Opinion
No. 30832-1-II
Filed: April 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 02-1-00796-1. Judgment or order under review. Date filed: 02/11/2003. Judge signing: Hon. Edwin L. Poyfair.
Counsel for Appellant(s), David Schultz, Attorney at Law, 430 NE Everett, Camas, WA 98607-2115.
Counsel for Respondent(s), Thomas C. Duffy, Attorney at Law, 18005 SE 44th Way, Vancouver, WA 98683-7402.
Robert B.L. Hendon appeals his conviction for one count of second degree possession of stolen property, arguing that the trial court erred when it failed to give a unanimity instruction because he possessed the stolen vehicle on two separate days. Hendon also challenges the reasonable doubt instruction, alleges that the prosecutor committed misconduct when discussing a jury instruction, and argues that his counsel was ineffective. Although the court erred in failing to instruct the jury on unanimity, the error was harmless. We accept the State's concession that collection of a biological sample fee was error. We affirm Hendon's conviction and remand to the trial court to vacate the fee for a biological sample.
FACTS
On October 1, 2001, Robert Hendon accompanied Michael McBride and a mutual friend named Chris to a storage facility in Vancouver, Washington. McBride entered an access code to enter the facility; the men were seen by an employee whom McBride said was `okay.' Report of Proceedings (RP) at 59. McBride had told Hendon that he needed to move four of his vehicles because he could no longer make the monthly storage payments. When Hendon tried to unlock a 1988 Toyota 4Runner with the key McBride had given him, `it was just kind of rough,' but he was able to open the door and start the vehicle. RP at 60-61. The men loaded another vehicle onto a car dolly and towed it behind a black van, which had also been in the storage facility; the men could not start the fourth vehicle McBride had said was his. The 1988 Toyota 4Runner actually belonged to Joseph Moody, who had stored the vehicle for his son who was stationed overseas.
Hendon testified that he thought McBride was going to sell the 4Runner to Chris, but he drove the vehicle because the sale had not been made yet. After arriving at Chris's apartment so McBride and Chris could `work out a deal,' Hendon put the keys in a plant on Chris's balcony. RP at 63.
Two or three days later, Hendon gave Chris drugs or drug-making materials in exchange for using the vehicle. Hendon then drove the vehicle for a couple of days.
On October 11, Clark County Sheriff's Deputy Brian Ellithorpe located the 4Runner and recovered a cellular telephone inside the vehicle. By checking phone records, Ellithorpe learned that Hendon had used the phone to call 911 on October 8. Deputy Jon Pound arrested Hendon and interviewed him after he waived his Miranda rights. Pound testified that Hendon told him that he accompanied McBride to the storage facility and that McBride told him the cars were his. Hendon said that Chris bought the 4Runner in exchange for drugs, that Hendon then bought it for $50 in methamphetamine producing material, that a few days before, Hendon had learned that the vehicle was reported stolen, and that he had continued to drive the vehicle because his drug use affected his judgment. Hendon denied telling Pound he had learned the vehicle was stolen a few days ago; he testified that he learned it was stolen only after Pound arrested him.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1966).
At trial, Hendon admitted he had two prior convictions for possession of stolen property and one for forgery, and that he had met McBride in jail.
The State charged Hendon with one count of first degree possession of stolen property. After the State conceded it could not prove the 4Runner's value was over $1,500, the court instructed the jury on the lesser included offense of second degree possession of stolen property. The parties agreed the only issue was whether Hendon knew the vehicle was stolen. A jury convicted Hendon on the lesser included offense and the court imposed a biological sample collection fee. He now appeals.
ANALYSIS I. Unanimity Instruction
Hendon argues the court should have given a unanimity instruction because the evidence showed that he possessed the 4Runner on two separate occasions — October 1 and October 11, 2001. The State responds that no unanimity instruction was required because the evidence showed a continuing course of conduct.
A defendant may be convicted only if a unanimous jury concludes he or she committed the criminal act charged in the information. State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984) (citing State v. Stephens, 94 Wn.2d 186, 190, 607 P.2d 304 (1980)). If the State presents evidence of multiple acts that could form the basis of one charged count, the State must tell the jury which act to rely on or the court must instruct the jury it must agree on a specific act. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991) (citing State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988)). If neither of these options occurs, the error is harmless only if the evidence establishes each incident beyond a reasonable doubt. Crane, 116 Wn.2d at 325 (citing Kitchen, 110 Wn.2d at 405-06). The prosecutor did not tell the jury which act the State relied on. Rather, he stated in closing, `[Hendon] fully admits that he possessed the property on two different times, when he took it originally and then later when he traded drugs to have the vehicle again and then he was driving it.' RP at 82.
But the Petrich unanimity rule does not apply where the defendant's criminal conduct is continuous. Crane, 116 Wn.2d at 330. In such cases, the jury must be unanimous only that the conduct occurred. Crane, 116 Wn.2d at 330 (citing Petrich, 101 Wn.2d at 571). In deciding whether the defendant's conduct is continuous, we consider, among other factors, whether the acts occurred at the same time and place. State v. Marko, 107 Wn. App. 215, 220-21, 26 P.3d 986 (2001).
Here, Hendon possessed the 4Runner when he drove it out of the storage facility and parked it at Chris's apartment on October 1. He left not only the vehicle but its keys with Chris. A few days later, Hendon again possessed the 4Runner in exchange for drugs or drug materials. Hendon's first possession occurred at the storage facility, on the route to and at Chris's apartment. His second possession occurred several days later at Chris's apartment and then at places unknown, but not at the storage facility. Thus, the two possessions differed in both time and place.
Because Hendon's two possessions were separate in time and place, we must reverse unless we can find that no jury could have had a reasonable doubt that each instance of Hendon's possession established the crime beyond a reasonable doubt. Crane, 116 Wn.2d at 325.
The only issue at trial was whether Hendon knew the vehicle was stolen; he admitted possessing the vehicle on two occasions. And although the evidence that Hendon knew the vehicle was stolen on the first possession was not as strong as the evidence that he knew it was stolen on the second possession, we find no real possibility that the jurors were divided on the two incidents. The unanimity issue arises only if some jurors believed Hendon knew the vehicle was stolen on the first possession and some believed he knew it was stolen on the second possession. But the jurors who believed he knew it was stolen during the first incident must have also believed he knew it was stolen during his second possession. Nothing about the circumstances of taking the vehicle changed between Hendon's first and second possession. Thus, it is possible that some jurors accepted the State's proof of knowledge during the first possession and others did not. All the jurors, however, must have agreed that by the time of the second possession, Hendon knew the vehicle was stolen. On these facts, we conclude that the trial court's failure to instruct on unanimity was harmless.
II. Reasonable Doubt Instruction
Hendon argues that the court's reasonable doubt instruction did not `adequately instruct the jury to reach a subjective state of certainty' before convicting him. Br. of Appellant at 13. Specifically, Hendon challenges the sentence, `There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.' Br. of Appellant at 14.
The court must instruct the jury that the State has the burden to prove each essential element of the crime beyond a reasonable doubt. State v. Castle, 86 Wn. App. 48, 51, 935 P.2d 656 (1997) (citing In re Pers. Restraint of Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995)). Any instruction that relieves the State of this burden is reversible error. Castle, 86 Wn. App. at 51 (citation omitted). Reasonable doubt must be defined, but no particular wording is required. Castle, 86 Wn. App. at 51 (citing State v. Coe, 101 Wn.2d 772, 787, 684 P.2d 668 (1984)). Reasonable doubt instructions may take various forms, so long as a reviewing court can determine from the circumstances whether the instruction adequately informed the jury of the State's burden of proof. Coe, 101 Wn.2d at 787 (citing State v. Cox, 94 Wn.2d 170, 174, 615 P.2d 465 (1980)). We determine the effect of a particular phrase in an instruction by considering the instruction as a whole and in the context of all the instructions. Castle, 86 Wn. App. at 52 (citing State v. Benn, 120 Wn.2d 631, 845 P.2d 289 (1993)).
The court gave the following reasonable doubt instruction:
The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
Clerk's Papers at 10.
In Castle, Division One considered a nearly identical instruction but focused on the phrase `a real possibility that he is not guilty.' Castle, 86 Wn. App. 53. The court held that the instruction did not, when viewed as a whole, lower the State's burden or shift the burden to the defendant. Castle, 86 Wn. App. at 58. Although no published Washington decision has expressly considered the `possible doubt' language at issue here, the Idaho Court of Appeals has held it did not reduce the State's burden of proof. State v. Kuhn, 139 Idaho 710, 85 P.3d 1109, 1111 (2003). Other courts have also approved similar instructions. See, e.g., Victor v. Nebraska, 511 U.S. 1, 26-27, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) (Ginsburg, J., concurring) (reasonable doubt definition including the phrase challenged here was `clear, straightforward, and accurate'); United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995). We conclude that the reasonable doubt instruction did not relieve the State of its burden of proof.
III. Comment on the Evidence
Hendon also argues that the reasonable doubt instruction was an impermissible judicial comment on the evidence.
Article 4, section 16 of the Washington Constitution provides: `Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.' This section prevents the jury `from being influenced by knowledge conveyed to it by the trial judge as to his opinion of the evidence submitted,' and it `forbids only those words or actions which have the effect of conveying to the jury a personal opinion of the trial judge regarding the credibility, weight or sufficiency of some evidence introduced at the trial.' State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). We presume that improper judicial comments are prejudicial; the State must demonstrate otherwise. State v. Lane, 125 Wn.2d 825, 838-39, 889 P.2d 929 (1995).
An impermissible comment conveys to the jury a judge's personal attitudes toward the merits of a case or permits the jury to infer from what the judge said or did not say that he or she believed or disbelieved the testimony in question. Hamilton v. Dep't of Labor Indust., 111 Wn.2d 569, 571, 761 P.2d 618 (1988) (citing State v. Ciskie, 110 Wn.2d 263, 283, 751 P.2d 1165 (1988)). An instruction that does no more than accurately state the law does not constitute an impermissible comment on the evidence. Ciskie, 110 Wn.2d at 282-83 (citing Seattle v. Smiley, 41 Wn. App. 189, 192, 702 P.2d 1206 (1985)).
Hendon claims that the court's instruction `comments on the sufficiency of the State's evidence, by describing, in an argumentative fashion, what the prosecution does not have to prove.' Br. of Appellant at 18; CP at 10. He focuses again on the `[t]here are very few things in this world that we can know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt' language, asserting that this language is biased in the State's favor. Br. of Appellant at 18. For the reasons above, we reject his challenge to the reasonable doubt instruction. The instruction accurately states the law; it does not convey the judge's opinion on any factual issue. Rather, it properly defines the concept of `reasonable doubt' for the jury.
IV. Prosecutorial Misconduct
Hendon argues that the prosecutor committed misconduct when he discussed the court's instruction on knowledge.
Prosecutorial misconduct requires a showing that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997), review denied, 151 Wn.2d 1039 (2004)). The defendant bears the burden of proving improper conduct and prejudice. Hughes, 118 Wn. App. at 727. We view the allegedly improper statements within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (citing State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). A defendant's failure to object to a prosecutor's improper remark waives the error unless the remark is so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. Stenson, 132 Wn.2d at 719 (citing State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995)).
Hendon apparently relies on the following parts of the State's closing:
But there's a second part to this knowledge instruction. And it says, if a person has information which would lead a reasonable person in the same situation — so, if somebody other than Mr. Hendon, just some reasonable person in the same situation, got this 4Runner under the same facts and circumstances, if that reasonable person in the same situation — if those facts could lead that person to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find if he or she acted with knowledge.
So that second part of the knowing instruction tells you that even if you believe the Defendant's testimony — which I submit you shouldn't, I submit he's not a credible witness — but even if you believe this story that he gave you where nobody really came right out and told him, hey, this vehicle's stolen that you're about to drive, and then know it's traded for drugs and then traded drugs for it again, that — and drive it again — even if you accept that, you can still find, based on the law, that the Defendant acted knowingly. Because if you put a reasonable person in that situation, with those facts and circumstances, then the law tells you, according to Instruction Number 7, that you can find a person acted knowingly.
. . .
Now, the only other issue is credibility. You know, who do you believe? Like I said, you can accept the Defendant's whole story and you can still find that he knew the vehicle was stolen. It's pretty clear cut. But Deputy Pound testified that the Defendant told him that he, in fact, knew the vehicle had been reported stolen and he went ahead and drove around anyway. The Defendant denies making that statement.
. . .
So, all you have to find is that at some point, right up to the 11th, when he's still possessing the vehicle and he's arrested, that that by that point he's figured out it's stolen. Okay.
Defense attorney argues that it's some sort of quantum leap. Well, the jury instructions specifically tell you that you can put the reasonable person in that situation, that ongoing situation. Not just the first time he puts the sticky key in the vehicle, but the entire situation.
This last section of argument was made in rebuttal closing.
RP at 84-87, 100.
Hendon did not object to these statements.
The instruction at issue told the jury, `If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.' CP at 14. Hendon does not argue the instruction was improper, and the prosecutor's statements were fair argument. Even if they were not, Hendon waived the issue by not objecting because the statements were not so flagrant and ill-intentioned that no instruction could have cured them.
V. Ineffective Assistance of Counsel
Hendon argues that his attorney was ineffective for failing to object to the prosecutor's statements and to propose a unanimity instruction.
To show ineffective assistance of counsel, an appellant must establish that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. Stenson, 132 Wn.2d at 705. And a defendant establishes prejudice if there is a reasonably probability that, but for counsel's unprofessional errors, the result would have been different. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122 (1986). There is great judicial deference to counsel's performance and the analysis begins with a strong presumption that counsel 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).
As we have discussed, the court's failure to instruct on unanimity did not prejudice Hendon. Accordingly, he was not prejudiced by counsel's failure to propose a unanimity instruction. And because the prosecutor's argument was proper, Hendon's counsel had no basis to object.
VI. Biological Sample
Hendon argues that the trial court improperly imposed a biological collection fee. The State concedes Hendon is correct.
RCW 43.43.7541 provides that biological samples can only be collected for felonies committed on or after July 1, 2002. Here, the charging document alleged that Hendon committed the crime between October 1 and 11, 2001. The court lacked authority to order a biological sample.
We affirm Hendon's conviction and remand to the trial court to vacate the fee for a biological sample.
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.
MORGAN, A.C.J. and HUNT, J., Concur.