Opinion
No. 35602-3-II.
July 8, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-1-00531-4, Gary R. Tabor, J., entered October 20, 2006.
Affirmed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Kevin Moore appeals his conviction of two counts of delivery of cocaine. He argues that the trial court erred (1) by denying his motions for mistrial based on prejudicial statements by a witness and the prosecutor in contravention of the trial court's order in limine, (2) by allowing the jury to consider a school bus route stop enhancement when the amended information did not allege all necessary elements, and (3) in calculating his offender score during sentencing. We affirm.
FACTS
On April 7, 2004, the State charged Moore by information with two counts of delivery of a controlled substance. The information included the following language: "[T]he aforesaid offense did occur within one thousand feet of a school bus route stop designated by the school district." Clerk's Papers (CP) at 4.
On July 21, 2005, the State filed its first amended information. The amended information charged Moore with two counts of unlawful delivery of cocaine, but it did not mention a school bus route stop enhancement.
On February 13, 2006, the State filed its second amended information. That information alleged that Moore had sold cocaine "within 1000 feet of a designated school bus route stop." CP at 44. The second amended information did not denote whether the school district specifically had designated the school bus stop.
After Moore's first trial ended in a mistrial, his second trial began in May 2006. Early in the proceedings, he moved in limine, asking the trial court to exclude statements by the State's witnesses regarding "evidence of [his] prior drug dealing." I Report of Proceedings (RP) (May 10-12, 2006) at 29. Specifically, he sought to prevent both the State's confidential informant (CI) and Detective Adam Seig from making any statements during their testimony that would imply his "prior drug dealing and prior bad acts." I RP (May 10-12, 2006) at 29. The trial court granted Moore's motion. In so ruling, it stated that the prosecutor should instruct the CI to "carefully phrase" her testimony to avoid saying that Moore was her "source" or to otherwise imply prior bad acts on his part. I RP (May 10-12, 2006) at 32.
Although the Report of Proceedings dates the trial as March 10-12, the table of contents and resolution date clarifies that the trial took place on May 10-12.
At trial, the State presented evidence and testimony recounting the CI's controlled purchase of cocaine from Moore, including audio and video recordings of the transaction. During the CI's direct examination, she and the prosecutor had the following exchange:
Q. Now, what was your understanding as your job as a CI? You already intimated that you had to buy from certain people. Were these targets that the task force identified for you, or did you identify them?
A. No, I identified them.
Q. Why did you identify them?
A. Because that was my person that I was getting it from anyways.
II RP (May 10-12, 2006) at 274. Moore objected and the trial court asked the jury to disregard the statement. Moore later moved for a mistrial. Although the trial court found that the CI's statement violated the order in limine, it believed the jury would follow its instruction to disregard the CI's statement. The trial court denied Moore's motion.
During closing argument, the prosecutor made the following characterization of a portion of the CI's testimony:
And what did she tell you? She told you I worked for the task force. I hadn't worked for anybody else but the task force. This is the first time I've worked and I made a deal with them. I made a deal to do two buys, and my job was to purchase crack cocaine from somebody I knew I could purchase crack cocaine from, and she identified Kevin Moore.
III RP (May 10-12, 2006) at 404. Moore objected and asked that the prosecutor's argument be stricken from the record. The trial court replied, "This will be for the jury to consider. You may argue as you choose. . . . This is argument. The jury will evaluate argument as they see fit." III RP (May 10-12, 2006) at 404.
Moore again moved for mistrial because of the prosecutor's "egregious, prejudicial" reference to the CI's testimony. III RP (May 10-12, 2006) at 477. The trial court denied the motion, stating,
I agree with [the prosecutor] that in her closing argument her statement was different than that previously made by [the CI]. . . .
It's quite clear that [the CI] did not simply open the phone book, close her eyes and point her finger at a name and pick the person that she would have contact with. . . .
In this particular case, the [prosecutor's] statement that [the CI] could purchase from a person . . . [that the CI] needed to identify, and she identified Kevin Moore, it was her plan.
III RP (May 10-12, 2006) at 479-80. The jury convicted Moore on both counts of unlawful delivery of a controlled substance and found that both counts were within 1,000 feet of a school bus route stop.
At Moore's sentencing, the trial court included six alleged prior convictions in determining his offender score. He did not object to the inclusion of his prior convictions. The trial court sentenced him to 100 months on the underlying offense and 24 months for the school bus route stop enhancement.
Moore appeals.
ANALYSIS Motions for Mistrial
Moore first argues that the trial court erred in denying his motions for mistrial. Mistrial is appropriate only when the defendant has been so prejudiced that nothing short of a new trial can guarantee a fair trial. State v. Jungers, 125 Wn. App. 895, 901-02, 106 P.3d 827 (2005).
We review the trial court's denial of a motion for a mistrial for abuse of discretion. Jungers, 125 Wn. App. at 902. A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
Moore argues that the "prejudice [from the CI's statement] is self-evident, which precluded the jury from making a fair determination of [his] guilt or innocence." Appellant's Br. at 9. He further argues that any limiting instruction by the trial court did not alleviate the prejudicial effect of the CI's testimony. Finally, he contends that the State's reference to the CI's statements during closing argument exacerbated this prejudice against him in the minds of the jury.
Here, the trial court did not abuse its discretion in denying Moore's motions for mistrial. The prosecutor explored in detail with the jury the process and mechanics of controlled buys conducted by confidential informants. Given the nature of controlled buys, any passing reference during testimony or argument implying the CI had previously purchased drugs from Moore does not reach a level of prejudice that demands mistrial. Thus, the trial court did not err in denying Moore's motions.
Further, even if we were to assume error by the trial court, such error would be harmless. Evidentiary error is grounds for reversal when, had the error not occurred, there is a reasonable probability the outcome of the trial would have been materially affected. State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986). Improper admission of evidence is harmless if it is of minor significance compared to the overall, overwhelming evidence as a whole. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
Given the CI's extensive testimony regarding the transactions, as well as audio and video recordings of both transactions, any brief statement implying that Moore and the CI previously transferred controlled substances did not reasonably affect the outcome of the trial. As such, any error is harmless.
Information
Moore next argues that the amended information failed to allege all the elements of a school bus route stop enhancement and, as a result, the information did not apprise him with definiteness and certainty of each element of the charged offense. Citing State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992) and State v. Kitchen, 61 Wn. App. 915, 916-17, 812 P.2d 888 (1991), Moore argues that the defective information requires reversal and dismissal for failing to state that a school bus route stop must be "designated by the school district," although he acknowledges that the trial court included such language in its jury instructions and special verdict forms. Appellant's Br. at 13.
All essential elements of a crime must be included in the charging documents to apprise the defendant of the charges against him. Hopper, 118 Wn.2d at 155. We liberally construe charging documents in favor of validity when, as here, the accused first raises the issue on appeal. State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). The test for the liberal interpretation of the charging document is whether necessary facts appear in any form or may be found by fair construction and, if so, whether the defendant can show that inartful language failed to notify him or her of one or more elements. Kjorsvik, 117 Wn.2d at 105-06.
Here, the information notified Moore that the State would be charging him for unlawful delivery of a controlled substance "within 1000 feet of a designated school bus route stop." CP at 44. Under a fair construction of the information, it contained all essential elements of the charged crime and provided notice of the enhancement. Although it did not include whether the "school district," as opposed to some other governmental entity, had "designated" the bus stop, it did provide Moore notice of the essential elements of (1) unlawful delivery of a controlled substance (2) within 1,000 feet of (3) a "designated" school bus route stop. CP at 44; see RCW 69.50.435(1)(c). "Designated" clearly implies that the offense occurred within 1,000 feet of an officially recognized school bus route stop. Thus, because the information provided Moore sufficient notice of the essential elements under a fair construction, it satisfies the first prong of the Kjorsvik test. And with respect to the second prong of the Kjorsvik test, Moore has not provided argument that he was "nonetheless actually prejudiced by the inartful language" from the information. 117 Wn.2d at 106. Therefore, his argument challenging the validity of the information fails.
Offender Score
Moore next argues that the trial court erred in including six prior criminal convictions when it determined his offender score for purposes of sentencing. Although he did not object at his sentencing hearing, a criminal defendant may challenge an erroneous sentence for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). We review the calculation of an offender score de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003).
Generally, the State has the burden to "introduce evidence of some kind to support the alleged criminal history." Ford, 137 Wn.2d at 480. The State must show a defendant's prior criminal history by preponderance of the evidence. RCW 9.94A.500(1).
Moore argues that former RCW 9.94A.530(2) (2002) required, for prior convictions to count toward a defendant's offender score, that one of the following must occur: the State prove the prior convictions, the defendant admit to the convictions, or the defendant "acknowledge[] the prior convictions by failing to object to their inclusion in a presentence report." Appellant's Br. at 15. He argues that because none of these happened at his sentencing hearing, the trial court erred in calculating his offender score.
The legislature recently amended RCW 9.94A.530. Laws of 2008, ch. 231, § 4.
At the sentencing hearing, the State presented a recitation of Moore's criminal history. As noted, he did not object. Additionally, Moore's counsel stipulated that Moore had been in community custody at the time of the offense, thereby adding a point to his offender score. Later during the hearing, Moore's counsel stated, "I've known [Moore] for quite a while, I've known his family for quite a while, and I can only agree with, while acknowledging he has a significant criminal history as well outlined by [the State], I can only agree that with a number of other people who submitted letters to the Court; that while he does have that sort of criminal history, he's also done a lot of good in his life." RP (Oct. 20, 2006) at 10. Thus, in addition to not objecting to the State's version of Moore's criminal history, this statement "acknowledging" his criminal history as presented by the State, together with the earlier stipulation regarding his community custody, acts as an admission of Moore's criminal history under former RCW 9.94A.530(2). As a result, the trial court did not err by including Moore's prior convictions when calculating his offender score.
According to former RCW 9.94A.530(2),
In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgment includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence.
We note that the recently amended RCW 9.94A.530(2) expands the scope of "acknowledgment" to include "not objecting to criminal history presented at the time of sentencing." Laws of 2008, ch. 231, § 4.
Statement of Additional Grounds
RAP 10.10.
In his statement of additional grounds, Moore raises eight additional issues. In summary, he asserts error arising from: (1) ineffective assistance of counsel, (2) the trial court's ruling not accepting his affidavit of prejudice, (3) the trial court's comments that affected his right to an impartial jury, (4) the trial court's denial of a motion for mistrial, (5) an unwilling witness for the State, (6) prosecutorial misconduct, (7) certain evidence admitted, and (8) cumulative error. After review, we find no reversible error.
Moore first challenges the effectiveness of his trial counsel. To prove ineffective assistance of counsel, appellant must show that counsel's deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 322, 225-26, 743 P.2d 816 (1987). We give great judicial deference to trial counsel's performance and have a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 332, 335, 899 P.2d 1251 (1995).
Moore argues that his counsel's statements to the trial court of being unprepared for trial show that his counsel was ineffective. The trial court found counsel's arguments seeking a continuance unpersuasive.
First, the trial court noted that Moore's counsel had previously tried the same matter. Further, the trial court noted counsel's access to police reports belied his assertions that he had not had a chance to interview the State's witness. We agree. Moore has not overcome the strong presumption that his counsel's performance met an objective standard of reasonableness; nor has he shown, given the extent of evidence against him, any prejudice. The trial court did not err in denying trial counsel's motion for continuance.
Issue two essentially is a challenge of the trial court's decision to deny Moore's affidavit of prejudice. RCW 4.12.050 requires a party or attorney to file an affidavit of prejudice "before the judge presiding has made any order or ruling involving discretion." Here, Moore filed his affidavit of prejudice after the trial court's December 16, 2004 order that continued his trial and scheduled both an omnibus hearing and settlement conference. The trial court correctly ruled that he did not timely file his affidavit of prejudice and Moore's argument fails.
The record before us does not include the trial court's December 16, 2004 order.
Regarding the third issue, Moore argues that some of the trial court's statements outside the presence of the jury nevertheless affected its ability to be impartial. We disagree. The jury never heard the trial court's on the record statements to counsel regarding an earlier off the record sidebar with Moore's counsel. Further, the trial court gave Moore's counsel extra peremptory challenges to minimize any apparent effect on potential jurors of the trial court having "[told] the jury that we wouldn't be able to select a jury." I RP (May 10-12, 2006) at 21. According to the trial court, Moore's counsel used his extra peremptory challenges and none of the jurors who had expressed reluctance to hear drug cases would serve on the jury. Because nothing indicates that the jury heard any of these conversations between the trial court and counsel, no statements by the trial court acted to influence Moore's right to an impartial jury.
Moore next argues that a juror saw him in handcuffs and that the trial court erred in denying a motion for mistrial based on this alleged encounter. We review the trial court's denial of a motion for a mistrial for abuse of discretion. Jungers, 125 Wn. App. at 902. The trial court held a brief hearing on the matter and both the court and counsel questioned the bailiff, the juror in question, the police officer escorting Moore, and Moore himself.
The trial court denied the motion "based upon the testimony that I've heard." I RP (May 10-12, 2006) at 102. This included the juror's testimony that she did not see Moore and "could not identify anyone other than a uniformed officer" during the alleged encounter with him. I RP (May 10-12, 2006) at 102. We defer to the fact finder on credibility determinations and do not review them on appeal. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). Accordingly, Moore's argument fails.
Moore provides no authority supporting his fifth additional ground, an assertion that the State's witness was unwilling. It is a common practice for the State to provide assistance regarding a witness's outstanding charges in exchange for testimony. The trial court allowed Moore's counsel to question the witness regarding her motivations for testifying. Moore's argument fails.
Issue six involves allegations of prosecutorial misconduct. According to Moore, the prosecutor acted vindictively in a number of ways by: seeking new charges; making comments off the record and out of the courtroom indicating that the prosecutor believed Moore guilty; offering assistance to the CI in exchange for her testimony, described above; and seeking to impose a lengthy sentence. None of these contentions by Moore suggests improper actions or prosecutorial misconduct and his argument fails.
Moore next argues that his counsel made six chain of custody objections without any corresponding offer of proof by the State. We review the trial court's admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995).
Moore does not point to specific incidents in the record, and we do not discern a basis therein to support his assertion. Looking to one example, however, the State did present the testimony of Seig and Forensic Scientist Tami Kee, who both testified regarding the chain of custody of the cocaine retrieved from the CI after her controlled buy from Moore. Nothing in the record indicates that the trial court abused its discretion.
Moore's eighth and final additional ground alleges cumulative error. The cumulative error doctrine applies when several errors occurred at trial, but none alone warrants reversal. State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003). Instead, the combined errors effectively deny the defendant a fair trial. Hodges, 118 Wn. App. at 673-74. Moore bears the burden of proving "an accumulation of error of sufficient magnitude" to make retrial necessary. State v. Price, 126 Wn. App. 617, 655, 109 P.3d 27 (2005). Because Moore has not shown any error, his cumulative error argument fails.
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, J., concur.