Opinion
No. 22315-9-III; 22336-1-III.
November 30, 2006.
Appeals from judgments of the Superior Court for Spokane County, Nos. 02-1-00203-1 and 02-1-00202-2, Maryann C. Moreno, J., entered August 18 and 19, 2003.
Counsel for Appellant(s), Thomas Michael Kummerow, Seattle, WA.
David N. Gasch, Spokane, WA.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, Spokane, WA.
Affirmed in part and reversed in part by unpublished opinion per Schultheis, A.C.J., concurred in by Kato and Kulik, JJ.
SCHULTHEIS, A.C.J.
Police stopped Jason Allen Graham and Jeremiah Justin Jones for speeding in a stolen car. Shots were fired out of the rear window as the officer approached the car, and the men sped away. Police caught up with them when they rolled the car. Mr. Jones soon surrendered. Mr. Graham fired his weapon numerous times at the many responding officers before he was shot and arrested.
The main issue in Mr. Graham's appeal is whether there is sufficient evidence to support his convictions for attempted first degree murder, first degree assault, second degree assault, and first degree possession of stolen property. We hold that there is.
In Mr. Jones' appeal, the central issue is whether there is sufficient evidence to support his convictions for first degree assault and first degree possession of stolen property. We hold the evidence is sufficient for the assault conviction. We conclude, however, that because the evidence did not show that Mr. Jones had dominion and control over the stolen vehicle, there is insufficient evidence to support the conviction for first degree possession of stolen property. We therefore reverse that conviction.
FACTS
On January 7, 2002, at approximately 1 a.m., Spokane Police Officer Christopher Lewis pulled over a speeding Toyota 4Runner at Scott Street and First Avenue. Officer Lewis stopped his patrol car behind the 4Runner. As he emerged from the patrol car gunfire erupted from inside the 4Runner, shattering the rear window. Officer Lewis dove to the ground and the 4Runner sped away. Officer Lewis chased the 4Runner to a parking area at First Avenue and Division Street, where the 4Runner rolled and came to rest on the driver's side. The passenger door opened and Jeremiah Jones jumped out and fled down some railroad tracks. He soon surrendered to police. Jason Graham then emerged, holding a gun. He paused, looked at Officer Lewis and ran down the railroad tracks.
Officer Aaron Ames responded to the area. He saw Mr. Graham armed with an AK-47 assault rifle. He drew his gun and ordered Mr. Graham to drop his weapon. Mr. Graham continued to hold the AK-47 with both hands, pointed down, and responded that "I am really fucked up" or "I really fucked up" and that he just wanted to leave. Report of Proceedings (RP) at 588. When Mr. Graham took off, Officer Ames followed while attempting to maintain protective cover. At one point, Mr. Graham turned and raised his weapon slightly as if to point it at Officer Ames. As. Mr. Graham fired, Officer Ames retreated for cover while Mr. Graham fled toward the Intermodal Center, a commercial bus and train terminal.
Officer John Stanley of the canine unit arrived to assist. As Officer Stanley drove his patrol car up the entrance ramp and through the covered bus passenger loading area, Mr. Graham stepped out from between two parked vehicles and started shooting at Officer Stanley's car. Officer Stanley accelerated through the passageway and down the exit ramp and joined other officers taking position on that side of the building.
Officer Alan Edwards arrived at the scene and loaded Sergeant Daniel Torok, Officer Kevin Vaughn, and Officer Jason Uberuaga into his patrol car. As Officer Edwards approached the Intermodal Center, gunfire erupted. Sergeant Torok saw Mr. Graham on the ramp, approximately 15 feet above street level, shooting at the patrol car. Officer Edwards and Sergeant Torok each understood that they were in a vulnerable position. Sergeant Torok, Officer Vaughn, and Officer Uberuaga got out of the vehicle and took cover. Sergeant Torok fired a shot at Mr. Graham. Officer Ames also caught up with Mr. Graham and fired. Mr. Graham was hit and taken into custody. Police found Mr. Jones' 9-mm Daewoo pistol in the 4Runner.
Mr. Graham was charged with and tried on six counts of attempted first degree murder (Sergeant Torok and Officers Ames, Stanley, Edwards, Uberuaga, and Vaughn) and one count of unlawful possess of a firearm. Both Mr. Graham and Mr. Jones stood trial on one count of first degree assault (Officer Lewis) and one count of first degree possession of stolen property (4Runner).
Mr. Jones pleaded guilty to unlawful possession of the pistol prior to trial.
Other charges were filed in the amended information, some of which are not relevant to the facts on appeal. Only charges relevant to this appeal are addressed in this opinion.
Mr. Graham and Mr. Jones had a joint trial in which the jury was instructed on lesser charge alternates. After the first day of deliberations, a juror was excused when she failed to return on the second day. She claimed her car was disabled in Seattle. The juror was replaced with an alternate and the jurors were instructed to begin deliberations anew.
Mr. Graham was found guilty of two counts of attempted first degree murder (Officers Stanley and Edwards), four counts of first degree assault (Sergeant Torok and Officers Uberuaga, Vaughn, and Lewis), one count of second degree assault (Officer Ames), and one count of first degree possession of stolen property. Mr. Jones was convicted of one count of first degree assault (Officer Lewis) and one count of first degree possession of stolen property. The jury found by special verdict that both Mr. Graham and Mr. Jones were in possession of a deadly weapon — which the court defined as a firearm — during the commission of the attempted murders and assaults.
After the verdicts, the defense moved to arrest the judgments, or in the alternative for a new trial based on juror misconduct, insufficient evidence, inconsistent verdicts, and an improper transferred intent instruction for first degree assault. The motions were denied. This appeal follows.
DISCUSSION A. Sufficiency of Evidence
Due process requires the State to prove every element of the crime charged beyond a reasonable doubt. State v. Nicholson, 119 Wn. App. 855, 859, 84 P.3d 877 (2003). Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A claim of insufficiency admits the truth of the State's evidence and all inferences that can reasonably be drawn from it. Salinas, 119 Wn.2d at 201. When considering the evidence, "[c]redibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
(1) Attempted First Degree Murder.
As charged in this case, the crime of attempted first degree murder requires proof that Mr. Graham, with premeditated intent to cause a person's death, took a substantial step toward the commission of the act. RCW 9A.32.030(1)(a); RCW 9A.28.020(1); State v. Price, 103 Wn. App. 845, 851-52, 14 P.3d 841 (2000). Mr. Graham's argument focuses solely on the intent element.
A person acts with intent when he or she acts with the objective or purpose to accomplish a result constituting a crime. RCW 9A.08.010(1)(a); State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994). A substantial step is more than mere preparation and must be strongly corroborative of a defendant's criminal purpose. State v. Aumick, 126 Wn.2d 422, 427, 894 P.2d 1325 (1995); Price, 103 Wn. App. at 852 (citing State v. Workman, 90 Wn.2d 443, 452, 584 P.2d 382 (1978)). Even a slight act done in furtherance of a crime constitutes an attempt if it clearly shows the design of the individual to commit the crime. State v. Nicholson, 77 Wn.2d 415, 420, 463 P.2d 633 (1969); Price, 103 Wn. App. at 852. "Premeditation" involves a deliberate formation of and reflection on the intent to take a human life and includes "`the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.'" State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105 (1995) (quoting State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987)).
In the count involving Officer Stanley, taking the evidence in the light most favorable to the State, Mr. Graham stepped out between two cars and shot at Officer Stanley at close range as he drove his patrol car through the bus loading area. Officer Stanley had "no doubt" that Mr. Graham was shooting at him. RP at 898.
In the count involving Officer Edwards, again viewing the evidence in the light most favorable to the State, Mr. Graham stood above Officer Edwards' patrol car on the ramp placing Officer Edwards in a position of vulnerability. Sergeant Torok testified that Mr. Graham appeared to be firing at them. Officer Edwards remained in the vehicle and took fire while Sergeant Torok, Officer Vaughn, and Officer Uberuaga escaped. Officer Edwards could feel the bullets concuss his patrol car.
In each case, a reasonable jury could find that taking an aggressive and dominant stance and firing multiple rounds from an assault rifle can show premeditated intent to cause a person's death, with a substantial step taken toward the commission of the act.
Mr. Graham argues that because he did not "riddle [the officers' cars] with bullets" when he clearly had the opportunity to do so shows he did not have an intent to commit attempted first degree murder. Appellant Graham's Br. at 29, 31. That is the theory that Mr. Graham presented to the jury. Even if the jury believed Mr. Graham, this theoretical restraint in one moment in time does not negate intent in another moment. A jury can reasonably infer specific intent to kill as a logical probability from the evidence that Mr. Graham fired a weapon at the victims. Price, 103 Wn. App. at 853-54 (citing State v. Hoffman, 116 Wn.2d 51, 84-85, 804 P.2d 577 (1991)).
Mr. Graham points to a lack of physical evidence to show that he fired directly at the officers. He refers to evidence that the only bullet holes in the cars were ricochets or could have been caused by something other than bullets. The jury heard that evidence. Even if we viewed the evidence in the light most favorable to Mr. Graham — which is not the standard of review — the absence of bullet holes in the patrol car would not require reversal. The success of the actor's aim is not dispositive. Intent can be inferred from the circumstances. Here, Mr. Graham positioned himself over the patrol car, pinning one victim into his vehicle with gunfire. He ambushed a second victim and fired at him at close range.
In his statement to police, which was admitted into evidence, Mr. Graham claimed he was not aiming at the officers and that he was an accurate shooter. It was up to the jury to determine the credit due his testimony.
(2) First Degree Assault.
Under the facts alleged in this case, first degree assault requires an assault with a firearm with an "intent to inflict great bodily harm." RCW 9A.36.011(1). "Great bodily harm" is "bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ." RCW 9A.04.110(4)(c). An assault in this case includes (1) an act with unlawful force done with intent to inflict bodily injury and (2) putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm. Nicholson, 119 Wn. App. at 860. Evidence of intent can be collected from all of the circumstances of the case. Wilson, 125 Wn.2d at 217 (quoting State v. Ferreira, 69 Wn. App. 465, 468, 850 P.2d 541 (1993)). We do not presume specific intent, but infer it as a logical probability from all the facts and circumstances. Id.
(a) First Degree Assault — Sergeant Torok and Officers Vaughn and Uberuaga. Taking the evidence in the light most favorable to the State, Mr. Graham fired upon Officer Edwards' patrol car from an elevated position. From this evidence the jury could easily infer that Mr. Graham intended to inflict great bodily harm. Mr. Graham argues there is no evidence that a direct shot was fired by Mr. Graham at these police officers in Officer Edwards' patrol car. Again, the success of the aim is not controlling.
Mr. Graham also argues that the evidence shows that the officers were "most likely not even in the car when the bullet hole was made." Appellant Graham's Br. at 32 (emphasis omitted). The record does not support that argument. Officer Edwards testified the car was struck before the passengers left. Sergeant Torok testified that shots were fired while he was still seated in the patrol car. More shots were fired as soon as he got out. Officer Uberuaga heard shots while he was still in the car and more as he exited. Only Officer Vaughn testified that he heard shots only after he left the vehicle, when he was four steps from the vehicle. But Officer Vaughn also testified that he was in fear of bodily injury. In fact, all of the officers also testified as to their fear of bodily injury or manifestations of their fear, i.e., running for cover. The evidence was sufficient.
(b) First Degree Assault — Officer Lewis. Taking the evidence in the light most favorable to the State, after Officer Lewis stopped the 4Runner, he saw through the tinted rear window two silhouettes turn toward the center as if they were both looking back. As Officer Lewis walked around his patrol car toward the 4Runner, the rear window exploded with gunfire. He dove under his car to retreat from the gunfire and crawled behind the rear tire to avoid ricocheting bullets. He heard more gunfire while he was on the ground from two types of guns. Officer Lewis testified that he thought he was being fired upon and that his life was in danger.
The defendants again argue that the evidence shows that they were actually trying to avoid hitting Officer Lewis. Evidence was also presented that once Officer Lewis stopped the 4Runner, he illuminated the take-down light, a high-powered light located on top of the patrol car. When illuminated on a suspect, the officer can see the suspect, but the suspect cannot necessarily see the officer. Thus, Mr. Graham and Mr. Jones may have blindly fired the multiple rounds in the direction of the officer with automatic weapons. A reasonable jury could find intent to inflict bodily harm as a logical probability from this evidence.
Officer Lewis also testified he was fearful and dove to the ground to avoid the gunfire, which is a manifestation of fear and apprehension. The evidence is sufficient to support first degree assault.
(3) Possession of Stolen Property.
Mr. Jones contends that there was insufficient evidence to support his conviction for first degree possession of stolen property in light of evidence that he was merely a passenger in the 4Runner.
To convict Mr. Jones of first degree possession of stolen property, the State must show that he "(1) [k]nowingly possessed stolen property, (2) [e]xceeding $1,500 in value, (3) [k]nowing the property was stolen, and (4) [w]ithheld or appropriated the property to the use of someone other than the true owner." State v. McCann, 74 Wn. App. 650, 653, 878 P.2d 1218 (1994) (citing RCW 9A.56.140, .150). Possession of stolen property requires actual or constructive possession of stolen property and actual or constructive knowledge that the property is stolen. State v. Summers, 45 Wn. App. 761, 763, 728 P.2d 613 (1986). Actual possession of the stolen property means the item is in the personal custody of the person charged with possession. State v. Plank, 46 Wn. App. 728, 731, 731 P.2d 1170 (1987). Constructive possession is shown by substantial evidence that the defendant had dominion and control over the item in question. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). We examine the totality of the circumstances to see if there is substantial evidence tending to establish circumstances from which the jury reasonably could have inferred that Mr. Jones had dominion and control over the stolen vehicle. State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977).
The jury was instructed that to possess stolen property means to "knowingly . . . receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto." RCW 9A.56.140(1). One "receives" by acquiring title, possession, control, or a security interest, or any other interest in property. RCW 9A.56.010(11).
Mr. Jones claims that as a passenger, he did not have dominion and control of the 4Runner. He points out that DNA (deoxyribonucleic acid) testing of hair and skin tissue collected from the passenger side of the wrecked 4Runner's windshield proves that he was a passenger. The State presented no evidence to show that he was anything but a passenger in relation to the vehicle. See Plank, 46 Wn. App. at 731. In Plank, the State asserted that possession was proven by showing that the defendant and his codefendant "were engaged in a common or joint enterprise in driving the allegedly stolen vehicle from Canada into the United States." Id. But the court held that the evidence did not show that the defendant was anything more than a passenger. Because the evidence was insufficient to show dominion and control over the vehicle, the court reversed the conviction. Id.
The State argues that Mr. Jones' dominion and control is shown by Mr. Jones' storage of his weapon in the 4Runner. The State provides no citation to authority in support of its argument that mere storage of a weapon in a vehicle shows dominion and control of it.
Under these circumstances, the fact that Mr. Jones left the gun in a wrecked vehicle is more persuasive evidence of an attempt to abandon the gun than it is evidence of dominion and control of the wrecked car. The evidence does not show that Mr. Jones intended to return for the gun. Further, the gun was merely inside the car on the floorboard. See State v. Hearn, 131 Wn. App. 601, 610-11, 128 P.3d 139 (2006) (holding that the mere presence of drugs in a vehicle was insufficient to show that the car was used to store drugs and that the vehicle was not used to store drugs where no fixture of the vehicle itself was used to conceal or hold the contraband). See also Callahan, 77 Wn.2d at 31 (reversing a jury verdict on a drug conviction for insufficient evidence of the defendant's dominion and control over a houseboat where he merely had some personal possessions on the premises, but not clothing or personal toilet-type articles).
The gun was found on the driver's side. But the car rolled and came to rest on the driver's side.
In State v. Turner, 103 Wn. App. 515, 524, 13 P.3d 234 (2000), Division Two of this court held that "where there is control of a vehicle and knowledge of a firearm inside it, there is a reasonable basis for knowing constructive possession." (Emphasis added.) Here, the State shows no evidence of Mr. Jones' control of the vehicle. There is no evidence he had keys or drove the car. E.g., State v. Potts, 1 Wn. App. 614, 617, 464 P.2d 742 (1969) (finding dominion and control over a vehicle in which drugs were found when the defendant had keys to the car, had driven it, and was the sole occupant).
Ultimately, the State fails to meet its burden of showing dominion and control. We must therefore reverse the conviction.
B. Inconsistent Verdict
Mr. Graham argues that the jury's inconsistent and irreconcilable verdict of second degree assault of Officer Ames — when Officer Ames clearly testified that he saw Mr. Graham shoot at him — requires reversal of the other assault and attempted murder verdicts.
"Juries return inconsistent verdicts for various reasons, including mistake, compromise, and lenity." State v. Goins, 151 Wn.2d 728, 733, 92 P.3d 181 (2004) (citing Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932); United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984)). "Despite the inherent discomfort surrounding inconsistent verdicts," courts have reasoned that "one could not be sure which was the verdict that the jury `really meant.'" Id. (citing Powell, 469 U.S. at 68). Thus, an inconsistency between verdicts does not require the court to vacate an adverse verdict. Id. (citing Powell, 469 U.S. at 68). A defendant is protected from jury error upon an evaluation by the trial and appeal courts of "whether the guilty verdict rested on sufficient evidence." Id. (citing Powell, 469 U.S. at 67). This was done. Inconsistent verdicts do not require reversal when, as here, sufficient evidence supports the convictions.
C. Jury Instructions on Transferred Intent
Mr. Graham contends that instruction 27 does not accurately state the law on transferred intent because the instruction is appropriate under the battery-type of assault but not the two types of assault charged here, i.e., assault by intent to injure and by fear and apprehension. At the trial level, Mr. Graham objected to the transferred intent instruction on different grounds. See CrR 6.15(c). He did not afford the trial court an opportunity to rule on the issue he now seeks to address on appeal. We will not, therefore, consider it. State v. Robinson, 92 Wn.2d 357, 361, 597 P.2d 892 (1979).
This instruction provides: "Under the crime of first degree assault, a person's intent to inflict great bodily harm upon another person transfers to an unintended person. An intent against one person is intent against all persons." Graham Clerk's Papers at 55.
We recognize three forms of assault in Washington: "(1) assault by actual battery; (2) assault by attempting to inflict bodily injury on another while having apparent present ability to inflict such injury; and (3) assault by placing the victim in reasonable apprehension of bodily harm." State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000) (citing State v. Byrd, 125 Wn.2d 707, 712-13, 887 P.2d 396 (1995)).
D. Concurrency of Statutes
Mr. Graham challenges his conviction for possession of stolen property under the "special statute rule," a statutory construction rule. State v. Danforth, 97 Wn.2d 255, 257-59, 643 P.2d 882 (1982); State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237 (1984). We review issues involving statutory construction de novo. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004).
Mr. Jones joined Mr. Graham in this assignment of error. Because Mr. Jones successfully challenged the conviction on the sufficiency of the evidence, we will address this issue for Mr. Graham alone.
When a specific statute punishes the same conduct punished under a general statute, the statutes are concurrent and the State must charge only under the specific statute. Shriner, 101 Wn.2d at 581. In order for statutes to be concurrent, the general statute must be violated every time the special statute has been violated. Id. That means "[a]ll of the elements required to be proved for a conviction of [the general statute] are also elements that must be proved for conviction of [the specific statute]." Id. at 579-80.
Taking a motor vehicle without permission under RCW 9A.56.070 requires proof that the defendant "(1) [i]ntentionally took or drove away, (2) [a]n automobile or motor vehicle of another, (3) [w]ithout permission." McCann, 74 Wn. App. at 653 (citing RCW 9A.56.070). First degree possession of stolen property requires proof that the accused "(1) [k]nowingly possessed stolen property, (2) [e]xceeding $1,500 in value, (3) [k]nowing the property was stolen, and (4) [w]ithheld or appropriated the property to the use of someone other than the true owner." Id. at 653 (citing RCW 9A.56.140, .150).
In McCann, this court held: "It is possible to violate the taking a motor vehicle without permission statute without violating the first degree possession of stolen property statute if the motor vehicle is valued at $1,500 or less. Therefore, the statutes are not concurrent, and Mr. McCann was properly charged under RCW 9A.56.150, first degree possession of stolen property." Id. (emphasis added). The defendants argue that because evidence proved the motor vehicle to be worth more than $1,500 in their case, the statute is concurrent.
The State argues that the proper focus of the analysis is the elements of the offense, not the conduct triggering the offense. It is correct. In Shriner, 101 Wn.2d at 580, our Supreme Court decided, "[t]he determining factor is that the statutes are concurrent in the sense that the general statute will be violated in each instance where the special statute has been violated." Therefore, under Shriner, we do not decide whether the defendant's specific conduct violates both the special and general statute. Instead, the special statute will supersede the general only "[s]o long as it is not possible to commit the special crime without also committing the general crime." Id. at 583. We have followed this approach. State v. Crider, 72 Wn. App. 815, 818, 866 P.2d 75 (1994) ("The determinative factor is whether it is possible to commit the specific crime without also committing the general crime; not whether in a given instance both crimes are committed by the defendant's particular conduct." (Emphasis omitted.)). Therefore, even given the different facts under McCann, i.e., a motor vehicle worth more than $1,500, the statute is not concurrent.
E. Admission of Evidence of Other Crimes
Mr. Graham contends the trial court erred by admitting evidence of his "bad acts," by allowing officers to testify concerning the presence of others who necessarily took cover from the gunfire. The court allowed the officers to testify with respect to their actions under the res gestae exception to ER 404(b).
Mr. Graham did not object to this line of questioning until six officers had been examined without objection as to the presence of others in the area. Further, Mr. Graham's objection related to testimony concerning fear for the safety of these persons, not to their presence or to their actions. And the legal basis for his objection was relevance. Counsel's allusion to uncharged crimes, however, caused the trial judge to remark that she was limiting "questioning with regard to potential situations that could have occurred with the other people in the Intermodal." RP at 794. The court therefore limited the officers' testimony to fact evidence and the witnesses were not permitted to testify as to whether they feared for their safety as potential victims of uncharged offenses.
Evidence of a defendant's uncharged crimes or acts is not admissible to prove that the defendant acted in conformity with a character trait on a particular occasion but may be admissible for other purposes. ER 404(b). One of these other purposes is the res gestae or same transaction exception. State v. Brown, 132 Wn.2d 529, 570-71, 940 P.2d 546 (1997). "Under this exception, evidence of other crimes or misconduct is admissible to complete the story of the crime by establishing the immediate time and place of its occurrence." Id. at 571. Whether to admit evidence under this exception is a matter within the sound discretion of the trial court. State v. Fish, 99 Wn. App. 86, 94, 992 P.2d 505 (1999); Brown, 132 Wn.2d at 571. The court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or reasons. Brown, 132 Wn.2d at 572. The rationale for this exception is to ensure that the jury knows "the whole story":
"The defendant may not insulate himself by committing a string of connected offenses and thereafter force the prosecution to present a truncated or fragmentary version of the transaction by arguing that evidence of other crimes is inadmissible because it only tends to show the defendant's bad character."
State v. Lane, 125 Wn.2d 825, 832, 889 P.2d 929 (1995) (quoting State v. Tharp, 27 Wn. App. 198, 205, 616 P.2d 693 (1980), aff'd, 96 Wn.2d 591, 637 P.2d 961 (1981)).
The admission of ER 404(b) evidence is a four-step process. State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002). The trial court first must make preliminary findings of fact that the uncharged acts more probably than not took place. Id. Next, the court must articulate some reason why the evidence is admissible. Id. Then it must find that the acts are relevant to some factual issue the jury will have to resolve. Id. Finally, the court must weigh the probative value of the evidence. Id. Here, the trial court followed the procedure and ruled that:
I am going to allow testimony with regard to the actions of the officer, if they went to [the nearby bar], what they did there, what their actions were, it's all intertwined very closely with the State's case, it's part of the res gestae, and I do not find that the prejudicial value overrides the probative effect.
RP at 796.
When the defendant's other misconduct constitutes "a `link in the chain' of an unbroken sequence of events surrounding the charged offense," evidence of that offense is admissible. Brown, 132 Wn.2d at 571 (quoting Tharp, 96 Wn.2d at 594). "Each act must be `a piece in the mosaic necessarily admitted in order that a complete picture be depicted for the jury.'" Fish, 99 Wn. App. at 94 (quoting State v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615 (1995)). That is what the court found here.
Based on the court's ruling, some evidence was admitted concerning the presence of others in relation to the officers' actions. The judge sustained an objection concerning testimony that an officer was looking to see if there were any injured people within the crowd. The court also refused to permit an officer to testify that he attempted to pick out the second suspect from a crowd of fleeing bystanders. The court ruled that the testimony was cumulative. So little evidence was entered after the objection and ruling that even if the evidence was admitted in error, it was harmless. State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993) (erroneous admission of ER 404(b) evidence is harmless unless there is a reasonable probability that the error materially affected the outcome of the case).
Mr. Graham also asserts that the court erred in refusing his limiting instruction. But he provides no legal authority or argument. The assignment of error is waived. State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) ("[T]his court will not review issues for which inadequate argument has been briefed or only passing treatment has been made.").
F. Abuse of Prosecutorial Discretion
Mr. Graham contends that the prosecutor violated a statutory mandate by overcharging him. He relies on RCW 9.94A.411(2)(a). As the State points out, these charging guidelines "are intended solely for the guidance of the prosecutors in the state of Washington. They are not intended to, do not and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party in litigation with the state." RCW 9.94A.401.
RCW 9.94A.411(2)(a) provides:
"(i) The prosecutor should file charges which adequately describe the nature of defendant's conduct. Other offenses may be charged only if they are necessary to ensure that the charges:
"(A) Will significantly enhance the strength of the state's case at trial; or "(B) Will result in restitution to all victims.
"(ii) The prosecutor should not overcharge to obtain a guilty plea. Overcharging includes:
"(A) Charging a higher degree;
"(B) Charging additional counts.
"This standard is intended to direct prosecutors to charge those crimes which demonstrate the nature and seriousness of a defendant's criminal conduct, but to decline to charge crimes which are not necessary to such an indication. Crimes which do not merge as a matter of law, but which arise from the same course of conduct, do not all have to be charged."
Prosecutors have discretion in their charging decisions. State v. Lewis, 115 Wn.2d 294, 299, 797 P.2d 1141 (1990). "[T]he court is limited in that it may not substitute its judgment for that of the prosecutor." Id. at 298.
Mr. Graham's claims of abuse of prosecutorial discretion and prosecutorial misconduct are without merit.
G. Juror Misconduct
Mr. Graham and Mr. Jones contend they are entitled to a new trial or at least an evidentiary hearing due to juror misconduct and juror bias.
Appellate courts are reluctant to inquire into the manner in which a jury reaches its verdict. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994). "A strong, affirmative showing of misconduct is necessary in order to overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury." Id. at 117-18. A trial court's decision on a motion for a new trial alleging juror misconduct or juror bias will not be disturbed on appeal unless the ruling is based on an erroneous interpretation of the law or constitutes an abuse of discretion. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989).
Approximately one month following the verdict, but before the sentencing, the defense brought a motion for a new trial based on juror misconduct and bias. The defense presented a copy of a letter written by a former juror, Karen Reeves, to an Idaho prisoner. Ms. Reeves indicated in the letter that the jury was sent home after its first day of deliberations because the panel was tired and not close to a verdict. The next day, Ms. Reeves did not report to jury duty. Court personnel contacted her by telephone and she advised that she would be unable to attend because her car became disabled in a minor accident returning from Seattle the night prior. In her letter to the inmate, Ms. Reeves explained that she had lied to the court about her absence when she woke up in a panic at 9 a.m. to messages concerning her absence at court. The letter explained that she planned to attend deliberations but slept through her alarm after having had only three hours of sleep due to transporting her sister to the Seattle airport. She wrote:
Anyways . . . that's me . . . the gal not showing up to give the verdict. . . . So they started over and I had no part in the say/verdict! Which makes me sad happy all at once. . . . Glad I don't have to be responsible. . . . Sad those prejudice/biased older rich retired [people] automatically assumed guys totally guilty cops right no matter what. . . . I love our court system more each day. I shouldn't say anything. Can't think of what could be better.
Graham Clerk's Papers (CP) at 147.
Shortly after Ms. Reeves was replaced with an alternate juror and the jury was instructed to begin deliberations anew, the jury reached a verdict.
The trial court heard the defense motion for a new trial on August 5, 2003. The judge ruled that Ms. Reeves' observations related to the credibility of witnesses, the majority of whom happened to be police officers in this case, a matter that inheres in the verdict.
Mr. Graham and Mr. Jones claim that Ms. Reeves' letter is prima facie evidence that jurors were biased when they entered the case and falsely swore on voir dire, concealing their bias. See, e.g., Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 776 P.2d 676 (1989) (upholding trial court's order for a new trial for jury foreman's failure to disclose his bias concerning California residents and his perception that they are generally litigious). But the defendants do not provide evidence that attributes specific statements or conduct by any juror to support a claim that a juror either provided false information on voir dire or harbored any bias in favor of law enforcement or prejudice against the defendants. The letter merely speculates as to how members of the jury may have decided the verdict and is expressed by someone not involved in the deliberation process.
After Ms. Reeves was excused, the jurors were instructed to begin their deliberations anew. We presume the jury followed the court's instruction. State v. Wirth, 121 Wn. App. 8, 13, 85 P.3d 922 (citing State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994)), review denied, 152 Wn.2d 1018 (2004). The court did not abuse its discretion in denying the motion for a new trial or for an evidentiary hearing.
H. Sentence Enhancement
The jury found by special verdict that Mr. Graham and Mr. Jones were armed with a deadly weapon at the time of the commission of each first degree assault. The sentencing court entered a five-year sentence enhancement for being armed with a firearm instead of a two-year enhancement for a deadly weapon finding. See RCW 9.94A.533(3)(a), (4)(a).
Mr. Graham and Mr. Jones contend it was error to impose the enhancements because they constitute exceptional sentences and the underlying facts must therefore be submitted to a jury under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Mr. Graham and Mr. Jones rely on State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005), rev'd, ___ U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
In Recuenco, the jury found Mr. Recuenco guilty of second degree assault for threatening his wife with a gun and found by special verdict that he was armed with a deadly weapon. At sentencing, the court imposed a three-year enhancement for use of a firearm rather than a one-year deadly weapon enhancement. Mr. Recuenco made the same argument that Mr. Graham and Mr. Jones make here. The Washington Supreme Court held that without an explicit finding by the jury, an imposition of a sentence enhancement violates a defendant's rights under Apprendi and Blakely. Recuenco, 154 Wn.2d at 162.
In its briefing, the State conceded that Recuenco applies, but argued that the case was incorrectly decided because the error was harmless since the facts show there were no weapons involved other than a firearm. After argument, the United States Supreme Court held that the same error alleged by Mr. Graham and Mr. Jones may be harmless and thus upheld. See Recuenco, 126 S. Ct. at 2553 (failure to submit a sentencing factor to the jury is not a structural error and is subject to a harmless error analysis). We have not decided, however, whether the sentencing error alleged by Mr. Graham and Mr. Jones was harmless.
Division One of this court distinguished the Washington State Supreme Court's decision in Recuenco with State v. Pharr, 131 Wn. App. 119, 126 P.3d 66 (2006), review pending (Wash. Oct. 11, 2006) (No. 78273-3). In Pharr, the jury was instructed, for the purposes of the special verdict, that to find that the defendant was armed with a deadly weapon "`the State must prove beyond a reasonable doubt that the defendant was armed with a firearm at the time of the commission of the crime. A firearm is a weapon or a device from which a projectile may be fired by an explosive such as gunpowder.'" Pharr, 131 Wn. App. at 124. Division One concluded: "While the terminology in the verdict form was imprecise, the instruction applicable to the special verdict leaves no room for debate: the jury found that Pharr was armed with a firearm." Id. Such is the case here. The special verdicts in this case defined "deadly weapon" as "[a] pistol, revolver, or any other firearm." Graham CP at 87; Jones CP at
Although Pharr was decided after the briefing on this appeal, the parties were instructed to be prepared to argue the case at oral argument.
In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Blakely clarified that the statutory maximum "for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303. The sentencing judge in this case adhered to these principles; the sentence enhancement was controlled by the facts found by the jury.
Mr. Graham and Mr. Jones argue that because the statutory definition of deadly weapon includes a number of weapons, including a firearm, it was improper for the sentencing judge to speculate in the absence of the jury findings. But the jury was not instructed so broadly. The jury is presumed to follow the court's instructions. Pharr, 131 Wn. App. at 124 (citing State v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991)).
We adopt Division One's reasoning in Pharr and affirm the sentence.
CONCLUSION
We reverse Mr. Jones' conviction for possession of stolen property in the first degree. We affirm all of the other convictions.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.