Opinion
No. 36299-6-II.
February 3, 2009.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 07-1-00026-0, Gordon Godfrey, J., entered May 14, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
Laura Moeurn appeals his conviction and sentence for second degree assault with a deadly weapon enhancement. He argues that (1) the evidence was insufficient to prove he was the person who hit the victim; (2) prosecutorial misconduct in closing arguments deprived him of his right to a fair trial; and (3) the trial court miscalculated his offender score. We affirm.
Laura Moeurn is a male.
FACTS I. Assault
On January 12, 2007, Laura Moeurn went to the Captain's Corner bar with several friends. Inside the bar, members of Moeurn's group and another patron, Clayton Wenger, engaged in a confrontation when Moeurn began acting "like he wanted to fight." Moeurn and his friends left the bar but did not immediately leave the area.
Cody Ross and Clayton Wenger both testified that a person wearing a red shirt started the confrontation in the bar and that this was the same person who had hit Wenger with the two-by-four.
Shortly thereafter, Wenger and his friends exited the bar and began to fight with Moeurn's group outside in the alley. The fight broke up temporarily, but then resumed. At some point, Moeurn hit Wenger in the back of the head with a two-by-four piece of lumber. Crystal Barnett, who lives near Captain's Corner, observed the fight from her window and called the police.
The State played the 911 tape for the jury, but it is not part of the record on appeal.
When the police arrived, one of Wenger's friends, Steven Vetter, approached a police officer and identified Moeurn as the person who had hit Wenger with the two-by-four. The officer placed Moeurn in the back of his car. Barnett came outside and made a statement to police in which she described the assailant as an Asian or Native American male "wearing a gray shirt with a red shirt over it and wearing a baseball hat." 1 Report of Proceedings (RP) at 9. After taking Barnett's statement, the officer took her over to the police car in which Moeurn was sitting; when the officer shined his flashlight on Moeurn, Barnett identified Moeurn as the person who had struck Wenger with the board. The officer then took Moeurn out of the police car and advised him that he was under arrest for assault.
When Moeurn was booked, jail personnel placed the clothing he was wearing in a locker. Police subsequently seized the clothing to use as evidence, including a grey sweatshirt, a red T-shirt, and a black hat.
The trial court admitted these articles into evidence.
II. Procedure
The State charged Moeurn with second degree assault, while armed with a deadly weapon.
A. State's Case in Chief
At trial, several witnesses testified, with varying degrees of certainty, that Moeurn was Wenger's assailant. Barnett testified that she was "75 percent" certain she had identified the correct person. She explained that she was somewhat uncertain because "[i]n the time that [she] did not see that person they could have changed clothes, there could have been somebody else that looked exactly like him. It was dark. There's always a possibility when they leave your sight." 1 RP at 51-52. Barnett further testified that she did not see anyone else wearing "a red T-shirt on top of a gray hoody," other than the person she saw hit Wenger with the board. 1 RP at 47.
Barnett explained that a "hoody" is a hooded sweatshirt.
Vetter testified that (1) he was talking with Wenger when Wenger was hit by the two-by-four piece of lumber; (2) he (Vetter) saw the assailant well enough to get a look at the assailant's clothing, which was red; (3) he saw Wenger's assailant getting into a car as police officers were arriving; and (4) the police subsequently placed that same person, Wenger's assailant, in the patrol car.
Cody Ross, another friend of Wenger, testified that he recognized Moeurn as the person who had attacked Wenger with the two-by-four. When asked if he "positively recognize[d Moeurn's] face," Ross replied, "Not a hundred. Probably maybe 95 percent." 1 RP at 93. Ross also testified that (1) he had seen Moeurn sitting in the back of the patrol car the night of the incident; (2) he was certain the person in the patrol car was Wenger's assailant; and (3) there was no one else in the bar or in the alley who had worn a red shirt other than the person who struck Wenger with the board.
B. Defense Case
Moeurn and several of his friends testified for the defense. Moeurn testified that Kim Chum, another Asian male with them that night, had been wearing a red shirt and had blood on his hand. Mary Meas, Moeurn's girlfriend and the mother of his children, also testified that Chum had been wearing red; she had concluded that Chum had hit Wenger because Chum had been standing next to Wenger when Wenger was hit and Chum had blood on his hand after that. Three other witnesses, all friends of Moeurn, testified to essentially the same story.
C. Verdict and Sentencing
The jury found Moeurn guilty of second degree assault, while armed with a deadly weapon. Before sentencing, the prosecutor prepared a document titled "Statement of Prosecuting Attorney." In that statement, the prosecutor asserted that Moeurn had been previously adjudicated to have committed second degree attempt to commit assault, as a juvenile in 1994, and of driving without a valid operator's license, in February 1997. At the sentencing hearing, the State referred to this "Statement of Prosecuting Attorney" and requested that the court "ask the defendant at this time if he agrees to this criminal history or he would like better proof of it." 2 RP at 297. Moeurn's attorney replied, "I have spoken with Mr. Moeurn, and he does admit that it is true that he has the violation? the conviction stated by the State, and I myself have seen a certified copy of that, so I know it to be so." 2 RP at 297.
Based on Moeurn's prior juvenile attempted second degree assault adjudication, the trial court calculated an offender score of two, which yielded a standard range sentence of 12 months and 1 day to 14 months. The court sentenced Moeurn to 24 months confinement, including the 12-month deadly weapon enhancement.
Moeurn appeals his conviction and sentence.
ANALYSIS I. Sufficiency of the Evidence
Moeurn first argues that the evidence was insufficient to support the jury's finding beyond a reasonable doubt that he was the person who assaulted Wenger. Moeurn theorizes that another Asian male, who had been wearing clothing similar to Moeurn's, had committed the crime but had fled before the police arrived. Moeurn also contends that because the "neutral observer," Crystal Barnett, had stated on the witness stand that she was only 75 percent sure that Moeurn was the assailant, the jury could not find him guilty beyond a reasonable doubt.
Moeurn does not argue that the evidence is insufficient to support any other elements of the crime of second degree assault with a deadly weapon. Rather, he asserts only that someone else committed the crime.
Moeurn's argument fails.
A. Standard of Review
The test for determining the sufficiency of the evidence is whether a rational person, after viewing the evidence in the light most favorable to the State, could have found each element of the crime beyond a reasonable doubt. State v. Montgomery, 163 Wn.2d 577, 586, 183 P.3d 267 (2008) (citing State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980)). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Mines, 163 Wn.2d 387, 391, 179 P.3d 835 (2008); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385 (1980)).
We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, 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)).
B. Evidence Supporting Conviction
Crystal Barnett, Steven Vetter, and Cody Ross all testified that Moeurn was the person who hit Wenger in the back of the head with a two-by-four. Barnett and Ross both testified that no one else in the alley had been wearing clothing similar to the red shirt and grey sweatshirt that Moeurn was wearing.
Viewing the evidence in the light most favorable to the State and drawing all inferences in favor of the State, as we must, we hold that there is sufficient evidence to support the jury's finding beyond a reasonable doubt that it was Moeurn who assaulted Wenger with the two-by-four.
Because we defer to the jury on credibility determinations, the contrary testimonies of Moeurn and his friends — that Chum was also wearing red and had blood on him — do not alter this result. Thomas, 150 Wn.2d at 874-75. Nor does the fact that Barnett was only 75 percent sure of her identification of Moeurn require the jury to find reasonable doubt, especially in light of the other strong evidence identifying Moeurn as the assailant.
II. No Prosecutorial misconduct
Moeurn next argues that he is entitled to reversal of his conviction and a new trial because (1) in closing argument, the prosecutor misstated the law about the standard of proof, beyond a reasonable doubt; (2) these comments improperly shifted the burden of proof to him (Moeurn); and (3) although he did not object to the prosecutor's statements at trial, the comments were flagrant and ill-intentioned. We disagree.
A. Standard of Review
Generally, a defendant must object to an alleged error at trial when it can be corrected; otherwise, he fails to preserve the error for appeal. State v. Classen, 143 Wn. App. 45, 64, 176 P.3d 582 (citing State v. Fagalde, 85 Wn.2d 730, 731, 539 P.2d 86 (1975)), review denied, 164 Wn.2d 1016 (2008). "In order to establish prosecutorial misconduct, a defendant must show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial." State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008) (internal quotation marks omitted) (quoting State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003), review denied, 151 Wn.2d 1039 (2004)). Where the defendant does not object at trial, he must prove that the prosecutor's comments were so flagrant and ill-intentioned that a curative instruction would have been ineffective to cure the resulting prejudice. State v. Barajas, 143 Wn. App. 24, 38, 177 P.3d 106 (2007), review denied, 164 Wn.2d 1022 (2008); Classen, 143 Wn. App. at 64.
In Barajas, the prosecutor misstated the State's burden of proof for premeditation, saying that "the State merely had to prove that Mr. Barajas acted with the level of deliberation of a hungry dog trying to protect its food." Barajas, 143 Wn. App. at 38. In Classen, the prosecutor allegedly misstated the law by saying during closing arguments that "manslaughter is an accident." Classen, 143 Wn. App. at 63. In Barajas, Division Three of our court held, and in Classen, we held that a prosecutor's misstatement of the law in closing argument does not warrant remand for a new trial where (1) the defendant failed to object, and (2) the trial court properly instructed the jury. Barajas, 143 Wn. App. at 38; Classen, 143 Wn. App. at 64-65. In holding that a new trial was not warranted in Classen, we noted that jurors are presumed to follow the court's instructions. Classen, 143 Wn. App. at 64 n. 13 (citing State v. Daniels, 160 Wn.2d 256, 264, 156 P.3d 905 (2007)). Such is the case here.
B. Prosecutor's Comments Not Flagrant and Ill-Intentioned
Moeurn points to three separate statements during the prosecutor's closing argument that he believes constitute misconduct. None of these statements, however, meet the Barajas and Classen standard for a new trial: The prosecutor's statements were not so flagrant and ill-intentioned that a curative instruction would have been ineffective to cure the resulting prejudice.
The statements to which Moeurn objects for the first time on appeal are bolded in the following excerpts:
The first thing you've got to know is that everybody in this witness chair today deserves to be believed until they give themselves a reason to not be believed. If that — now, did that woman give you any reason yesterday to not be believed" In her cross-examination, they — re telling "or her telling of the story, did it ever seem to you that she was trying to modify her testimony to fit a story? Did it ever seem to you she wasn't genuinely trying to remember what was happening? Did the defense attorney give you a reason to doubt? There's some talk she might not be able to see it, about how would she be able to see anything? If she couldn't see, then she would just [be] making this up. Does that make any sense? But she did say, I saw the person who hit him, and he is the person in the gray hoody and the red shirt and the dark pants, and then for 15 seconds she lost sight of him. She went down and then she identified him.
2 RP at 256-57.
Now, she said 75 percent, and defense counsel might make — try to make some hay about this 75 percent. Remember, this isn't a math problem. We're talking about beyond a reasonable doubt. He'll talk about a civil standard, which is 51 percent, still a preponderance of the evidence. But beyond a reasonable doubt is a different standard. Now, in the jury instruction it states it different. This is in the last paragraph of the second instruction. It says that if you have been proven to have an abiding belief, you have been proven — this story has been proven beyond a reasonable doubt. So you don't need to worry about that. It's not a math problem. He's going to be saying 50 percent isn't good enough. Don't worry about 50 percent. What do you believe? Is it an abiding belief? An abiding belief is one you're going to take out of here. After all the testimony, after all the deliberations, most importantly, in the end you simply still just believe that he's guilty, that's an abiding belief.
2 RP at 257-58.
You're probably wondering how you're going to work this out. This is a situation where you're given two stories and they're mutually exclusive. Both of them can't be true. The defendant or was it Kim? One of these guys hit him. Right now you know what's going on. You have your belief, but you probably have your doubt. And then you're asking yourself, Well, does my doubt reach reasonable doubt? As I said before, you don't even have to worry about your doubt. Think about your duty. What do I believe? Don't ask yourself, am I reasonable? Just say, what do I believe? And you know, when you walk out of here, you have to know you did the right thing. When somebody asks you, So, what happened in there? Well, I voted guilty. I did the right thing. That's an abiding belief. But also don't worry about this reasonable person thing, this little fiction that lawyers talk about. You are reasonable people. That's why you were picked for jury duty. The only thing that matters is what you believe. Just look into your heart and you know what to believe.
2 RP at 262-63.
Moeurn argues that the prosecutor's closing comments warrant reversal because they were similar to those in State v. Flemming, 83 Wn. App. 209, 921 P.2d 1076 (1996), review denied, 131 Wn.2d 1018 (1997), in which Division One of our court ordered a new trial. In Flemming, the prosecutor argued, "[F]or you to find the defendants . . . not guilty, . . . you would have to find either that [D.S.] has lied about what occurred in that bedroom or that she was confused; essentially that she fantasized what occurred back in that bedroom." 83 Wn. App. at 213 (emphasis omitted). Division One cited State v. Casteneda-Perez, 61 Wn. App. 354, 362-63, 810 P.2d 74, review denied, 118 Wn.2d 1007 (1991), for the principle that "it is misconduct for a prosecutor to argue that in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken." Flemming, 83 Wn. App. at 213. The court held that the prosecutor's statement was "a flagrant and ill-intentioned violation of the rules governing a prosecutor's conduct at trial" because the prosecutor made the statements two years after Casteneda-Perez had held such statements impermissible. Flemming, 83 Wn. App. at 214.
The prosecutor in Flemming also made statements that Division One held improperly shifted the burden of proof to the defendants. Flemming, 83 Wn. App. at 214. Among other statements, the prosecutor stated, "[I]t's true that the burden is on the State. But you . . . would expect and hope that if the defendants are suggesting there is reasonable doubt, they would explain some fundamental evidence in this [matter]." Flemming, 83 Wn. App. at 214 (alterations and emphasis in original).
The prosecutor's comments here, however, did not similarly shift the burden of proof; nor were they so "flagrant and ill-intentioned" that they could not have been cured by an instruction if Moeurn had timely objected and so requested. On the contrary, the prosecutor's comments here more closely resemble those in Barajas and Classen, which did not warrant reversal and remand for a new trial.
C. Conclusion
Moeurn did not object to the prosecutor's closing arguments comments at trial; thus, he did not preserve the prosecutorial misconduct issue for appeal. And he does not meet the exception for reviewing this non-preserved alleged error because (1) the comments were not flagrant or ill-intentioned when taken in context of the entire trial; and (2) he fails to show that any claimed prejudice could not have been cured by an appropriate contemporaneous instruction, which he did not request.
Moeurn also argues that the prosecutor's closing remarks were improper because the Supreme Court disapproved of a jury instruction using the same "abiding belief language" in State v. Bennett, 161 Wn.2d 303, 165 P.3d 1241 (2007). Contrary to Moeurn's argument, in Bennett the Supreme Court approved, not disapproved, similar "abiding belief" language; and (2) specifically instructed trial courts to use the "abiding belief" instruction, which contains language similar to that used by the prosecutor in this case during his closing remarks. Bennett, 161 Wn.2d at 318.
Accordingly, we hold that the prosecutor's remarks do not entitle Moeurn to a new trial.
III. Offender Score
Last, Moeurn argues that (1) the trial court improperly calculated his offender score because it included a juvenile offense that had "washed out"; and (2) the State failed to prove he had been convicted of any offense within the five years preceding his commission of the instant crime. Rejecting the State's erroneous concession of error, we disagree with both Moeurn and the State.
A defendant's offender score does not include a prior conviction if the defendant has subsequently spent more than five consecutive years (for a Class C felony) or 10 consecutive years (for a Class B felony) in the community without committing a crime that results in a conviction. RCW 9.94A.525(2).
A. Standard of Review
We review the sentencing court's calculation of the offender score de novo. State v. Rivers, 130 Wn. App. 689, 699, 128 P.3d 608 (2005), review denied, 158 Wn.2d 1008 (2006), cert. denied, ___ U.S. ___, 127 S. Ct. 1882, 167 L. Ed. 2d 370 (2007). A defendant may challenge an illegal or erroneous sentence for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). A defendant cannot waive a challenge to a miscalculated offender score where the alleged error is a legal error leading to an excessive sentence. In re Personal Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d.618 (2002). But "waiver can be found where the alleged error involves an agreement to facts, later disputed[.]" Goodwin, 146 Wn.2d at 874.
B. Offender Score Calculation
The sentencing court calculates a defendant's offender score according to RCW 9.94A.525. Under former RCW 9.94A.525(2) (2007), prior Class B felony convictions are not included in the offender score if the defendant has spent ten consecutive years in the community without committing a crime that subsequently results in a conviction. Generally, a prior Class C felony is not included if the offender has spent five consecutive years in the community without committing a crime that results in a conviction. Former RCW 9.94A.525(2)(2007). But see RCW 9.94A.525(4), infra. These rules also apply to prior juvenile criminal adjudications.
Currently codified as RCW 9.94A.525(2)(b).
Currently codified as RCW 9.94A.525(2)(c).
Former RCW 9.94A.525(2)(2007).
Currently codified as RCW 9.94A.525(2)(f).
Moeurn argues that (1) because his previous juvenile for attempted second degree assault adjudication was a Class C felony, he was required to spend only five years in the community, without committing another crime resulting in a conviction, in order for his juvenile crime to be excluded from calculation of his offender score for the instant offense; and (2) his 1994 attempted assault adjudication "washed out" because, after his February 1997 conviction for driving without a license, he was crime free until he committed the current offense in January 2007, more than five years later. Without supporting explanation, the State concedes that use of Moeurn's prior juvenile adjudication was error. We disagree.
Moeurn is correct that under RCW 9A.28.020, attempt to commit a Class B felony is a Class C felony. But RCW 9.94A.525(4) requires "[s]cor[ing] prior convictions for felony anticipatory offenses (attempts, criminal solicitations, and criminal conspiracies) the same as if they were convictions for completed offenses." (Emphasis added.) Thus, contrary to Moeurn's assertions, because second degree assault is a Class B felony (RCW 9A.36.021), RCW 9.94A.525(4) requires that Moeurn's prior attempted second degree assault adjudication count as a Class B felony for offender score purposes.
As we note above, former RCW 9.94A.525(2) establishes a ten-year wash-out period for Class B felonies, thus requiring Moeurn to have spent ten consecutive years in the community without another conviction before his prior attempted second degree assault adjudication could wash out and be excluded from his current offender score calculation. Because Moeurn committed a new crime in February 1997, nine years and eleven months before committing the instant crime in January of 2007, his 1994 juvenile attempted assault adjudication did not "wash out." Therefore, we reject the State's concession of error on this point.
We hold that the trial court properly included Moeurn's 1994 juvenile adjudication when it calculated Moeurn's offender score and sentenced him for the instant 2007 second degree assault conviction.
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.
QUINN-BRINTNALL, J. and VAN DEREN, C.J., concur.