Opinion
No. 33859-9-II.
October 31, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-1-01939-1, John A. McCarthy, J., entered September 26, 2005.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Armstrong, JJ.
A jury found Qualagine Apero Hudson guilty of several crimes in connection with an automobile theft ring.
The charges arose from a multi-year investigation that began in the summer of 2001 when Devaughan Dorsey told Tacoma Police Detective Terry Krause that a man known as "Q" was involved in an auto theft organization. Report of Proceedings (RP) (May 3, 2005) at 59. Krause investigated and learned that "Q" was Hudson and the multi-county operation exceeded his jurisdiction. Krause referred the matter to Detective Kimberly Triplett of the Washington State Patrol for further investigation. Triplett's investigation revealed that many of the stolen vehicles were registered to companies or addresses affiliated with a legitimate automotive dealer named Tracey Holmes. After serving search warrants on Hudson's mother's home and Holmes's residence, investigators seized evidence establishing that Hudson and Holmes were trafficking in stolen vehicles.
On April 25, 2003, the State charged Hudson with two counts of first degree trafficking in stolen property and two counts of first degree possession of stolen property. It later amended the charges to add two counts of bribery, conspiracy to commit first degree trafficking of stolen property, and leading organized crime.
Holmes pleaded guilty to one count of trafficking and nine counts of possessing stolen property and agreed to testify against Hudson. At trial, Holmes testified that, in addition to a legitimate automotive business, he also engaged in illegal vehicle identification number (VIN) plate switching activities with several other people, including Hudson.
Following trial, the jury convicted Hudson of one count of first degree trafficking in stolen property (Count I); two counts of bribery (Counts V and VI); conspiracy to commit first degree trafficking of stolen property (Count VII); and leading organized crime (Count VIII). The jury also returned a special verdict declaring that Count VIII was a major economic offense. The jury acquitted Hudson of trafficking as charged in Count II and two counts of first degree possession of stolen property as charged in Counts III and IV. The trial court imposed standard range sentences on Counts I, V, VI, and VII, and an exceptional sentence of 180 months on Count VIII for leading organized crime.
On appeal, Hudson challenges the trial court's jury instructions and its sentencing procedures. In a statement of additional grounds (SAG), Hudson raises numerous other issues. Finding no error, we affirm.
RAP 10.10.
DISCUSSION
Jury Instructions: Leading Organized Crime
Initially, Hudson argues that he was improperly convicted of leading organized crime based on an uncharged alternative. Hudson contends that he may raise this issue for the first time on appeal because it is a manifest error of constitutional magnitude under RAP 2.5(a).
A defendant must be informed of the charges against him and he cannot be tried for an uncharged offense. State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988). When there is an alternative means of committing an offense, it is error to instruct the jury on a means that was not alleged in the information. State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 (2003); State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988). When an instruction contains an uncharged alternative means as a basis for conviction, it is "presumed prejudicial unless it affirmatively appears that the error was harmless." Bray, 52 Wn. App. at 34-35.
Here, the State charged Hudson with leading organized crime in Count VIII of the amended information as follows:
That Qualagine Apero Hudson, in the State of Washington, during the period between the 1st day of January, 2002 and the 23rd day of January, 2003, did unlawfully, feloniously, and intentionally organize, manage, direct, supervise, or finance any three or more persons with the intent to engage in a pattern of criminal profiteering activity, to-wit: trafficking in stolen property, contrary to RCW 9A.82.060(1)(a), and against the peace and dignity of the State of Washington.
1 Clerk's Papers (CP) at 24. Count VIII charged Hudson of only one means of committing leading organized crime under the statute: "a pattern of criminal profiteering activity." RCW 9A.82.060(1)(a).
RCW 9A.82.060(1) presents two alternative means of committing the crime of leading organized crime. A person commits the crime by:
(a) Intentionally organizing, managing, directing, supervising, or financing any three or more persons with the intent to engage in a pattern of criminal profiteering activity; or
(b) Intentionally inciting or inducing others to engage in violence or intimidation with the intent to further or promote the accomplishment of a pattern of criminal profiteering activity.
The trial court instructed the jury on a single means of committing leading organized crime; the "to convict" instruction referenced only one means of committing the crime, and provided in relevant part that:
To convict the defendant of the crime of Leading Organized Crime, as charged in Count VIII, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the period between the 1st day of April, 2002, and the 23rd day of January, 2003, the defendant intentionally organized, managed, directed, supervised, or financed any three or more persons;
(2) That the defendant acted with the intent to engage in a pattern of criminal profiteering activity; and
(3) That the acts occurred in the State of Washington.
1 CP at 198.
The jury was further instructed (Jury Instruction No. 20):
There are allegations that the defendant intentionally organized, managed, directed, supervised, or financed three or more persons.
To convict the defendant of the crime of Leading Organized Crime, the identity of at least three of these persons must be proved beyond a reasonable doubt and you must unanimously agree as to which three persons have been proved beyond a reasonable doubt. 1 CP at 190.
In addition, Jury Instruction No. 18 defined "leading organized crime," referencing only one means of committing the crime. That instruction read:
A person commits the crime of Leading Organized Crime when he or she intentionally organizes, manages, directs, supervises, or finances any three or more persons with the intent to engage in a pattern of criminal profiteering activity.
1 CP 188. Contrary to Hudson's assertion, the trial court did not instruct the jury on an uncharged alternative means.
Hudson further argues that the State was limited to using the "towit" language it provided in the charging document and, thus, could only use acts of trafficking in stolen property to prove a pattern of criminal profiteering activity.
A charging information must state all the essential statutory and non-statutory elements of the crimes charged. State v. McCarty, 140 Wn.2d 420, 425, 998 P.2d 296 (2000); State v. Kjorsvik, 117 Wn.2d 93, 105, 812 P.2d 86 (1991). But "surplusage" does not render an information insufficient as a charging document. RCW 10.37.056. "[W] here unnecessary language is included in an information, the surplus language is not an element of the crime that must be proved unless it is repeated in the jury instructions." State v. Tvedt, 153 Wn.2d 705, 718, 107 P.3d 728 (2005) (citing State v. Miller, 71 Wn.2d 143, 146, 426 P.2d 986 (1967)).
The State argues that the "to-wit: trafficking in stolen property" language it used in the amended information's Count VIII was surplusage. The State did not repeat the language in the jury instruction (quoted above). We agree.
Here, the State was not required to prove a completed crime to convict Hudson of leading organized crime. RCW 9A.82.060(1)(a) required that it prove Hudson intentionally organized, managed, directed, supervised, or financed any three or more persons with the intent to engage in a pattern of criminal profiteering activity, not that Hudson was successful in his criminal endeavor. Thus, the trial court's jury instructions were proper.
Exceptional Sentencing
Hudson argues that the " Blakely fix" legislation does not apply to him and that the trial court lacked authority to impose an exceptional sentence on the jury's finding of an aggravating factor. We disagree.
In response to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Washington legislature amended RCW 9.94A.535 to "create a new criminal procedure for imposing greater punishment than the standard range" in an effort to "restore the judicial discretion that has been limited as a result of the Blakely decision." Laws of 2005, ch. 68, § 1. An emergency clause within the Act brought it into immediate effect (April 15, 2005). Laws of 2005, ch. 68, § 7. The amended statute was codified as RCW 9.94A.537.
The " Blakely fix" legislation became effective on April 15, 2005. Laws of 2005, ch. 68, § 7. In State v. Pillatos, 159 Wn.2d 459, 474, 150 P.3d 1130 (2007), our Supreme Court held that, unless the defendant pleaded guilty or the trial began before the statute's effective date, former RCW 9.94A.535 sentencing procedures apply.
In response to Pillatos, the Washington legislature amended RCW 9.94A.537 to authorize courts to impanel a jury to consider any alleged aggravating circumstances under RCW 9.94A.535(3). Engrossed H.B. 2070, 60th Leg., Reg. Sess. (Wash. 2007); Laws of 2007, ch. 205. The amendment's effective date is April 27, 2007, thus is not applicable here.
Although Hudson committed the crimes prior to the Blakely decision, Hudson had neither pleaded guilty nor begun his trial until after the legislative fix to Blakely went into effect. Thus, the statute clearly applied to him. See, Laws of 2005, ch. 68, § 4(1) (amendments applicable "[a] t any time prior to trial or entry of the guilty plea"); Pillatos, 159 Wn.2d at 473 ("The relevant portions of Laws of 2005, chapter 68 are remedial law, as they relate only to procedures and do not affect substantive or vested rights.").
The 2005 and 2007 Sentencing Reform Act (SRA) amendments are procedural. It is the legislature's sole province to change sentencing procedures. See generally, Pillatos, 159 Wn.2d at 469. Accordingly, Hudson's claim that amending the statutory sentencing procedures violates the separation of powers also fails.
Here, the jury found by special verdict that the State proved, beyond a reasonable doubt, that Count VIII was aggravated by being a major economic offense. The trial court did not err in imposing an exceptional sentence on the jury's verdict.
Hudson further contends that the charging document should have alleged the aggravating factors because they are now "elements" of the charged crime. But the United States Supreme Court has held that "[a] n indictment must set forth each element of the crime that it charges. But it need not set forth factors relevant only to the sentencing of an offender found guilty of the charged crime." Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998) (citations omitted).
Offender Score Calculation and Sentencing
Hudson also argues that the trial court miscalculated his offender score by (1) sometimes excluding and at other times including his prior juvenile convictions when calculating his sentencing range; (2) failing to submit the issue of perpetrator identity on prior convictions to the jury; and (3) failing to submit the issue of community placement to the jury.
A. Calculation for the Conspiracy and leading organized crime counts
Hudson argues that the trial court improperly included his juvenile convictions in calculating his offender score on the leading organized crime convictions. We disagree.
The legislature "properly and unambiguously require[s] that sentencing courts include defendants' previously 'washed out' prior convictions when calculating defendants' offender scores" for crimes committed after June 13, 2002. State v. Varga, 151 Wn.2d 179, 183, 86 P.3d 139 (2004). Hudson committed Count V on May 24, 2002, before the effective date of the 2002 amendments requiring inclusion of Hudson's juvenile convictions in his offender score on Count V. But the offenses charged in Counts I, VI, VII, and VIII were committed after the 2002 SRA amendments took effect. Thus, Varga controls and the trial court correctly included Hudson's juvenile convictions when it calculated his offender score on some counts, but not others.
B. Disputed Identity on Prior Convictions: Issues for the Jury
Hudson contends that his Sixth Amendment right to a jury trial was violated when the trial court found that he was the person previously convicted and used those convictions to determine the appropriate standard sentence range.
At Hudson's sentencing, the State presented the trial court with certified copies of Hudson's prior convictions as well as the charging documents for at least 11 of those convictions. The name and birth date listed in these documents matched Hudson's. Hudson told the trial court that one of the burglary convictions was not his. However, Hudson declined to make a sworn statement disputing his identity as the perpetrator of the offense. Thus, unchallenged, the certified copies of Hudson's prior convictions were substantial evidence of Hudson's prior convictions and sufficient to establish Hudson's criminal history and offender score for standard range purposes. State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002). In addition, because Hudson failed to allege under oath that he was not the person named in the documents, the evidence was also sufficient to establish perpetrator identity. State v. Ammons, 105 Wn.2d 175, 189-90, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986).
C. Community Placement Determination
For the first time on appeal, Hudson argues that his Sixth Amendment right to a jury trial was violated when the trial court, not a jury, found that he was on community placement at the time of his offense and added one point to Hudson's offender score.
Our Supreme Court recently resolved this issue, ruling that whether an offender was on community custody at the time he committed the offense for which he is being sentenced is not a fact that must be pleaded and proven to the jury. State v. Jones, 159 Wn.2d 231, 242, 149 P.3d 636 (2006), cert. denied, 127 S. Ct. 2066 (2007).
SAG Issues
In his pro se SAG, Hudson raises numerous issues. Although none of these issues has merit, we briefly address them.
A. Venue
Hudson argues that the trial court erred by denying his motion to dismiss the case or change the venue because the State did not prove that any of the alleged crimes occurred in Pierce County. Hudson further asserts that all the alleged crimes occurred in King County.
But venue is not an element of a crime and "when there is reasonable doubt whether an offense has been committed in one of two or more counties, the action may be commenced in any such county." CrR 5.1(b). Here, the State presented evidence that the offenses occurred in both King and Pierce Counties.
For example, Holmes testified that he worked on many VIN switching jobs for Hudson on Holmes's property (located in Pierce County) and that once Hudson learned where Holmes lived, Hudson began to deliver the cars to Holmes on his property in Pierce County.
In this case, Hudson filed his first motion for a change of venue on November 13, 2003. The trial court denied the venue motion, but it invited Hudson to renew the motion with briefing and police reports. Hudson did not pursue the venue matter further. Under CrR 5.1(b), the action was properly commenced in Pierce County and Hudson's venue challenge fails.
B. Evidence Submitted During Sentencing
For the first time on appeal, Hudson argues that the trial court erred when it admitted "surprise evidence" at sentencing that was not included in the presentence report in violation of CrR 7.1(a), (b), and (c). SAG at 2. Specifically, Hudson argues that the trial court erred when it permitted the State to submit: (1) a letter written by Stacie Lindal "contradicting evidence to defense mitigation packet" that Hudson had no opportunity to review before the hearing (SAG at 2), and (2) a prior misdemeanor conviction document. The record belies these claims.
1. Lindal's Letter
At sentencing, the State submitted a sealed letter addressed to the trial court. Both the State and Hudson were aware of the contents of the letter. Hudson's trial counsel confirmed to the trial court that they had notice of the letter. At sentencing, Hudson did not object to the court reviewing the letter and has waived review of this issue.
2. Prior Misdemeanor Conviction
Hudson also argues that the State failed to provide notice before submitting a 1998 King County prior conviction on the day of sentencing.
CrR 7.1(c) provides that:
At least 3 days before the sentencing hearing, defense counsel and the prosecuting attorney shall notify opposing counsel and the court of any part of the presentence report that will be controverted by the production of evidence.
On June 20, 2005, the State filed a sentencing memorandum. The document contained a list of Hudson's prior felony convictions. Certified copies of Hudson's prior felony convictions, in addition to the misdemeanor prior conviction, were filed with the trial court on September 23, 2005, the day of sentencing. At sentencing, Hudson did not object to the King County misdemeanor conviction and he has failed to preserve this issue for appeal.
C. Prosecutorial Misconduct
For the first time on appeal, Hudson alleges prosecutorial misconduct for (1) questioning Holmes about the terms of the witness's guilty plea; and (2) "brainwashing" the jury by improperly vouching for the credibility of a State witness. SAG at 4.
To establish prosecutorial misconduct, Hudson must prove that the prosecuting attorney's conduct was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). A new trial will be ordered only if there is a substantial likelihood the misconduct affected the jury's verdict. Stenson, 132 Wn.2d at 719. If the defendant does not object to alleged misconduct at trial, the issue of prosecutorial misconduct is waived unless the misconduct was "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, cert. denied, 516 U.S. 843 (1995)). Failure to request a curative instruction or move for a mistrial "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
1. Questioning Witness About Witness's Plea Agreement
Hudson contends that a prosecutor is forbidden from mentioning that a co-defendant has pleaded guilty or was convicted. Hudson argues that bringing up the plea agreement prejudiced him because it "very well could have led the jury to believe he is honest because he pled guilty, and because I'm his co-defendant I should be found guilty as well." SAG at 3. We disagree.
Here, Holmes, a State witness, testified at trial. During the State's direct examination, it asked Holmes about his guilty plea as follows:
Q . . . Now, you said you got charged with a whole bunch of charges, right?
A Yes.
Q Do you remember what those charges were?
A Trafficking in stolen property, possession of stolen property, leading organized crime. . . .
. . . .
Q And did you ultimately plead guilty?
A Yes, I did.
Q Do you remember what you pled guilty to?
A To nine or ten charges, and basically I pled guilty to five years.
4 RP at 339. Hudson did not object to any of the State's questions or to Holmes's responses. In addition, during cross-examination, Holmes testified that, while he was charged with leading organized crime, he did not plead guilty to that charge. Holmes elaborated that he was not being forced to testify for the State, and he did not believe the leading organized crime charge was dropped in exchange for his testimony.
Here, the State fully complied with its obligation to disclose the plea agreement and explore the witness's possible bias in favor of the State. ER 607 (either party may test the credibility of a witness). Hudson's trial counsel did not object and used the plea bargain to vigorously test Holmes's credibility during cross-examination. See Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) ("Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.").
2. Vouching Witness Credibility
Hudson argues that the State tainted the trial by improperly vouching for the credibility of its witness during closing argument. The prosecutor argued:
. . . [Y] ou had a chance to size up Mr. Holmes.
And at the risk of seeming impolite, after you talk to him for a while, I think you get the feeling that he probably couldn't have run an organization like this, either couldn't quite figure out how to do it or he was a little bit too scared. I think he probably really wanted to, and I think he wanted to learn the ropes and I think he wanted to do this, but he was going to take his 250 a pop and see if he could figure out how to do it on his own. But he was learning the ropes from Mr. Hudson.
8 RP at 854-5. And "[i] t makes no sense for Devaughn Dorsey to threaten to murder three people . . .; [t] hese people aren't credible." 8 RP at 854. Although the prosecutor's use of the personal pronoun "I" is ill-advised here, the comments are mere argument.
Hudson did not object to the argument below and has not demonstrated that it is flagrant and ill-intentioned. Because the challenged arguments were not so "flagrant and ill-intentioned" as to cause enduring and resulting prejudice, we will not review them further. State v. Price, 126 Wn. App. 617, 654, 109 P.3d 27, review denied, 155 Wn.2d 1018 (2005).
D. Sufficiency of the Evidence
Hudson next argues that the trial court erred when it failed to dismiss all eight counts, following his half-time motion to dismiss, because there was insufficient circumstantial evidence for those counts to be considered by a jury.
Hudson also asserts that the jury was exposed to facts not in evidence because there was "no evidence at all" to prove that the Ford Explorer (vehicle #7) was stolen from "Eric Bartels" as alleged because "Eric Bartels" did not give "sworn testimony" that the car was stolen. SAG at 4.
By presenting evidence after a half-time motion to dismiss the charges for insufficient evidence, Hudson waived this challenge and we review all the evidence to determine whether it is sufficient to support the jury's verdict. State v. Dodgen, 81 Wn. App. 487, 493, 915 P.2d 531 (1996).
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). It is the function and province of the jury to weigh the evidence and determine the credibility of the witnesses and decide disputed questions of fact. State v. Thomas, 150 Wn.2d 821, 875, 83 P.3d 970 (2004). Credibility determinations are for the trier of fact and are not subject to review. Thomas, 150 Wn.2d at 874-75. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
In a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). In addition, a challenge to the sufficiency of the evidence admits the truth of the State's evidence and any reasonable inferences from that evidence. State v. Barrington, 52 Wn. App. 478, 484, 761 P.2d 632 (1988), review denied, 111 Wn.2d 1033 (1989).
In this case, Counts I and III (trafficking and possession) referred to a black 1999 Chevrolet Tahoe stolen from the Dwayne Lane Chrysler/Jeep dealership. At trial, the dealership's records custodian testified that the Tahoe was stolen and he provided a VIN which matched the VIN from a car that police discovered at Hanson's Auto. Further evidence was presented demonstrating that Hudson used Hanson's Auto to move stolen cars. In addition, Shawn Bell, Hanson's title clerk, testified that the signature on the title registration was his signature and that he performed several licensing transactions for Hudson. The documents used to obtain the registration for the stolen Tahoe were notarized using a stamp with the name "Hans Johnson." 6 RP at 575. This stamp matched the notary stamp Hudson's brother was "holding" for Hudson. Several other vehicle titles linked to Hudson also used the same notary stamp. In addition, the addresses listed in the vehicle's sales documents were ones Hudson used.
Counts II and IV relate to a blue 1997 Chevrolet Tahoe stolen from the North Bend Chevrolet dealership. The evidence presented shows that on January 8, 2003, the Tahoe was registered through Bell to a "Mica Kelly," using Hanson's address. This occurred during the same time period that Bell testified he made fraudulent title transfers for Hudson.
Further evidence was presented regarding the Ford Explorer sport utility vehicle (SUV) (vehicle #7). Holmes testified that he took the VIN from a 1997 Crown Victoria and put it on a green Expedition and later took the same VIN and put it on a blue Explorer. Bell registered the Expedition to "Jaison Johnson" using a Kent address Hudson provided. The documents were notarized with the same "Hans Johnson" notary stamp discussed above. Further evidence linked various transactions with the "Hans Johnson" notary stamp to Hudson.
Evidence to prove Counts V and VI (bribery) included testimony from Angela Jametsky, former title clerk, regarding at least two specific title registration transactions where Hudson paid Jametsky extra money to process the transactions for Hudson in different names.
For Counts VII and VIII (conspiracy and leading organized crime), Holmes testified that Hudson repeatedly contacted him to work on and move stolen cars for Hudson and that Holmes performed much of what Hudson requested. The witnesses testified that Hudson directed Holmes, Jametsky, and Bell to commit the crimes.
When considering all of the facts and evidence in the light most favorable to the State, as we must, there was sufficient evidence to support a reasonable inference that Hudson had engaged in all of the offenses as charged. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993); Green, 94 Wn.2d at 220-22; State v. Pierre, 108 Wn. App. 378, 384, 31 P.3d 1207 (2001).
E. Conviction Proper Without Opportunity to Question Two People Hudson next contends that he was deprived of his Sixth Amendment rights to confront his accusers because the State accused Hudson of trafficking the stolen Tahoe to Hanson and Matt Locher without giving Hudson the opportunity to confront them at trial. Hudson's argument is misplaced.
The Sixth Amendment to the United State Constitution and article I, section 22, of the Washington State Constitution guarantee criminal defendants the right to confront and cross-examine witnesses against them. The confrontation clause limits the admission of testimonial hearsay without an opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Our Supreme Court elaborated on the definition of "testimonial hearsay" in State v. Davis, 154 Wn.2d 291, 300, 111 P.3d 844 (2005), aff'd, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), holding that the term is typically defined as "'[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact'" and usually encompasses formal statements made to government officials, such as prior testimony at a preliminary hearing, before a grand jury or at a former trial, and police interrogations. 154 Wn.2d at 300 (quoting Crawford, 541 U.S. at 1354). However, Crawford does not prohibit the admission of statements, which are not hearsay. 541 U.S. at 59 n. 9; Davis, 154 Wn.2d at 301. In addition, Crawford does not apply retroactively. In re Pers. Restraint of Markel, 154 Wn.2d 262, 268-73, 111 P.3d 249 (2005).
In this case, the record shows that the State planned to call both Hanson and Locher as witnesses and had secured bench warrants for their arrest to ensure their presence at trial. Neither witness was found.
In addition, the State presented evidence through exhibits documenting title and registration histories of all the stolen cars as well as testimony from Detective Glenda Nissen to identify the documents. Nissen testified that she had interviewed both Hanson and Locher during her investigations of the case. Nissen also testified that she had written a report following the interviews. The State specifically instructed Nissen to not testify about what either Hanson or Locher told her during the investigation and she complied. Thus, the State did not use Hanson's and Locher's testimonial hearsay statements and Hudson's confrontation rights were not violated.
F. Sufficiency of Charging Information
For the first time on appeal, Hudson asserts that the charging information and the declaration for probable cause were insufficient and vague, preventing him from preparing his defense.
On January 6, 2005, Hudson requested a bill of particulars from the State (the actual requesting document is not included in our record). On January 25, 2005, the State mailed Hudson a letter detailing the evidence it planned to use as it related to each charge. On April 27, 2005, Hudson filed a second motion for a bill of particulars. The trial court held a hearing and found that the State's letter in response to the first challenge was "very specific" and did not order the State to file a bill of particulars. RP (Apr. 29, 2005) at 24.
The charges included in the amended information follow substantially the wording of the statute, which embodies all the elements of the crime. Thus, the charges did not mislead Hudson, but informed him of the charges against him and, thus, enabled him to prepare his defense. State v. Majors, 94 Wn.2d 354, 359, 616 P.2d 1237 (1980).
G. Circumstantial Evidence
Hudson next argues that there is "more evidence that Tracey Holmes led the 'criminal enterprise' and not [Hudson]." SAG at 9. We will not retry disputed questions of fact. Bills v. Liberty Mut. Ins. Co., 60 Wn.2d 898, 373 P.2d 128 (1962). Substantial evidence supports the jury's verdicts.
H. Cumulative Error
Hudson next argues that he is entitled to a new trial due to cumulative error. An accumulation of errors that do not individually require reversal may still require reversal if, in total, the errors deny a defendant a fair trial. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984); State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004). Hudson bears the burden of proving that an accumulation of error is of sufficient magnitude that retrial is necessary. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994). Here, because there were no errors, the doctrine of cumulative error does not apply.
Accordingly, we affirm.
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.
BRIDGEWATER, P.J., ARMSTRONG, J., concur.