Opinion
No. 27369-1-II c/w 28309-3-II
Filed: August 5, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County Docket No: 00-1-01637-7 Judgment or order under review Date filed: 05/18/2001
Counsel for Appellant(s), P. Thomas Jr Adams, Longacre Adams, 569 Division St. Ste F, Port Orchard, WA 98366-4600.
Clayton Ernest Longacre, Attorney at Law, 569 Division St. Ste F, Port Orchard, WA 98366-4600.
Counsel for Respondent(s), Jon Jeffrey Walker, Kitsap Co Pros Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4691.
Dwayne Patterson appeals his convictions of unlawful possession of a controlled substance and bail jumping, arguing various trial court errors. We affirm.
FACTS
On November 19, 2000, Bremerton Police Officers David Litts and Randy Plumb were on patrol in a marked police car. The officers observed a woman, Felicity Hoffman, to their knowledge a prostitute, contact a vehicle at the intersection of 15th Street and North Montgomery Avenue in Bremerton. When Hoffman flagged down the car, it made a u-turn and stopped by her. She approached and talked to the occupants of the car.
The officers pulled up behind the stopped vehicle. When Hoffman saw the police car, she walked away. Litts approached the car, while Plumb approached Hoffman.
Litts identified Brenda Bryant, to his knowledge also a prostitute, as the passenger and Patterson as the vehicle's driver. Litts talked to Bryant and then spoke briefly with Patterson, whose story conflicted with Bryant's.
The officers received identification from Patterson, Hoffman, and Bryant in order to write a field interview report. Litts also checked for outstanding warrants on the group. Bryant and Hoffman did not have any outstanding warrants, so Litts released all three. But a few minutes after the officers released him, they learned that Patterson had an outstanding arrest warrant.
The officers then sought fellow officer William Endicott's assistance, and they drove to the address Patterson had provided during the stop. The property owner, Gerald English, let Litts enter the residence and took him to Patterson's room.
English knocked on Patterson's door and told him that the police were there to see him. Litts heard a male voice in the room say, `Oh, shit.' Report of Proceedings (RP) 3/06/01 at 15. Litts thought he smelled crack cocaine. Patterson opened the door, and Litts arrested him on the outstanding warrant. After entering the room, Litts also arrested Bryant for cocaine possession.
Meanwhile, Endicott and Plumb had gone to the back of the residence to prevent Patterson from escaping. Endicott looked into a window that was partially covered by a sheet or a pillow case. Endicott saw Bryant and Patterson inside the room and observed Patterson heating up what appeared to be a glass tube commonly associated with cocaine or methamphetamine.
The State charged Patterson with cocaine possession. When the court called the matter for trial on January 24, 2001, Patterson did not appear. Defense counsel told the court that Patterson had transportation problems.
The trial court issued a bench warrant and Plumb arrested Patterson on January 29. The State then filed an amended information charging Patterson with unlawful possession of a controlled substance (count I) and bail jumping (count II) for failing to appear on January 24.
A violation of RCW 69.50.401(d).
A violation of RCW 9A76.170(1).
On March 6, the trial court heard Patterson's motion to suppress evidence obtained as a result of the traffic stop and subsequent events. Litts and Plumb testified at the suppression hearing and stated that they knew Hoffman was a prostitute. They said that the corner of 15th Street and North Montgomery Avenue was a stay out of area of prostitution (SOAP) order area. And according to Litts, once someone has been convicted as a prostitute, that person receives a SOAP order and may not loiter in SOAP areas.
CrR 3.6 states:
(a) Pleadings. Motions to suppress physical, oral or identification evidence, other than motion pursuant to rule 3.5, shall be in writing supported by an affidavit or document setting forth the facts the moving party anticipates will be elicited at a hearing, and a memorandum of authorities in support of the motion. Opposing counsel may be ordered to serve and file a memorandum of authorities in opposition to the motion.
The court shall determine whether an evidentiary hearing is required based upon the moving papers. If the court determines that no evidentiary hearing is required, the court shall enter a written order setting forth its reasons.
(b) Hearing. If an evidentiary hearing is conducted, at its conclusion the court shall enter written findings of fact and conclusions of law.
Litts testified that `I noticed the vehicle was stopped in the roadway and there was a female who was a known prostitute contacting [it].' RP 3/6/02 at 8. Plumb testified that `Litts and I were in a patrol car together and in the area of 15th and Callow and observed a vehicle in that area being contacted by a female that we know to be a prostitute in the area of Bremerton.' RP 3/6/01 at 41.
Litts also testified that based on the circumstances of the situation and his experience, he believed that a prostitution solicitation took place. He described the situation as: `Ms. Hoffman was on the corner. I observed her flag the car. I observed the car stop, and I observed Ms. Hoffman walk up to the vehicle and talk to the occupants of the vehicle.
At that point when she saw the patrol car, she immediately walked away from the vehicle, which led me to believe that prostitution was in progress at that time.' RP 3/06/01 at 13.
The trial court denied the motion to suppress, concluding '[t]hat the officers had reasonable articulable suspicion to contact the Defendant and ask him to identify himself. The officers saw conduct consistent with prostitution when they saw a known prostitute contacting the Defendant and the passenger in his vehicle.' Clerk's Papers (CP) at 25.
The State asserts that this conclusion is instead a finding of fact. We agree and review a finding of fact erroneously described as a conclusion of law as a finding of fact. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986).
At the conclusion of trial, defense counsel sought to instruct the jury that bail jumping is not a `per se' crime and that it requires intentional failure to appear. The trial court declined to give the proposed instruction.
On March 30, a jury convicted Patterson of both counts. Patterson appealed on grounds of pretrial and trial error.
Patterson later moved to vacate his judgment and sentence under CrR 7.8 and for a new trial under CrR 7.5. In support of his motion, Patterson submitted his investigator's declaration that (1) the corner of 15th and Montgomery was not in a SOAP area, and (2) the Bremerton City Clerk's Office had no record of prostitution convictions or SOAP orders pertaining to Hoffman. He argued that this evidence was newly discovered evidence establishing that Officers Litts and Plumb falsely testified and that it required vacation or a new trial.
Throughout the proceedings, Patterson incorrectly refers to CrR 7.6 as the basis for his new trial. CrR 7.5 sets forth the rules for new trials.
Patterson raised the arguments in the alternative, noting that vacation of the judgment moots the need for a new trial.
Finding that the `facts alleged [did] not establish grounds for relief' and that the new trial motion was untimely, the trial court denied the motions. CP at 120. Patterson appealed the trial court's order.
We consolidated Patterson's two appeals.
ANALYSIS
Motion to Vacate
Patterson first contends that the trial court erred in denying his motion to vacate judgment under CrR 7.8(b)(3). He argues that Litts and Plumb perpetrated a fraud on the court during the CrR 3.6 hearing by falsely testifying that Hoffman was a known prostitute and that the investigatory stop occurred in a SOAP area. He argues that absent the officers' perjured testimony, insufficient evidence justified the investigatory stop that eventually led to Patterson's arrest and contends that the trial court should have vacated the judgment and `grant[ed] de novo review of defendant's motion to suppress based upon the . . . March 6, 2001, suppression hearing absent Officer Litts' and Plumb's false testimony.' CP at 94.
CrR 7.8 states: '(b) On motion and upon such terms as are just, the court may relieve a party from final a judgment, order, or proceeding for the following reasons: . . . (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;'
We review a trial court's decision on a motion to vacate judgment for abuse of discretion. State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996). A court abuses its discretion when it exercises it on untenable grounds or for untenable reasons. State v. ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The State concedes that the contact between the officers and Hoffman, Bryant, and Patterson did not occur in the SOAP area, but rather several blocks away. Nevertheless, the State argues that Patterson fails to establish that the officers intentionally misled the court as to the SOAP area or Hoffman's status as a prostitute.
We begin by noting that although Litts testified that he had never arrested anyone for prostitution at 15th and Montgomery, he had arrested several within a few blocks. This testimony indicates mistake rather than intentional falsehood. And we further note that the officers' varying testimony that Hoffman was a known prostitute or known to them as a prostitute despite her having no Bremerton prostitution convictions does not establish fraud. The trial court did not abuse its broad discretion in denying Patterson's motion to vacate the judgment and sentence.
Motion for a New Trial
Patterson further contends that the trial court erred in denying his motion for new trial under CrR 7.5(a)(3) as untimely. He asserts that his trial counsel was taken by surprise regarding issues of the SOAP and Hoffman's known prostitute status. He argues that when counsel learned about the incorrect SOAP boundary and `known prostitute' status seven months after trial, he promptly moved for a new trial.
We review the decision to grant or deny a new trial for abuse of discretion. State v. Marks, 71 Wn.2d 295, 302, 427 P.2d 1008 (1967). CrR 7.5(b) states: `A motion for new trial must be served and filed within 10 days after the verdict or decision,' but '[t]he court on application of the defendant or on its own motion may in its discretion extend the time.' And under the statute, a motion for new trial can be filed more than one year after a valid judgment if the motion is solely based on newly discovered evidence and if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion. RCW 10.73.100(1); see also CrR 7.5(a)(3).
Here, Patterson learned about the SOAP boundary and Hoffman's known prostitute status at the March 6, 2001 suppression hearing. He filed his motion for new trial over seven months after the suppression hearing. Patterson is correct that he could not have produced evidence regarding the SOAP area and Hoffman's status with reasonable diligence at the suppression hearing because he was unaware of these issues. But the issues were apparent after the hearing. And his decision to concentrate on other matters does not show reasonable diligence. There is no evidence in the record that Patterson could not have obtained the information, or that the information was unavailable, at or near the time of the suppression hearing. The trial court did not abuse its discretion in denying Patterson's motion. Jury Instructions
Finally, Patterson contends that the trial court erred in declining to give his proposed bail jumping instruction:
Bail jumping is not a `per se' crime. A defendant is not guilty of Bail Jumping if the defendant did not intentionally fail to appear when required to do so. The burden is on the defendant to prove by a preponderance of the evidence that defendant did not intentionally fail to appear when required to do so. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true.
CP at 49 (emphasis added). In support, he cited State v. Duffey, noted at 91 Wn. App. 1037 (1998), review denied, 137 Wn.2d 1020 (1999), an unpublished opinion.
We review a trial court's decision to reject a party's jury instruction for an abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (citing State v. Pesta, 87 Wn. App. 515, 524, 942 P.2d 1013 (1997)), review denied, 136 Wn.2d 1021 (1998). Jury instructions are sufficient if they permit each party to argue his or her theory of the case; are not misleading; and, when read as a whole, properly inform the jury of the applicable law. Picard, 90 Wn. App. at 902.
At trial, the only discernable defense that Patterson asserted for his bail jumping charge was that he had `transportation problems' on the day he was supposed to appear. II RP at 182. Patterson argued to the trial court and now on appeal that his due process rights were denied because according to the plain meaning of the statute, he could not present the defense that he did not intentionally commit the act of bail jumping.
The State called as a witness Tim Kelly, who formerly represented Patterson in this matter. He testified that Patterson informed him that he was having some transportation problems and would not be able to make it to court. Gwen Warren, the Kitsap County Court Clerk, testified that she wrote in her clerk's notes that `Mr. Kelly advised that he spoke with his client yesterday and advised he may have transportation problems.' II RP at 182.
In declining to give Patterson's proposed instruction, the trial court properly refused to consider Duffey, an unpublished opinion. State v. Fitzpatrick, 5 Wn. App. 661, 668, 491 P.2d 262 (1971) (`We therefore hold that unpublished opinions of the Court of Appeals will not be considered in the Court of Appeals and should not be considered in the trial courts.'), review denied, 80 Wn.2d 1003 (1972). The trial court then correctly advised Patterson that he could present his defense that he did not knowingly fail to appear in closing argument.
Finally, the trial court noted that Patterson provided no competent legal authority for his proposed instruction that intent was a culpability factor under the bail jumping statute. We agree with the trial court's reasoning.
The court stated, `the legislature establishes the different levels of culpability with intent, knowledge, negligence and recklessness, and the legislature has established knowledge as the culpability factor for bail jump, and that's what the statute is, and the court will refuse the instruction to expand the statute to suggest there's an intent element involved.' III RP at 264.
At the time Patterson committed his offense, the bail jumping statute provided that '[a]ny person having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before any court of this state, and who knowingly fails to appear as required is guilty of bail jumping.' Former RCW 9A.76.170(1) (2000). Hence, the elements of bail jumping are that the defendant: '(1) was held for, charged with, or convicted of a particular crime; (2) was released by court order or admitted to bail with the requirement of a subsequent personal appearance; and (3) knowingly failed to appear as required.' State v. Malvern, 110 Wn. App. 811, 813-14, 43 P.3d 533 (2002).
In 2001, the legislature amended the statute to include a section for affirmative defenses. Laws of 2001, ch. 264, § 3. But the 2001 version of the statute took effect on July 1, 2001. Laws of 2001, ch. 264, § 9.
The State charged Patterson with bail jumping on January 24, 2001. The law in effect at the time the crime was committed controls the disposition of the case. State v. Edwards, 104 Wn.2d 63, 70, 701 P.2d 508 (1985) (quoting Johnson v. Morris, 87 Wn.2d 922, 927, 557 P.2d 1299 (1976)). The 2000 statute controls.
By statute, `a person knows or acts knowingly or with knowledge when:
(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.' RCW 9A.08.010(1)(b). The statute provides a different definition for intent: `A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.' RCW 9A.08-.010(1)(a).
Thus, under former RCW 9A.76.170(1), the State was required to prove beyond reasonable doubt that defendant knew, or was aware, that he was required to appear at scheduled hearing. State v. Ball, 97 Wn. App. 534, 536, 987 P.2d 632 (1999). The trial court essentially defined knowledge and knowingly the same as the statute and it set forth the bail jumping statute in its instructions. See 11 Washington Pattern Jury Instructions:
Former RCW 9A.76.170(1) stated: '(1) Any person having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before any court of this state, and who knowingly fails to appear as required is guilty of bail jumping.'
The jury instruction stated, `A person commits the crime of bail jumping when she knowingly fails to appear as required after having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before a court.' CP at 65.
Criminal, 10.02, at 150 (2d ed. 1994). The trial court properly instructed the jury.
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 and SEINFELD, JJ., concur.