Opinion
No. 33194-2-II.
June 20, 2006.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 05-1-00080-2, James J. Stonier, J., entered April 22, 2005.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Patricia M Anderson, Cowlitz County Prosecuting Attorney's Of, 312 SW 1st Ave, Kelso, WA 98626-1739.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Quinn-Brintnall, C.J., and Armstrong, J.
Christopher Lee Meyers appeals his conviction of attempted first degree robbery with a deadly weapon enhancement. He argues that the evidence was insufficient to prove the attempted first degree robbery or the deadly weapon enhancement and that he received ineffective assistance because defense counsel failed to object to the admission of evidence of a prior conviction for taking a motor vehicle without permission. We affirm.
FACTS
Grace Bergstrom and Emmit John Erion are neighbors and are both related to Meyers by marriage.
At the time of the incident, Jason Fields was renting Erion's house and property, but Erion continued to store a 1984 Mercedes convertible and other items in a shed on the property. Although Meyers had previously lived in the shed with permission, he moved out some time prior to January 16, 2005, after a dispute with Fields. Fields told Meyers not to return.
On January 16, Meyers arrived at Bergstrom's house intending to borrow her truck so he could go to Vancouver. When Bergstrom told him that the truck's battery was dead, Meyers entered the shed and started to uncover the Mercedes. Bergstrom followed Meyers into the shed and noticed that he had partially uncovered the car. Bergstrom told Meyers to put the cover back on the car because Erion would be upset if it was uncovered and then left the shed; Meyers remained standing by the car.
At trial, Meyers testified that he entered the shed to pick up some tools and to see if there was a car inside he could use. He also testified that he uncovered the car to see if the keys were in it and that, at that point, he intended to take the car. Although Meyers testified that he had used Erion's vehicles in the past and that Erion had never told him that he could not drive the Mercedes, he also testified that he did not ask Erion for permission to drive any of his cars on January 16. Erion testified that although he had given Meyers permission to drive other vehicles in the past, he had never given Meyers permission to drive the Mercedes.
Fields saw Meyers arrive and speak to Bergstrom, and he noticed that Meyers appeared agitated and that Bergstrom seemed `very frustrated and very flustered with the situation,' as they moved toward the shed. Report of Proceedings (RP) at 50. Because he had previously told Meyers to stay off the property, Fields decided to see what was gong on. After Bergstrom left the shed, Fields entered it and saw Meyers standing by the car's open door.
Fields later testified that when he asked Meyers what he was doing and why the car was uncovered, Meyers told him that he was taking the car. Fields stated that he tried to shut the car door and that he told Meyers he was not going to take the car. In response, Meyers again stated that he was taking the car, this time insisting that was not Erion's car, and that he was `repossessing it for the rightful owner.' RP at 56.
Fields also testified that Meyers `blurted out' the name of the true owner, but Fields did not remember the name. RP at 56.
According to Fields, the two men argued about the car for approximately 90 seconds, and Fields told Meyers that he was not supposed to be there and that he was not taking the car. Eventually, Fields grabbed Meyers' sleeve and attempted to `escort' Meyers out of the shed. Meyers pulled his arm back, said he would leave, and asked if he could grab a bucket of tools he had brought into the shed. After asking Bergstrom whether Meyers had brought the tools, Fields told him to get the bucket of tools and leave.
Fields testified that Meyers walked to the bucket, pulled out a hunting knife, unsheathed the knife, and then turned back toward Fields. While holding the knife, Meyers said `What now, Jay, what now,' and took a couple of short steps toward Fields. RP at 61. Fields `skedaddled around the car,' found a broken shovel handle, returned to where he had been, and told Meyers to put down the knife. RP at 62. After the two stared at each other for a few seconds, Meyers put the knife in his pocket and started gathering the rest of his tools. At that point, Bergstrom approached, and told the two men to stop arguing, and stated she would find Meyers a ride. The two men then walked out of the shed and, a short time later, someone came to give Meyers a ride.
The arresting officer later recovered a knife that Fields identified at trial as the knife Meyers took from his tool bucket. The officer testified that the knife blade was between four and three quarter and five inches.
As noted above, Meyers testified that when he entered the shed he was attempting to see if there was a car inside he could use and that he uncovered the car to see if the keys were in it. However, his testimony regarding his confrontation with Fields differed from Fields' account of the incident.
According to Meyers, he was picking up tools when Fields entered the shed and told him to leave. Meyers also testified that Fields did not want him to take the car and that Fields grabbed him, but he pulled away. After he pulled away, he returned to his tool bucket to put his tools in his pockets. While collecting the tools, he `grabbed' the sheathed knife out of the bucket. RP at 87. He then turned to see Fields standing between him and the door and holding a shovel handle. Meyers stated that he pulled the knife out of its sheath only after he saw Fields with the shovel handle. Fields then moved out of the way, and Meyers left. Meyers further asserted that when Fields initially confronted him, he had already decided that he was not going to take the car and that he planned to gather his things and leave.
The State charged Meyers with one count of attempted first degree robbery with a deadly weapon enhancement. The case proceeded to a jury trial. Bergstrom, Erion, Fields, and Meyers testified as described above.
The State also charged Meyers with one count of attempted second degree taking a motor vehicle without permission based on his attempt to obtain Bergstrom's truck, but this charge was dismissed and is not at issue on appeal.
Although, Meyers' counsel successfully moved in limine to exclude evidence that the officer who arrested Meyers knew him from prior arrests, she did not move to exclude evidence of Meyers' prior conviction for taking a motor vehicle without permission (TMVWOP). She did request, however, that the court allow the jury to hear only that the prior offense involved a crime of dishonesty and that the court exclude evidence of the specific nature of the prior offense. She argued that the nature of the prior offense should be excluded as unduly prejudicial because that offense was similar to the current offense. The court denied this request.
At the end of Meyers' direct, defense counsel questioned him about the prior conviction. Meyers testified that he had a prior TMVWOP conviction and that he had committed that offense around October 2, 2004. On cross-examination, Meyers further testified that he had been convicted of the prior offense on November 17, 2004, and that he was in jail until shortly before Thanksgiving. At defense counsel's request, the trial court provided the jury with a limiting instruction stating that the jury could only consider the prior offense evidence for weight and credibility purposes.
The instruction stated:
Evidence that the defendant has previously been convicted of crime is not evidence of the defendant's guilt. Such evidence may be considered by you in deciding what weight or credibility should be given to the testimony of the defendant and for no other purpose. CP 27.
The jury convicted Meyers on the attempted first degree robbery and returned a special verdict stating that he was armed with a deadly weapon at the time of the offense. Meyers appeals.
DISCUSSION
I. Sufficiency of the Evidence
Meyers first argues that the evidence was insufficient to support his conviction for first degree robbery or the deadly weapon enhancement. In reviewing whether evidence is sufficient to support a criminal conviction, we evaluate `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.' State v. Gentry, 125 Wn.2d 570, 596-97, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995) (citations omitted).
To establish attempted first degree robbery, the State had to prove beyond a reasonable doubt that Meyers took a substantial step toward taking personal property from the person or in the presence of another against that person's will by the use or threatened use of immediate force, violence, or fear of injury to that person or to that person's property and that he was armed with a deadly weapon during the offense. RCW 9A.28.020; RCW 9A.56.190; RCW 9A.56.200(1)(a)(i). The `force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial.' RCW 9A.56.190; see also CP at 21; Instr. 7. To prove the deadly weapon enhancement, the State had to prove beyond a reasonable doubt that Meyers committed the offense while armed with a deadly weapon. RCW 9.94A.535(4). A person is armed with a deadly weapon for purposes of a deadly weapon enhancement if the evidence establishes that the weapon was `easily accessible and readily available for use, either for offensive or defensive purposes,' and that there was a nexus between the defendant, the offense, and the weapon. State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993) (citing State v. Sabala, 44 Wn. App. 444, 723 P.2d 5 (1986)); State v. Mills, 80 Wn. App. 231, 236, 907 P.2d 316 (1995).
Meyers does not argue that the knife was not a deadly weapon for purposes of the deadly weapon enhancement.
Meyers admits that when he entered the shed and uncovered the car he intended to take the car and that this intent remained the same until Fields confronted him. He asserts, however, that there is no evidence that he attempted to take the car by the use or threatened use of immediate force, violence, or fear of injury or that he was armed with a deadly weapon during the commission of the offense because he abandoned his plan to take the car when Fields confronted him and before he pulled the knife. He argues that the evidence establishes this because he pulled the knife only after he told Fields that he would gather his tools and leave. We disagree.
Although Meyers' testimony supports his argument, a rational trier of fact could also conclude, based on Fields' testimony, that Meyers told Fields he would gather his tools and leave as a ruse to obtain the knife in order to intimidate Fields into allowing him to leave with the car. The jury was not required to believe Meyers' testimony, and we will not review this credibility determination. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004) (citing Stiley v. Block, 130 Wn.2d 486, 501-02, 925 P.2d 194 (1996)). Because the evidence taken in the light most favorable to the State was sufficient to establish that Meyers attempted to take the car by threatened use of immediate force, violence, or fear of injury, and that he armed himself with the knife for the purpose of facilitating this crime, Meyers' insufficiency arguments fail.
II. Prior Conviction
Meyers next contends that he received ineffective assistance of counsel because his defense counsel introduced evidence of his prior TMVWOP conviction rather than moving to exclude this evidence. Citing State v. Saunders, 91 Wn. App. 575, 958 P.2d 364 (1998), and State v. Escalona, 49 Wn. App. 251, 742 P.2d 190 (1987), he argues that this evidence was unduly prejudicial because it was similar to the crime charged and that the trial court would have excluded this evidence had his counsel made the proper motion. This argument has no merit.
To establish ineffective assistance of counsel, Meyers must show that (1) his counsel's performance was deficient, and (2) counsel's deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Meyers must overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. To show prejudice, he must establish `there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.' McFarland, 127 Wn.2d at 335.
Evidence rule (ER) 609(a)(2) provides that evidence of a prior criminal conviction is admissible for the purpose of attacking a witness's credibility if the prior conviction `involved dishonesty or false statement, regardless of the punishment.' The offense of TMVWOP is a crime of dishonesty that is per se admissible under ER 609(a)(2) for the purpose of attacking a witness's credibility. State v. Teal, 117 Wn. App. 831, 843, 73 P.3d 402 (2003), aff'd, 152 Wn.2d 333 (2004); State v. Roche, 75 Wn. App. 500, 506, 878 P.2d 497 (1994) (citing State v. Trepanier, 71 Wn. App. 372, 381, 858 P.2d 511 (1993)). Because the TMVWOP conviction was admissible under ER 609(a)(2), defense counsel's failure to move to exclude evidence of this prior conviction did not amount to deficient performance. Furthermore, to the extent Meyers is also arguing that his counsel's performance was deficient because she failed to move to exclude evidence of the nature of the offense has no merit because the record clearly shows that defense counsel made this motion.
Meyers also appears to argue that his trial counsel's performance was deficient because she introduced evidence of the prior offense on direct. `[T]he preemptive strategy of introducing such evidence in direct examination after losing a battle to exclude it' is a legitimate trial tactic designed to lessen the impact of the evidence. See Teal, 117 Wn. App. at 843. Accordingly, Meyers cannot establish ineffective assistance of counsel on this basis.
Finally, to the extent Meyers is also asserting that the trial court erred in denying defense counsel's request to exclude evidence of the nature of the prior offense as unduly prejudicial, that argument also fails. Although excluding evidence of the nature of the prior offense may lessen any potential prejudicial impact and such an approach has been allowed with ER 609(a)(2) evidence, see State v. Rivers, 129 Wn.2d 697, 704, 921 P.2d 495 (1996) (citing State v. Gomez, 75 Wn. App. 648, 655, 880 P.2d 65 (1994)), Meyers cites no authority stating that the trial court must balance the prejudicial and probative nature of such evidence. See State v. Brown, 113 Wn.2d 520, 532-33, 782 P.2d 1013 (1989) (evidence admitted under ER 609(a)(2) `is automatically admissible for impeachment purposes; the trial court does not engage in a balancing of probative value against prejudicial effect.') (citing State v. Jones, 101 Wn.2d 113, 117, 677 P.2d 131 (1984), overruled in part on other grounds by Brown, 113 Wn.2d at 554).
Furthermore, even if the trial court was required to consider the prejudicial nature of this evidence, it would not have erred in finding it was not unduly prejudicial. Unlike the cases Meyers cites, Saunders and Escalona, here the evidence of the prior offense was admissible under ER 609(a)(2) as a crime of dishonesty. Additionally, in Saunders and Escalona the current and prior offenses were much more closely related than they are here. In Escalona, both the prior and current offense were assaults with a knife, 49 Wn. App. at 252-53; and in Saunders, both the prior and current offense were drug offenses, 91 Wn. App. at 577. Here, the prior offense was for TMVWOP, but the current charge was attempted first degree robbery. Although the robbery was based on Meyers' attempt to take Erion's car without permission, he admitted at trial that when he entered the shed he intended to take the car and that he had not obtained Erion's permission to take the car, and the prior TMVWOP conviction in no way suggested that he had a history of attempting to take cars or any other property from others by force or threat.
Given Meyers' admissions and the aspects of the current case that are dissimilar to a simple TMVWOP, the trial court did not err in refusing to exclude evidence of the nature of the prior offense.
Finding no error, 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.
QUINN-BRINTNALL, C.J. and ARMSTRONG, J., concur.