Opinion
No. 29371-4-II.
Filed: April 27, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 02-1-01110-5. Judgment or order under review. Date filed: 09/27/2002. Judge signing: Hon. Gary R Tabor.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA, 98406-0269.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Ted Jensen appeals his convictions for second-degree assault with a deadly weapon and harassment, claiming (1) prosecutorial misconduct; (2) ineffective assistance of counsel; (3) miscalculation of his offender score; and (4) seven additional errors set forth in his statement of additional grounds for review. Finding no error, we affirm.
FACTS I. Background A. Count I: Second Degree Assault with a Deadly Weapon
The charges in this case stem from two separate incidents on July 3 and 4, 2002. We first discuss the events of July 4, 2002.
Ted Jensen had been inhaling solvents or 'huffing' on the morning of July 4, 2002. Carrying a knife, he went to the apartment of his neighbor, Alex Young, purportedly looking for his wife, Debbie, who Jensen claimed had been missing since the night before. When Young opened the door, Jensen swung the knife at him, and Young grabbed Jensen by the wrist. Jensen questioned Young about his wife's whereabouts, and Young told Jensen that Debbie was not there. After taking another 'half-hearted' swing with the knife at Young, Jensen returned to his own apartment. According to Young, Jensen was 'pretty high.'
James Fowler, the apartment manager, witnessed the altercation and called the police. Noting that Jensen 'had an extremely strong odor of chemical substance on both his breath and person,' Officer Shaun Solomon took Jensen to the hospital for a psychiatric evaluation. Report of Proceedings (RP) at 101. The hospital released Jensen a couple of hours later.
B. Count II: Harassment
Jensen had previously accused James Fowler's 12-year-old son, Adam Fowler, and his friends of stealing Jensen's knife. Jensen, unarmed, made stabbing motions toward the children, saying that he was going to hurt them, and then returned to his apartment. Adam later told his father about this incident.
Adam apparently told the police that Jensen had threatened to kill him, but at trial, Adam could not remember Jensen having made the threat.
On July 4, at around 3:15 p.m., James Fowler called the police a second time, and informed the dispatcher that Jensen was huffing again, making threats, and looking for his wife. Officers arrested Jensen. James Fowler apparently told one of the officers about Jensen's earlier threat to the children, and Adam gave a statement to the police about Jensen's threatening behavior.
II. Procedure
The State charged Jensen with second degree assault with a deadly weapon, and later added a felony-harassment count, naming Adam as the victim.
RCW 9A.36.021(1)(c), RCW 9.94A.125, .310.
A. Trial
At the start of trial, Jensen's trial counsel objected to the harassment charge, asserting that Jensen had never been arraigned on that charge. The trial court overruled this objection, commenting that '[w]hether or not Mr. Jensen was actually arraigned, I think that there has been discussions by counsel about [the harassment] charge.' RP at 8-9. The court then 'arraigned' Jensen on the spot, and entered a plea of not guilty to both charges on Jensen's behalf.
The State began its case, first calling Adam, from whom Jensen's counsel elicited approximately seven pages of testimony. Outside the jury's presence, Jensen's counsel renewed her objection to the harassment charge, asserting that the harassment charge was 'completely confusing' to her and Jensen and that she had 'never been clear what this charge was about.' RP at 31.
Defense counsel conceded that almost six weeks before the trial she had received a copy of the amended information, which included the harassment charge involving Adam. But she maintained that there was still confusion about the charge, wondering whether the charge was based on an uncharged felony harassment of Jensen's wife, Debbie. Noting that the State had named Adam as a witness, who was also one of the people named in the no-contact order, the trial court reaffirmed its earlier ruling that the State could proceed with the harassment charge.
The jury convicted Jensen on both counts, finding in the special verdict form that Jensen had been armed with a deadly weapon at the time of the assault and, for purposes of the harassment charge, his threat to cause bodily harm was not a threat to kill.
Consequently, although the first amended information charged Jensen with felony harassment, he was convicted of a gross misdemeanor.
B. Sentencing
At sentencing, the State submitted Jensen's criminal history, which included convictions of (1) second degree theft in 1984; (2) second degree theft in 1985; (3) assault in violation of a protection order in 1997; and (4) residential burglary in 2001. The trial court calculated Jensen's offender score as four, which placed the standard sentencing range at 15 to 20 months. With the added 12-month deadly weapon enhancement, the standard range sentence increased to from 27 to 32 months. The trial court sentenced Jensen to 29 months of confinement.
ANALYSIS I. Prosecutorial Misconduct
Jensen contends that the prosecutor improperly attempted to compel him to comment on two other witnesses' credibility.
A prosecutor commits misconduct when his examination seeks to compel a witness to give an opinion on whether another witness is telling the truth. State v. Jerrels, 83 Wn. App. 503, 507, 925 P.2d 209 (1996). Such questioning unfairly invades the jury's province. Jerrels, 83 Wn. App. at 507.
But where, as here, defense counsel did not object, we will reverse only if the evidence was material to the trial's outcome and a curative instruction could not have remedied its prejudice. State v. Suarez-Bravo, 72 Wn. App. 359, 367, 864 P.2d 426 (1994). The misconduct must have been 'so flagrant and ill[-]intentioned that a curative instruction could not have obviated the resulting prejudice.' Suarez-Bravo, 72 Wn. App. at 367. To determine whether the misconduct warrants reversal, we consider whether it was prejudicial. Suarez-Bravo, 72 Wn. App. at 367.
See also State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994) (citing State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991): '[A] conviction must be reversed only if there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict.'
Here, the prosecutor asked Jensen's opinion about the credibility of the State's witnesses Young and Adam, each a victim in one count. This was prosecutorial misconduct. Jerrels, supra. As Jensen notes, he bears the burden of proving prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). But he fails to carry this burden in that he fails to demonstrate how the prosecutor's questions, or his own equivocal responses, resulted in 'enduring and resulting prejudice' so as to render this prosecutorial misconduct grounds for reversal. See State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
The question and answers were as follows:
Prosecutor: And you stabbed him with the knife, didn't you?
Jensen: No, I did not.
Prosecutor: So you're saying that Mr. Alex Young is not telling the truth?
Jensen: I'm saying that the story has changed from what he said or his interpretation [of how Jensen gestured with the knife].
RP at 148.
Prosecutor: Now, that child that got up and testified, Mr. Adam Fowler, he told ____ he sat here and he told the jury that he was scared, he remembered that you were making stabbing motions at him.
Jensen: No, I did not say that. I said that that is not a motion I would make for stabbing.
Prosecutor: So it is your belief that [Adam is] coming in here and not telling the truth, he's lying intentionally?
Jensen: If you're asking my belief, especially from what I've been told and statements like that, I say which Mr. Fowler was here, he ended up with the knife, his son even mentioned that on the 5th he's no longer there. I'm sorry, I think his son found out, he was very nervous when the cops showed up, it was found out he had the knife and the knife was returned to his father which it eventually got back home.
RP at 149-50.
When the prosecutor asked Jensen whether he thought the two State's witnesses were lying, Jensen responded that Young had changed his story, and that Adam actually had Jensen's knife, from which the jury could infer that Adam could have fabricated the allegations against Jensen to keep himself out of trouble. These responses seem beneficial to Jensen's case, not prejudicial.
Furthermore, any prejudice would have been cured by the trial court's instruction to the jury that they are the sole judges of the witnesses' credibility:
You are the sole judges of the credibility of the witnesses and of what weight is to be given to the testimony of each. In considering the testimony of any witness, you may take into account the opportunity and ability of the witness to observe, the witness's memory and manner while testifying, any interest, bias, or prejudice the witness may have, the reasonableness of the testimony of the witness considered in light of all the evidence, and any other factors that bear on believability and weight. Clerk's Papers at 20; see also 11 Washington Pattern Jury Instructions: Criminal 6.01, at 134 (2d ed. 1994).
We find no reversible error based on prosecutorial misconduct.
II. Ineffective Assistance of Counsel
In a related argument, Jensen contends that his counsel was ineffective in failing to object to the prosecutor's improper questioning of Jensen about his opinion of the two State's witnesses' credibility. We disagree.
To show ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). As we have already held, Jensen has failed to show prejudice from the prosecutor's questions; thus, Jensen cannot show that the result of the trial would have been different if counsel had objected. Accordingly, his ineffective assistance of counsel claim fails.
III. 'Washed Out' Prior Convictions
Jensen further argues that because his two prior second degree assault convictions 'washed out,' the trial court improperly included them in his offender score. Jensen's argument fails under both the plain language of the 2002 amendment to the Sentencing Reform Act (SRA), and our Supreme Court's recent holding in State v. Varga, Wn.2d 86 P.3d 139 (2004).
In response to our Supreme Court's decisions concerning the effect of prior amendments on criminal history, the legislature amended the SRA in 2002. See Laws of 2002, ch. 107, sec. 1. The amended statute, RCW 9.94A.030(13), revised the definition of criminal history as follows:
State v. Smith, 144 Wn.2d 665, 30 P.3d 1245 (2001); State v. Cruz, 139 Wn.2d 186, 985 P.2d 384 (1999).
(b) A conviction may be removed from a defendant's criminal history only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or a similar out-of-state statute, or if the conviction has been vacated pursuant to a governor's pardon.
(c) The determination of a defendant's criminal history is distinct from the determination of an offender score. A prior conviction that was not included in an offender score calculated pursuant to a former version of the sentencing reform act remains part of the defendant's criminal history.
The legislature also amended the guidelines for calculating an offender score in RCW 9.94A.525, adding subsection 18, which provides:
The fact that a prior conviction was not included in an offender's offender score or criminal history at a previous sentencing shall have no bearing on whether it is included in the criminal history or offender score for the current offense. Accordingly, prior convictions that were not counted in the offender score or included in criminal history under repealed or previous versions of the sentencing reform act shall be included in criminal history and shall count in the offender score if the current version of the sentencing reform act requires including or counting those convictions.
This amendment was effective June 13, 2002, and it applies to all offenses committed after that date. Laws of 2002, ch. 107.
Our Supreme Court recently addressed this amendment, holding, [T]he 2002 SRA amendments properly and unambiguously require that sentencing courts include defendants' previously 'washed out' prior convictions when calculating defendants' offender scores at sentencing for crimes committed on or after the amendments' effective date.
State v. Varga, 86 P.3d at 141. Jensen committed his crimes after this amendment's June 13, 2002 effective date. Thus, the amended sections of the SRA apply, and the trial court was required to include Jensen's two prior second degree felony convictions in calculating his offender score. RCW 9.94A.525 (the trial court 'shall' include these offenses).
Jensen also claims that the record is silent as to when he was released or paroled on these two assaults and, thus, it is impossible to determine if he satisfied the requirement that he not be convicted of any felonies not just any crime in the ensuing five years under RCW 9.94A.030(2). The 2002 amendments to the SRA render this argument moot.
IV. Additional Grounds for Review
Jensen also filed a statement of additional grounds for review (SAG) arguing that (1) the prosecutor incorrectly and improperly led the jury to believe that Jensen had a knife when he committed the harassment, warranting reversal or a new trial; (2) he was never arraigned on the harassment charge and was unaware of it until the day of trial; (3) the trial court erroneously considered an earlier assault conviction, even though Jensen was never charged or convicted of the crime on the date alleged; (4) the trial court erred by counting two of his prior convictions in his offender score because one never occurred and one was improperly characterized in the judgment and sentence; (5) the cause number on the jury instructions and the judgment and sentence are different, meaning that he is potentially serving time for crimes he did not commit; (6) the trial court did not instruct the jury that two separate incidents gave rise to the two counts charged; and (7) he was not properly credited with 46 days of good conduct time.
A. Weapon Enhancement
Jensen claims that the prosecutor improperly led the jury to believe that he had a knife when he threatened Adam and, therefore, the deadly weapon enhancement was improper. The jury found that Jensen was armed with a deadly weapon, not during the harassment of Adam as Jensen alleges, but during the assault of Young, which Jensen does not dispute. Thus, the weapon enhancement was proper.
B. Harassment Failure To Arraign; Amended Information
Jensen contends that neither he nor his counsel knew about the harassment charge until the day of trial and that he was never arraigned on that charge.
Under CrR 2.1(d), the State can amend the information anytime before the verdict if the defendant's substantial rights are not prejudiced. Here, the State filed the amended information, which added the harassment charge, on August 6, 2002, nearly six weeks before trial. But as Jensen claims, he was not arraigned on the harassment charge before trial.
Absence of arraignment alone, however, is not a due process violation. State v. Anderson, 12 Wn. App. 171, 173, 528 P.2d 1003 (1974). Rather, harm occurs when absence of arraignment results in failure to give the accused and his counsel sufficient notice and adequate opportunity to defend. Garland v. Washington, 232 U.S. 642, 645, 34 S.Ct. 456, 58 L.Ed. 772 (1914) (cited with approval in Anderson, 12 Wn. App. at 173). An information may be amended without rearraignment if the defendant's substantial rights are not prejudiced. State v. Allyn, 40 Wn. App. 27, 35, 696 P.2d 45 (citing State v. Hurd, 5 Wn.2d 308, 312, 105 P.2d 59 (1940)), review denied, 103 Wn.2d 1039 (1985). ''[T]he defendant bears the burden of showing prejudice.'' State v. Royster, 43 Wn. App. 613, 619-20, 719 P.2d 149 (1986) (quoting State v. Brisebois, 39 Wn. App. 156, 162, 692 P.2d 842 (1984) review denied, 103 Wn.2d 1023 (1985)).
Defense counsel argued at trial that she was unprepared to defend against the harassment charge in the amended information because the charge confused her and Jensen. Counsel acknowledged that Jensen had never been formally charged with harassment of his wife, Debbie, and claimed that 'we have never been clear what [the harassment] charge was about.' RP at 31 (emphasis added). Due to this confusion, counsel argued, '[W]e were not clear what he was being charged with this so we've had no ability to prepare anything involving [the harassment claim].' RP at 31. Yet Jensen did not seek a continuance of the trial in order to prepare.
But defense counsel conceded that she had been provided with a copy of the amended information naming Adam in the harassment charge, well in advance of the trial date. The amended information contains only one count of harassment: Count II charged Jensen with having threatened to cause future bodily injury to Adam Fowler on the July 4, 2002. If this plain language of the amended information confused counsel, she apparently never sought clarification.
The record shows that defense counsel had sufficient notice of the amended information and its inclusion of the additional harassment charge. Consequently, Jensen fails to show prejudice resulting from his lack of pretrial arraignment on this charge.
C. Priors
Jensen also challenges the trial court's consideration of three convictions listed in the criminal history section of his judgment and sentence. But the trial court sentenced him to 29 months of incarceration, within the standard range for his convictions, and standard range sentences are generally not appealable. RCW 9.94A.585(1).
This included the 12-month deadly weapon enhancement.
'The only statutory basis for appeal of a standard range sentence is failure to comply with applicable procedures mandated by [RCW 9.94A.500] and [RCW 9.94A.530(2)].' State v. Medrano, 80 Wn. App. 108, 112, 906 P.2d 982 (1995). RCW 9.94A.530(2) provides:
RCW 9.94A.500 and RCW 9.94A.530 recodified RCW 9.94A.110 and RCW 9.94A.370(2), respectively, and were the original code sections referenced in the quote. See Laws of 2001, ch. 10, sec. 6.
In determining any sentence, the trial court may rely on no more information than is . . . acknowledged, or proved in a trial or at the time of sentencing. Acknowledgement includes not objecting to information stated in the presentence reports.
See also State v. Reynolds, 80 Wn. App. 851, 860, 912 P.2d 494 (1996).
The record does not show that Jensen objected to these convictions listed in the prosecutor's statement of Jensen's criminal history at sentencing. Thus, it was proper for the trial court to consider the convictions in determining Jensen's sentence. Having failed to show that the trial court did not follow the mandatory procedures set out in RCW 9.94A.530(2), Jensen has no statutory grounds for challenging his standard range sentence on appeal.
D. Different Cause Numbers
Jensen argues that the cause number on the jury instructions differs from the cause number in his case and, thus, he is potentially being held for a crime he did not commit. This argument lacks merit. Although the jury instructions appear to have had the wrong cause number on them, that number is crossed out and the correct number is written in above it. Moreover, the jury was instructed on only two crimes second degree assault with a deadly weapon and harassment, and those are the charges the court used to sentence Jensen. There is no evidence that the slight clerical error in the cause number on the instructions resulted in Jensen being incarcerated for a different crime.
E. Separate Incidents
Jensen claims that the jury was never instructed that the crimes charged arose out of two separate incidents and, therefore, the court should have declared a mistrial. Again, the record does not show that counsel objected to the jury instructions or lack thereof; nor does there appear to be any obvious defect in the instructions that Jensen may raise for the first time on appeal. Accordingly, we do not address this claim. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988).
F. Good Time Credit
Finally, Jensen contends that the Department of Corrections failed to consider his 46 days of good time credit when calculating his release date. To address this argument, we would have to consider matters outside the record. Under these circumstances, the proper method for seeking review is for the defendant to raise the issue in a personal restraint petition under RAP 16.3. State v. King, 24 Wn. App. 495, 505, 601 P.2d 982 (1979). Accordingly, this claim is not properly before us and we do not consider it.
Jensen includes as Attachments A and B of his statement of additional grounds a memorandum from a Lieutenant Kellie Guenzel purporting to show that Jensen has 46 days of good conduct time, and a numbered document that reflects no good conduct time. These documents are not properly part of the record and thus the panel cannot consider them. See, e.g., State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Affirmed.
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 BRIDGEWATER, J., concur.