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State v. Rainey

The Court of Appeals of Washington, Division Three
Mar 22, 2007
137 Wn. App. 1050 (Wash. Ct. App. 2007)

Opinion

No. 24827-5-III.

March 22, 2007.

Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-01646-0, Linda G. Tompkins, J., entered December 1, 2005.

Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA, 99201-2018.

Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA, 99260-2043.


Affirmed by unpublished opinion per Kato, J. Pro Tem., concurred in by Sweeney, C.J., and Brown, J.


Shawn Rainey was charged in one case with felony stalking and telephone harassment and in another case with first degree kidnapping or, in the alternative, first degree custodial interference. The two cases were consolidated for trial. A jury convicted Mr. Rainey of telephone harassment and first degree kidnapping. He appeals, claiming his speedy trial rights were violated, the evidence did not support his conviction for kidnapping; the prosecutor committed misconduct; and he was denied effective assistance of counsel. Mr. Rainey also filed additional grounds for review. We affirm.

Shawn and Kimberly Rainey were married and had one daughter, L.R. He verbally abused and threatened Ms. Rainey. She obtained a protection order in March 2004. Despite the order, Mr. Rainey called her 10-15 times a day. He moved into a house on the same street. The couple divorced in May 2004.

Mr. Rainey continued to call and leave messages for Ms. Rainey at home and at work. She eventually contacted the police. On December 3, 2004, the State filed charges against him for harassment and stalking. On December 19, the court issued a no contact order.

In November 2004, Mr. Rainey had stopped returning their child when required to under the parenting plan. In January 2005, L.R. had a scratch on her back. Mr. Rainey took her to the doctor and Child Protective Services (CPS) was called. CPS determined there was no abuse.

Mr. Rainey had also reported to CPS he was concerned about Ms. Rainey's boyfriend, Joe Bernhardt. CPS determined the concern was unfounded. The police also decided there was not enough evidence to find child abuse had occurred.

On March 9, 2005, Mr. Rainey picked up L.R. for visitation and did not return her. On March 11, a warrant was issued for his arrest. On March 29, Mr. Rainey called Ms. Rainey and told her he wanted her to move a thousand miles away, pay his attorney fees, give him custody, and tell the police she knew he had taken L.R. on vacation. When she refused, he told her "happy hunting." Report of Proceedings (RP) at 376. On March 30, 2005, L.R. was found in Texas and Mr. Rainey was arrested. This time, the State charged Mr. Rainey with first degree kidnapping or, in the alternative, first degree custodial interference.

The cases were consolidated for trial. Mr. Rainey testified he took L.R. because he was concerned for her safety. The jury convicted Mr. Rainey of first degree kidnapping and telephone harassment. This appeal follows.

Mr. Rainey contends his speedy trial rights were violated. On December 3, 2004, the State charged him with telephone harassment and stalking. On June 1, 2005, the State charged Mr. Rainey with first degree kidnapping or, in the alternative, first degree custodial interference.

On June 14, 2005, Mr. Rainey appeared for his omnibus hearing on the stalking and harassment charges. The State advised the court of the kidnapping charges and its intention to file a motion to consolidate the cases. The State further informed the court that defense counsel would be unavailable for trial in July and the prosecutor had a preassigned case in August, so trial would need to be scheduled for September 2005. Defense counsel said he had discussed the time frames with the prosecutor and September 19 was an available trial date. The parties then agreed to set trial for September 26 because the fall judicial conference was on September 19. The court told the State to submit an order setting trial on the same date for the kidnapping charges, as well.

The State filed a motion to consolidate the cases for trial. On July 9, 2005, Mr. Rainey wrote the court a letter objecting to the trial date of September 26 on the kidnapping charge. On August 8, 2005, he filed a motion on counsel's letterhead to dismiss the kidnapping charge because of speedy trial violations. The parties appeared in court on September 1 to argue the motions. Mr. Rainey's position was that the omnibus hearing continued trial on the stalking and harassment charges, but not the kidnapping charge. He claimed he did not understand that at the June 14 hearing, the kidnapping charge was also continued. He claimed trial on that charge thus had to be set on or before July 29, 2005.

The State countered that it and defense counsel had numerous conversations and were in agreement about continuing both trials to September 26, 2005. The prosecutor told the court the order of continuance did not get entered because she was unable to get Mr. Rainey's signature. The prosecutor acknowledged she agreed to get the order, but it just did not happen. She stated there was never a disagreement about the trial date. On the other hand, Mr. Rainey argued he had never waived his right to speedy trial on the kidnapping charge. The court denied the motion to dismiss, finding the parties were in agreement and the lack of an order was a scrivener's error. The court also granted the State's motion to consolidate the cases.

The court subsequently granted another continuance of the trial date until October 10, 2005. Mr. Rainey and his counsel objected.

Immediately prior to trial, defense counsel renewed the motion to dismiss for speedy trial violations. The court denied the motion.

For an incarcerated defendant, CrR 3.3 requires the court to set a trial date within 60 days of arraignment. CrR 3.3(b)(1)(i). A party has 10 days from receiving notice of a trial date that is not within the time limits to object. CrR 3.3(d)(3). Without an objection, any speedy trial violation is waived. State v. Farnsworth, 133 Wn. App. 1, 12, 130 P.3d 389 (2006), review denied in part, granted in part on other grounds, 2007 Wash. LEXIS 63 (Jan. 31, 2007).

Mr. Rainey's speedy trial time expired July 29, 2005, for the kidnapping charge. On June 14, 2005, however, the court stated it was continuing the trial date to September 26. Mr. Rainey was present in the courtroom at this hearing. Under CrR 3.3(d)(3), he had until June 24 to object. He failed to do so and any violation was therefore waived.

Mr. Rainey claims he was unaware the court was continuing trial on the kidnapping charge. But on July 9, 2005, he wrote a letter to the judge on this issue. On July 21, the court responded it could not take any action without a motion. He filed a motion on August 8. His own letter establishes that, by July 9, 2005, Mr. Rainey was aware of the September 26 trial date for the kidnapping charge. By July 21, he also knew he needed to file a motion. The August 8 filing date of his motion was more than 10 days after he knew the trial date on the kidnapping charge. Under CrR 3.3(d), (h), any objection was waived.

Mr. Rainey next contends the evidence was insufficient to support the kidnapping conviction. The test for sufficiency of the evidence is whether, after viewing the evidence and all reasonable inferences most favorably to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Atkins, 130 Wn. App. 395, 401-02, 123 P.3d 126 (2005). A claim of insufficiency admits the truth of the State's evidence, and the reviewing court draws all reasonable inferences from the evidence in the State's favor. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the trier of fact to weigh the evidence and judge the credibility of the witnesses. Atkins, 130 Wn. App. at 402.

Mr. Rainey was charged with first degree kidnapping under RCW 9A.40.020(1)(d): "A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent . . . [t]o inflict extreme mental distress on him or a third person." He argues the evidence failed to establish that he acted with the intent to inflict extreme mental distress on a third person.

Mr. Rainey wrote Ms. Rainey letters after his arrest stating that "I hope that the last three weeks has shown you how much pain I have been in for the last year not seeing [L.R.] every day." RP at 943. He also apologized in a letter for the pain he caused Ms. Rainey. He wrote other letters acknowledging that his taking the child hurt Ms. Rainey. He also called her while he had L.R. and demanded she tell police he had taken L.R. on vacation. When she did not agree, Mr. Rainey told her "happy hunting." RP at 376. Since their separation, Mr. Rainey had also harassed and threatened Ms. Rainey. From this evidence, the jury could find beyond a reasonable doubt that Mr. Rainey intended to cause her emotional distress.

He next argues the prosecutor committed misconduct by misrepresenting the facts in both her opening and closing statements. To obtain reversal of a conviction on the basis of prosecutorial misconduct, a defendant must show the prosecutor's conduct was improper and prejudicial. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Absent an objection, a defendant cannot claim prosecutorial misconduct unless the misconduct was so flagrant and ill intentioned that a curative instruction could not have cured any prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). A prosecutor's remarks "must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).

He contends the prosecutor committed misconduct in her opening statement when she stated that his friend would testify Mr. Rainey called and said he was returning to the United States to get some money. Although there was no objection, he argues the evidence did not support this statement. The purpose of an opening statement is to outline the evidence the State intends to introduce. State v. Kroll, 87 Wn.2d 829, 834-35, 558 P.2d 173 (1976). An opening statement should not misstate the evidence to be presented at trial. State v. Torres, 16 Wn. App. 254, 258, 554 P.2d 1069 (1976).

The testimony was not quite as the prosecutor suggested. One of Mr. Rainey's friends, Ed Salazar, did testify that Mr. Rainey called him from Mexico and asked him if he knew anyone who wanted to buy some tools. Mr. Salazar said this caused him to believe Mr. Rainey needed money. An FBI agent testified that another friend had said Mr. Rainey was out of money. When arrested, he only had five dollars. The reasonable inference from this evidence is that Mr. Rainey returned to get money.

Although the testimony was not exactly as characterized by the prosecutor, she did not misstate the evidence to a degree that rises to misconduct. Furthermore, any error could have been cured by an instruction.

Mr. Rainey claims the prosecutor committed misconduct during closing when she again argued he came back to the United States for money. Attorneys have wide latitude during closing argument to draw and express reasonable inferences from the evidence. State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281, review denied, 100 Wn.2d 1008 (1983). As with the statement during opening, the inference was reasonable and any error could have been cured by an instruction. There was no prejudicial misconduct.

The jury was also instructed that attorney remarks were not evidence. Courts generally presume that jurors follow instructions to disregard improper evidence. State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).

Mr. Rainey claims the prosecutor committed misconduct during the sentencing hearing by reiterating that he had not attempted to turn himself in, but came back to the United States only for money. In essence, he attempts to contest his standard range sentence. Generally, a defendant cannot appeal a sentence within the standard range. State v. Osman, 157 Wn.2d 474, 481, 139 P.3d 334 (2006) (citing RCW 9.94A.585(1)). He was so sentenced here.

Mr. Rainey contends counsel was ineffective because his prior relationship with a witness was a conflict of interest. At trial, defense counsel noticed that Mr. Bernhardt, Ms. Rainey's new husband, looked familiar. Counsel learned after the trial had concluded that he had represented Mr. Bernhardt's son in 2001 against a child rape charge. Counsel had not recognized the name, had no contact with Mr. Bernhardt after early 2002, and had no independent recollection of him or the case. Defense counsel informed Mr. Rainey.

After trial, Mr. Rainey obtained different counsel and filed a motion for new trial. Because one of his defenses was that he had taken his daughter out of concern Mr. Bernhardt was abusing her, he argued his trial counsel should have done a more thorough investigation. He argued that if such an investigation had been done, counsel would have discovered the conflict of interest prior to trial. The court denied the motion, finding there was no actual conflict.

A criminal defendant is constitutionally entitled to effective assistance of counsel. U.S. Const. amend. VI; Const. art. I, §§ 22 (amend. 10); Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To obtain reversal on this ground, a defendant bears the burden of showing his attorney's performance fell below an objective standard of reasonableness and the deficiency prejudiced him. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

In determining whether counsel's performance was deficient, there is a strong presumption of adequacy. Id. at 335. Competency is not measured by the result. State v. Early, 70 Wn. App. 452, 461, 853 P.2d 964 (1993), review denied, 123 Wn.2d 1004 (1994). But "counsel has a duty to make reasonable investigations or to make a reasonable decision that particular investigations are unnecessary." In re Pers. Restraint of Rice, 118 Wn.2d 876, 889, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992) (citing Strickland, 466 U.S. at 691). "In an effectiveness case, a particular decision not to investigate must be assessed for reasonableness under all the circumstances." Id.

Trial counsel did have a member of his staff conduct a phone interview with Mr. Bernhardt. A criminal background check was done. Counsel determined Mr. Bernhardt was not a major witness and did not even know if he was going to be called. The record shows counsel made a reasonable investigation. His decision that the witness was not a major one was a tactical decision and cannot support a claim of ineffective assistance.

Mr. Rainey also takes issue with counsel's failure to cross-examine Mr. Bernhardt. A decision not to cross-examine a witness is often tactical because counsel may be concerned about opening the door to damaging rebuttal or counsel may conclude that cross examination would not provide evidence useful to the defense. In re Pers. Restraint of Brown, 143 Wn.2d 431, 451, 21 P.3d 687 (2001) (citing In re Pers. Restraint of Gentry, 137 Wn.2d 378, 404, 972 P.2d 1250 (1999)). Generally, the attorney is in a far better position to assess whether a witness will help or hurt the defendant's case than a reviewing court. See State v. Robinson, 79 Wn. App. 386, 396, 902 P.2d 652 (1995) (citing State v. Piche, 71 Wn.2d 583, 590-91, 430 P.2d 522 (1967), cert. denied, 390 U.S. 912 (1968)).

The trial was lengthy and counsel did not cross-examine several witnesses. At the hearing on the motion for new trial, counsel testified he did not cross-examine Mr. Bernhardt because he knew he would deny Mr. Rainey's allegations and the evidence did not establish any abuse of the child. This was again a tactical decision that cannot support a claim of ineffective assistance.

Mr. Rainey also claims defense counsel's prior relationship with Mr. Bernhardt was a conflict of interest. A defendant asserting a conflict of interest on the part of counsel must show only that a conflict adversely affected the attorney's performance to show a violation of his Sixth Amendment right. State v. Dhaliwal, 150 Wn.2d 559, 571, 79 P.3d 432 (2003). But there is no evidence of adverse performance.

Mr. Rainey claims that because Mr. Bernhardt's son was charged with child rape and was given a sexual offender sentencing alternative, the evidence should have been used at trial to show it was the son who abused his daughter. But Mr. Rainey made no allegations of sexual abuse against the son. There was also no evidence his child ever met Mr. Bernhardt's son. Thus, defense counsel's failure to personally interview Mr. Bernhardt before trial and discover the earlier relationship with his son cannot support an ineffective assistance of counsel claim.

In his additional grounds for review, Mr. Rainey claims the court erred by permitting the State to amend the information after it had rested. We review the trial court's grant of a motion to amend an information for abuse of discretion. Brett, 126 Wn.2d at 155. A trial court may allow the amendment of the information at any time before the verdict as long as the "substantial rights of the defendant are not prejudiced." CrR 2.1(d). Mr. Rainey bears the burden of demonstrating prejudice under CrR 2.1(d). State v. Hakimi, 124 Wn. App. 15, 26-27, 98 P.3d 809 (2004) (citing State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982)), review denied, 154 Wn.2d 1004 (2005).

The second amended information had four charges: stalking, telephone harassment, kidnapping, and custodial interference. The third amended information made the count of custodial interference charge an alternative charge to the kidnapping. All prior informations, however, had consistently listed the custodial interference as an alternative charge. This amendment merely corrected a clerical error. Mr. Rainey has failed to show prejudice. He also claims he was not arraigned on the last information, but the record shows otherwise.

Mr. Rainey argues the court erred by not including an instruction for "extreme mental distress" in its instructions to the jury. We review claims of erroneous jury instructions de novo. The inquiry is whether they are supported by the evidence, allow the parties to argue their theories of the case, are not misleading to the jury, and properly set forth the applicable law. State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005). But Mr. Rainey failed to object. He thus waived any objections to the instructions. See State v. Hickman, 135 Wn.2d 97, 104-05, 954 P.2d 900 (1998).

In any event, the court was not required to define "extreme mental distress" for the jury. Trial courts must define technical words and expressions used in jury instructions, but need not define words and expressions that are of common understanding. State v. Allen, 101 Wn.2d 355, 358, 678 P.2d 798 (1984). When a statute defines a term, the trial court must instruct the jury on that specific legal definition. Id. at 361-62. "Extreme mental distress" does not have a statutory definition. In the absence of a statutory definition, whether a word used in an instruction requires further defining is a matter within the trial court's discretion. See State v. Schimmelpfennig, 92 Wn.2d 95, 100, 594 P.2d 442 (1979). Mr. Rainey has not established an abuse of discretion here.

He further asserts the court erred by imposing a lifetime no contact order with his child in the judgment and sentence. He argues there was no finding the child was his victim. The order was issued pursuant to RCW 10.99.040. RCW 10.99.020(8) defines "victim" as any family or household member who was subjected to domestic violence. RCW 10.99.020(5)(o) defines "kidnapping" as an act of domestic violence. The child was a family member subjected to the act of kidnapping and was thus properly listed as a victim.

Mr. Rainey argues that the court's finding the child was a victim violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because it was a factual finding not made by the jury. But the child was a victim by statute. A factual finding was unnecessary.

Mr. Rainey contends the court erred by excluding evidence Ms. Rainey had been abused and her family covered it up. He argues this made them more likely to cover up the fact the child was being abused. The court excluded this evidence as improper reputation evidence. Mr. Rainey claims a violation of his right to present a defense was violated.

Although a defendant has a constitutional right to obtain witnesses and present a defense, a defendant has no right to the admission of irrelevant evidence. There is no constitutional error if the trial court properly finds that the evidence is irrelevant. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). Relevant evidence is evidence that has any tendency to make the existence of a fact of consequence to the determination of the action more or less probable. ER 401. The abuse Ms. Rainey may have suffered as a child and how her family dealt with it is not relevant. The court properly excluded the evidence.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

SWEENEY, C.J. and BROWN, J. Concur.


Summaries of

State v. Rainey

The Court of Appeals of Washington, Division Three
Mar 22, 2007
137 Wn. App. 1050 (Wash. Ct. App. 2007)
Case details for

State v. Rainey

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. SHAWN CHRISTOPHER RAINEY, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Mar 22, 2007

Citations

137 Wn. App. 1050 (Wash. Ct. App. 2007)
137 Wash. App. 1050

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