, (2) unlawful possession of a firearm, (3) assault in the second degree for strangling Shorr, (4) felony harassment, (5) assault in the second degree for punching Shorr and fracturing her nose, and (6) assault in the third degree for hitting Shorr with the board. Franklin was held in the King County jail pending trial. During Franklin's detention, Shorr reported that she had been asked by someone on Franklin's behalf to testify falsely. The State amended the information against Franklin to add a count of tampering with a witness. The State later added another count of tampering with a witness based on Nicholson's statements that she had received a similar request.
Prior to trial, Franklin moved to suppress all of his statements to the police and the evidence found on his person and in his house. At a pretrial hearing, Officers Bauer and David Ellithorpe testified that they had arrested Franklin based both on probable cause to believe that Franklin possessed drugs and on the outstanding warrant. However, no outstanding arrest warrant was proved to exist. Officer Bauer further testified that he had twice advised Franklin of his Miranda rights and that, on both occasions, Franklin indicated that he understood those rights. The officers who had interviewed Franklin testified that he had answered their questions voluntarily and that no threats or promises were made to Franklin to obtain either his statements or his consent to search his residence. The trial court denied Franklin's motion to suppress.
At trial, Shorr testified that she dated Franklin off and on for roughly two years before his arrest on February 1, 2007. She described how Franklin would assault her, threaten her, and brag to her about his violent behavior toward other women. Shorr also testified that she once saw Franklin assault Nicholson by kicking her, dragging her, and putting a gun to her head while threatening to kill her or to force her into prostitution.
Shorr then testified about the charged incidents of assault. The first incident took place four or five days prior to Franklin's arrest. According to Shorr's testimony, Franklin hit her, possibly kicked her, and then proceeded to strangle her with a bed sheet. She suffered a fractured rib and an injury to her collar bone. In addition, Shorr recalled that Franklin threatened to kill her and she testified that she took the threat seriously and feared for her life. Shorr fled the next morning but Franklin found her the day before he was arrested and drove her back to his house. According to Shorr's testimony, once Franklin parked outside the house, he punched her in the face, fracturing her nose. He then pulled her out of the car, dragged her up the stairs that led into the front yard, and ordered her to stay outside until she stopped bleeding. Then, he picked up a nearby wooden board and hit her in the leg three or four times with the board.
In support of the witness tampering charges, the State offered testimony from both Nicholson and Shorr. Over defense counsel's objection, the trial court allowed Nicholson to testify that a friend of Franklin's, Kelly Benchero, had asked her, on Franklin's behalf, to testify that the guns found inside the residence belonged to her. She explained that she had declined this request by responding either "hell no" or "fuck no." Shorr also testified at trial that Benchero had contacted her at Franklin's request and asked her to testify falsely that another woman was the one who broke her nose and hit her with a board. She explained that she had agreed to meet Benchero for coffee, but she skipped their planned meeting. Franklin's attorney did not object to Shorr's testimony about Benchero's statements.
Benchero testified at trial that Franklin had asked him to contact two individuals. He testified that the first person was Trish, Franklin's girlfriend, and the second person was Benchero's niece, Angie. He explained that he and Franklin had referred to these two individuals as "number one'" and "number two" in order to keep their identities anonymous. Benchero insisted that the two people were not Shorr or Nicholson. However, Benchero also testified that although Franklin and he had agreed to refer to the women anonymously, both men had referred to Trish and Angie by their first names in subsequent conversations. Also submitted into evidence were recordings of telephone calls placed between Franklin and Benchero while Franklin was in custody. One recorded telephone conversation revealed that Franklin did not want to discuss something with Benchero over the phone because the calls were recorded. In a later recorded telephone conversation, Benchero told Franklin that he had contacted "number one," who responded "[F]uck you. You're out of your fuckin' tree." Benchero also told Franklin that he had contacted the second person on Franklin's list and was meeting her for coffee the following morning. But "number two" apparently never showed up for coffee, because in a conversation a week later, Benchero had not talked with "number two." Benchero testified that he had planned to meet Angie for coffee, but that she did not show up. However, Benchero also admitted that he had contacted Shorr "to find out her position" and planned to meet her for coffee on a different day, but they never met.
The jury convicted Franklin of all eight felony charges, and the trial court subsequently sentenced him. The trial court initially sentenced Franklin to more than the statutorily-authorized maximum sentence on both his assault in the third degree conviction and his conviction for a violation of the Uniform Controlled Substances Act. The trial court then twice amended the sentence for each conviction in order to bring these sentences within the authorized maximum. The final amended sentence for each conviction imposed the maximum sentence of incarceration plus a range of time for Franklin to be in community custody, with the total amount of incarceration and community custody not to exceed the statutorily-authorized maximum sentence.
II
Franklin first contends that much of the evidence introduced at trial should have been suppressed because his arrest was based on an invalid warrant and was, therefore, unlawful. We disagree.
A warrantless arrest is lawful if there is probable cause justifying an intrusion into the defendant's constitutionally protected privacy. State v. Grande, 164 Wn.2d 135, 140, 187 P.3d 248 (2008); see also Wash. Const. art. 1, § 7. We review de novo the existence of probable cause. Grande, 164 Wn.2d at 140. Probable cause exists where the facts and circumstances within the arresting officer's knowledge would be sufficient to cause a reasonable person to believe that the suspect has committed or is in the process of committing an offense. City of Seattle v. Cadigan, 55 Wn. App. 30, 36, 776 P.2d 727 (1989). Even when the stated grounds for an arrest are invalid, the arrest is lawful if, at the time of the arrest, the police have probable cause to arrest the person for some crime. State v. Huff, 64 Wn. App. 641, 645-48, 826 P.2d 698 (1992); Cadigan, 55 Wn. App. at 36.
Franklin argues that State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003), effectively abrogated the holding of Huff. However, O'Neill is readily distinguished because it concerned a search conducted prior to a formal arrest. 148 Wn.2d at 585-86.
Based on the content of the telephone conversations between Franklin and the cooperating suspect and the timing of Franklin's departure from the house, the officers had probable cause to believe Franklin possessed a controlled substance with the intent to deliver it to another person. In fact, Franklin does not argue that the police lacked probable cause to arrest him for this offense; rather, he asserts that the trial court failed to find that he had been arrested based on that probable cause. However, because the officers had probable cause to arrest Franklin for possession of a controlled substance with intent to deliver, their stated reliance on an outstanding warrant as the basis for the arrest is irrelevant. See Huff, 64 Wn. App. at 645-46. Therefore, the trial court did not err in denying Franklin's motion to suppress.
III
Franklin also contends that his custodial statements were inadmissible because he did not expressly waive his Miranda rights. We disagree.
We review de novo whether a defendant waived his Miranda rights. State v. Johnson, 94 Wn. App. 882, 897-98, 974 P.2d 855 (1999). We review a trial court's factual findings for substantial evidence. State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002). A trial court's credibility determinations are not subject to review. State v. Haack, 88 Wn. App. 423, 435, 958 P.2d 1001 (1997).
Before a custodial statement may be admitted against the defendant at trial, "[t]he State bears the burden of showing a knowing, voluntary, and intelligent waiver of Miranda rights by a preponderance of the evidence." State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007). A valid waiver may be express or implied. State v. Terrovona, 105 Wn.2d 632, 646, 716 P.2d 295 (1986).
Implied waiver has been found where the record reveals that a defendant understood his rights and volunteered information after reaching such understanding. Waiver has also been inferred where the record shows that a defendant's answers were freely and voluntarily made without duress, promise or threat and with a full understanding of his constitutional rights.
Terrovona, 105 Wn.2d at 646-47 (citations omitted).
The trial court found that all of the officers were credible witnesses but that Franklin was not a credible witness. The trial court also found that Franklin had been twice advised of and understood his rights. Substantial evidence supports these findings. The trial court's findings and the testimony given at the pretrial suppression hearing support the conclusion that Franklin knowingly, intelligently, and voluntarily waived his rights by implication by agreeing to speak with the police officers. Because Franklin impliedly waived his Miranda rights, the trial court did not err by denying his motion to suppress.
IV
Franklin next contends that his separate convictions for Count I, assault in the third degree, and Count V, assault in the second degree, violate the constitutional prohibition against double jeopardy because both arose out of the same incident. He is incorrect.
We review de novo whether multiple punishments violate constitutional protections against double jeopardy. State v. Daniels, 160 Wn.2d 256, 261, 156 P.3d 905 (2007). To determine whether punishment under multiple statutes violates double jeopardy, we consider the multiple factors enumerated in State v. Freeman, 153 Wn.2d 765, 771-73, 108 P.3d 753 (2005). Thus, we must first determine whether the legislature expressly authorized multiple punishments under different statutes for the same act or transaction. If the language of the statutes reveals that the legislature expressly authorized multiple punishments, then further analysis is unnecessary. However, if we cannot ascertain from the language itself whether multiple punishments are authorized, we must next analyze the multiple convictions under the "same evidence" test. Finally, we must consider whether there is any other indication that the legislature intended a violation of two statutes to be charged under only one statute or under both.
The Fifth Amendment to the United States Constitution provides that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb." Article I, § 9 of the Washington Constitution provides that "[n]o person shall be . . . twice put in jeopardy for the same offense." These two provisions provide identical protection against double jeopardy. State v. Womac, 160 Wn.2d 643, 650, 160 P.3d 40 (2007).
This analysis follows the evaluation required by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
Freeman enumerates a four-factor test, but Freeman's third factor relates to the merger doctrine. 153 Wn.2d at 771-73. The merger doctrine applies only when the degree of one offense is raised by conduct separately criminalized by the legislature. Freeman, 153 Wn.2d at 772-73. Because Franklin was not charged with a higher degree of an offense based on conduct separately criminalized, the merger doctrine is not applicable in this case.
We first consider whether the language of the statutory provisions under which Franklin was charged expressly authorize multiple punishments for the same act. State v. Fuentes, 150 Wn. App. 444, 449-50, 208 P.3d 1196 (2009). Franklin was charged with assault in the second degree, a violation of RCW 9A.36.021(1)(a). Franklin was also charged with assault in the third degree, a violation of RCW 9A.36.031(1)(d). The legislature explicitly prohibited multiple punishments for the same act under both RCW 9A.36.021 and RCW 9A.36.031 by defining assault in the third degree as actions "not amounting to assault in the first or second degree." RCW 9A.36.031. Accordingly, the prohibition against double jeopardy is violated where the same act provides the basis for convictions of both assault in the second degree and assault in the third degree. However, because the statutory language does not provide a precise indication of that which constitutes the same act, this factor is not dispositive and we must proceed with the remainder of the Freeman analysis.
RCW 9A.36.021(1)(a) provides:
A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . [i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm.
Substantial bodily harm is defined as "bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part." RCW 9A.04.110(4)(b).
RCW 9A.36.031(1)(d) provides:
A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree . . . [w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.
Assault in the third degree could potentially be a lesser-included offense of assault in the second degree, depending on the subsection under which the defendant is charged. RCW 10.61.006. A lesser-included offense is one where each of the elements of the lesser offense is a necessary element of the greater offense. In addition, when an individual is charged with assault in the second degree, that defendant could be entitled to a jury instruction for assault in the third degree as an inferior degree offense, RCW 10.61.003, if the evidence tended to show that only the inferior third-degree assault was committed. State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998). Lesser-included offenses and inferior-degree crimes are not equivalents, as we explained in State v. Ieremia, 78 Wn. App. 746, 899 P.2d 16 (1995).
We next apply the "same evidence" test to determine whether Franklin was convicted of offenses that are identical in law and in fact, in which case double jeopardy principles are violated. In re Pers. Restraint of Borrero, 161 Wn.2d 532, 536-37, 167 P.3d 1106 (2007), cert. denied, 128 S. Ct. 1098, 169 L. Ed. 2d 832 (2008). Where "each offense includes an element not included in the other, and each requires proof of a fact the other does not," the double jeopardy bar does not apply. State v. Hughes, 166 Wn.2d 675, 682, 212 P.3d 558 (2009). A presumption arises that the legislature intended multiple punishments if the statutory provisions require separate proof. Fuentes, 150 Wn. App. at 449-50. Thus, we must compare the elements of the offenses as charged and also compare the evidence used to prove the crimes. In re Pers. Restraint of Orange, 152 Wn.2d 795, 820-21, 100 P.3d 291 (2004).
Franklin argues that the "unit of prosecution" analysis, rather than the "same evidence" test, must be employed to determine whether his convictions violate the prohibition against double jeopardy. While our case law presents these two different approaches for determining whether convictions violate double jeopardy, State v. Graham, 153 Wn.2d 400, 404-05, 103 P.3d 1238 (2005), Franklin employs the wrong test. The "same evidence" is used to determine if convictions under different statutes for the same acts result in double jeopardy. Graham, 153 Wn.2d at 404-05. The "unit of prosecution" analysis is used to determine if multiple convictions under a single statute result in double jeopardy. Graham, 153 Wn.2d at 405. Franklin was charged under two different statutes, so the "same evidence" test is correctly utilized to determine whether his two assault convictions violate double jeopardy.
The two statutory provisions under which Franklin was charged required the State to establish different elements. Cf. State v. Linton, 122 Wn. App. 73, 80, 93 P.3d 183 (2004), aff'd on other grounds, 156 Wn.2d 777, 132 P.3d 127 (2006) (holding that double jeopardy principles were violated when defendant was convicted of the lesser-included offense of assault in the second degree and then the State moved for retrial on the charge of assault in the first degree because "the crimes of assault in the first degree and assault in the second degree do not each require proof of an additional fact that the other does not"). Assault in the second degree, charged pursuant to RCW 9A.36.021(1)(a), requires that the victim suffer "substantial bodily harm," which is not an element of assault in the third degree. On the other hand, assault in the third degree, charged pursuant to RCW 9A.36.031(1)(d), requires that the assault be committed "by means of a weapon or other instrument or thing," which is not an element of assault in the second degree. Therefore, the two crimes are not the same "in law."
In addition, the evidence used to prove each crime was different. Proof of different acts established each of the crimes. Cf. State v. Godsey, 131 Wn. App. 278, 290, 127 P.3d 11 (2006) ("[T]he State recognized the overlap between the two offenses but did not rely on the same conduct to establish the [third degree] assault charge as used to prove the resisting arrest charge."). Count V was based upon Franklin inflicting substantial bodily harm by breaking Shorr's nose. In contrast, Count I was based on Franklin's beating Shorr with a wooden board. The two crimes were not the same "in fact."
The final consideration is to determine whether there are other clear indications that the legislature intended to disallow multiple punishments. Womac, 160 Wn.2d at 652 (quoting State v. Gohl, 109 Wn. App. 817, 821, 37 P.3d 293 (2001)). There is no evidence that the legislature intended for there to be imposed only one punishment for actions such as Franklin's. Thus, Franklin has not rebutted the presumption produced by the "same evidence" analysis that his convictions do not violate the prohibition against double jeopardy.
Although it is true that we must "guard against the State's attempting to segment a singular criminal act to form the basis for multiple convictions," State v. Adel, 136 Wn.2d 629, 640, 965 P.2d 1072 (1998), here Franklin committed two criminal acts against Shorr. Thus, double jeopardy is not implicated.
V
Additionally, Franklin contends that he received ineffective assistance of counsel because his counsel did not move to sever the trial on the multiple counts in the information. We disagree.
To establish ineffective assistance of counsel, a defendant must show that counsel's performance (1) was deficient and (2) prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Deficient performance is that which falls below an objective standard of reasonableness. In re Det. of Moore, 167 Wn.2d 113, 122, 216 P.3d 1015 (2009) (citing State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997)). Prejudice occurs where there is a reasonable probability that, but for the deficient performance, the outcome of the proceedings would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). With respect to the specific contention that defense counsel's failure to move to sever constituted ineffective assistance, the defendant must demonstrate both that the motion would have been granted and that the outcome of the proceeding would have been different. State v. Sutherby, 165 Wn.2d 870, 884, 204 P.3d 916 (2009).
It is unnecessary for us to address both prongs of the Strickland test if the defendant makes an inadequate showing as to either prong. State v. Standifer, 48 Wn. App. 121, 126, 737 P.2d 1308 (1987) (citing Strickland, 466 U.S. at 697).
First, Franklin cannot demonstrate that the trial court would have granted a severance had such a request been made. Severance is to be granted whenever the trial court "determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." CrR 4.4(b).
To determine whether to sever charges to avoid prejudice to a defendant, a court considers "(1) the strength of the State's evidence on each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial."
Sutherby, 165 Wn.2d at 884-85 (quoting State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994)). "No one factor is preeminent; all must be assessed in determining whether potential prejudice requires severance." State v. Warren, 55 Wn. App. 645, 655, 779 P.2d 1159 (1989) (citing State v. Watkins, 53 Wn. App. 264, 272 n. 3, 766 P.2d 484 (1989)).
The State presented strong evidence as to each charge against Franklin. Where there is strong evidence on each charge, "there is no necessity for the jury to base its finding of guilt on any one count on the strength of the evidence of another." State v. Bythrow, 114 Wn.2d 713, 721-22, 790 P.2d 154 (1990). Franklin's defenses to each count were not made unclear by joinder, nor did he argue that he wanted to present inconsistent defenses as to different charges. In addition, the trial court properly instructed the jury to decide each count separately and to not improperly infer guilt.
"Your verdict on one count should not control your verdict on the other count." Instruction 4.
Franklin, however, asserts that joinder resulted in inherent prejudice because the separate, factually unrelated counts and the evidence pertaining to each of the counts would not have been cross-admissible in separate trials. But "[t]he fact that separate counts would not be cross admissible in separate proceedings does not necessarily represent a sufficient ground to sever as a matter of law." State v. Kalakosky, 121 Wn.2d 525, 538, 852 P.2d 1064 (1993). Even where the evidence on one count would not be admissible in a separate trial on the other count, severance is not required in every case. Bythrow, 114 Wn.2d at 720. Rather, severance is required only where the defendant can demonstrate that specific prejudice results from joinder. Bythrow, 114 Wn.2d at 720; State v. Grisby, 97 Wn.2d 493, 507, 647 P.2d 6 (1982).
For the proposition that it is reversible error to deny a severance motion when evidence of guilt on one count would not be admissible in a separate trial of the other count under ER 404(b), Franklin relies on three cases. See State v. Hernandez, 58 Wn. App. 793, 794 P.2d 1327 (1990); State v. Ramirez, 46 Wn. App. 223, 730 P.2d 98 (1986); State v. Harris, 36 Wn. App. 746, 677 P.2d 202 (1984). However, these decisions are inapposite as the defendants in each of these cases were charged with committing multiple violations of the same statute and the defendants were thus able to demonstrate that specific prejudice (propensity evidence) resulted from joinder.
Specifically, Franklin argues that ER 404(b) evidence regarding several uncharged assaults was admitted at trial and such evidence would not have been admissible in a trial that did not include the felony harassment charge. Under ER 404(b), evidence of other crimes, wrongs, or acts cannot be used to prove conduct on a particular occasion, but such evidence is admissible to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," ER 404(b), or "'[t]o show, by similar acts or incidents, that the [charged act] was not performed inadvertently, accidentally, [or] involuntarily.'" Bythrow, 114 Wn.2d at 718-719 (quoting Edward W. Cleary, McCormick on Evidence, § 190, at 561 (3d ed. 1984)). In addition, when a defendant is charged with felony harassment, evidence of a prior bad act or threat may be admitted to show that the victim's fear was reasonable. State v. Binkin, 79 Wn. App. 284, 286-87, 902 P.2d 673 (1995), overruled on other grounds by State v. Kilgore, 147 Wn.2d 288, 53 P.3d 974 (2002).
The evidence of uncharged assaultive conduct, which included Shorr's testimony that Franklin pointed a gun at Nicholson, was admitted at trial to support Count IV, felony harassment, and Count II, unlawful possession of a firearm. In Instruction 8, the trial court provided the jury with a limiting instruction, explaining that the evidence of uncharged assaults could be considered only as pertaining to whether Shorr reasonably feared for her life and whether Franklin knowingly possessed firearms. "Juries are presumed to have followed the trial court's instructions, absent evidence proving the contrary." Kirkman, 159 Wn.2d at 928. Therefore, the jury is presumed to have considered the ER 404(b) evidence for only the limited purposes for which it was introduced. Considering the strong evidence on each charge, Franklin's harmonious defenses as to each charge, and the limiting instruction, Franklin has not demonstrated that undue prejudice resulted from joinder of the eight charges against him.
Franklin assigned error to Instruction 8, arguing that the evidence of his uncharged assault against Nicholson with a gun could not properly be considered to prove that he knowingly possessed a firearm during the period charged given both that the assault against Nicholson occurred three months prior to that time and that there was no evidence that the gun used against Nicholson was one of the guns found in the search of Franklin's house. However, Franklin did not object to this instruction at trial.
The general rule is that we will not consider issues raised for the first time on appeal. RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). However, if the error claimed is a manifest error affecting a constitutional right, the defendant may raise it for the first time on appeal. RAP 2.5(a)(3). In that event, the claimed error is subject to harmless error analysis. Kirkman, 159 Wn.2d at 926-27. An error is harmless if it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained. State v. Thomas, 150 Wn.2d 821, 871, 83 P.3d 970 (2004).
Franklin does not identify which of his constitutional rights was affected. Regardless, any error was harmless. The record affirmatively demonstrates that no prejudice resulted from Instruction 8 because there was overwhelming evidence presented that Franklin had knowingly possessed the weapons discovered in the search of his residence, including a police officer's testimony that Franklin had stated during questioning that guns were present in the house and the testimony of both Nicholson and Shorr that the guns discovered during the search of Franklin's house were Franklin's guns.
Moreover, even had Franklin demonstrated that undue prejudice resulted from the joinder of the counts against him, he had also to demonstrate that the joint trial was so prejudicial as to outweigh concerns for judicial economy. State v. Philips, 108 Wn.2d 627, 640, 741 P.2d 24 (1987).
Foremost among these concerns is the conservation of judicial resources and public funds. A single trial obviously only requires one courtroom and judge. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is significantly reduced when the offenses are tried together. Furthermore, the reduced delay on the disposition of the criminal charges, in trial and through the appellate process, serves the public.
Bythrow, 114 Wn.2d at 723.
Franklin asserts that the charges against him should have been severed into a minimum of three separate jury trials. If the charges had been severed, many of the same witnesses — including Shorr, Nicholson, Benchero, and many of the officers — would have been required to testify in each of the trials in order to present substantially the same evidence. In addition, three juries would have had to be impaneled. Franklin's proposal is greatly inconsistent with judicial economy.
Given that the State's evidence on each count was strong, that the charges were not difficult to distinguish, that the trial court instructed the jury to consider the crimes separately, and that considerations of judicial economy would have been offended by Franklin's proposal, Franklin has not demonstrated that a severance would have been granted if such a request had been made.
In addition, Franklin cannot satisfy the second requirement for showing that his counsel's failure to file a motion to sever constituted ineffective assistance of counsel. He cannot show that the outcome of the proceeding would have been different. Franklin argues that the evidence of the uncharged assaults would not have been admissible in a trial that did not include the felony harassment charge and that the outcome of trials on the other charges would have been different without such evidence. Franklin asserts that the evidence of uncharged assaults may have indicated criminal propensity, especially with regard to the charged counts of assault. However, Shorr described each assault in detail and medical records confirmed that Shorr was severely injured. Strong evidence was presented on the charges of possession of cocaine and a firearm and the multiple assault charges. Franklin has not demonstrated that the evidence of uncharged assaults likely altered the jury's findings on any of those counts. Because Franklin has not established that the severance motion would have been granted or that the outcome of the proceeding would have been different, he has failed to demonstrate that his counsel provided ineffective assistance by not filing a severance motion.
VI
Franklin next asserts that he received ineffective assistance of counsel because his attorney did not object to hearsay statements regarding Benchero's attempts to tamper with witnesses Nicholson and Shorr on Franklin's behalf. Once again, we disagree.
There is a strong presumption that counsel provided effective assistance and "made all significant decisions in the exercise of reasonably professional judgment." State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). If defense counsel's conduct can be characterized as a legitimate trial strategy or tactic, it does not constitute deficient performance. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994). Franklin bears the burden of establishing there were no legitimate strategic or tactical reasons behind his attorney's choices. State v. Rainey, 107 Wn. App. 129, 135-36, 28 P.3d 10 (2001).
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c). However, statements that are offered against a party that were made by "a person authorized by the party to make a statement concerning the subject," ER 801(d)(2)(iii), or that were made by "the party's agent . . . acting within the scope of the authority to make the statement for the party" are not hearsay. ER 801(d)(2)(iv). The fact and the scope of the agency authority cannot be proven from the hearsay statements alone. Passovoy v. Nordstrom, Inc., 52 Wn. App. 166, 171-72, 758 P.2d 524 (1988). However, if the fact of the agency may be inferred from other evidence, then the hearsay statements are admissible under ER 801(d)(2). Passovoy, 52 Wn. App. at 171-72.
Both Nicholson and Shorr testified about statements made by themselves and by Benchero in conversations in which Benchero asked the women to testify falsely. These statements were offered to prove a material fact: that Benchero, acting on Franklin's behalf, contacted Shorr and Nicholson and requested that they testify falsely. However, they were not hearsay because Franklin authorized Benchero to contact two individuals on Franklin's behalf. Benchero testified that he had contacted those two individuals at Franklin's request. The recordings of the telephone conversations between Benchero and Franklin, Benchero's incredible testimony that the two anonymous individuals were Trish and Angie, and Benchero's testimony that Shorr was supposed to meet him for coffee, provide strong circumstantial evidence that Shorr and Nicholson were the two individuals that Franklin asked Benchero to contact. This evidence provides proof the agency relationship between Franklin and Benchero independent from the challenged statements. Therefore, the statements made by Benchero to Shorr and Nicholson were admissions of a party under ER 801(d)(2). Because the statements made by Benchero to Shorr and Nicholson were not hearsay, Franklin's counsel did not perform ineffectively by declining to object to such testimony.
There is an indication that defense counsel did, in fact, object to this testimony and that the trial court did, in fact, overrule the objection on this basis. The record on this question, however, is unclear.
Moreover, Franklin has not demonstrated prejudice arising from his attorney's decision not to object to Nicholson's and Shorr's testimony. Even had such an objection been made and, for some reason, sustained, each witness would have nevertheless been allowed to testify as to the fact of Benchero's contact with her and as to her perception of that contact. Thus, the damaging effect of the two witnesses' testimony would still have been felt. In addition, the State played for the jury the telephone conversations between Franklin and Benchero, wherein Benchero reports to Franklin regarding his progress in contacting the two individuals whom Franklin had asked Benchero to contact. During these conversations, the two men refer to "Trish" and "Angie" by their first names while also referring to "number one" and "number two." The reference to "Trish" and "Angie" by their first names weakens Benchero's claim that "Trish" and "Angie" were "number one" and "number two." A successful hearsay objection would in no way have necessitated a result at variance with the jury's ultimate determination on these charges. Hence, for this reason also, Franklin fails to establish that he received ineffective assistance of counsel. See McFarland, 127 Wn.2d at 337.
VII
Franklin further contends that he received ineffective assistance of counsel because his lawyer failed to argue at sentencing that, for purposes of calculating Franklin's offender score, both Count I and Count V constituted the same criminal conduct and Count IV and VI constituted the same criminal conduct. We disagree.
RCW 9.94A.589(1)(a) treats all "current and prior convictions as if they were prior convictions for the purpose of the offender score." However, "if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime." RCW 9.94A.589(1)(a). "Same criminal conduct" is defined as "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). If any of these elements is missing, the offenses must be individually counted toward the offender score. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
Uncertainty over whether two acts constitute the same criminal conduct for sentencing purposes does not allow Franklin to succeed on an ineffective assistance of counsel claim. Rather, for Franklin to prevail, he has to show that his counsel's performance was deficient and that this deficient performance prejudiced his defense. Again, there is a strong presumption that counsel's representation was effective. McFarland, 127 Wn.2d at 335. This presumption can be rebutted if the defendant proves that his attorney's representation "'was unreasonable under prevailing professional norms.'" In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004) (quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)). The reasonableness of counsel's performance is to be evaluated in light of all the circumstances. Davis, 152 Wn.2d at 673. Whether there is controlling authority on an issue is relevant to an evaluation of the attorney's performance. An attorney is not ineffective merely because he or she failed to argue novel theories of law. See, e.g., Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005) ("Counsel's failure to raise [a] novel argument does not render his performance constitutionally ineffective."). Therefore, where controlling case law arguably indicates that certain criminal offenses are not properly considered to be the same criminal conduct, counsel's performance will not be found deficient for declining to raise such a claim at sentencing. In addition, in order to show prejudice, the defendant must show that the trial court would have exercised its discretion so as to find that the actions encompassed the same criminal conduct. See State v. Hernandez, 95 Wn. App. 480, 483, 976 P.2d 165 (1999) ("We review for abuse of discretion . . . a trial court's determination of whether two crimes constitute the 'same criminal conduct.'").
Both Count I, assault in the third degree (hitting Shorr with the board), and Count V, assault in the second degree (fracturing Shorr's nose), undisputedly involved the same victim.
However, regardless of whether these two acts occurred at the same time, Franklin's counsel could have reasonably concluded that these two crimes entailed different criminal intents based on the holdings in State v. Lopez, 142 Wn. App. 341, 174 P.3d 1216 (2007), review denied, 164 Wn.2d 1012 (2008), and State v. Grantham, 84 Wn. App. 854, 932 P.2d 657 (1997). In Lopez, the defendant was convicted of assault in the second degree with a deadly weapon and assault in the second degree by recklessly inflicting substantial bodily harm based on conduct occurring over a four-hour period. 142 Wn. App. at 351. The assaults were held not to constitute the same criminal conduct because Lopez's intent had changed between incidents. Lopez, 142 Wn. App. at 352-53. Likewise, in Grantham, the defendant was convicted of two counts of rape which were held not to constitute the same criminal conduct. 84 Wn. App. at 857. In that case, Grantham had completed the first rape and "then formed a second, new objective intent" to force the victim to perform oral sex. Grantham, 84 Wn. App. at 859.
In this case, Franklin first punched Shorr in the face while in the car. He then exited the car and dragged Shorr from the car up the stairs to the front yard. Franklin demanded that Shorr stay outside until she stopped bleeding. Only then did Franklin grab a board and hit her with it several times. Thus, after breaking Shorr's nose, Franklin "had the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act." Grantham, 84 Wn. App. at 859. He decided to beat Shorr with a board, thereby committing a separate offense. In light of the holdings in Lopez and Grantham, it was not unreasonable for Franklin's lawyer to decline to argue in the sentencing proceeding that Count I and Count V represented the same criminal conduct.
Similarly with respect to Count IV, felony harassment, and Count VI, assault in the second degree (strangulation), each crime involved the same victim and took place at the same time. However, it was reasonable for Franklin's counsel to conclude that these two crimes entailed different criminal intents based on the holding in State v. Wilson, 136 Wn. App. 596, 150 P.3d 144 (2007). In Wilson, the court held that felony harassment and assault in violation of a no-contact order were not offenses involving the same criminal conduct because the defendant did not have the same criminal intent in committing the two offenses. 136 Wn. App. at 614-15. Rather, the court stated that the criminal intent differed in part because one act was intended to physically harm the victim while the other act was intended to verbally harass her. Wilson, 136 Wn. App. at 615. In light of the holding in Wilson, it was not unreasonable for Franklin's lawyer to decline to argue in the sentencing proceeding that Count IV and Count VI constituted the same criminal conduct.
Further, to prevail on his ineffective assistance of counsel claim, Franklin must establish that there was a reasonable probability that the outcome of the proceeding would have been different. However, Franklin has not demonstrated that the trial court would have exercised its discretion in his favor by ruling that any or all of these counts constituted the same criminal conduct, notwithstanding the above-cited authority. Therefore, Franklin has not demonstrated prejudice. Thus, he has not established that he was afforded the ineffective assistance of counsel at sentencing.
VIII
Finally, Franklin argues that the trial court improperly imposed an indeterminate sentence on both his conviction for assault in the third degree and his conviction for a violation of the Uniform Controlled Substances Act. Again, he is incorrect.
A sentence is not indeterminate if the trial court imposed a sentence that has both a defined range and a determinate maximum, even if the exact amount of time to be served in confinement and in community custody is not specified in the written sentence. In re Pers. Restraint of Brooks, 166 Wn.2d 664, 674, 211 P.3d 1023 (2009). For both his conviction of assault in the third degree and his conviction of a violation of the Uniform Controlled Substances Act, the trial court sentenced Franklin to the statutory maximum of incarceration plus a period of community custody, but limited the total amount of incarceration and community custody to the statutory maximum. Because these sentences establish a maximum amount of time that Franklin will serve in confinement and the maximum amount of time he will serve in totality, these sentences are not indeterminate. Affirmed.
We concur: