Opinion
No. 30178-4-II
Filed: March 15, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-1-04610-1. Judgment or order under review. Date filed: 03/28/2003. Judge signing: Hon. John a McCarthy.
Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, PO Box 7718, Tacoma, WA 98406-0718.
Counsel for Respondent(s), Grant Blinn, Attorney at Law, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Ryan Jon Mazza appeals his conviction of first degree robbery while armed with a firearm, arguing that the trial court erred in admitting hearsay. In his statement of additional grounds (SAG), Mazza further argues that the State did not notify him that his co-defendant would testify against him and that the co-defendant's testimony was not voluntary. We affirm.
FACTS
Brian Westenhofer awoke in his trailer around 4:30 a.m. on October 3, 2002, to find a man pointing a shotgun at him. The man ordered Westenhofer to get on the floor.
While lying on the floor, Westenhofer noticed a second intruder in the home. The second man taped Westenhofer's wrists, ankles, and head. As he lay restrained on the floor, Westenhofer listened to the two men making multiple trips in and out of his trailer.
One of the men asked Westenhofer, 'What's the shit about you threatening Susan to call CPS [Child Protective Services]?' Report of Proceedings (RP) at 269. Westenhofer tried to explain that he would not have called CPS, but that he just trying to get his money back from her.
Westenhofer bought methamphetamine from a woman he knew as 'Susan.' RP at 289. Apparently, he paid Susan for drugs in October 2002. She never delivered the drugs and, in an effort to get Susan to speak with him about the deal, Westenhofer threatened to report her drug use to CPS.
One of the men asked Westenhofer where he kept his money. Westenhofer told the man that he did not have any. The intruder called Westenhofer a liar and hit him in the back with the butt of the shotgun. At some point during the robbery, one of the men also 'made reference about . . . Susan being his girlfriend.' RP at 277. That intruder told Westenhofer that someone would be waiting outside and that if Westenhofer contacted the police or anyone else, the intruders would return with others to harm Westenhofer.
After the men departed, Westenhofer freed himself, went to his sister's home, and asked her to call 911 dispatch. A police officer promptly responded. Westenhofer told the officer that he could not provide a physical description of the men, he did not recognize their voices, and he did not know whether there were more than two intruders. Westenhofer reported that the property stolen from his trailer included tools, electronic equipment, CDs, computer parts, his wallet, and a folding knife.
With regard to the intruder's comment about Susan, Westenhofer said that he knew someone named Susan 'living in the area of 56[th] and K.' RP at 158-59. He provided Susan's last name and also mentioned that Mazza had been her boyfriend. Officer Brandon Cockcroft relayed the information via radio.
Officer Scott Shafner proceeded to Susan's address where he discovered Susan Stock, Mazza, and Johnny Resch. Stock consented to a search. After consulting with Cockcroft about the stolen items, Shafner discovered many of them in Stock's residence. Another officer found a .12 gauge shotgun in the bedroom. The officers arrested Mazza and Resch. The State charged them with first degree robbery while armed with a firearm.
Prior to trial, Mazza's counsel moved to exclude the robber's statement about Susan and CPS, claiming that these statements were inadmissible hearsay. The trial court denied this motion. When explaining the basis for its decision, the court stated, '[i]t's part of the res gestae of the accusation that the State has the obligation to prove beyond a reasonable doubt that your client was the person that did this offense. Certainly statements made by an alleged defendant during the commission of a felony crime are admissible statements.' RP at 15.
Resch testified against Mazza at trial. Resch said that he and Mazza planned to 'go pay a visit to Brian because he had threatened to call CPS on Susan and he wanted to go scare the guy basically.' RP at 39. Resch explained that Stock was Mazza's girlfriend. Resch also testified that he and Mazza robbed Westenhofer.
Resch took advantage of a plea bargain. In exchange for 'truthful testimony' about Mazza, the State dropped the firearm sentence enhancement.
Westenhofer also took the stand. He testified to the facts above. Because the court denied his motion to exclude, Mazza did not object when Westenhofer related the robber's question about Susan.
The jury convicted Mazza as charged and he appeals.
ANALYSIS Hearsay
Mazza contends that the trial court erred in allowing Westenhofer to testify regarding statements made about Susan because they were hearsay.
Hearsay comprises 'a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' ER 801(c). 'Where a statement is not offered for the truth of the contents of the conversation, but only to show that it was made, the statement is not hearsay.' State v. Gonzalez-Hernandez, 122 Wn. App. 53, 57, 92 P.3d 789 (2004); ER 801.
Here, Mazza challenges the statement the robber made to Westenhofer, 'What's the shit about you threatening Susan to call CPS?' RP at 269. The State did not offer the statement to prove the truth of the matter asserted, that is, whether Westenhofer threatened to call CPS is not relevant to this trial. The trial court did not err in allowing Westenhofer to testify about the statement.
We may affirm the trial court on any ground. Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986).
SAG
CrR 4.7
In his SAG, Mazza contends that the State violated CrR 4.7 when it did not give him proper notice that Resch would testify against him. Mazza argues that he was prejudiced because his counsel could not interview Resch until after opening statements, due to Resch's late decision to plead guilty.
RAP 10.10.
Before trial, Mazza's attorney sought to preclude the State from referring to Resch's testimony in its opening argument because defense counsel had not interviewed Resch. The court ruled that the State could discuss Resch's testimony during opening statements, but it instructed Resch to remain in the courtroom until defense counsel had an opportunity to interview him.
CrR 4.7(a)(1) requires only that the State turn over relevant material 'within the prosecuting attorney's possession or control.' Because the defense and the State became aware that Resch would testify against Mazza at presumably the same time, the State did not violate CrR 4.7. Freely Given Statement
Resch pleaded guilty between the February 18, 2003 CrR 3.5 hearing and the February 19, 2003 trial date.
Moreover, 'the fact that two defendants are jointly charged is notice to each that the other may become a witness.' State v. Cooper, 26 Wn.2d 405, 417, 174 P.2d 545 (1946).
Mazza also contends that Resch's testimony was not given "freely, without coercion or promise" because the State dismissed Resch's firearm sentence enhancement. SAG at 2.
Mazza appears to challenge Resch's credibility. We leave credibility determinations to the fact finder and do not disturb them on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Mazza's SAG arguments fail.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., Concur.