Opinion
Nos. 35972-3-II; 36189-2-II.
September 3, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-1-02201-2, Christine A. Pomeroy, J., and Richard C. Adamson, J. Pro Tem., entered February 15, 2007, together with a petition for relief from personal restraint.
After Donald Edward Jefferson's first trial ended in a mistrial, a second jury found him guilty of first degree identity theft (count I), first degree theft (count II), first degree criminal impersonation (count III), unlawful possession of cocaine (count IV), and witness tampering (counts V and VI). Jefferson appeals, challenging (1) his second trial on grounds that it violated double jeopardy because the trial court improperly granted the State's motion for mistrial, and (2) the sufficiency of the evidence supporting his identity theft and witness tampering convictions only. Because Jefferson's conduct necessitated the mistrial and ample evidence supports the jury's verdict, we affirm.
Through a motion for accelerated review, RAP 18.15, and personal restraint petition, RAP 16.4, Jefferson also challenged his sentence. Our commissioner remanded the sentencing issue to the trial court for resentencing and those issues are not before us in this appeal.
FACTS
Representing that he was "Eric Phillips" and presenting a fake California driver's license with Phillips's name and Jefferson's photograph on it, Jefferson rented a duplex in Olympia, Washington, financed $4,000 worth of furniture from Ideal Home Furnishings, and rented a truck to haul the furniture to the duplex, which he leased with Vanessa Molina (aka Angeline Le). Following an investigation, the State charged Jefferson with one count each of first degree identity theft, first degree theft, first degree criminal impersonation, and unlawful possession of a controlled substance (cocaine) with intent to deliver, and two counts of witness tampering. Molina pleaded guilty to 12 related counts and agreed to testify against Jefferson. First Trial
Before the first jury trial, the trial court issued a no-contact order prohibiting Jefferson from contacting Molina. On the fourth day of trial, the State called Molina as its final witness. As the trial court attempted to administer the oath to Molina, Detective Sam Costello saw Jefferson mouth "[d]on't say anything" to Molina. Report of Proceedings (RP) (May 8, 2006, Motion for Mistrial) at 14. The trial court's bailiff, Donna Altman, noticed that Molina was looking at Jefferson when he mouthed "no" to Molina on "more than one occasion." RP (May 8, 2006, Motion for Mistrial) at 20. When Molina refused to take the oath and testify, Jefferson smiled, nodded, and winked at her.
Molina repeatedly refused to take the oath and refused to testify, arguing that she was asserting her Fifth Amendment rights against self-incrimination regarding unrelated crimes in California. The trial court found that the Fifth Amendment did not apply to Molina's testimony in this case. The trial court found Molina in contempt for refusing to testify and sentenced her to confinement. The trial court also ruled that Molina could purge the sentence by testifying.
The State told the trial court that the U.S. Attorney had informed it that Molina did not face any federal charges regarding incidents that occurred in California.
The trial court sentenced Molina to six months confinement to be served consecutive to her current sentence. Sentencing the contemnor to a set period of time is a punitive sanction rather than a remedial one and was technically improper. See In re Marriage of Didier, 134 Wn. App. 490, 500, 140 P.3d 607 (2006) (discussing punitive and remedial sanctions), review denied, 160 Wn.2d 1012 (2007); see also In re Interest of J.L., 140 Wn. App. 438, 447-48, 166 P.3d 776 (2007). But the purge condition was sufficient to vitiate any constitutional violations. See, e.g., In re Grand Jury Subpoena, Judith Miller, 370 U.S. App. D.C. 1, 438 F.3d 1138 (2006) (Journalist Judith Miller held in contempt for refusing to comply with grand jury subpoenas to give evidence relating to confidential sources was released after 85 days in jail when she agreed to testify).
When Molina refused to testify, the State asked the trial court to declare a mistrial and argued that Jefferson had tampered with a material witness, Molina. The trial court agreed and held that Jefferson could be retried on the same charges within 60 days of the mistrial date. Jefferson unsuccessfully requested dismissal of the charges against him based on double jeopardy grounds. A new trial commenced on January 29, 2007.
The trial court refused to reach the merits of Jefferson's motion and summarily dismissed it, apparently mistakenly believing that the matter was not properly before it, stating that "the issue of jeopardy is inherent in the decision made by [the judge] granting mistrial, and that decision is reviewable by a Court of Appeals and not by this court." RP (Sept. 28, 2006) at 31. But once jeopardy has attached, the trial court must determine whether a retrial is barred. State v. Eldridge, 17 Wn. App. 270, 276-77, 562 P.2d 276 (1977), review denied, 89 Wn.2d 1017 (1978); see, e.g., State v. Rasch, 188 Ariz. 309, 312, 935 P.2d 887 (1996) (a double jeopardy issue is "ripe" when the defendant is prosecuted following a mistrial); see also Witte v. United States, 515 U.S. 389, 397, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995) (when a defendant raises a double jeopardy claim that he was punished twice for the same conduct when conduct giving rise to a separate charge was taken into account during sentencing for another conviction, this claim is ripe at this stage although defendant has not yet been convicted of the offenses used to enhance the first sentence).
Second Trial
During the second jury trial, Jefferson admitted that, despite the no-contact order, he had communicated with Molina on "a daily basis" while they were both in jail. 3 RP at 395. Jefferson also admitted that he had asked Mark Keend, Sr., the father of a fellow jail inmate, to mail Molina several letters on his behalf. Detective Sam Costello testified that, while in jail, Jefferson called Keend at least nine times from March 17, 2006 to April 23, 2006. At trial, Keend testified that he had received a few phone calls and letters from Jefferson asking him to forward Jefferson's letter to Molina. Keend testified that he did not read Jefferson's letter to Molina but put it in another envelope addressed to Molina at the Lewis County Jail with his own Port Angeles return address on the envelope. Lewis County Jail staff intercepted that letter before it reached Molina. Jefferson denied that he had written the intercepted letter.
The jury convicted Jefferson as charged, with the exception of count IV, where it found Jefferson guilty of the lesser-included offense of unlawful possession of a controlled substance, cocaine. Jefferson timely appeals.
ANALYSIS
Double Jeopardy: Mistrial
Jefferson argues that the trial court violated his constitutional right to be free from double jeopardy when it declared a mistrial following Molina's refusal to take the oath and testify and then allowed the State to retry him for the same offenses.
The federal double jeopardy clause guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Double jeopardy bars trial if (1) jeopardy previously attached, (2) jeopardy previously terminated, and (3) the defendant is again in jeopardy for the same offense. State v. Corrado, 81 Wn. App. 640, 645, 915 P.2d 1121 (1996).
The double jeopardy clause applies to the states through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
Once a jury has been empaneled and sworn, jeopardy attaches. State v. Sheets, 128 Wn. App. 149, 155, 115 P.3d 1004 (2005), review denied, 156 Wn.2d 1014 (2006). Jeopardy also attaches when the trial court begins to hear evidence during a bench trial. Cf. State v. Smith, 15 Wn. App. 725, 729, 551 P.2d 765, review denied, 87 Wn.2d 1015 (1976). As a general rule, once jeopardy has attached, a retrial is barred without the defendant's consent. But a trial judge's lawful decision to declare a mistrial without the defendant's consent after jeopardy has attached but before the jury reaches a verdict will not bar retrial because jeopardy has not terminated. State v. Eldridge, 17 Wn. App. 270, 276, 562 P.2d 276 (1977) (citing Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973)), review denied, 89 Wn.2d 1017 (1978).
A retrial is permitted when the mistrial is based on a "manifest necessity" or the ends of public justice would otherwise be defeated. State v. Melton, 97 Wn. App. 327, 331, 983 P.2d 699 (1999); State v. Graham, 91 Wn. App. 663, 667, 960 P.2d 457 (1998) (quoting Eldridge, 17 Wn. App. at 276). The trial court is vested with broad discretionary power to determine if "manifest necessity" justifies aborting a trial prior to verdict. Melton, 97 Wn. App. at 331-32; (quoting Eldridge, 17 Wn. App. at 276-77). In reviewing the trial court's determination of "manifest necessity," we consider (1) whether the trial court gave both defense counsel and the prosecutor full opportunity to explain their positions, (2) whether it gave careful consideration to defendant's interest in having the trial concluded in a single proceeding, and (3) whether it considered alternatives to declaring a mistrial. Melton, 97 Wn. App. at 332 (quoting Arizona v. Washington, 434 U.S. 497, 515-16, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)).
In this case, Jefferson created the necessity for aborting the first trial. When the trial court declared the mistrial, it reasoned that
this Court specifically finds that the misconduct in this case was that of the defendant communicating with Ms. Molina despite this Court on a number of occasions indicating there was to be no communication. I heard testimony that that communication took place by way of . . . words being mouthed. I've heard that there was or were letters sent, that there were phone calls made, and that here in the jail today when both Ms. Molina and Mr. Jefferson were in the jail, there was actually communication verbally by yelling between the two. This Court finds that Ms. Molina has been influenced by Mr. Jefferson's contacts with her.
. . . .
I am not going to require the State to go forward without the testimony of this important witness.
RP (May 8, 2006, Motion for Mistrial) at 38-39. Jefferson had repeatedly violated the trial court's no-contact order and communicated with Molina prior to trial and during the first trial in an attempt to influence her testimony and deprive the State of the testimony of a key witness.
Here, the trial court took time to consider the matter and heard arguments from both parties. Melton, 97 Wn. App. at 332. It also provided Molina several opportunities to change her mind and testify and it considered whether other remedies would suffice but concluded that any alternative to a mistrial would not be effective. Melton, 97 Wn. App. at 332. The trial court did not abuse its discretion when it found that Jefferson's control of Molina had created a manifest necessity requiring a mistrial. Accordingly, after the mistrial, jeopardy did not terminate and Jefferson's right to be free from double jeopardy was not violated by a second trial. Sufficiency of the Evidence
Jefferson next argues that substantial evidence does not support his first degree identity theft (count I) and witness tampering (count V) convictions. We disagree.
Jefferson does not challenge his second witness tampering conviction (count VI) related to his actions of interfering with Molina's testimony during the first trial on May 8, 2006.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. State v. Luther, 157 Wn.2d 63, 77, 134 P.3d 205 (quoting State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002)), cert. denied, 127 S. Ct. 440 (2006). A defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. Luther, 157 Wn.2d at 77-78 (citing State v. Alvarez, 105 Wn. App. 215, 223, 19 P.3d 485 (2001)).
In considering the sufficiency of evidence, we give equal weight to circumstantial and direct evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). We defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)). We do not substitute our judgment for that of the jury on factual issues. State v. Israel, 113 Wn. App. 243, 269, 54 P.3d 1218 (2002) (citing State v. Farmer, 116 Wn.2d 414, 425, 805 P.2d 200, 812 P.2d 858 (1991)), review denied, 149 Wn.2d 1013 (2003). "In determining whether the requisite quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case." State v. Jones, 93 Wn. App. 166, 176, 968 P.2d 888 (1998), review denied, 138 Wn.2d 1003 (1999).
A. Identity Theft
Jefferson first contends that the State's evidence was insufficient to prove beyond a reasonable doubt that he used "Eric Phillips's" identity or financial information to obtain anything of value in excess of $1,500. To prove identity theft, the State had to show that Jefferson knowingly obtained, possessed, used, or transferred a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid, or to abet a crime in the State of Washington. RCW 9.35.020(1). When "the accused or an accomplice" uses the victim's means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value in excess of $1,500 in value, he commits first degree identity theft. RCW 9.35.020(2).
Generally, an accomplice and a principal share the same criminal liability. State v. Carter, 154 Wn.2d 71, 78, 109 P.3d 823 (2005) (quoting State v. Graham, 68 Wn. App. 878, 881, 846 P.2d 578, review denied, 121 Wn.2d 1031 (1993)).
At trial, the State produced evidence that Jefferson used the name "Eric Phillips" without Phillips's permission when he and Molina signed paperwork to finance the purchase of $3,998 worth of furniture from Ideal Home Furnishings. Jefferson used the name "Phillips" again, on two separate occasions, when he returned to the store to pick up the furniture from the warehouse. Additionally, Jefferson used the name "Phillips" when he rented a U-Haul truck to transport the furniture to the duplex, which he had rented, also in Phillips's name. The furniture store was never paid for the order. Jefferson concedes that he impersonated "Phillips" when he co-signed the rental agreement and when he rented the U-Haul truck. And he does not challenge his convictions of first degree theft (count II), related to the theft of the furniture, and first degree criminal impersonation (count III), related to his criminal use of Phillips's identity.
A person is guilty of first degree theft if he commits theft of "(a) [p]roperty or services which exceed(s) [$1,500] in value other than a firearm as defined in RCW 9.41.010; [or] (b) [p]roperty of any value other than a firearm as defined in RCW 9.41.010 taken from the person of another." Former RCW 9A.56.030 (2005).
A person is guilty of first degree criminal impersonation if he "[a]ssumes a false identity and does an act in his . . . assumed character with intent to defraud another or for any other unlawful purpose." RCW 9A.60.040(1)(a).
Drawing all reasonable inferences in favor of the State, as we must, based on the evidence presented, any reasonable juror could find beyond a reasonable doubt that Jefferson used Phillips's identification with the intent to commit theft in excess of $1,500. Accordingly, the evidence was sufficient to support Jefferson's first degree identity theft conviction.
Under RCW 9A.56.020(1), "theft" means:
(a) To wrongfully obtain or exert unauthorizedcontrol over the property or services of anotheror the value thereof, with intent to deprive himor her of such property or services; or
(b) By color or aid of deception to obtain controlover the property or services of another or the valuethereof, with intent to deprive him or her of suchproperty or services.
B. Witness Tampering
Jefferson next contends that the evidence was insufficient to prove beyond a reasonable doubt that the letter the State presented at trial contained sufficient evidence of "inducement" to warrant his conviction for witness tampering (count V).
To prove witness tampering, the State had to show (1) that Jefferson attempted to induce a witness or person to "[t]estify falsely or, without right or privilege to do so, to withhold any testimony," RCW 9A.72.120(1)(a), and (2) that the person was a witness or person he "[had] reason to believe [was] about to be called as a witness in any official proceeding." RCW 9A.72.120(1). An attempt to induce a witness does not depend solely on the literal meaning of the words used; rather, the inferential meaning of the words and the context in which they were used are relevant. State v. Rempel, 114 Wn.2d 77, 83-84, 785 P.2d 1134 (1990); State v. Sanders, 66 Wn. App. 878, 889-90, 833 P.2d 452 (1992), review denied, 120 Wn.2d 1027 (1993).
Jefferson does not argue that Molina was not a qualified witness.
As used in the witness tampering statute, "induce" does not require proof of a threat or offer of reward. Rempel, 114 Wn.2d at 83-84 (The statute does not require words amounting to an express threat or a promise of reward and, thus, whatever the defendant does or says must be susceptible to being interpreted as a request to withhold testimony because that is the essential element of the crime.). Thus, the State is not bound to prove Jefferson threatened Molina or offered her some reward. RCW 9A.72.120(1).
Here, the State presented evidence of several incidents in March and April 2006, in which Jefferson attempted to contact Molina through third parties and letters despite the existence of a court-issued no-contact order. The evidence showed that Jefferson called Keend at least nine times and asked him to send letters to Molina while she was confined in the Lewis County Jail. Jefferson admitted that he had contacted Keend and asked him to mail letters to Molina on his behalf.
Further evidence showed that the Lewis County Jail staff intercepted a letter addressed to Molina urging her to plead guilty and refuse to testify against her "boyfriend." 3 RP at 313. That letter's envelope contained Keend's note to Molina and bore his return address. Jefferson testified that, while he had asked Keend to deliver letters to Molina, he did not know anything about the specific letter presented in court as the basis for the witness tampering charge.
During the second trial, Jefferson admitted that he was romantically involved with Molina.
As discussed above, circumstantial and direct evidence carry equal weight. Varga, 151 Wn.2d at 201. And credibility determinations are decisions for a jury. Thomas, 150 Wn.2d at 874 (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). The jury could have chosen to believe Keend's and Detective Costello's testimony and disbelieve Jefferson's testimony. Thomas, 150 Wn.2d at 874-75 (citing Cord, 103 Wn.2d at 367). Given the evidence, any reasonable juror could have concluded beyond a reasonable doubt that by sending letters to Molina through Keend, Jefferson had attempted to induce her to not testify against him. Thus, the evidence here is sufficient to support Jefferson's witness tampering conviction. Attorney Fees
The State requests attorney fees and costs pursuant to RAP 14.2, RAP 14.3, RCW 10.73.160, and State v. Blank, 131 Wn.2d 230, 930 P.2d 1213 (1997). The State is the prevailing party and is entitled to fees which it incurred in defending Jefferson's appeal and collateral attack on his criminal convictions.
In conclusion, Jefferson's constitutional right to be free from double jeopardy was not violated and the evidence in the record was sufficient to support his convictions. 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, J. and VAN DEREN, C.J., concur.