Opinion
No. 17978-8-III consolidated with 20359-0-III.
Filed: November 13, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Grant County, No. 98-1-00314-9, Hon. John G. Burchard Jr, October 9, 1998, Judgment or order under review.
Counsel for Appellant(s), George M. Ahrend, Randall Danskin, 601 W Riverside Ave #1500, Spokane, WA 99201.
Counsel for Respondent(s), John D. Knodell III, Pros Atty Grant Co Crthse, P.O. Box 37, Ephrata, WA 98823.
Thomas Hargrove was convicted of two counts of attempted first degree murder and one count of arson. Claiming the prosecutor committed misconduct during closing argument, he appeals. He raises several other issues pro se. Mr. Hargrove also filed a personal restraint petition, which has been consolidated with this appeal. We affirm his convictions and dismiss his personal restraint petition.
Mr. Hargrove became romantically involved with Charlene Schooley while her husband, Pat, was in jail. Ms. Schooley, however, intended to stay married and reunite with her husband upon his release from prison.
In October 1997, Mr. Schooley was released from prison and reunited with Charlene. This upset Mr. Hargrove, who began following and threatening them. On more than one occasion, he caused disturbances at Ms. Schooley's place of employment.
In November 1997, Mr. Hargrove went to the police and asked if they could do something about Mr. Schooley. Mr. Hargrove wanted him 'gone.' Trial Report of Proceedings (RP) at 290. When told there was nothing they could do, he said he would take care of it himself.
In December, Mr. Schooley got a restraining order against Mr. Hargrove, who nonetheless continued to make threats. Mr. Hargrove stated that if he could not have Ms. Schooley, he would take care of both of them. He told Ms. Schooley he would kill her husband. Later he told her he would kill them both.
On June 3, 1998, the Schooleys had dinner and went to bed around 10:00 p.m. They awoke to glass breaking and found themselves engulfed in flames. Ms. Schooley suffered first and second degree burns over 30 percent of her body. Mr. Schooley had first and second degree burns on 10 to 12 percent of his body. On the day of the fire, Mr. Hargrove was seen filling two gas cans at a service station.
Mr. Hargrove was charged with two counts of first degree assault and one count of first degree arson. The State later amended the information, charging him with two counts of first degree attempted murder or, in the alternative, first degree assault; one count of first degree arson; and violation of a protection order. The case went to trial in 1998.
Mr. Hargrove had an alibi defense. The fire had started at 10:16 p.m., but his neighbors said they saw him between 10:00 and 10:15 p.m. The drive time between Mr. Hargrove's and the Schooleys' homes was estimated to be six minutes. Mr. Hargrove thus claimed he did not have time to start the fire.
The jury convicted Mr. Hargrove of two counts of attempted first degree murder and one count of first degree arson. The court imposed an exceptional sentence of 660 months. This appeal follows. Mr. Hargrove claims the prosecutor committed misconduct during his closing argument. He asserts that the following statements impermissibly shifted the burden of proof to him and infringed upon his right to remain silent:
After hearing everything and surveying the residence, buying the gas, the statements he made about knowing how to build bombs, you heard that he knew how to build bombs by the defendant, was there anybody else with that kind of motive here? Is there any reasonable explanation for this terrible terrible tragedy? All the pain and suffering that Pat and Charlene Schooley went through here other than the explanation that the defendant[']s smoldering pit of jealous rage threw that bomb, burned them up. Is there any other reasonable explanation? I'm interested in hearing it, but I submit to you that there isn't any other reasonable explanation as to what happened in this case.
RP at 709.
During rebuttal, the prosecutor again noted the lack of any explanation other than that the defendant was guilty:
Look through all the evidence, is there any evidence that there was somebody else out there that had the kind of motive or animosity towards the Schooleys to do this kind of thing? There just isn't.
RP at 721.
The prosecutor concluded by stating:
I suggested in opening remarks that if there were a reasonable explanation for how this happened other than that the defendant did it, I would submit to you that I have not heard it. The only reasonable explanation is an explanation that the defendant did it and should be convicted as charged.
RP at 725.
A defendant alleging prosecutorial misconduct bears the burden of showing both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). Prejudice is established by showing a substantial likelihood that the misconduct affected the jury's verdict. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). A prosecutor's allegedly improper remarks are viewed in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. Brown, 132 Wn.2d at 561. Absent an objection, a defendant cannot claim prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that a curative instruction could not have neutralized any prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
Mr. Hargrove argues these statements by the prosecutor improperly shifted the burden of proof. A defendant has no duty to present evidence; the State bears the entire burden of proving each and every element of its case beyond a reasonable doubt. State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 (1996), review denied, 131 Wn.2d 1018 (1997). But the State is permitted to comment that certain testimony is undisputed, so long as it does not refer to who may or may not be in a position to dispute it. State v. Crawford, 21 Wn. App. 146, 153, 584 P.2d 422 (1978), review denied, 91 Wn.2d 1013 (1979).
The prosecutor's comments relate to the undisputed evidence tending to show that Mr. Hargrove committed the crimes. The prosecutor did not suggest that Mr. Hargrove should have or could have disputed this evidence. In these circumstances, the comments did not improperly shift the burden of proof.
Mr. Hargrove also alleges these statements infringed on his right to remain silent. The State may not make a comment about a defendant's silence or suggest that guilt can be inferred from such silence. See State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996). A prosecutor violates a defendant's Fifth Amendment rights if the prosecutor makes a statement 'of such character that the jury would 'naturally and necessarily accept it as a comment on the defendant's failure to testify." State v. Fiallo-Lopez, 78 Wn. App. 717, 728, 899 P.2d 1294 (1995) (quoting State v. Ramirez, 49 Wn. App. 332, 336, 742 P.2d 726 (1987)).
The prosecutor's comments here did not infringe on Mr. Hargrove's right to remain silent. They merely reminded the jury that certain evidence was undisputed and that no other explanation could be found from the evidence presented. It was an argument suggesting that the jury could find Mr. Hargrove guilty beyond a reasonable doubt. There was no misconduct.
Ineffective Assistance
Pro se, Mr. Hargrove contends he received ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). The first prong is met by showing that defense counsel's performance was not reasonably effective under prevailing professional norms. The second prong is met by showing that, but for counsel's errors, the result would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Mr. Hargrove contends he was denied effective assistance because trial counsel did not meet minimum experience requirements. At a pretrial hearing, his attorney told the court she might not be qualified to represent Mr. Hargrove if the State amended the information and charged him with attempted murder. On July 13, 1998, the State so amended the information. That same day, counsel informed the court that 'under the standards for public defenders in the state of Washington, with the amended information, I am no longer qualified to act as Mr. Hargrove's lead counsel.' RP at 25. The court permitted the amendment and continued the matter for one week. On July 20, 1998, at a motion hearing, the prosecutor informed the court that qualified defense co-counsel had been assigned to the case.
Mr. Hargrove claims that any error involving his constitutional rights is not subject to a harmless error analysis. An error infringing upon a defendant's constitutional rights is presumed to be prejudicial, and the State has the burden of proving the error was harmless. State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 (1997). The error cannot be declared harmless unless it was 'harmless beyond a reasonable doubt.' Id. (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967)). But there are some constitutional rights that are so basic to a fair trial that their denial can never be treated as harmless error. In re Boone, 103 Wn.2d 224, 233, 691 P.2d 964 (1984).
These types of errors are often referred to as 'structural errors.' See State v. Vreen, 143 Wn.2d 923, 930, 26 P.3d 236 (2001). We first determine whether any error occurred. If so, we must then determine which harmless error test is applicable.
Up until the July 13 amendment to the information, Mr. Hargrove's counsel was qualified to represent him. From the time of the amendment until co-counsel was appointed, there was no action in the case. He suffered no prejudice.
Mr. Hargrove next asserts counsel failed to investigate and/or present an alibi defense. He claims that he gave his lawyer the names of several people he was with on the day of the fire, yet counsel called only three witnesses.
Three members of the Walkup family testified at trial that they all saw Mr. Hargrove on the night of the fire. Myron Walkup stated he was with Mr. Hargrove from 8:45 p.m until 9:45 p.m. Linda and Tricia Walkup testified they saw Mr. Hargrove watering his yard around quarter after ten. Emergency officials received the call from the Schooleys at 10:19 p.m. A detective estimated that it would take approximately six minutes to drive from Mr. Hargrove's to the Schooleys' if driving at 70 miles per hour. In closing argument, defense counsel argued this evidence and claimed it provided an alibi. Mr. Hargrove's contention that counsel failed to present an alibi defense is not supported by the record.
He also claims counsel failed to interview others who could have supported this defense. But he fails to state who those witnesses are or the nature of their testimony. He has not met his burden of showing prejudice with respect to these unnamed witnesses.
Mr. Hargrove argues defense counsel should have presented evidence that his home was powered by a generator that required him to have four large gas storage tanks and to buy gas frequently. He asserts that this explains why he was seen buying gas on the day of the fire.
Contrary to his assertion, the evidence was before the jury. One witness testified that Mr. Hargrove always had gas cans on hand because of his generator. The victim herself testified about it. A defense witness also testified that Mr. Hargrove had four gas cans for his generator. Thus, the record does not support this claim of ineffective assistance.
Mr. Hargrove further contends that counsel was ineffective by failing to ask the court for an instruction that the jury disregard evidence to which an objection had been sustained. He cites two specific instances in which he argues defense counsel should have requested such an instruction.
In each instance, the court sustained the objection and struck the evidence. Not asking the court for an instruction to disregard qualifies as a tactical decision, which cannot be the basis for ineffective assistance. State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000). Moreover, at the close of evidence, the court instructed the jury to disregard any evidence that had been stricken from the record. Juries are presumed to follow the trial court's instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). Mr. Hargrove suffered no prejudice.
Mr. Hargrove further claims that counsel failed to obtain a ruling on an objection. The record shows that after defense counsel made the objection, the prosecutor rephrased and thereby eliminated the objectionable portion of the question. Defense counsel did not need to seek a ruling in these circumstances.
Mr. Hargrove asserts that defense counsel was deficient for failing to propose an alibi instruction. However, such an instruction is impermissible. State v. Adams, 81 Wn.2d 468, 478, 503 P.2d 111 (1972). Counsel was not deficient for failing to request it. Mr. Hargrove contends that, during voir dire, defense counsel improperly implicated his right to remain silent. Because voir dire is not part of the appellate record before us, we cannot review this issue.
At trial, the court admitted a tape from Ms. Schooley's answering machine. The tape contained messages from Mr. Hargrove threatening and harassing her. Defense counsel objected to the tape's admission because it was impossible to tell the date and time of each message.
Mr. Hargrove claims that defense counsel was deficient for not preparing to rebut the use of this tape. But he fails to suggest in what manner counsel could have rebutted the tape. Without more, we cannot find if a deficiency existed or if Mr. Hargrove suffered prejudice.
Mr. Hargrove argues the prosecutor violated the discovery deadline by providing materials critical to his defense on the day before trial. He claims counsel was ineffective for failing to object to the violation.
The record, however, does not support his claim. The documents in question were the victims' medical records, which were not used at trial.
In any event, the record reflects that defense counsel did indeed object to the late production of these records.
During trial, a juror saw a deputy prosecutor in the ladies' room.
The juror knew the attorney's child and asked about the child. She then stopped the conversation upon realizing she had seen the attorney in the courtroom. There is no indication that there was any discussion about the case. Mr. Hargrove has not shown he suffered any prejudice from this brief contact.
Mr. Hargrove contends counsel was deficient for failing to object in certain instances or to sufficiently cross-examine several witnesses. But legitimate decisions of trial strategy or tactics are within defense counsel's complete discretion. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). Many of Mr. Hargrove's complaints refer to counsel's failure to object. '[W]hether to object is a classic example of trial tactics.' State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662, review denied, 113 Wn.2d 1002 (1989). Mr. Hargrove further challenges his counsel's decision not to ask certain questions or not to place witness testimony in a particular context. These decisions are also trial tactics and cannot support his claim for ineffective assistance.
Instructional Errors
Mr. Hargrove argues that he should have been allowed to have the jury instructed on his alibi defense. Although he presented an alibi defense, he was not entitled to an instruction on it. Adams, 81 Wn.2d at 478; State v. Kubicek, 81 Wn.2d 497, 503, 502 P.2d 1190 (1972); State v. Johnson, 19 Wn. App. 200, 201, 574 P.2d 741 (1978).
Mr. Hargrove also claims the court abused its discretion by failing to instruct the jury to disregard testimony that had been stricken. He points to three occasions where the court purportedly abused its discretion. On each occasion, the court struck the objectionable testimony. While it did not immediately instruct the jury to disregard the stricken testimony, it did provide such an instruction at the close of the evidence. Juries are presumed to follow the court's instructions. Johnson, 124 Wn.2d at 77. Mr. Hargrove has failed to provide any authority requiring the court to instruct the jury immediately upon striking testimony. There was no abuse of discretion.
Prosecutorial Misconduct
Mr. Hargrove asserts that the prosecutor engaged in several instances of misconduct. To prevail on a claim of prosecutorial misconduct, the defendant must establish the impropriety of the conduct and that there is a substantial likelihood the misconduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Reversal is not required if the defendant did not request a curative instruction that would have obviated the error. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
Failure to object to an improper remark constitutes a waiver of the error unless the remark is so flagrant and ill intentioned that it resulted in prejudice which could not have been neutralized by an instruction. Id. at 86. Mr. Hargrove claims that the prosecutor prejudiced the defense case by misstating evidence during his opening statement. 'The purpose of the prosecutor's opening statement is to outline the material evidence the State intends to introduce.' State v. Kroll, 87 Wn.2d 829, 834-35, 558 P.2d 173 (1976). Mr. Hargrove argues the prosecutor distorted the evidence by claiming the fire started at 10:15 p.m. Actually, the prosecutor stated that the Schooleys went to bed around 10:00 p.m. and, at about 10:15 p.m., they awoke to the sound of breaking glass. Upon waking up, the Schooleys discovered they were on fire. The testimony of the investigating officers was that the fire started at 10:16 p.m. The prosecutor's comments merely outlined the facts that would be presented to the jury. This was proper.
The prosecutor also indicated the broken east window was the point of entry for the firebomb. But the evidence showed the west window was broken and was the point of entry. Although the prosecutor misstated the evidence, it was not prejudicial misconduct.
Mr. Hargrove next contends the prosecutor wrongfully referred to an incident in which he threatened Ms. Schooley with a shotgun. The prosecutor informed the jury that on one occasion when Ms. Schooley was living with a friend, Mr. Hargrove came to that house, was abusive, and pulled out a shotgun. Ms. Schooley and her friend both testified about this incident at trial. Thus, it was not misconduct for the prosecutor to refer to the incident during the opening statement. Because it was part of the evidence, the prosecutor was also entitled to refer to the incident during his closing argument. See State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995), review denied, 129 Wn.2d 1012 (1996).
The prosecutor, while emphasizing that Mr. Hargrove had just filled up two gas cans, did not further inform the jury that he relied on a gas generator. Mr. Hargrove claims this failure was misconduct. But the prosecutor has no burden to argue for the defense. The evidence showed that Mr. Hargrove filled up two gas cans on the day of the fire. Mr. Hargrove was entitled to, and did, argue that he had an innocent explanation for buying the gas. It is not the prosecutor's duty to make the case for the defense.
Mr. Hargrove further asserts the prosecutor made several comments as to guilt by stating that (1) he is guilty of all of the crimes with which he is charged; (2) the day before this incident he was planning to leave the state; and (3) this was a cowardly act, done under the cover of darkness, which is why there were no witnesses.
It is not error for the prosecutor to tell the jury the defendant is guilty. The prosecutor is asking the jury to convict the defendant. Comments explaining that the evidence shows the defendant is guilty are not prejudicial.
The statement that Mr. Hargrove was planning to leave the state was supported by the evidence. The State was thus permitted to argue this fact to the jury as well.
The comment about the incident being a cowardly act done in the dark is merely an argument from the evidence. It was the prosecutor's attempt to explain why there was no direct evidence of Mr. Hargrove's guilt. It was neither prejudicial nor improper.
Mr. Hargrove next argues the prosecutor committed misconduct by (1) not requesting an alibi instruction and (2) discrediting his alibi and supporting witnesses.
As noted, Mr. Hargrove had no right to have the jury instructed on his alibi defense. See Johnson, 19 Wn. App. at 201. This is so because a defendant is not required to prove his alibi; instead he is producing evidence to cast doubt upon the State's case. Id. at 205. Since Mr. Hargrove was not entitled to an alibi instruction, the prosecutor committed no misconduct by any failure to request one.
Mr. Hargrove also claims it was misconduct for the prosecutor to discredit his alibi defense. But, his defense is not immune from attack. State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114, review denied, 115 Wn.2d 1014 (1990). A defendant's theory of the case is subject to the same examination as the State's evidence. Id. During closing argument, the prosecutor stated that Mr. Hargrove had no alibi because the evidence did not place him somewhere else at the time the fire started. This argument was based upon inconsistencies in the statements made by the alibi witnesses and was thus permissible.
The prosecutor stated that after Mr. Hargrove was informed that Ms. Schooley was hurt, he told the officer he did not do it. The prosecutor argued that Mr. Hargrove had not been told her injuries were the result of a crime, yet he acted as if he knew. Mr. Hargrove claims this was contrary to the evidence and was prejudicial.
Officer Mays was the first person who spoke with Mr. Hargrove after the incident. Officer Couture was with Officer Mays and, although he could not remember Officer Mays' exact words, he did remember that the first thing Mr. Hargrove said was 'I didn't do it.' RP at 687. Officer Mays testified that he told Mr. Hargrove there had been an accident and Ms. Schooley was going to Harborview.
The prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence. Millante, 80 Wn. App. at 250. Given the officers' testimony, it was permissible for the prosecutor to argue that Mr. Hargrove acted as if he knew a crime had been committed even before being so informed by the officers. This is not misconduct.
Mr. Hargrove contends it was misconduct for the prosecutor to ignore objections from defense counsel and to solicit prejudicial testimony. The first contested instance occurred during the testimony of Officer Frey, who testified about his interactions with the Schooleys upon arriving at the fire scene. The officer was about to testify as to Mr. Schooley's reaction when defense counsel objected. The court overruled the objection. The witness went on to state that Mr. Schooley thought a bomb had been thrown into the house. Defense counsel objected and the State indicated the answer could be stricken. There is nothing in this exchange that would constitute misconduct.
The second instance involved the testimony of Officer Couture, who was asked whether he had drawn any conclusions about Mr. Hargrove's mental state. The court permitted the officer to testify only that he had made a notation about Mr. Hargrove's mental state in his report. He was not initially permitted to testify what that conclusion was. The prosecutor then laid a proper foundation and the officer testified regarding his conclusions about Mr. Hargrove. Again, this was proper questioning by the prosecutor and does not amount to misconduct.
The third instance involves the prosecutor's questioning Officer Couture as to statements Mr. Hargrove made about the Schooleys. The officer was permitted to testify that Mr. Hargrove implied he might hurt Mr. Schooley. This was proper testimony.
Mr. Hargrove argues it was misconduct for the prosecutor to ask Ms. Schooley if Mr. Hargrove was verbally and physically abusive. In context, these were also proper questions.
Mr. Hargrove generally categorizes any evidence that does not establish his innocence as prejudicial. The State charged him with crimes and is entitled to introduce evidence suggesting his guilt. Simply because a piece of evidence points to guilt does not make it unfairly prejudicial. Mr. Hargrove has failed to establish that any prosecutorial misconduct occurred.
Infringement of Constitutional Rights
Mr. Hargrove next contends his constitutional rights were violated because he did not receive transcripts of voir dire. Voir dire was not transcribed and is not part of the record on appeal. Contrary to his assertion, Mr. Hargrove is not entitled to transcription of voir dire at public expense unless so directed in his order of indigency. RAP 9.2(b).
There was no such direction in his order. Moreover, having voir dire transcribed was not Mr. Hargrove's only option. When a verbatim report is unavailable, a party may submit a narrative report of proceedings pursuant to RAP 9.3. Mr. Hargrove was given 30 days by this court to compile a narrative report of voir dire. He did not. Because voir dire is not part of the record here, we cannot review any issue relating to jury selection.
Mr. Hargrove claims his counsel violated his constitutional rights by not responding to several of his requests for information. The alleged requests are also not part of the record on review. Therefore, we cannot address it on his direct appeal. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (issues involving matters outside the record must be raised by means of a personal restraint petition).
Sentencing Issues
Mr. Hargrove claims the court erred by imposing an exceptional sentence. He was convicted of two counts of attempted first degree murder and one count of first degree arson. The court imposed an exceptional sentence for the two counts of attempted murder and ordered Mr. Hargrove to serve 300 months on one count and 360 months for the second count. It found these convictions were for serious violent offenses and ordered them to run consecutively under RCW 9.94A.400(b). The court imposed a standard range sentence for the arson to run concurrently with the other sentences.
This court will not reverse an exceptional sentence under RCW 9.94A.210(4)(a) unless the sentencing court's reasons for imposing the exceptional sentence are clearly erroneous or its stated reasons do not justify an exceptional sentence as a matter of law. State v. Wilson, 96 Wn. App. 382, 387, 979 P.2d 244 (1999), review denied, 139 Wn.2d 1018 (2000). A reason justifying an exceptional sentence is legally adequate if it is substantial and compelling and does not consider factors necessarily considered by the Legislature in computing the standard range. A reason justifying an exceptional sentence is clearly erroneous if it is not supported by substantial evidence. Id.
The court set forth five factors justifying the exceptional sentence:
(1) domestic violence; (2) pattern of psychological and physical abuse; (3) deliberate cruelty; (4) particularly vulnerable victims; and (5) the victims suffered greater injury than typical for the offense. Mr. Hargrove claims it was error for the court to rely on domestic violence, deliberate cruelty, and particularly vulnerable victims as aggravating factors in imposing the exceptional sentence.
Each of the contested reasons is listed in RCW 9.94A.390(2) as an aggravating factor. Mr. Hargrove makes no claim that the facts do not support the court's findings on the existence of these factors. Rather, he claims that because the prosecutor considered them when charging him with these crimes and argued these factors to the jury, the court is precluded from considering them when imposing a sentence. A court cannot consider a factor that the Legislature already took into consideration in calculating the standard range. State v. Bartlett, 128 Wn.2d 323, 333, 907 P.2d 1196 (1995). But there is no authority indicating that a court may not consider a valid aggravating factor if the prosecutor considered it when charging the defendant with a crime. Deliberate cruelty, domestic violence, and particularly vulnerable victims are not required elements of attempted first degree murder. Each is a valid aggravating factor, supported by the record, and properly considered by the trial court as justification for an exceptional sentence.
Cumulative Error
Mr. Hargrove claims that the doctrine of cumulative error requires reversal of his conviction. Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors cumulatively produced a trial that was fundamentally unfair. In re Personal Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified on other grounds, 123 Wn.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994). When no prejudicial error is shown to have occurred, however, cumulative error cannot be said to have deprived the defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990). Because no prejudicial error occurred, the doctrine is inapplicable.
Personal Restraint Petition
Mr. Hargrove also filed a personal restraint petition that has been consolidated with his appeal. He contends that the court miscalculated his offender score because it improperly considered a California conviction.
Mr. Hargrove originally filed with the trial court a CrR 7.8 motion for relief of judgment and a motion to vacate and correct the sentence and warrant of commitment. The court found that CrR 7.8(c)(2) applied and treated the motion as a personal restraint petition. This court received this motion and consolidated it with Mr. Hargrove's direct appeal. Mr. Hargrove then asked this court to dismiss the petition without prejudice, because he intended to file a personal restraint petition with this court at a later date. We deny his motion to dismiss.
At sentencing, the court determined which of Mr. Hargrove's prior convictions counted in his offender score. The court counted a 1973 California conviction for robbery as two points toward his offender score of three and considered it to be a class B felony. Defense counsel agreed with this characterization. Mr. Hargrove now contends the State did not sufficiently prove the existence of this conviction.
A foreign conviction is included and classified in an offender score if its elements are the same as those listed in a comparable Washington statute in effect when the crime was committed. State v. Luckett, 73 Wn. App. 182, 187-88, 869 P.2d 75, review denied, 124 Wn.2d 1015 (1994). The key question is under what statute the defendant would have been convicted if he or she had committed the same acts in Washington. State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998) (citing State v. McCorkle, 88 Wn. App. 485, 495, 945 P.2d 736 (1997), aff'd, 137 Wn.2d 490, 973 P.2d 461 (1999)). Before the court may use an out-of-state conviction for sentencing, the State must prove by a preponderance of the evidence the existence of the prior conviction as well as its classification. State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). The State, not the defendant, 'bears the ultimate burden of ensuring the record supports the existence and classification of out-of-state convictions.' Id. at 480.
The record contains a copy of the 1973 California judgment and sentence. During sentencing, defense counsel conceded that this conviction existed.
The court also determined that the California robbery was a class B felony and a serious offense that added two points to the offender score.
Although the State did not make an elements comparison, there is no reversible error because the State was not required to do so in the particular circumstances here. Unlike the situations in Ford and McCorkle, Mr. Hargrove did not dispute his criminal history. Indeed, counsel stipulated that the California robbery was the equivalent of a class B felony. Mr. Hargrove is bound by that stipulation. See RCW 9.94A.370(2) (sentencing court may rely on information admitted, acknowledged, or proven at trial or sentencing); In re Personal Restraint of Breedlove, 138 Wn.2d 298, 311, 979 P.2d 417 (1999) (petitioner waived right to challenge exceptional sentence by knowing, voluntary, and intelligent stipulation); State v. Nitsch, 100 Wn. App. 512, 522, 997 P.2d 1000 (defendant's request for same sentence that State proposed precludes review of same criminal conduct claim on appeal), review denied, 11 P.3d 827 (2000).
Mr. Hargrove claims that the standard ranges for his attempted murder convictions are incorrect. They are not. His offender score was properly calculated pursuant to RCW 9.94A.400(1)(b). The standard range for these offenses was 75 percent of the range listed in RCW 9.94A.310(1). RCW 9.94A.310(2).
We affirm the convictions and dismiss Mr. Hargrove's personal restraint petition.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SWEENEY, A.C.J., SCHULTHEIS, J.