Opinion
Nos. 35428-4-II; 35435-7-II.
August 12, 2008.
Appeals from a judgment of the Superior Court for Pierce County, No. 05-1-02771-3, Thomas P. Larkin, J., entered October 6, 2006.
Affirmed in part and remanded by unpublished opinion per Armstrong, J., concurred in by Houghton and Hunt, JJ.
James Erin Reid appeals from convictions of drive-by shooting, second degree assault, intimidation of a witness, delivery of cocaine, and possession with intent to deliver. He asks us to vacate the assault and intimidation convictions, asserting that they violated his double jeopardy rights. He also contends that the State failed to prove that he intimidated a witness. Further, according to Reid, the trial court miscalculated his offender score by not treating the drive-by shooting, assault, and intimidation convictions as the same criminal conduct. Reid also raises several issues in a statement of additional grounds (SAG). Finding no reversible error, we affirm the convictions and remand for resentencing.
FACTS
Christopher Pelt, a confidential informant for the Tacoma Police Department, arranged to buy some crack cocaine from Qudaffi Howell, Reid's co-defendant. Reid and Howell were like brothers and were together a "majority of the time." Report of Proceedings (RP) at 194. On the day of the drug transaction, Reid drove Howell to the meeting place. According to Howell, he and Reid were "working together" to make the sale. RP at 745. Pelt wore a "wire" during the transaction, which the police also videotaped. The police arrested Howell and Reid after the sale and the State charged both with delivery of a controlled substance and possession with intent to deliver.
The trial court released both Howell and Reid on bail two days later. A few days later, they pulled up next to Pelt, who was in his car at a stoplight. Reid was driving. Howell said, "There's that snitch. I'm going to kill that mother f***er" RP at 215. Pelt saw a handgun in Howell's lap, so he "sped off" while Reid and Howell chased him. RP at 215. Eventually Pelt was able to get away.
Three weeks later, Pelt was again in his car at an intersection, this time with his girlfriend's father, Charles Faniel. A white Cavalier driven by Howell's girlfriend, Maria Torres, pulled up; Howell and Reid were passengers. The Cavalier stopped, and Howell waved a gun as if to shoot. Pelt sped off with the Cavalier giving chase for 10 or 13 blocks. Reid knew they were following the "snitch" who had set them up in the drug transaction. Believing that he had lost the Cavalier, Pelt drove to his girlfriend's house. But after Pelt left the car and approached the doorway, Howell and Reid approached in the Cavalier and both began shooting at the house and the cars in front. The incident left bullet holes in the house's fence, kitchen window, and kitchen counter, and bullet fragments on the kitchen floor and stairs. The bullets blew out all the windows in Pelt's car and also damaged nearby cars.
The State charged Reid with two counts of intimidating a witness (one for each incident), two counts of second degree assault (one for each victim of the shooting, Pelt and Faniel), and one count of drive-by shooting. After Reid's case was joined with Howell's for trial, both waived their rights to a jury. The trial court acquitted Reid of intimidating a witness for the first incident and the assault against Faniel, but it convicted him of the original drug charges, one count of assault with a firearm enhancement, one count of intimidating a witness with a firearm enhancement, and one count of drive-by shooting. The court found that Reid was acting both as a principal and as an accomplice during the shooting.
ANALYSIS I. Sufficiency of the Evidence
Reid challenges the sufficiency of the evidence on the intimidating a witness charge, asserting that the State failed to prove that he or Howell threatened Pelt to induce him to absent himself from proceedings. The State charged Reid under RCW 9A.72.110(1)(c), which proscribes the use of a threat against a current or prospective witness in an attempt to induce that witness to absent himself from future proceedings.
We review a defendant's challenge to the sufficiency of the evidence by asking whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Finch, 137 Wn.2d 792, 831, 975 P.2d 967 (1999). In testing the sufficiency of the evidence, we view it in the light most favorable to the State, drawing all reasonable inferences in the State's favor. State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006) (quoting State v. Clark, 143 Wn.2d 731, 769, 24 P.3d 1006 (2001)). We treat circumstantial evidence and direct evidence as equally reliable. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
We recently considered this issue in the context of Howell's appeal, and the facts between the two cases are not meaningfully different. In addition, the trial court explicitly found that Reid knew that they were following the person they believed to be the "snitch" in the drug case and that he intended to scare him. CP at 113-15. It also found that Reid was acting both as a principal and as an accomplice to Howell. Reid does not challenge these findings, so they are verities on appeal. See RAP 10.3(g).
State v. Howell, Nos. 35146-3-II and 35153-6-II, 2008 WL 929162 (Wash.Ct.App. April 8, 2008).
Reid also concedes that Pelt was a "current or prospective witness" under RCW 9A.72.110(3)(b). And the trial court could reasonably find the shooting to be a "threat" under former RCW 9A.04.110(26)(a) (2005), which defines a "threat" as any direct or indirect communication of an intent to cause bodily injury in the future. See also RCW 9A.72.110(3)(a)(ii). Reid suggests that there was no "communication" here because neither Reid nor Howell made a verbal threat, but nothing in either this statute or, as Reid suggests, First Amendment jurisprudence prohibits conduct alone from being a threatening communication. See Virginia v. Black, 538 U.S. 343, 360, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (cross burning can be a true threat).
Another element of intimidation of a witness under RCW 9A.72.110(1)(c) is that the threat was an attempt to induce the witness to absent himself from future proceedings. Here, the trial court explicitly held that "Howell intended to scare Pelt so that Pelt would not appear to testify against Howell and Reid in the drug case." CP at 114. Reid argues that this finding is not supported by substantial evidence.
Reid relies on State v. Jensen, 57 Wn. App. 501, 789 P.2d 722 (1990), aff'd on other grounds by State v. Howe, 116 Wn.2d 466, 805 P.2d 806 (1991), which suggests that the State may not rely on broad inferences to establish an intent to induce the witness not to testify. Jensen held that a threat made in an attempt to induce the witness to "drop the charge or make it a lesser charge" was not sufficient to prove that the defendant did it to induce the witness to absent herself from his future trial. Jensen, 57 Wn. App. at 510 (emphasis omitted). This result was based on State v. Rempel, 114 Wn.2d 77, 83, 785 P.2d 1134 (1990), in which the Supreme Court held that the "literal words" in a request to "drop the charges" were not a request to withhold testimony; rather, they merely "reflect[ed] a lay person's perception that the complaining witness can cause a prosecution to be discontinued." Here, Reid argues, the evidence did not establish that Howell was attempting to induce any future action or inaction from Pelt at all.
The analysis in this case arose under the witness tampering statute, RCW 9A.72.120, but Jensen applied it in the intimidation context. Jensen, 57 Wn. App. at 509-10.
Jensen and Rempel do not control here. In each of those cases, the State was relying on verbal statements the defendant made. And the court was interpreting the meaning of the words. See Rempel, 114 Wn.2d at 83; Jensen, 57 Wn. App. at 510. Here, we have conduct, not verbal statements. The evidence viewed in favor of the State, and largely unrefuted, was that the State had filed drug charges against both Howell and Reid; Howell and Reid had identified Pelt as the "snitch" and had twice encountered him on the street and given chase. Finally, Howell and Reid approached Pelt and both fired numerous rounds at Pelt's car and his girlfriend's residence. The trial court was justified in finding that the shooting was intended to frighten Pelt into not testifying against Howell and Reid.
II. Double Jeopardy
Reid argues that his state and federal rights to be free from double jeopardy were violated by his separate convictions and punishment for drive-by shooting, second degree assault, and intimidation of a witness because they were all based on the same incident. He concludes that because the drive-by shooting conviction results in the highest standard range sentence, we must vacate the other two convictions and remand for resentencing.
Both the United States Constitution and the Washington State Constitution protect a person from twice being placed in jeopardy for the same offense. U.S. Const. amend. V; Wash. Const. art. I, § 9; In re Pers. Restraint of Borrero, 161 Wn.2d 532, 536, 167 P.3d 1106 (2007). Both provisions prohibit multiple punishments imposed for the same act unless the legislature intended to authorize multiple punishments for the crimes in question. State v. Baldwin, 150 Wn.2d 448, 454, 78 P.3d 1005 (2003). Where a defendant is convicted under multiple criminal statutes for the same act, the court must determine whether the legislature intended multiple punishments, first by looking to the language of the statutes and alternatively by employing the "same evidence" test. Borrero, 161 Wn.2d at 536-37 (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). Here, the statutory language does not disclose any legislative intent, so we apply the "same evidence" test — whether the offenses are identical in fact and in law. Borrero, 161 Wn.2d at 537. If each offense contains an element not contained in the other requiring proof of a fact that the other does not, the offenses are not the same. Borrero, 161 Wn.2d at 537.
Reid argues that he committed the same "act or transaction" for each crime: the "accomplice act" of aiding Howell with knowledge that it would promote or facilitate the crime. Br. of Appellant at 29; see RCW 9A.08.020(3)(a). This argument lacks merit for several reasons. First, it is not the fact that multiple convictions arise out of the same "act or transaction" that violates double jeopardy; rather, this circumstance merely triggers the inquiry of comparing the facts the State must prove for each crime. See In re Pers. Restraint of Orange, 152 Wn.2d 795, 817, 100 P.3d 291 (2004). Second, the "accomplice act" to which Reid refers is not the same act where the principal's act constitutes multiple crimes because the knowledge requirement is specific to each crime in which the accomplice participates. See RCW 9A.08.020(3)(a) ("[w]ith knowledge that it [would] promote or facilitate the . . . crime" as opposed to " a crime") (emphasis added). In other words, Reid is responsible for only those crimes that he knew he was facilitating, and the State has the burden to show Reid's knowledge on each count. See State v. Teal, 152 Wn.2d 333, 339, 96 P.3d 974 (2004) ("the elements of a crime are . . . the same for a principal and an accomplice"). Here, the trial court found that the State met this burden for all three crimes.
Furthermore, under the "same evidence" test, the three crimes of drive-by shooting, assault, and intimidation of a witness do not violate double jeopardy because each requires proof of facts that the others do not. See Borrero, 161 Wn.2d at 537. Drive-by shooting requires the discharge of a firearm, which the other crimes do not. RCW 9A.36.045(1). Assault where there is no actual physical touching requires the intent to either commit a battery or create apprehension of harm, which is not required for drive-by shooting or witness intimidation. 13A Seth A. Fine Douglas J. Ende, Washington Practice: Criminal Law § 305, at 42 (2d ed. 1998) And intimidating a witness requires the intent to induce the witness to absent himself from future proceedings, not required by either drive-by shooting or assault. RCW 9A.72.110(1)(c).
While the "threat" element of intimidation may involve the creation of a reasonable apprehension that the perpetrator will cause bodily injury in the future, assault requires that the apprehended harm be imminent. Former RCW 9A.04.110(26)(a); 13A Fine Ende, Washington Practice: Criminal Law § 305, at 42.
Because each crime requires proof of facts not required by the others, Reid's double jeopardy rights were not violated.
III. Sentencing / Same Criminal Conduct
Reid argues that the trial court erred in calculating his offender score because his convictions of intimidating a witness and second degree assault encompass the same criminal conduct: firing multiple shots at Pelt. We review the trial court's decision on this matter for abuse of discretion or misapplication of the law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
This issue is preserved even though Reid's trial counsel merely adopted and incorporated the arguments of Howell's attorney. Consequently, we do not consider Reid's claim of ineffective assistance of counsel for failing to argue the issue himself.
Two or more crimes constitute the same criminal conduct if they victimize the same person, occur at the same time and place, and involve the same criminal intent. RCW 9.94A.589(1)(a). Here, the assault and intimidation crimes occurred at the same time and place and victimized the same person, Pelt, so our inquiry focuses on the extent to which Reid's criminal intent, objectively viewed, changed from one crime to the next. In re Pers. Restraint of Connick, 144 Wn.2d 442, 459, 28 P.3d 729 (2001) (citing State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987)). In considering this, we look at multiple factors: how intimately related the crimes are, whether the criminal objective changed substantially between the crimes, and whether one crime furthered the other. State v. Burns, 114 Wn.2d 314, 318, 788 P.2d 531 (1990).
On the evidence, it is impossible to distinguish any specific shots as having been fired with an intent to assault, as opposed to intimidate, Pelt. See State v. Porter, 133 Wn.2d 177, 184, 942 P.2d 974 (1997) (two counts encompassed "same criminal conduct" because defendant's criminal intent could not be segregated into distinct present and future intents to commit criminal activity) (cited in Haddock, 141 Wn.2d at 113). We therefore cannot presume that Reid's intent changed from one crime to the next. Moreover, the assault furthered Reid's goal of preventing Pelt from testifying. See State v. Anderson, 72 Wn. App. 453, 464, 864 P.2d 1001 (1994) (same criminal conduct where assault furthered separate crime of escape).
The State, citing Haddock, 141 Wn.2d at 114 (quoting State v. Vike, 125 Wn.2d 407, 412, 885 P.2d 824 (1994)), argues that the "furtherance test" does not apply to this case because the crimes occurred "literally at the same time." Br. of Resp't at 20. But Haddock stands for the opposite proposition to that asserted by the State; it states that where multiple crimes were committed simultaneously, the sentencing court may not require that one further the other in order to treat it as same criminal conduct. See Haddock, 141 Wn.2d at 113-14. Here, the same act accomplished both crimes, and one of the crimes was Reid's means of accomplishing the other. We therefore conclude that the trial court misapplied the law by counting Reid's's assault and intimidation convictions separately toward his offender score. We remand for resentencing.
IV. Statement of Additional Grounds (SAG)
In his SAG, Reid presents several grounds for review, but for most of his claims he presents only statements of law without any attempt to apply the law to the facts here. For instance, his first ground states, "'De facto Arrest' not Investigatory questioning," with various case citations afterward. SAG at 1. But he does not identify any evidence that he contends should be suppressed.
RAP 10.10(c) provides:
[T]he appellate court will not consider a defendant/appellant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors. Except as required in cases in which counsel files a motion to withdraw as set forth in RAP 18.3(a)(2), the appellate court is not obligated to search the record in support of claims made in a defendant/appellant's statement of additional grounds for review.
Here, Reid's complete failure to apply his stated legal principles to the facts makes it impossible for us to review his claims.
Reid's final claim is that his speedy trial rights under 18 U.S.C. § 3161 were violated because his trial was held more than 70 days after his arrest. But 18 U.S.C. § 3161 does not apply to state court proceedings, not even "by way of the Fourteenth [A]mendment due process clause." SAG at 5. And the record does not support a constitutional speedy trial challenge because it does not contain the reasons for the delays. Reid's claim therefore fails.
We affirm the convictions and remand for resentencing.
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.
Houghton, P.J. and Hunt, J. concur.